Wight; Department of Family and Community Services - [2002] AATA 142

DECISION AND REASONS FOR DECISION [2002] AATA 142

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/921

GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant
And BRETT WIGHT
Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date6 March 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in its place substitutes its decision that the respondent does not qualify for Austudy benefits as the Juris Doctor course at Bond University is a course at Masters level.
  .       (Sgd) J Cowdroy
  Member

Decision No: 142/2002

CATCHWORDS
SOCIAL SECURITY – Austudy – Eligibiltiy – Tertiary Course – Course of a type specified in Schedule - Whether Juris Doctor course at Bond University is a postgraduate course
Social Security Act 1991 ss 569(1), 569B, 569H(8). (9), (10), (11), (12), (13)
Student Assistance Act 1973 ss 5B, 5D
Higher Education (General Provisions) Act 1993 s 3, 9
Bond University Act 1987

Woodward and Department of Employment, Education, Training and Youth Affairs (1998) AATA 538
Secretary, Department of Education, Training and Youth Affairs v Lander (1996) FCA 1088
Re Baker and Ors & Department of Employment Education Training and Youth Affairs (1997) 47 ALD 756

REASONS FOR DECISION

6 March 2002 Ms J Cowdroy, Member

Background

The applicant applied to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 10 September 2001 which decided that the respondent qualified for Austudy effective from the date upon which he commenced the Juris Doctor degree at Bond University.
The respondent lodged a claim for Austudy on 3 May 2001 and on that date Centrelink decided to reject the claim, adopting the view that the Juris Doctor degree was a postgraduate course at Masters level which does not qualify for Austudy benefits. That decision was affirmed by an Authorised Review Officer on 10 July 2001.
At the hearing of this matter the applicant was represented by Mr P Kanowski and the respondent appeared in person. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 in relation to the matter were admitted into evidence as the T documents. Further documents were also admitted into evidence as exhibits (A2 – A6) and (R1 - R2).
It was not in dispute that Mr Wight has a Bachelor's Degree in Applied Science. He commenced full time studies for the Juris Doctor at Bond University in May 2001. It is further not disputed that possession of an under-graduate degree is a pre-requisite for enrolment in the Juris Doctor.
The Legislative Framework
The general rule of qualification for Austudy is contained in section 568 of the Social Security Act 1991 ("the Act"). Amongst other things, the person must satisfy the activity test.
Section 569(1) of the Act states:
"569(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)."

Section 569A sets out the meaning of "undertaking qualifying studies". The relevant part is sub-section (b) which states:
"that the course in which the person is enrolled, or intends to enrol, is an approved course of education or study."
The term "approved course of education or study", according to sections 569B and 569H(13), is a course that the Employment Minister has determined under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.
The Ministerial determination in force at the time of the respondent's claim for Austudy is Determination Number 1999/2 headed "Determination of Education Institutions and Courses" (T4). Section 7(1) of the Student Assistance Act 1973 states, in effect, that a tertiary course is one which is conducted by an education institution as specified in Columns 1 and 2 of Schedule 2.

10.Schedule 2 of that determination sets out tertiary courses which are offered by a various education institutions. Bond University is a 'higher education institution' by virtue of the provisions of the Higher Education (General Provisions) Act 1993 and the Bond University Act 1987. Schedule 2 includes the following category of course offered by a higher education institution:
"Undergraduate or postgraduate accredited higher education course that is an associate degree, associate diploma, diploma, advanced diploma, Bachelor degree, graduate certificate, graduate diploma, a NBCOTP funded course, a Master's qualifying course or a combined course which leads to two of these awards and is classified as such in the institution's handbook and is not:

a secondary course specified in Schedule 1; or
a Masters or Doctoral degree unless otherwise specified in Schedule 2."

The Juris Doctor is not a Masters or Doctoral degree specified in Schedule 2.

