Wetherell and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 844
•30 November 2012
[2012] AATA 844
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1061
Re
Jamie Wetherell
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 30 November 2012 Place Adelaide The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY - Austudy - activity test - qualifying study - progress rules - whether allowable study time exceeded - whether previous study time can be disregarded – whether use of extrinsic material possible - whether purposive construction of legislation can apply - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 568, 569, 569A, 569H
Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998 (Cth) s 3, Schedule 1, Item 6
Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Miller v The Commonwealth (1904) 1 CLR 668
SECONDARY MATERIALS
Statutory Interpretation in Australia : Pearce & Geddes, 7th Edition
REASONS FOR DECISION
Senior Member R W Dunne
30 November 2012
INTRODUCTION
Jamie Wetherell completed a bachelor of biotechnology degree (with honours) in November 2005. He returned to university to study for a bachelor of physiotherapy degree and received Austudy in his first year, 2011. On 25 November 2011 the respondent (“Centrelink”) decided to suspend Mr Wetherell’s Austudy payments because he had exceeded the maximum study time for which Centrelink considered he could be paid Austudy. Subsequently, the Social Security Appeals Tribunal (“SSAT”) considered the matter and affirmed Centrelink’s decision. Mr Wetherell now seeks review of the SSAT decision.
At the hearing, Mr Wetherell was represented by his father and Mr C Visser (from Program Litigation and Review Branch, Centrelink) represented the respondent. The Tribunal received into evidence the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1), together with the applicant’s Statement of Fact and Claim and supporting documents received by the Tribunal on 24 July 2012 (Exhibit A1).
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether Austudy can be paid to the applicant after 25 November 2011.
LEGISLATION
The legislation that applies in the present case is contained in the Social Security Act 1991 (“Act”) and relevantly reads as follows:
“Section 568 Qualification for austudy payment—general rule
Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
(a)the person satisfies the activity test (see Subdivision B); and
(b)the person is of austudy age (see Subdivision C); and
(c)the person is an Australian resident.
Note: Division 2 sets out situations in which an austudy payment is not payable even if the person qualifies for it.
“Section 569 Activity test
General
(1) Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).”
“569A Undertaking qualifying study
For the purposes of this Part, a person is undertaking qualifying study if:
(a) the person:
(i) is enrolled in a course of education at an educational institution; or
(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or
(iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b)the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
…
(d) the person satisfies the progress rules (see sections 569G and 569H).”
“569H Progress rules—tertiary students
Full-time students
(1) A person who is a full-time student in respect of a tertiary course satisfies the progress rules if;
(a)in the case of a person who is enrolled in the course—on the day on which the person enrolled in the course; or
(b)in the case of a person who is not yet enrolled in the course but intends to enrol in the course—on the day on which enrolments in the course are next accepted;
the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course.
Note: For allowable study time for a course see subsections (3).
…
(3) The allowable study time for a course undertaken by a full-time student or a 66 % concessional study-load student is:
(a)if the minimum amount of time needed to complete the course as a full-time student is one year or less—that minimum amount of time; or
(b)if the minimum amount of time needed to complete the course as a full-time student is more than 1 year and:
(i) the student is enrolled, or intends to enrol, in a year-long subject; or
(ii) the student’s further progress in the course depends on passing a whole year’s work in the course;
the minimum amount of time plus 1 year; or
…
(7) In determining whether a person has exceeded the allowable study time (for a full-time student or a concessional study-load student), disregard the following:
(a)if the person has completed a course (a pre-requisite course) the completion of which is the normal requirement for admission to the course in which the person is enrolled or intends to enrol—time spent undertaking the pre-requisite course;
(b)a failed year of study, or a failed part of a year of study, if the failure is because of:
(i) the person’s illness; or
(ii) other circumstances beyond the person’s control;
(c)time spent undertaking a course that has been permanently discontinued because of:
(i) the person’s illness; or
(ii) other circumstances beyond the person’s control;
(d)time spent undertaking a course that has been completed but which, because of the person’s illness, the person cannot use in any of the trades or profession to which the course is appropriate;
(e)time spent undertaking a TAFE course or a course provided by a VET provider if the normal length of the course for a full-time student is one year or less;
(f)time spent undertaking a course more than 10 years ago, unless the course has since been completed;
(g)time spent undertaking a course after 1973 if the course was not:
(i) approved for the Tertiary Education Assistance Scheme; or
(ii) approved for the AUSTUDY scheme; or
(iii) an approved course for the purposes of paragraph 54B(1)(c), 569A(b) or 1061PB(1)(b) of this Act;
(h)time spent undertaking a course at a foreign institution;
(i)time spent undertaking a subject from which the student withdrew, if the educational institution in which the subject was undertaken did not record the withdrawal from the subject as a failure;
(j)any time spent undertaking a course during which the person was ineligible to receive:
(i) AUSTUDY; or
(ii) a benefit under the Tertiary Education Assistance Scheme; or
(iii) youth allowance; or
(iv) austudy payment;
because of the application of rules in respect of academic progress.
