Spence, R.A. v Teece, M.J.

[1982] FCA 126

SPENCE v. TEECE (1982) 61 FLR 68
Administrative Law

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Deane J(1)

CATCHWORDS

Administrative Law - Application for T.E.A.S. benefits refused by "authorized person" - Whether applicant was ineligible for benefits - Refusal reconsidered by "authorized person" and affirmed - Refusal of benefits affirmed by Student Assistance Review Tribunal - Applicant as "aggrieved person" sought review of Tribunal's decision - Whether reg. 34(1)(e) of Student Assistance Regulations 1974 was void as ultra vires - Student Assistance Act 1973 (Cth), ss. 7, 6, 8, 10, 11, 14, 15, 32, 33, 36 - Student Assistance Regulations 1974, Pt III, regs. 29, 34(1)(e) - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 12.

HEADNOTE

The relevant provisions of reg. 34(1) of the Student Assistance Regulations 1974 (the regulations) provided:

"34(1) . . . an applicant who is undertaking, or proposes to undertake, in a period in a year at a tertiary education institution an approved course . . . is not eligible to be granted Assistance in respect of any part of the year -

(e) if he has, before the relevant day -

(i) completed a course of study or instruction that is -

(A) in the case of a course completed in Australia before the commencement of the Act or a course completed elsewhere than in Australia - equivalent to an approved course: or

(B) in the case of a course completed in Australia after the commencement of the Act - an approved course; and

(ii) undertaken, whether in Australia or elsewhere, during a period of not less than 6 months a course of studies for the degree of Master or the degree of Doctor."

In July 1981 the applicant applied to the Commonwealth Department of Education for T.E.A.S. benefits while attending the College of Law in Sydney.

The applicant held degrees for Bachelor of Arts (1973) and Bachelor of Laws (1975) and had been studying part-time for a Master of Laws degree from 1979 to 1981. The application was refused by an "authorized person" who was appointed by the Minister for Education pursuant to s. 6 of the Student Assistance Act 1973 (Cth) (the Act).

The authorized person gave as the reason for refusal of the benefits that the applicant was ineligible pursuant to the provisions of reg. 34(1)(e) of the regulations.

Following the applicant's request, the authorized person reconsidered the application and affirmed his decision to refuse the benefits whereupon the student appealed to the Student Assistance Review Tribunal (the Tribunal). The Tribunal affirmed the decision of the authorized person, whereupon the applicant sought an order of review of the Tribunal's decision, as a "person aggrieved" under s. 5 of the Administrative Decisions (Judicial Review) Act 1977.

The applicant contended that reg. 34(1)(e) was void as being ultra vires the regulation-making power conferred by s. 36 of the Act.

Held: (1) The provisions of reg. 34(1)(e) were within the ambit of the regulation-making power conferred by s. 36 of the Act.

(2) Accordingly, the application for review would be dismissed. Morton v. Union Steamship Company of New Zealand Ltd. (1951), 83 CLR 402; Shanahan v. Scott (1957), 96 CLR 245, referred to.

(3) Per Deane J. - ". . . the Act lays down only the main outlines of policy and it indicates, in many places, an intention of leaving it to the Govenor-General to work out that policy by specific regulation."

(4) Per Deane J. - "The overall scheme of the Act . . . and the express provision in ss. 7, 10 and 14 that any grant of benefits is to be 'subject to and in accordance with the regulations' lead, in my view . . . to the conclusion that the specification in the regulations of qualifications and disqualifications for benefits . . . does not involve an extension 'of the scope or general operation' of the Act but is 'strictly ancillary'."

HEARING

SYDNEY, 1982, June 17; July 2, 7. #DATE 7:7:1982

ORDER OF REVIEW.

The facts appear in the judgment.

G. R. James, for the applicant.

P. Flemming, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Court & Associates.

Solicitor for the respondents: B.J. O'Donovan, Commonwealth Crown Solicitor.

J.D. WHITEHEAD

JUDGE1

JULY 7.

DEANE J. delivered the following written judgment.

In 1981 the applicant undertook the practical legal training course at the College of Law in Sydney. While attending the college, he became aware that some of his fellow students were receiving Tertiary Education Assistance Scheme (T.E.A.S.) benefits under the Student Assistance Act 1973 (Cth) (the Act). In July 1981 the applicant applied to the Commonwealth Department of Education to be granted T.E.A.S. benefits. His application was refused by Mr. G. L. Taggart who is an "authorized person" appointed pursuant to s. 6 of the Act. (at p69)

1. The legislative scheme pursuant to which T.E.A.S. benefits are payable is to be found in the Act and the Student Assistance Regulations 1974 (the regulations) made thereunder. Under s. 10 of the Act, a person may be granted benefits by an authorized person, "subject to and in accordance with the regulations", if he or she is an Australian citizen or a permanent resident of Australia and is undertaking, or proposes to undertake, at a tertiary education institution a course of study or instruction approved by the Minister for the purposes of the section. The Minister for Education has, for the purposes of s. 10, approved all undergraduate bachelor and postgraduate bachelor degree courses at universities. He has also, for such purposes, approved the practical legal training course at the College of Law. (at p70)

