The Uniting Church on Australian Property Trust (Vic) v The Honourable Dawkins, J.S
[1990] FCA 82
•14 MARCH 1990
Re: THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA)
And: THE HONOURABLE JOHN SIDNEY DAWKINS (who is sued as the Minister of State
for Employment, Education and Training) and KEVIN JAMES BATT (who is sued as a
Delegate of the Commonwealth Minister of State for Employment, Education and
Training)
No. V G181 of 1989
FED No. 82
Education
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)
CATCHWORDS
Education - Schools - Independent schools - Financial aid by Commonwealth government by way of State grants - Amalgamation of schools - Funding level after amalgamation.
State Grants (Schools Assistance) Act 1984
State Grants (Schools Assistance) Act 1988
Santa Sabina College v. Minister for Education(1985) 58 ALR 527
HEARING
MELBOURNE
#DATE 14:3:1990
Counsel for the Applicant : Mr. B. F. Monotti
Counsel for the Respondent : Mr. J. Lenczner
Solicitor for the Applicant : Pearce & Webster
Solicitor for the Respondent : Australian Government Solicitor
ORDER
The application be dismissed.
The Applicant pay the Respondents' costs of the application.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules).
JUDGE1
Application for an order of review in respect of decisions made by the secondnamed respondent as a delegate of the firstnamed respondent.
The decisions were made in April 1989 in the course of administration of the legislation under which financial assistance is granted by the Commonwealth Parliament to the States and the Northern Territory for the recurrent expenditure of schools. At relevant times the legislative scheme, in its application in relation to "non-government" schools, has afforded the Commonwealth Minister of State administering the scheme ("the Minister") a power to authorise the payment of money to a State, by way of financial assistance to the State for recurrent expenditure of a school, or of a group of schools, in that State in respect of a calendar year. Such a grant of financial assistance to a State is subject to conditions prescribed by, or under, the legislation. In the case of assistance in respect of recurrent expenditure of a school, as distinct from a group of schools, the grant is on the condition that the State will pay to a "person or body" designated by the Minister in relation to the school the amount paid to the State in relation to the school. The authority conferred on the Minister is limited in amount by reference to a statutory formula. The formula limits the Minister's authority by reference to the number of students receiving primary and secondary education at the school and a specified sum of money in respect of each of those two classes of students. Each school is to be assigned by the Minister one of 12 funding levels in respect of the school's provision of primary education and one of 12 funding levels in respect of the school's provision of secondary education. Each of the 24 levels is legislatively assigned a monetary value. The value for the secondary funding level assigned by the Minister to the school is multiplied by the number of students receiving secondary education at the school and the value for the primary funding level assigned to the school is multiplied by the number of students receiving primary education at the school and the aggregate of the products of the multiplications is the amount at or below which the Minister may grant financial assistance in respect of that school.
The applicant is a body corporate in which have been vested at material times the lands on which have been conducted two schools, Wesley College and Cato College. At material times before 1 January 1989 each school was managed by a council, of which the members were appointed by The Uniting Church in Australia Synod of Victoria, by which the applicant was, as I infer, controlled. Wesley College was until 1 January 1989 situated on land in Prahran and on land in Glen Waverley. Until that date Cato College was situated on land in Elsternwick. On and after that date use of the name Cato College was abandoned, the council by which Cato College had been managed relinquished authority over that institution, the council of Wesley College assumed authority to manage that institution, the land and buildings at Elsternwick were treated as one of the sites on which Wesley College was conducted, and the students and staff who used that site became students and staff respectively of Wesley College. All this happened by agreement between the two councils and the Uniting Church in Australia Synod of Victoria and the applicant.
In 1987 s.7A(1)(b)(i) of the States Grants (Schools Assistance) Act 1984, in which was then principally expressed the legislative scheme to which I have referred, provided that where it was proposed, "in relation to a non-systemic school, to initiate, at any time during the year 1987 or a subsequent year a change consisting of the amalgamation of the school with another school or other schools, the approved authority" should inform the Minister of the proposed change. The expression "non-systemic school" is defined in that Act to mean, unless the contrary intention appears,
"a non-government primary school, or a non-government secondary school -
(a) that is not included in an approved school system; and
(b) that is included in the list of non-systemic schools, in so far as the school provides education at the location or locations, and at the level or levels of education, in respect of which it is included in that list."