Levels of tertiary courses
(8) There are 5 levels of tertiary courses: levels M, A, B, C and D.
…
Level B courses
(10) The following are Level B courses:
(a)a bachelor degree course (other than a postgraduate course), with or without honours;
…”
BACKGROUND AND EVIDENCE
The factual background to this case is not in dispute. Mr Wetherell is, I understand, 28 years of age and is a full-time student. He obtained an Honours degree in biotechnology in 2005, completing this without any government funding, as he lived at his parents’ home for the entire four year period. After a period in medical research, he changed careers and successfully applied to study for a physiotherapy degree, commencing on 21 February 2011. He applied for and received Austudy for the first two semesters of 2011. At the last date of semester two, being 25 November 2011, he had studied for five years at the undergraduate level.
In giving his evidence, Mr Wetherell said he commenced his biotechnology degree with no future plan in mind. He completed his degree at the IMVS, which offered him a position to complete his Honours project. After being involved there in laboratory work, he decided he did not want to continue. He travelled and when he returned he obtained employment, I understand, at the Neuro Orthopaedic Institute. He found the work interesting and challenging and applied to commence his degree in physiotherapy. He said he could not apply for Austudy for his first degree because he was not eligible. His parents’ income was too high. In March 2011 after commencing study, he started getting Austudy and this ceased in November 2011. He became passionate about where his degree would take him, but considered it unreasonable for his parents to fund his study. His study program would become harder and it would be difficult for him to earn enough money to support himself.
In cross-examination by Mr Visser, Mr Wetherell said that both his biotechnology and his physiotherapy degrees were bachelor degrees.
THE APPLICANT’S ARGUMENT
The applicant’s argument is that certain parts of the Act that deal with the qualification for Austudy payments, when read with Centrelinks’ policy guide to the legislation (clause 3.3.4.70), involves significant ambiguity. The legislation does not allow students who have gained a degree without receiving financial support from the Commonwealth to receive financial support when studying for a second degree. This situation discriminates against such a group of students. The legislation is poorly drafted and requires rectification.
THE RESPONDENT’S ARGUMENT
The respondent’s argument is that the relevant legislation in the Act dealing with Austudy entitlement, particularly the progress rules contained in s 569H of the Act, is not ambiguous. The literal meaning of the relevant provisions are clear on their face. The respondent accepted that the applicant did not receive Austudy for his biotechnology degree. However, this does not factor into the calculation of allowable study time.
CONSIDERATION
The issue for the Tribunal is whether Austudy can be paid to the applicant after 25 November 2011.
Under the Act, in order for a person to qualify for Austudy he or she must satisfy the “activity test”: see s 568 of the Act. The activity test may be satisfied if a person is “undertaking qualifying study”: see s 569. In order to be “undertaking qualifying study” the person must be enrolled in an approved course of education or study on a full-time or concessional study-load basis: see s 569A. These matters are not controversial in these proceedings. In order to qualify for Austudy, however, a person must satisfy the “progress rules”: see s 569A of the Act.
The progress rules for a full-time tertiary student are set out in s 569H of the Act. In the applicant’s case, who is a full-time student and is enrolled in his physiotherapy course, he satisfies the progress rules if on the day on which he enrolled in the course the time already spent on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course. In saying this, I note that s 569H(8) defines the levels of courses as M, A, B, C and D. A Level B course includes a bachelor degree course (other than a postgraduate course), with or without honours: see s 569H(10)(a) of the Act. Mr Wetherell’s first degree was a bachelor of biotechnology (with honours) and his current study is for a bachelor of physiotherapy. These are both Level B courses and are tertiary courses at the same level.