2. In 1973 the applicant completed a Bachelor of Arts degree at the University of Sydney. In 1975 he completed a post-graduate Bachelor of Laws degree at the University of New South Wales. From 1979 to 1981 he was enrolled and studied part-time in a Master of Laws course at the University of Sydney. (at p70)

3. The reason given by the "authorized person" for the refusal of the applicant's application for T.E.A.S. benefits was that the applicant was, in the circumstances, ineligible to be granted such benefits by reason of the provisions of reg. 34(1)(e) of the regulations. The applicant requested that the "authorized person" reconsider his decision. The decision was confirmed. The applicant appealed to the Student Assistance Review Tribunal. The Tribunal rejected a number of submissions advanced by the applicant as to the suggested invalidity of reg. 34(1)(e) and as to its suggested inapplicability, in any event, to him and affirmed the decision of the "authorized person". The applicant seeks a review of the Tribunal's decision pursuant to the provisions of s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The named respondents to the application were the members of the Tribunal who have submitted to the order of the court. The case against the applicant has been presented by the Commonwealth which was added as a respondent pursuant to the provisions of s. 12 of the last-mentioned Act. (at p70)

4. Regulation 34(1) is in Pt III of the regulations. It has been amended many times since 1974. In 1981 cl. (e) of reg. 34(1) provided:
   

"34(1) . . . an applicant who is undertaking, or proposes to undertake, in a period in a year at a tertiary education institution an approved course (including an approved course that is the combination of two courses each of which is also an approved course) is not eligible to be granted Assistance in respect of any part of the year - . . .

(e) if he has, before the relevant day -

(i) completed a course of study or instruction that is -

(A) in the case of a course completed in Australia before the commencement of the Act or a course completed elsewhere than in Australia - equivalent to an approved course; or

(B) in the case of a course completed in Australia after the commencement of the Act - an approved course; and

(ii) undertaken, whether in Australia or elsewhere, during a period of not less than 6 months a course of studies for the degree of Master or the degree of Doctor." (at p71)

1. Regulation 29 provides, that for the purposes of Pt III of the regulations, an "approved course" means a course of study or instruction approved by the Minister for the purposes of s. 10 of the Act. (at p71)

1. It is not presently disputed by the applicant that, before he applied for T.E.A.S. benefits and after the commencement of the Act, he had completed in Australia an approved course and undertaken during a period of not less than six months a course of studies for the degree of Master. It follows that, if they be valid, the provisions of reg. 34(1)(e) rendered the applicant ineligible for T.E.A.S. benefits. The basis on which the applicant attacks the decision of the Tribunal confirming his ineligibility for T.E.A.S. benefits is a submission that reg. 34(1)(e) is void as being ultra vires the regulation-making power conferred by the Act. To understand the argument advanced on behalf of the applicant in that regard, one needs to examine the interaction of the provisions of ss. 7, 10, 14 and 36 in the context of the general scheme of the Act. (at p71)

2. The Act makes provision for the payment of three separate types of benefits to students. Part II provides for the grant of "Senior Secondary Scholarships" to full-time students at secondary schools. Part III provides for the grant of T.E.A.S. benefits. Part IV provides for the grant of "Post-graduate Awards" to full-time post-graduate students at universities and advanced education institutions. The three sections (ss. 7, 10 and 14) providing for approval of a grant of the relevant benefits are in similar terms. Each provides that "an authorized person may, subject to and in accordance with the regulations" approve the grant of the relevant benefit to an Australian citizen or a permanent resident of Australia who is undertaking, or proposes to undertake, at the appropriate type of institution, a course of the designated type. In the case of each section, the level of the relevant course (s. 7) or the course itself (ss. 10 and 14) must be "approved by the Minister for the purposes" of the section. Section 6 of the Act provides for appointment, by the Minister, of persons to be authorized persons and that an authorized person is, in the exercise of his powers and the performance of his functions under the Act, subject to the directions of the Minister. (at p71)

3. The general regulation-making power under the Act is contained in s. 36 which provides:
   

"36. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which, by this Act, are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular -

(a) making provision for and in relation to the furnishing of information by applicants for student assistance under this Act and by persons to whom student assistance to which this Act applies has been granted;

(b) making provision for and in relation to the practice and procedure of Student Assistance Review Tribunals, including provision for and in relation to the giving of evidence before, and the production of documents and articles to, a Tribunal, and the summoning of persons to appear before a Tribunal to give evidence and to produce documents and articles; and

(c) prescribing penalties, by way of fines not exceeding $100 for offences against the regulations." (at p72)

1. It is common ground between the parties that the subject matter of reg. 34(1)(e) is not within the terms of cll. (a), (b) or (c) of s. 36. Nor is there any other provision in the Act expressly conferring upon the Governor-General the power to make regulations upon that subject matter. The question which lies at the heart of the issue as to the validity of the provisions of reg. 34(1)(e) is whether they were authorized by the general power with which s. 36 begins, namely, the power to make regulations, not inconsistent with the Act, prescribing all matters which, by the Act, are "required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to" the Act. The ambit of a statutory regulation-making power conferred in those or similar terms has been considered by the High Court in numerous cases. It suffices, for present purposes, to refer to what was said in two of them. (at p72)