The expression "approved school system" is defined to mean a school system in a State or part of a State that consists of non-government schools and that the Minister declares to be an approved school system for the purposes of the Act. Neither Wesley College nor Cato College was at any material time included in such a system. The expression "approved authority" is used in the legislation discussed in these reasons to signify the "person or body" designated by the Minister as him to whom the State will make payment of financial assistance for the school. At all material times before 28 April 1989 the approved authority in respect of Wesley College was David Harris Prest, the headmaster, and Robert Renton was at material times the approved authority in respect of Cato College, of which he was the headmaster until 1 January 1989. The "list of non-systemic schools" to which reference is made in the definition of "non-systemic school" is a list of schools, in force for the purposes of the States Grants (Schools Assistance) Act 1983 immediately before the day on which the States Grants (Schools Assistance) Act 1984 received the Royal Assent, as varied thereafter by the Minister in exercise of powers conferred on him by s.7, and by other provisions, of the latter Act. Both Wesley College and Cato College were on the list of non-systemic schools when that Act received the Royal Assent. In February 1987 the Minister was informed of the proposed amalgamation and by an instrument in writing dated 17 June 1987 a delegate of the Minister gave to that proposed change the provisional approval of the Minister for which s.7A(3)(a) provides. Sub-section 7A(13) provided that where a person or body that is principally responsible for the control of an existing school that is included in the list of non-systemic schools but that is not included in so far as it provides education at a particular location, being a location at which the school is providing education, seeks the provision of financial assistance from the Commonwealth commencing in 1986 or a subsequent year in respect of the school in its provision of education at that location, and where another presently immaterial condition is fulfilled, the person or body may make application to the Minister for the provision of such financial assistance commencing during that year and request the Minister to provisionally approve the inclusion of the school in so far as it provides education at that location in the list of non-systemic schools "as in force for the purposes of the Act or of any subsequent schools assistance Act in force at the time when the proposed financial assistance would commence to be provided." (The use of the expression "person or body principally responsible for the control", rather than "approved authority", was required because the provisions of the sub-section comprehended new schools as well as schools of the kind I am now discussing.) The expression "subsequent schools assistance Act" was defined to mean an Act that comes into operation after the date on which the States Grants (Schools Assistance) Act 1984 received the Royal Assent and that makes provision for the granting of financial assistance to the States and to the Northern Territory for and in relation to schools in respect of a matter or matters corresponding, or substantially corresponding, to a matter or matters in respect of which financial assistance may be provided under the States Grants (Schools Assistance) Act 1984. Sub-section 7A(14) empowered the Minister, upon receipt of such an application and request as the preceding sub-section contemplated, to "provisionally approve, in writing, the inclusion of the school ... in so far as it provides, or proposes to provide, education at the ..... location, in the list of non-systemic schools". The instrument in writing dated 17 June 1987 was expressed thus:
"I, Diana Carol Mildern, exercising delegation for the Minister of State for Education, being satisfied that the schools' proposed changes do not involve a significant increase in, or alteration to the schools' clientele, do hereby in accordance with Section 7A(3) of the States Grants (Schools Assistance) Act 1984, provisionally approve the changes in operation of the schools listed and their inclusion in the list of non-systemic schools for general recurrent funding in respect of students at the levels of education and locations as listed with effect from 1 January 1989."
The word "listed" in the instrument is a reference to the contents of a sheet of paper annexed to the instrument. Under headings "School Name", "Location(s)" and "Maximum Enrolments" are listed on that sheet the names of several schools, of which one is Wesley College, and opposite each of which are stated, under the appropriate headings, one or more postal addresses and numbers and symbols which disclose information of the kind which the last of the three headings suggests. Those of the contents of the sheet of paper which relate to Wesley College read:
"Wesley College (i) 577 St. Kilda Road P:720 Prahran Vic 3181 JS:1345
(ii) 620 High Street SS:645 Road Glen Waverley Vic 3150
(iii) 5 Gladstone Parade Elsternwick Vic 3184"
The third postal address was at the time the instrument was made and thereafter until 1 January 1989 the address of Cato College. The attached sheet of paper makes no reference to Cato College. Although there is no reference in the instrument to s.7A(13) or s.7A(14), the second of the two objects of the verb "approve" in the instrument may have been included in exercise of the power conferred by s.7A(14). No such a power of approval is in terms conferred by s.7A(3). Section 29, by which the Minister is empowered to authorize financial assistance to a State or the Northern Territory in respect of recurrent expenditure of a non-systemic school in respect of a year, was expressed to apply to the years 1985, 1986, 1987 and 1988. But, as has been seen, s.7A(13) contemplates a request for provisional approval for the purposes of any subsequent schools assistance Act. Sub-section 7B(1) of the States Grants (Schools Assistance) Act 1984 ("the 1984 Act") empowered the Minister, where he had provisionally approved under s.7A(3)(a) a proposed change consisting of the amalgamation of a school with another school, to vary the list of non-systemic schools, in a case where no maximum number of students was specified in the list opposite to the name of the school or opposite to the name of a location in respect of which the school was included in the list, by specifying in the list opposite to the name of the school or location, as the case might be, a maximum number of students. Sections 29A and 29B restricted the number of each of three categories of students - primary, junior secondary and senior secondary - which might be regarded for the purposes of s.29 as the number receiving education by reference to these listed maxima. It may be that what appears under the heading "Maximum Enrolments" on the sheet attached to the instrument dated 17 June 1987 is an exercise of that power. It was stated by an officer of the Minister's Department of Employment Education and Training in a minute dated 28 April 1989 that on 10 July 1987 a delegate of the Minister had exercised the power conferred by s.7B(1) in relation to Wesley College. The numbers given in that minute include 640 for senior secondary students, but otherwise agree with the aggregate numbers on the sheet.
The amalgamation having occurred on 1 January 1989, the States Grants (Schools Assistance) Act 1988 ("the 1988 Act") commenced on 6 January 1989. The 1988 Act is in my opinion "a subsequent schools assistance Act" within the meaning of that expression in the 1984 Act. It empowers the Minister to authorise, inter alia, the payment to a State or the Northern Territory of amounts, not exceeding sums calculated by means of formulae similar to those prescribed by the 1984 Act, by way of financial assistance to the State or Territory for recurrent expenditure of non-systemic schools in the State or Territory in respect of each of the calendar years 1989, 1990, 1991 and 1992.