The allowable study time for a course undertaken by a full-time student (such as the applicant) is set out in s 569H(3) of the Act. It provides that:
(a)if the minimum amount of time needed to complete the course as a full-time student is one year or less – that minimum amount of time; or
(b)if the minimum amount of time needed to complete the course as a full-time student is more than one year and:
(i)the student is enrolled, or intends to enrol, in a year-long subject; or
(ii)the student’s further progress in the course depends on passing a whole year’s work in the course;
the minimum amount of time plus one year.
I am satisfied, therefore, that the applicant’s allowable study time for his bachelor of physiotherapy degree is five years, and to continue to receive Austudy he must not have already spent five years on his bachelor of physiotherapy “or one or more tertiary courses at the same level as that course”. On a literal interpretation of the wording, the legislation is quite clear.
Section 569H(7) of the Act sets out the circumstances in which previous study can be disregarded. Mr Wetherell may argue that, as he was ineligible to receive Austudy when undertaking his biotechnology course, the time spent undertaking that course should be disregarded under s 569H(7)(j)(i) of the Act. In my view, such an argument would not succeed. He would have been ineligible to receive Austudy in respect of his biotechnology degree because of the level of his parents’ income and not “because of the application of rules in respect of academic progress”, which expression appears at the end of s 569H(7)(j) of the Act.
The applicant argued that the respondent’s interpretation of certain provisions of s 569H of the Act was wrong. He said that the withholding of Austudy in his case was an unintended consequence of poorly worded legislation. I do not agree. He accepted that the wording in ss 569H(1) and (3)(b)(ii) was not in dispute, only the interpretation of s 569H that related to his physiotherapy degree. He referred to clause 3.3.4.70 of the Centrelink Guide, which relevantly reads:
“Recipients can study a second course at the SAME level within the allowable study time rules. That is, continue to receive Austudy for any study period/s that they enrol in when there is any additional allowable time available to them to commence a second course at the same level.” [emphasis added]
He highlighted the words “continue to receive Austudy” in clause 3.3.4.70 and contended that these words implied that the student had previously received Austudy or “had already benefited from government support via Youth Allowance or Austudy”. In his case, he had not received any Commonwealth support for his biotechnology degree and therefore he should be entitled to receive such support for his physiotherapy degree. The words “continue to receive Austudy” are not specifically referred to in s 569H of the Act and there is no support in the legislation for the use of the words as they appear in clause 3.3.4.70. In the SSAT, the Member said (at paragraph of 15 of her reasons): “... I do not consider there is ambiguity in either the legislation or the policy ...”. With respect, I believe there is some ambiguity in the wording specifically mentioned in clause 3.3.4.70. If not ambiguity, the words “continue to receive Austudy” are, in their context, misleading. If this policy wording is intended to suggest that a student who does not receive Austudy for a first course can study for a second course at the same level within the allowable study time rules and receive Austudy for the second course, I think the policy is wrong. Although a Tribunal is not bound to apply policy guidelines, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645). If my understanding of the policy guideline relating to the wording in clause 3.3.4.70 is as intended above, then based on my interpretation of s 569H of the Act, I am unable to apply the guideline in the present case.
The applicant also referred to the “implied inconsistency” between the wording in the legislation and the relevant wording that appears in clause 3.3.4.70 of the Centrelink Guide. Although there appears to be an “inconsistency”, the words “continue to receive Austudy” do not appear in and are not supported by the wording of the legislation itself. In other words, if there is an inconsistency in the use of the words “continuing to receive Austudy” in clause 3.3.4.70, in my view there is no ambiguity or inconsistency in the progress rules in s 569H of the Act.
The applicant also argued, firstly, that the Tribunal should apply the provisions of s 15AB(1) of the Acts Interpretation Act 1901, which relevantly read:
“15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
…
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
…”
In analysing the use of s 15AB(1)(b), assistance can be gained from “Statutory Interpretation in Australia”, seventh edition by DC Pearce and RS Geddes at page 85, which reads:
“[3.18] In order that a reference to extrinsic materials may have the potential to change an interpretation of legislation which would otherwise have been arrived at, it is necessary for a court to conclude that one of the conditions in s 15AB(1)(b)(i) or (ii) has been met. That means the court must conclude, without taking account of any materials not forming part of the Act, that the provision in question is ‘ambiguous’ or ‘obscure’ or that, taking account of its context and underlying purpose or object, the ordinary meaning leads to a result that is ‘manifestly absurd’ or ‘unreasonable’: NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at 471-2. This is a limitation on the operation of s 15AB compared with s 15AA: see [2.9]-[2.10]. In some cases the court considers the extrinsic material and then concludes that it cannot assist because the words are not ‘ambiguous’ or ‘obscure’ and that giving the words their ordinary meaning does not lead to a ‘manifestly absurd’ or ‘unreasonable’ result. …”
In my view, the extrinsic material that might be of assistance in the applicant’s case is that contained in the Explanatory Memorandum to the Bill which gave rise to the Social Security Legislation Amendment (Youth Allowance Consequential and Related Matters) Act 1998 (“Amendment Act”). This Amendment Act introduced the Austudy provisions into the Act. Having perused the Explanatory Memorandum, I am satisfied that it is not useful in the interpretation of the provisions of the Bill. The Explanatory Memorandum is of no assistance because the words in the Bill, in the Amendment Act and in the Act itself are not, in my view, “ambiguous” or “obscure”.