1. In Morton v. Union Steamship Company of New Zealand Ltd. (1951) 83 CLR 402 the Full High Court (Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ.) considered the scope of a power to make regulations in terms corresponding to the general power contained in s. 36. Their Honours said:
   

"A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned. "In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s. 164 cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way" (1951) 83 C.L.R., at p. 410 . (at p73)

1. In Shanahan v. Scott (1957) 96 CLR 245 Dixon C.J., Williams, Webb and Fullagar JJ. referred, in similar terms, to the ambit of a general statutory regulation-making power worded in such terms. Their Honours said:

"The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends" (1957) 96 C.L.R., at p. 250. (at p73)

1. Examination of the provisions of the Act discloses that, to adopt the words used in the above passage from Morton's case the Act lays down only the main outlines of policy and indicates, in many places, an intention of leaving it to the Governor-General to work out that policy by specific regulation. Thus, s. 5 of the Act makes clear a legislative intent that "the regulations" will establish what are, for the purposes of the Act, an "advanced education institution", a "fulltime student", a "permanent resident of Australia", a "secondary school", a "technical college", a "tertiary education institution" and a "university". Sections 8, 11 and 15 provide that the amounts or rates of benefits paid under the Act are such as are "payable under the regulations", "determined in accordance with the regulations" or as are "prescribed". Section 33 provides that the regulations may make provision for or in relation to the suspension and termination of student assistance under the Act. (at p73)

1. None of s. 7, s. 10 or s. 14 provides any real guidelines as to the basis on which the relevant benefits are to be awarded. Each section restricts the grant of the relevant benefits to a person who is an Australian citizen or a permanent resident of Australia and requires that the person must be undertaking or proposing to undertake the relevant type of study. Otherwise, neither the sections nor the Act provides express guidance as to what academic or other qualifications or degree of financial need is requisite or relevant in determining whether benefits should be granted. Again, neither the sections nor the Act contains any express guidance as to criteria for deciding between the competing claims of applicants who satisfy the basic requirements of the sections. Unless every citizen or permanent resident of Australia who undertakes or proposes to undertake a relevant course is to be furnished with benefits, it is plainly necessary or convenient for carrying out or giving effect to the Act that authorized persons be provided with some general guidance as to requisite or relevant qualifications and needs and as to relevant discriminatory criteria. Indeed, the alternative to such guidance would appear to be inconsistency, arbitrary decision and chaos. (at p74)

2. Mr. James, who appeared for the applicant, was not concerned to question the desirability of general directions as to qualifications, needs and criteria. The submission advanced was that consideration of the Act as a whole and the provisions of ss. 7, 10, 14 and 36 in particular, leads to a conclusion that the specification of such qualifications, needs and criteria has been left by the Act to the Minister acting administratively as distinct from the Governor-General in Council. This, it was argued, had the advantage of permitting a degree of desirable flexibility. In support of this approach, reference was made to a number of sections in the Act in which functions are specifically entrusted to the Minister (for example, approval of a course or level of study under ss. 7, 10 and 14 and the determination of times and manner of payment of benefits under s. 32). (at p74)

3. While I am not unappreciative of the force of the applicant's argument, I am of the view that it should not be accepted. The overall scheme of the Act with its clear recognition that the detailed operation of the scheme which it introduced was to be worked out by "the regulations" and the express provision in ss. 7, 10 and 14 that any grant of benefits is to be "subject to and in accordance with the regulations" lead, in my view, to the conclusion that the specification in the regulations of qualifications and disqualifications for benefits under the Act is, within the meaning of s. 36, convenient for carrying out or giving effect to the Act. The specification of such qualifications and disqualifications does not involve any extension "of the scope or general operation" of the Act but is "strictly ancillary". In my view, the provisions of reg. 34(1)(e) are within the ambit of the regulation-making power conferred by s. 36. It follows that the application for review must be dismissed. (at p74)

4. It should be mentioned that it was argued, on behalf of the applicant, that considerations of, inter alia, reasonableness and convenience raised the presumption that it was the legislative intent that general conditions of eligibility for benefits should be laid down by the Minister and not by the Governor-General in Council. In my view, that is not so. It seems to me that such considerations support a construction of the Act which attracts the safeguards of the regulation-making process to the specification of such general conditions of eligibility. (at p74)

1. There remains for consideration the question of costs. As has been indicated, the members of the Tribunal, who were named as respondents in the application, have submitted to the order of the court. The case against the applicant has been presented by the Commonwealth which was, on its application, added as a party to the proceedings. Counsel for the applicant expressly informed the court that his client did not seek any order for costs against the Commonwealth or the submitting respondents in the event that the application succeeded. The argument advanced on behalf of the applicant was not without weight and the question involved in the application is plainly one of general importance. With considerable doubt, I have come to the view that it is inappropriate, in all the circumstances, to order that the applicant pay the Commonwealth's costs of the application. The only order for costs will be that the applicant pay the costs of the personal respondents as of a submitting appearance. (at p75)

ORDER

Application dismissed.