Section 6 of the 1988 Act requires the Minister to maintain a list of non-government schools, one part of which is required to relate to non-systemic schools, in respect of which financial assistance is provided under the Act. Sub-section 6(4)(b) requires that the list contain the schools included in the list of non-systemic schools in force under the 1984 Act immediately before 6 January 1989. In that section and elsewhere in the Act various powers are conferred, and duties and restrictions imposed, on the Minister in relation to his maintenance of the list. By s.6(10) the Minister is empowered to vary the list to "make alterations of a formal kind, including the removal from the list of a school that has ceased to exist." Sub-section 6(5) provides:
"The Minister may, having regard to any significant change in the need of a non-systemic school for financial assistance for recurrent expenditure of the school, by determination in writing, vary the list by specifying a different funding level of the school".
I set out several provisions of sections 8 and 9 :
"8(2)This section applies to a change as a result of which a systemic school or a non-systemic school will:
(a) change its location;
(b) provide a new level of education at a location at which the school already provides education;
(c) amalgamate with another school that is included in the list;
(d) separate into 2 or more schools;
(e) change from a single sex school to a co-education school or from a co-education school to a single sex school;
(f) change from a day school to a boarding schol or to a day and boarding school;
(g) change from a boarding school to a day school or to a day and boarding school;
(h) change from a day and boarding school to a day school or to a boarding school;
(j) become included in the list in respect of an additional level of education in respect of which the school is already providing education; or
(k) become included in the list in so far as it provides education at an additional location, being a location at which the school is already providing education.
(3) This section applies to a proposal under which the approved authority of an approved school system or of a non-systemic school seeks to have the list changed so that:
(a) a new school, or an existing school that is not included in the list, becomes included in the list; or
(b) the list recognises the amalgamation of a school that is included in the list with a school that is not included in the list.
(4) Where the approved authority of an approved school system or of a non-systemic school proposes to make a change referred to in subsection
(2), or makes a proposal referred to in subsection (3), the authority shall give to the Minister, not later than 2 years, or such shorter period as the Minister, in special circumstances, may have allowed (in this section called the 'notification period'), before 1 March in the year in which the change is intended to occur or the proposal is intended to take effect, a notice in writing:
(a) setting out particulars of the proposed change or proposal in accordance with a form approved in writing by the Minister; and
(b) requestng the Minister to give provisional approval to the proposed change or proposal.
(5) Where:
(a) the approved authority of an approved school system or of a non-systemic school has notified the Minister (whether under this Act or the former Act) of a proposed change referred to in subsection (2) in the manner specified in subsection (4); and
(b) the Minister is satisfied that the clientele of the school after the change will not be significantly different to the clientele of the school before the change; the Minister shall give provisional approval to the change. ........ ........ .....
(10) Subject to subsection (11), where:
(a) the approved authority of an approved school system or of a non-systemic school makes a change referred to in subsection (2) in relation to a school;
(b) the Minister has given provisional approval to the change;
(c) the change is recognised by the State Minister of the State in which the school is situated;
(d) if paragraph (7)(c) or (d) is applicable-the school or schools that emerge from the change have a number of students enrolled at the relevant level that is not fewer than the number referred to in that paragraph; and
(e) if the change consists of the amalgamation of a school with another school or the separation of a school into 2 or more schools - the school or schools that emerge from the change are not conducted for profit;
the Minister shall, by determination in writing, vary the list to take account of the change.
........ ........ .......
(14) Where the Minister varies the list to take account of a change of the kind referred to in paragraph (2)(c) or (d) or of the change involved in a proposal to which this section applies by including in the list a non-systemic school, or a non-systemic school in so far as it provides education at a particular level or location, the Minister shall, having regard to the need of the school for financial assistance, determine in writing the funding level of the school and include in the list the level so determined. ........ ........ .......
(21) A determination under this section may be expressed to take effect from a day before the day on which the determination was made. ........ ........ ...... 9(1) Where the Minister varies the list under subsection 8(10) or (12) in relation to a school, the Minister may, by determination in writing, vary the list by:
(a) specifying in the list in relation to the school or to a location in respect of which the school is included in the list a maximum number of students eligible for general recurrent funding; or
(b) if such a maximum number is already specified in the list - varying that number. ........ ........ ........
(4) A variation of the list under this section may be expressed to take effect from a day before the day on which the determination was made."