Section 569H(8) of the Social Security Act 1991 states:
"569H(8) There are four levels of tertiary courses, levels A, B, C and D
Level A courses
569H(9)   The following are Level A courses:
(a)a postgraduate bachelor degree course, with or without honours;
(b)a graduate or postgraduate diploma course;
(c)a course of practical legal training at a higher education institution;
(d)a course of advanced education regarded by an accrediting authority as being at PG1 level;
(e)a graduate certificate course.
Level B courses
569H(10) The following are Level B courses:
(a)a bachelor degree course (other than a postgraduate course), with or without honours;
(b)the bachelor level component of a masters degree course with concurrent bachelor and masters level study;
(c)a diploma course other than:
(i)a graduate or postgraduate diploma course; or
(ii)a course for which an entry requirement is successful completion of year 10 of secondary studies; or
(iii)a TAFE course;
(d)a Master's qualifying course;
(e)the Barristers or Solicitors Admission Board's course;
(f)a course of advanced education regarded by an accrediting authority as being at UG1 or UG2 level.
Level C courses
569H(11) The following are Level C courses:
(a)an associate degree course;
(b)an associate diploma course;
(c)a diploma course at a TAFE institution for which an entry requirement is successful completion of year 12 of secondary studies;
(d)a 2-year undergraduate diploma course.
Level D courses
569H(12) The following are Level D courses:
(a)       a TAFE course at a higher education institution;
(b)       a TAFE course, unless the course is in Level A, B or C."