Moreover, I am of the view that giving the words their ordinary meaning does not lead to a “manifestly absurd” or “unreasonable” result. The applicant may consider that the ordinary meaning leads to a result in his case that is “unreasonable” for him. However, the ordinary meaning of the provision when taken as a whole and applied generally is not, in my view, “unreasonable”.
The applicant next argued that a purposive construction could (or should) be applied in the interpretation of the Act, by inserting an additional paragraph after s 569H(7)(j) to read:
“(k) If a person has previously completed a tertiary course at the same level without applying for and without being granted Youth Allowance, Abstudy, Austudy, or other relevant funding, then any time spent in completing this prior (self-funded) course should be disregarded in full.”
Such a purposive approach would involve the application of s 15AA of the Acts Interpretation Act 1901 which reads:
“15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”
The purposive approach has been described as implying, or “reading in” words into legislation, such as s 569H of the Act. The mischief or purpose approach requires an ambiguity or inconsistency before a Court (or a Tribunal) can have regard to purpose: Miller v The Commonwealth (1904) 1 CLR 668 at 674. In my view, as there is no ambiguity or inconsistency in s 569H of the Act, the inclusion of a new paragraph (k) in s 569H(7), along the lines suggested by the applicant, is not appropriate.
The applicant also expressed the view that there was an understanding the Tribunal had the ability to “look past” the actual words and phrases in the Act, and to make a judgment (or recommendations) based upon its view of the intent of the legislation. In doing this, the Tribunal would review whether the decision made by the respondent, although made in compliance with the letter of the law, was fair and reasonable in the applicant’s particular circumstances. The Tribunal does not have the ability to “look past” the actual words and phrases in the Act. It must interpret the legislation, having regard to the facts and evidence before it and the circumstances and arguments of the parties involved. The Tribunal would review the decision made by the respondent and, to the extent that it is able to do so having regard to the facts, to the provisions of the legislation and to policy guidelines, would analyse whether the decision is reasonable in the applicant’s circumstances. However, in summary, the Tribunal’s duty is to make the correct or preferable decision in each case on the material before it.
CONCLUSION
The applicant’s allowable study time for his bachelor of physiotherapy degree is five years, and to continue to receive Austudy he must not have already spent five years on his bachelor of physiotherapy degree “or one or more tertiary courses at the same level as that course”. The applicant spent four years studying for and obtaining his bachelor of biotechnology degree. This must be included in his allowable study time. His allowable study time for his physiotherapy degree is five years and he exceeded that time after his first year of physiotherapy. The withholding of Austudy in the applicant’s case was not an unintended consequence of poorly worded legislation. On a literal interpretation of the wording, the legislation (s 569H) is quite clear and there is no ambiguity in it. There is some ambiguity in the wording specifically mentioned in clause 3.3.4.70 of the Centrelink Guide. If it is not ambiguity, the words “continue to receive Austudy” are, in their context, misleading. The applicant is not entitled to receive Austudy for his physiotherapy degree after 25 November 2011.
I have sympathy for the applicant’s case. The relevant provisions of the Act that have been discussed, particularly the provisions of the progress rules in s 569H, may appear discriminatory to certain sections of the community and it can be understood that the applicant feels unfairly treated. However, as has been said in the applicant’s written submissions, his situation would not be unique and political support may be necessary to address the limitations he has identified.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne .......................[Sgd].................................................
Associate
Dated 30 November 2012
Date of hearing 23 October 2012 Applicant In person Friend/Relative for the Applicant Mr P Wetherell Advocate for the Respondent Mr C Visser Solicitors for the Respondent Centrelink Program Litigation & Review Branch
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