The second respondent made the following determination in writing dated 28 April 1989:
"COMMONWEALTH OF AUSTRALIA STATES GRANTS (SCHOOLS ASSISTANCE) ACT 1988 AMALGAMATION 1989 I, KEVIN JAMES BATT, delegate of the Minister of State for Employment, Education and Training, acting under Sections 8(10), 8(14) and 9(1) of the States Grants (Schools Assitance) Act 1988, determine that the list of non-systemic schools be varied as below to take account of the amalgamation of Wesley College, Prahran and Glen Waverley, and Cato College, Elsternwick, for the levels of education and the maximum numbers of students specified for each location, with effect from 1 January 1989. Victoria
VARIATION FROM School Level of Maximum number Education of students Non-systemic
Level of Assistance -Category 3 784
(Day school, Co-educational) Cato College Years K-12 not specified 5 Gladstone Pde
ELSTERNWICK 3184
Non-systemic
Level of Assistance -Category 1 1295
(Day school, Co-educational) Wesley College Years K-12 not specified 577 St. Kilda Rd
PRAHRAN 3181
and
620 High Street Rd Years K-10 not specified GLEN WAVERLEY 3150
TO School Level of Maximum number Education of students Non-systemic
Level of Assistance - Category 1 10940
(Day school - Co-educational) Wesley College
577 St. Kild Rd Years K-12 P: 100 PRAHRAN 3181 JS: 520 SS: 640 and
620 High Street Rd Years K-10 P: 420 GLEN WAVERLEY 3150 JS: 625 and
5 Gladstone Pde YEARS K-10 P: 200 ELSTERNWICK 3184 JS: 200"
The decisions made by the second respondent ("Dr. Batt") in making that determination are the decisions in respect of which the applicant seeks orders of review. The evidence justifies the inferred finding that on 28 April 1989 Dr. Batt also made, as the Minister's delegate, by a determination in writing, a declaration that in relation to Wesley College the applicant is the "approved authority", within the meaning given that expression by S.3(1) of the 1988 Act. But no order of review is sought in respect of the decision to make the latter determination. The circumstances by reason of which the applicant falls within the class of persons aggrieved, on whom the Administrative Decisions (Judicial Review) Act 1977 confers the right to apply for an order of review, are disclosed by the references in the determination I have set out to "Level of Assistance - Category 3" and "Level of Assistance - Category 1". These are references to what I have previously called funding levels. The lower the numeral designating the category, the lower the monetary sum for use in the formulae by means of which is calculated the maximum amount, payment of which the Minister is empowered to authorise. It will be seen that, whereas Cato College had enjoyed a level of assistance called Category 3, the school that emerged from the change (to adopt the language of S.8(10)(e)) was assigned a level of assistance called Category 1, which was the level of assistance assigned to Wesley College before the determination was made.
One of the grounds on which Dr. Batt's decisions were said to be subject to review was that on its proper construction S.8 of the 1988 Act did not apply to the change in relation to which Dr. Batt had purported to make the determination. That was so, according to Mr. Monotti of counsel for the applicant, because the amalgamation of Wesley College with Cato College had been effected on 1 January 1989, before the commencement of the 1988 Act, and sub-section 8(2) of the 1988 Act made that section applicable only to "a change as a result of which a non-systemic school will", that is, according to the submission, in the future as conceived on 6 January 1989 when the 1988 Act commenced, "amalgamate with another school."
To the objection that the 1984 Act afforded the Minister powers similar to those which were conferred by the 1988 Act and which Dr. Batt had purported to exercise, Mr. Monotti submitted that the 1984 Act contemplated as within the meaning of the word "school" in that Act an entity such as Cato College was on and after 1 January 1989, that is to say an entity recognised as a school by reason of its continuing inclusion in the list of non-systemic schools, and an entity capable, on and after 1 January 1989 as before, of being the subject of financial assistance as a school under that Act or a subsequent schools assistance Act notwithstanding the occurrence on 1 January 1989 of the several events which may conveniently be described as the amalgamation of Wesley College with Cato College.
I cannot accept the submission. It is true, I think, to say of the 1984 Act what Beaumont J. said, in Santa Sabina College v Minister for Education (1985) 58 A.L.R. 527 at 537, of the States Grants (Schools Assistance) Act 1983:
"For one thing, the Act, read as a whole, comes to schools, as institutions, as it finds them. The statute, in the exercise of the power conferred upon the Commonwealth Parliament by s 96 of the Constitution to grant financial assistance to the States, makes no attempt to change the legal or financial character of the schools to which it applies. Even if the Commonwealth had the constitutional power to effect any such change, a doubtful matter except perhaps by the imposition of a term or condition to that effect, none is here suggested (cf Attorney-General (Vic) (Ex rel Black) v Commonwealth of Australia
(1981)33 ALR 321 at 330-1; 146 CLR 559 at 584). The Act merely defines 'school' in s 3(1) as including certain institutions and excluding other bodies not presently material. No attempt is made to define exhaustively or with any precision what a 'school' is. The inference clearly is that the Act comes to the schools in Australia as it finds them both in terms of formal character and financial structure."
The 1984 Act in my opinion makes quite clear that, where an institution, engaged in the provision of primary and secondary education or of one or the other kind of education, carries on educational activity at several places, the institution is to be treated for the purposes of that Act as one school: see ss. 7A(13), 7A(14), 7A(18), 7B(1), 29, 29B. Whatever the list of non-systemic schools contained on and after 1 January 1989, there was in my opinion no longer in existence on that date anything circumscribed in activity by the boundaries of the land in Elsternwick which could be regarded as a "school" within the meaning of that word in the 1984 Act.
In my opinion the same conclusion must be reached in respect of the 1988 Act. Mr. Monotti pointed out that on and after 6 January 1989 until 28 April 1989 the list of non-systemic schools contained Cato College, eo nomine. That was so, in Mr. Monotti's submission, not only as a fact, but also as a matter of law, by force of s.6(4)(b) of the 1988 Act. That being so, and s.8 not applying to the change which had preceded the commencement of the 1988 Act, the Minister was in Mr. Monotti's submission free to leave the list unvaried. Unless moved to vary the list by reason of a consideration such as sub-section 6(5) propounds, the Minister should in Mr. Monotti's submission have left the list unvaried. If he had, the submission concluded, the entity identified in the list of non-systemic schools as Cato College would, on the proper construction of the 1988 Act, have been comprehended by the word "school" in that Act, and in particular by that word in s.22(1) of the Act, wherein the Minister's power to authorise payments is circumscribed by the formulae to which I have referred. But there is in my opinion no indication in the 1988 Act that the presence of a name in the list which s.6 requires the Minister to maintian is to be taken to signify that an entity with which the name is or has been associated shall be treated for the purposes of the Act as a "school", notwithstanding that the entity is not within the ordinary meaning of that word. Sub-section 6(10)(b) in my opinion contemplates that a name may be on the list at a time when no "school", within the meaning of that word in the Act, exists which has an association with that name. Whatever the state of the list, s.22 did not in my opinion have effect on the footing that on or after 6 January 1989 there was a "school", within the meaning of that word in that section, at 5 Gladstone Parade Elsternwick.