Applicant's Submissions

The applicant submitted that the decision of the SSAT is wrong in law and that it should be set aside and the original decision affirmed. The applicant contends that the Juris Doctor is a Masters Degree and is therefore not a course of a type specified in Column 1 of Schedule 2.
It was pointed out that the conferring of higher education awards in Queensland is regulated by the Higher Education (General Provisions) Act 1993. In that Act, section 3 provides that the term "higher education" means education that is provided by a University. The Bond University Act 1987 confirms Bond University's status as a university and section 9 of the Higher Education (General Provisions) Act 1993 states that each University is the accrediting authority for courses that lead to awards that it confers.
Section 3 of the Higher Education (General Provisions) Act 1993 says "accredit" includes re-accredit but does not further define the term. The word accredited means "officially recognised" (see New Shorter Oxford English Dictionary (1993)) or "certified as meeting official requirements" (see Macquarie Dictionary, 2nd Edition (1991)).
Evidence was given in the form of written documentation from an officer of Bond University that the Juris Doctor at Bond University was originally titled Master of Judicial Science, however it was renamed for marketing purposes. The course was approved under its "Masters" title in about March 2001 but was never offered to students under that title. It was renamed Juris Doctor in time for it to be offered for the first time in May of 2001. The University Senate approved the renaming and no changes were made to the course in association with the naming (A4-4).
On the Bond University web site, the course is described as a postgraduate degree that can be completed in two years and meets professional requirements for practise. It comprises 20 compulsory law subjects and 4 elective subjects selected from the Master of Laws Program. The 20 compulsory subjects are the same as those completed by undergraduate students in the Bachelor of Laws Program.
The Tribunal was also referred to the Commonwealth Registrar of Institutions and Courses for Overseas Students ("CRICOS") where the Juris Doctor at Bond University is described as "Master's Coursework" (T24-115). Further, it was pointed out by the applicant that in Woodward and Department of Employment, Education, Training and Youth Affairs (1998) AATA 538, Senior Member Beddoe commented that there may be a "presumed difference between the accreditation and the description of a course" (paragraph 25). It was said that the "critical question in the present case is not so much whether the course is a Master's or is described as a Master's, but rather whether it has been accredited at Master's level" (paragraph 31 of applicant's submissions).
The Tribunal was referred to Secretary, Department of Education, Training and Youth Affairs v Lander (1996) FCA 1088 at page 6, in which the Federal Court held that when a course has been accredited at a particular level, a decision maker should not set about evaluating whether the course has been appropriately accredited. There was evidence tendered to the effect that the University of Queensland also offers a 'Juris Doctor' and that that course had been previously marketed under the title 'Master of Legal Science'. The initiative which prompted the change of name was that the University of Melbourne had decided to market virtually the same degree (Master of Legal Science) under the Juris Doctor (JD) from 2000 and it was thought it would place University of Queensland's Law School at a marketing disadvantage. The Senate of the University of Queensland was unanimous in its support of the redesignation of the degree as a Juris Doctor (T5-7). The Juris Doctor offered by the University of Queensland is also described as Masters Coursework on the CRICOS register.
The Tribunal was also referred to A4-5, in which Bond University's Academic Programs Manager opines that the course best fits the Bachelor degree category of the Australian Qualifications Framework. However, contrasted with that is a letter from Ms A McGrath, Manager, Academic Services (A5-1) in which she states that:
"as per the AQF Guidelines, the Juris Doctor 'undertakes a high order overview of a relevant area of professional practice'".
The applicant's submissions also included an alternative argument that the Juris Doctor could be classified as a Doctorate. However, it was acknowledged that it did not fit comfortably within the accreditation process at that level. The applicant also raised the prospect of the Juris Doctor being classified as an integrated undergraduate/postgraduate course in which case it would not fit any of the categories for the purposes of Austudy benefits. Further complicating matters is the fact that the term 'postgraduate degree' is not defined and, if it was given its broadest meaning, it would encompass Masters degrees and Doctorates. It was contended that if this was the meaning to be given, then such an interpretation would be at odds with the legislative intent of the Austudy scheme.
The Respondent's Submissions
Mr Wight contended that the Juris Doctor at Bond University was a course of study at a different level than that he formally completed and therefore he would be eligible for Austudy on the basis that his first degree was a level B course and the Juris Doctor is a level A course pursuant to s 569H of the Social Security Act1991.
He pointed out that the course was only marketed overseas at the Masters level whereas at the domestic level, it was marketed at students holding undergraduate degrees in a discipline, other than law. He stressed that the 20 subjects which students of the JD program undertake are identical to the subjects undertaken by undergraduates for the Bachelor of Laws program which is supportive of his contention that it is not a Masters degree. Additionally, he referred the Tribunal to the material on the content of Masters degrees and pointed out that it is usual for a Masters degree to require research and in-depth prior knowledge in the discipline being studied, however this was not the case in the JD offered by Bond University.
He suggested that while Ms McGrath had indicated that the course required a high order overview of a relevant area of professional practice, Mr Kelly's statement was to be preferred as he was the Academic Adviser to the Law School. Further, Mr Wight pointed out that the JD program encompasses a total of 20 Bachelor level subjects and 4 Masters' level subjects, whereas Masters degrees at Bond University comprise a minimum of 8 subjects (80 credit points). According to Mr Wight the Juris Doctor program comprise 240 credit points.
The respondent also referred the Tribunal to the citing of Mathews J in Re Baker and Ors & Department of Employment, Education Training and Youth Affairs (1997) 47 ALD 756 where the meaning of post-graduate bachelor degree course was discussed under provisions which are essentially the same as those under consideration. Whilst the regulations do not define the term postgraduate Bachelor degree, it must be taken to refer to a course, leading to a Bachelor degree which is to be undertaken by students who are already graduates. This means that a student moving from an ordinary undergraduate course (a group B course) to a postgraduate bachelor degree course (a group A course) will not in any event be subject to the restrictions because the courses are at different levels of study (at page 763). Mr Wight submitted that his circumstances fell within that description.
The Legislation and its Application
Sections 568, 569 and 569A of the Social Security Act 1991 empower the applicant to grant Austudy benefit to a person who is otherwise qualified and who is undertaking at an educational institution, an approved course of education or study.
Under section 569B of the Social Security Act 1991, a course is an approved course of education or study if it is a course that the Employment Minister has determined under section 5B of the Student Assistance Act 1973 to be a secondary course or a tertiary course for the purposes of that Act. That determination dated November 1999, with a date of commencement being 1 January 2000, is to the effect that to be eligible, a person has to be undertaking a tertiary course. Schedule 3 of that determination lists specific tertiary courses which are eligible.
The difficulty before the Tribunal is the description of the course as opposed to its accreditation. The term Juris Doctor, on its face, would suggest that the course is a Doctorate, although it was not seriously contended that the course is accredited at Doctoral level. This is because there is no evidence that the course has ever held itself out to be offered at Doctoral level and all material relating to the course make it clear that recipients of Juris Doctor do not have entitlement to use the title of 'doctor'.
The matter is not clear cut. As Senior Member Beddoe in Woodward & Department of Employment, Education, Training and Youth Affairs(1998) AATA 538 stated at par 25:
"There may of course be a presumed difference between the accreditation and the description of a course".