The 1984 Act has not been repealed. I turn to consider whether, as Mr. Monotti submits, powers were available to the Minister which that Act conferred and which might have been exercised to the advantage of the applicant or of an institution with which the applicant is associated. It will be recalled that I have expressed the opinion that the second of the two objects of the verb "approve" in the instrument in writing dated 17 June 1987, by which the change consisting of the amalgamation was provisionally approved under s.7A(3) of the 1984 Act, may have been included in exercise of the power conferred by s.7A(14). Sub-sections (19), (21) and (22) of s.7A provide :
"(19) Where, pursuant to an application that financial assistance commence to be provided during the year 1986, 1987 or 1988, in respect of a school, or a school in so far as it provides education at a particular level or location, the Minister has, pursuant to sub-section
(14) or (15), provisionally approved the inclusion in the list of non-systemic schools of the school, or the school in so far as it provides, or proposes to provide, education at a particular level (in this sub-section referred to as the 'relevant level') or a particular location (in this sub-section referred to as the 'relevant location'), the Minister shall, as soon as practicable after the commencement of that year but subject to sub-section (20), upon becoming satisfied that-
(a) the school, or the school in so far as it provides education at the relevant level or the relevant location, has been recognized by the State Education Minister of the State in which the school is situated;
(b) the school is not conducted for the profit, direct or indirect, of an individual or individuals; and
(c) the school has, on the date on which it is so recognized, or is so recognized in so far as it provides education at the relevant level, or on such later date as the Minister in special circumstances, allows, a number of students enrolled at each level at which education is provided, or at the relevant level, that is not less than the number that is, in accordance with sub-section 3 (9), the minimum acceptable number of students for that level at that date, by determination in writing, vary the list of non-systemic schools by including in the list that school, or that school in so far as it provides education at the relevant level or the relevant location, with effect from a date specified in the determination, including a date before the making of the determination. ........ ........ .......
(21) Where the Minister makes a determination under sub-section (19) varying the list of non-systemic schools as in force for the purposes of this Act or of a subsequent schools assistance Act by including in the list a school, or a school in so far as it provides education at a particular level or location, the Minister shall, in respect of the school so included, specify in the determination the level, being a level of assistance set out in column 1 of Parts I, II, III and IV of Schedule 9, at which financial assistance is to be provided under section 29 to the school, or to the school in so far as it provides education at that level or that location, for the purpose of meeting recurrent expenditure of the school, or of the school in the provision of education at that level or that location.
(22) The Minister shall, in determining, for the purposes of sub-section (21), the level at which financial assistance is to be provided under section 29 to a school, or to a school in so far as it provides education of a particular level or location, for the purpose of meeting recurrent expenditure of the school, or of the school in respect of the provision of education that level or that location, have regard to the need of the school for such assistance."
Although it may be taken, for present purposes, that an application of the kind for which s.7A(13) makes for provision was made by the "person or body that is principally responsible for the control of" Wesley College for financial assistance from the Commonwealth commencing in 1989 in respect of the provision by Wesley College of education at the Elsternwick location, so that the condition was satisfied subject to which the power of provisional approval was conferred by s.7A(14), the duty imposed on the Minister by s.7A(19) arises only in relation to "an application that financial assistance commence to be provided during the year 1986, 1987 or 1988, in respect of .... a school in so far as if provides education at a particular ... location." No such application could have been made in respect of Wesley College in so far as it provides education at 5 Gladstone Parade Elsternwick, because education was not to be provided at that location by Wesley College until 1 January 1989. Accordingly S.7A (19) afforded no power to "vary the list of non-systemic schools by including in the list ... that school in so far as it provides education at" Elsternwick.
If S.7A(19) had afforded the Minister such a power, the language of sub-sections (21) and (22) of S.7A might have given ground for a submission that sub-section 7A(21) authorised specification of a level of assistance, at which financial assistance is to be provided under s.29 to Wesley college in so far as it provides education at Elsternwick, different from the level of assistance otherwise specified in respect of Wesley College. But I do not think that such a submission could be accepted to such an extent as would be contradictory of the clear indication which the language of S.29 gives that there may be only one level of assistance in respect of primary education and one level of assistance in respect of secondary education in relation to a school. Counsel did not indicate, and I have not found, in the 1984 Act a means by which a level of assistance might have been specified in respect of the Elsternwick "location" higher than that specified in respect of the other two locations of Wesley College. Mr. Monotti suggested that s.7C(5) afforded the Minister power to take that course. That sub-section provides:
"The Minister may, having regard to any significant change in the need of a non-systemic school for financial assistance for the purpose of meeting recurrent expenditure of the school, by determination in writing, vary the list of non-systemic schools by specifying, in the determination, a different level (being a level of assistance set out in column 1 of Parts I, II, III and IV of Schedule 9) as the level at which financial assistance is to be provided, under section 29, to the school for the purpose of meeting recurrent expenditure of the school".
But that provision is even more restrictive, in my opinion, than s.29. Considered alone, s.29 might be thought to contemplate two levels of assistance for a school : one for primary school education and another for secondary school education. But s.7C(5), and the 1984 Act considered as a whole, in my opinion contemplate only one "level at which financial assistance is to be provided, under section 29, to the school."
I should record that no submission of the kind to which Beaumont J. referred in Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 538 as the "second argument" addressed to him in that case was made to me. Since the decisions the subject of the application before me did not include the actual decision, under s.22 of the 1988 Act, to authorise the payment by way of financial assistance in respect of the year 1989, there was no scope for such a submission.
I turn to consider the submission that s.8 of the 1988 Act does not apply to the change as a result of which Wesley College amalgamated with Cato College because the futurity of the tense of "will ... amalgamate" in S.8(2)(c) has reference to the date on which that Act commenced, 6 January 1989. The reference in S.8(5) to notification "under ..... the former Act" (by which is signified the 1984 Act) demonstrates the draftsman's advertence to changes of the kind to which S.8(2) refers which have been initiated before the commencement of the 1988 Act. I have not found any clear indication that the phrase "provisional approval" in S.8(10)(b) comprehends approval given under the 1984 Act, but it would accord with the legislative scheme to which the two Acts give expression if the phrase were so understood. But if it were, that would not contradict the submission, for provisional approval might precede, and amalgamation follow, 6 January 1989. In a case such as this is, where both provisional approval and amalgamation preceded 6 January 1989, but S.7A(19) of the 1984 Act has not afforded the Minister power to vary the list of non-systemic schools to accommodate the amalgamation, no means would be available of including the students at the Elsternwick location in the application of the formulae prescribed by s.22, unless S.6(10)(b) were construed as affording the means. But the grant of provisional approval is not contemplated by either Act as leaving only formalities undetermined, as S.8(10) of the 1988 Act and S.7A(19) of the 1984 Act show. On a consideration of the legislative scheme which the two Acts express I am of opinion that S.8(2) is to be construed as comprehending a change as a result of which a non-systemic school had before the 1988 Act commenced amalgamated with another school that was on the day when the 1988 Act commenced included in the list maintained under S.6(4)(b). The inconveniences which would flow from a construction that excluded such a change outweigh, in my opinion, the respect which ought to be paid to the tense of each of the verbs introducing the lettered paragraphs of sub-section 8(2).
An alternative submission advanced by Mr. Monotti was that, if s.8(2)(c) did comprehend the change as a result of which Wesley College amalgamated with Cato College, Dr. Batt exercised the power conferred on him by s.8(14) under the legally erroneous belief that the power did not extend further than to determine one "funding level of the school." According to the submission sub-section 8(14) would on its proper constructon authorise a determination that there be one funding level in respect of one "location" and a different funding level in respect of another "location" of the same school. Dr. Batt's reasons for his decision, furnished under s.13 of the Administrative Decisions (Judicial Review) Act, 1977, demonstrate that he did exercise the power conferred by the sub-section under the influence of the belief attributed to him by the submission.
I cannot accept that alternative submission. The scheme of the 1988 Act, as well as the phrase "the funding level of the school" in sub-section 8(14) are inconsistent with the conception of a funding level of a particular location. Like s.29 of the 1984 Act, s.22 of the 1988 Act, considered by itself, might be thought to admit the possibility of one funding level in respect of primary school education and a different funding level in respect of secondary education, but that was not the possibility for which Mr. Monotti contended.
Paragraph 22(6)(b) of the 1988 Act provides:
"Financial assistance is granted to a State under this section in respect of ... a school in the State in a program year:
........ ........ .......
(b) on the condition that the State will not make a payment to the authority under this section in respect of that year unless the authority has entered into an agreement of a kind determined by the Minister with the Commonwealth in respect of that year, or in respect of a number of years including that year or the Minister is satisfied that factors outside the control of the authority have prevented it from entering into such an agreement."
The expression "program year" is defined to mean "the period of 12 months commencing on 1 January 1989, 1 January 1990, 1 January 1991, or 1 January 1992". A letter dated 30 November 1988 was sent to each of "The Principal, Wesley College" and "The Principal, Cato College", signed by Andre J. Kaspura as "First Assistant Secretary, Schools and Curriculum Division" of the Department of Employment, Education and Training. The introductory part of each letter was in these terms:
" Dear Principal
I am writing to propose an agreement between the Commonwealth and (Approved Authority) in respect of the Commonwealth General Recurrent Grants program for the period 1989-1992 inclusive in accordance with Section 22(5)(b) of the States Grants (Schools Assistance) Act 1988. Subject to the provisions of that proposed law, to the conditions set out below and in the Attachment to this letter and in the Administrative guidelines for the relevant periods the Commonwealth will provide:"
The reference to "Section 22(5)(b) of the States Grants (Schools Assistance) Act 1988" was explained by counsel for the parties as a reference to what was clause 22(5)(b) of the Bill for that Act before the Parliament at the time the letters were sent, and to what after amendment of the Bill became s.22(6)(b) of the 1988 Act. Immediately after that part of each letter which I have quoted appeared statements in the following form:
"In 1989 $... in respect of each eligible primary school student and $... in respect of each eligible secondary school student.
In 1990 $... in respect of each eligible primary school student and $... in respect of each eligible secondary school student.
In 1991 $... in respect of each eligible primary school student and $... in respect of each eligible secondary school student.
In 1992 $ ... in respect of each eligible primary school student and $ ... in respect of each eligible secondary school student."
In the spaces I have left blank were inserted in the letter to Mr. Prest of Wesley College $343 in respect of primary school students and $544 in respect of secondary school students, but in the letter to Mr. Renton of Cato College the amounts were $533 and $803 respectively for 1989 and greater amounts for each succeeding year. The 1989 amounts were at Category 1 levels of assistance in the case of Wesley College and at Category 3 levels of assistance in the case of Cato College. It was not explained why the amounts for Cato College increased in later years but the amounts for Wesley College did not. Each letter, after a paragraph which it is unnecessary for present purposes to reproduce, concluded in these terms:
"This agreement is, of course, conditional upon the States Grants (Schools Assistance) Bill No 345/1.11.88-220/88 becoming law. I am writing to you before enactment of that Bill to minimise risk of any delay in funding.
As part of the arrangements governing the payment of Commonwealth grants for schools for the period 1989-1992 under the States Grants (Schools Assistance) Act 1988, it is necessary to redetermine the approved authority for all non- government schools and systems. You should therefore complete the attached form and return it with this agreement. This agreement will need to be signed by the approved author nominated in the attached form and will be conditional upon that person or body being declared the 'approved authority' under Section 3
(1) when the Bill becomes law. All schools are to be incorporated as a condition of the agreement. If your school is not incorporated, you are therefore required to do so by 30 June
1989. Where a school is not currently incorporated, the existing authority should sign the agreement and attached form. Upon completion of the incorporation the incorporated body will be required to enter into a new agreement with the Commonwealth. If this proposal is acceptable to you would you please sign the acceptance at the foot of the enclosed copy of this letter, as well as initialling each page of the conditions attached to that copy. The receipt of these documents duly signed and initialled will, subject to the above, constitute the agreement between the Commonwealth and (Approved Authority) for the purposes of Section 22(5)(b) of the proposed States Grants (Schools Assistance) Act 1988. The signed copy of this letter, the conditions and the Approved Authority form should be returned to the State Office of the department by 16 December 1988 in order for the payment of funds to occur when the legal formalities are completed. Receipt of documents after that date may result in the January 1989 payment being delayed. If you have any queries do not hesitate to contact Ms Mary Lovett on (062) 89 3590."
Opposite Mr. Kaspura's signature a place was indicated for the signature of the "approved authority". Each of Mr. Prest and Mr. Renton signed his copy of the letter. The sheet of paper to which reference is made in the letter as "the attached form" was also signed. The document to which reference is made in the letter as "the conditions" was initialled on each page. The documents were returned in the second week of December 1988 by each of Mr. Prest and Mr. Renton, as the letter requested. It is unnecessary to set out "the conditions". Like the letters, the conditions were expressed in terms which contemplated the continuing existence until the end of 1992 of each school as a school in respect of which financial assistance would be provided under the 1988 Act in 1989, 1990, 1991 and 1992. None of the documents contained any reference to the possibility that the schools might amalgamate or that either might cease to exist. All the documents seem to conform to a common form.
Any agreement which the signing of the documents and their delivery to the Department may have constituted was until 6 January 1989 an agreement subject to the condition that the 1988 Act should be enacted. Before that condition was fulfilled the subject of one of the agreements, Cato College, had ceased to exist and, in my opinion, the parties to that agreement were thereupon discharged from their obligations by reason of the frustration of the agreement.
It was submitted that the Commonwealth and the Minister were estopped from acting in the administration of the legislation contained in the 1984 Act and the 1988 Act in a way that was at variance with what was said to have been represented to the applicant and the applicant's agents to be the intention of the Commonwealth and the Minister to continue to provide, at least until the end of 1992, financial assistance in respect of the recurrent expenditure of that which had been known as Cato College at the level of assistance known as Category 3.
Such a submission, importing into the law of public administration conceptions having their origins in the relations of parties which are governed by private law, raises a number of questions to which regard was recently had in the reasons for judgment of members of a Full Court of this court in Minister for Immigration v. Kurtovic (G137 of 1989; unreported; judgment 7 February 1990). But I am able to dispose of the submission by reference to my finding that none of the applicant's agents, nor any responsible person associated with either school, relied upon any representation of the kind alleged.
The submisson was advanced, alternatively, by reference to estoppel by convention. Relations between the applicant and those associated with the applicant in relation to the two schools, on the one hand, and the Commonwealth and the Minister and officers of his Department, on the other hand, had been conducted, it was said, on the basis of the assumption, adopted by those parties, that the funding level of assistance known as Category 3 would be maintained in respect of the educational activities to be carried on at Elsternwick after the amalgamation. But I am persuaded that such an assumption did not underlie the relations of those parties or any of them.
In the affidavits of Mr. Prest by which the application was supported it is deposed that at all times after serious discussions "between the Wesley and Cato concerning the proposed amalgamation commenced on or about September 1986 .... one of the most important considerations was the question of whether or not the firstnamed Respondent and officers of his Department would be likely to reduce levels of financial assistance provided by the Commonwealth in respect of students at Cato by reason of any amalgamation ........ ....... During the course of the said negotiations a matter of importance to the parties was the question of whether or not amalgamation would affect the level of financial assistance provided for students at Cato College Campus. The representatives of Wesley College and Cato College were most concerned to ensure that amalgamation would not have the effect of reducing the level of financial assistance for students at Cato College, and if it were known to the parties that such an effect was likely, the amalgamation would not have proceeded due to the extraodinarily high financial penalty in terms of loss of financial assistance. For this reason care was taken to inform the Commonwealth Department of Employment, Education and Training fully in relation to the proposed amalgamation."
But the evidence did not disclose any enquiry, by or on behalf of any of those persons who might be thought to have been concerned in the control or management of either school, of the Minister or of any officer of his Department, as to what level of financial assistance might be expected upon amalagamation, until 5 December 1988. In May 1988 the Commonwealth Government publicly declared its intention to "maintain all non-government schools in their existing funding categories for 1989-92", as the Minister said in a document dated 25 May 1988. Proof of that and other, similiar statements was adduced in Mr. Prest's affidavits. There was no express testimony that any of those concerned in the control or management of the schools were led by such statements to a belief that after the amalagamation of the schools the funding category in respect of the Elsternwick location would be Category 3. I am not persuaded to draw the inference that any of them were. I would be prepared to assume that those persons had not read the legislation under which non-government schools had received Commonwealth financial assistance in respect of their recurrent expenditure during the decade which in 1988 was drawing to a close. But the several examples which the evidence affords of written communications to schools generally and to those managing these two schools, from officers of the Minister's Department, confirm the expectation which a consideration of that legislation would excite, that the administration of the legislation involved, and required, precise distinctions and complex procedures. I am not persuaded to infer that Mr. Prest, who gave oral evidence, believed that the Minister's assurance, that existing funding categories "for all non-government schools" would be maintained during the four years to commence in 1989, comprehended a non-government school which in at least one sense - and not a sense strained or outre - would cease to exist on 1 January 1989, nor am I persuaded to infer that receipt from the Department of the two letters dated 30 November 1988 induced such a belief, although I suppose that receipt raised hope.
On 5 December 1988 a meeting took place, in a Melbourne office of the Department, between two persons associated with Wesley College and three officers of the Department. The meeting had, probably, been arranged at the request of somebody acting for Wesley College to discuss aspects of the requirement stated in the letters dated 30 November 1988: "All schools are to be incorporated as a condition of the agreement." The two persons associated with Wesley College were Mr. Webster, a member of the Wesley College council, and Mr. Williams, described by Mr. Prest in evidence as "the business director in charge of day to day finance and long-term financial planning." The only person who gave evidence of what was said at the meeting was John Thaddeus Carroll, who was - and was on 5 December 1988 known by Messieurs Webster and Williams to be - a senior officer of the Department who had been concerned in the Department's consideration of the proposed amalgamation. He and Dr. Batt, who was a more senior officer from the central office of the Department in Canberra, and a Mr. Robinson were the three Departmental officers present at the meeting. One of the two gentlemen from Wesley College asked during the meeting what funding level was likely to be assigned after the amalgamation, and Mr Carroll replied, in the presence of the other two Departmental officers, that it was likely that funding for the amalgamated school would be at Category 1. Neither of the other two officers said anything to qualify that answer. What Mr. Carroll said was reported by one of the two gentlemen from Wesley College to Mr. Prest. In the first of his affidavits Mr. Prest deposed as follows:
"On the 5th December, 1988 and shortly before the said documents were received by Wesley and Cato an officer of the Department attached to the Victorian State Office expressed orally to representatives of Wesley his view that in his opinion the overall funding level would be at Level 1 after amalgamation. Having regard to the foregoing matters and to the fact that this statement was a mere expression of opinion, the Applicant did not regard it in any way as indicative of the views of the firstnamed Respondent and his Department. In reliance upon the foregoing matters and in the belief that levels of funding would not be affected by the amalgamation of Wesley and Cato, the Applicant proceeded with the amalgamation and to complete it as proposed on the 1st of January, 1989. If the Applicant had known that any funding level for the period 1989-1992 inclusive for students at the campuses of Wesley and Cato would have been altered or would have been subject to alteration by reason of the amalgamation, the amalgamation would not have proceeded."
The "said documents" to which reference is made in the passage quoted are the letters dated 30 November 1988. The "foregoing matters" to which reference is made include the circumstances to which I have referred and, as I think, other circumstances to which Mr. Prest had deposed in preceding paragraphs of the affidavit. When he was giving oral evidence Mr. Prest was asked "whether there had been advertence to the question as to whether you could be confident that the level 3 would continue at Cato." Mr. Prest replied that he had been "absolutely confident" because, he said, "two of our competitors, Melbourne Grammar and Caulfield Grammar have differential funding across their campuses and still do." Asked whether he had made inquiries as to why those two schools "had those differential fundings", Mr. Prest replied: "No, it was well known. I made no inquiries."
The only conduct on the part of the Commomwealth or any of its officers which might have been thought to constitute a representation that a funding at the Category 3 level of assistance would be provided after 1988 in respect of education at Elsternwick was the sending of the two letters dated 30 November 1988. I do not think those letters did constitute such a representation, except on the footing that amalgamation did not occur. I think the letters, at the highest, might have raised a question in the minds of those who may have considered them on behalf of the two schools. Once Mr. Carroll's statement to Messieurs Williams and Webster had been made on 5 December 1988, after and not before receipt of the letters, as I would on the balance of probabilities find, the letters could certainly not be regarded as constituting such a representation. Any assumption which any person associated with either school made about the funding level in respect of Elsternwick was not, as I find, an assumption for which any officer of the Commonwealth had responsibility.
Other grounds stated in the application, to which I have not referred, were not supported by submission.
The application must be dismissed with costs.
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