The course has been described in a variety of ways. In the handbook produced by the Bond University under the heading 'Postraduate Degrees and Diplomas', the Juris Doctor is not included. At T23-102, the Juris Doctor is described under the heading 'Bond Law School – Degrees' and at T23-103 it is listed under 'Postgraduate Degrees and Diplomas'. The Academic Programs Manager, at Bond Law School in Exhibit A4 at page 5 states relevantly:
"The course best fits the 'Bachelor Degree' category of the Australian Qualifications Framework. That category specifically includes graduate entry degrees. Despite the presence of four Masters' level subjects, I do not consider that it 'provides a mastery or high-order overview of a relevant field of study or area of professional practice' required of a Masters' degree."

On the other hand Ms A McGrath, Manager, Academic Services at Bond University states:
"As per the AQF Guidelines the Juris Doctor undertakes a 'high-order overview of a relevant area of professional practice'. The reasons for identifying the course as a Masters program in the terms of CRICOS registration are its requirements for admission (an applicant must have an undergraduate qualification) and the level of analytical ability required to undertake the elective components."

The Tribunal scrutinised the Australian Qualifications Framework (AQF) Implementation Handbook and, in particular the HE (Higher Education) Qualification Guidelines. These guidelines set out the standards which are required for each qualification. In relation to a Masters degree the characteristics of learning outcomes at this level include the enhancement of specific professional or vocational skills which may be undertaken by directed coursework and/or research and the acquisition of indepth understanding in a specific area of knowledge which is usually undertaken through research (T2-30). It states that a typical Masters' degree by coursework requires the equivalent of two years of full time study.
The Tribunal considered it significant that the decision to rate the course at the level of Masters in the CRICOs code is one that is determined by the University. The Tribunal also considered it significant that the Juris Doctor was initially to be offered as a Master of Judicial Science but was renamed for marketing purposes without any changes to the course associated with the renaming. At the end of the day, the Tribunal had been provided with a variety of descriptions. However, its task is to determine the level at which the course has been accredited. When considering the process of accreditation, regard must be had to the body which has the power to accredit. In this case, the accreditation responsibility lies with the 'university company' (s 3(1) of Bond University Act 1987). The Registrar of Bond University (A4-4) has provided advice that the Bond University Senate carries out the functions of accrediting and renaming of courses. The Bond University Senate approved a course titled Master of Judicial Science and renamed it subsequent to its initial introduction to Juris Doctor.
The Tribunal notes that Juris Doctor is offered also by the University of Queensland and the University of Melbourne. In the CRICOS register, the course is recorded as a PhD and Higher Doctorate qualifying program for the University of Melbourne and at Masters' Coursework level for the University of Queensland. The inference is fairly open to be drawn that the course name was changed from its original title of Master of Judicial Science by the Bond University Senate in order to effectively compete with Juris Doctor courses offered by other Universities.
This is not a case which can be resolved purely by applying the principles set out in Lander (supra) as, in that case the Court held that a Master of Arts (Psychology) course was a Masters Course for Austudy purposes even though the course lacked some of the features normally found in Masters Courses as described in the Australian Qualifications Framework. Lander is authority for the principle that that where a course has been accredited at a particular level by a duly authorised accrediting institution, then it is not permissible to undertake the task of assessing whether that accreditation was appropriately made.

This Tribunal's task is to determine precisely what accreditation Bond University has given the course and, having scrutinised all the evidence before it, the Tribunal concludes that reliance must be placed on the Bond University Senate's approval of the course at Masters level. Any subsequent renaming did not change the subject matter of the course and corroboration of the fact that the intention was to accredit the Juris Doctor at Masters' level is supported by the CRICOS registration at that level. Whether the course contains the usual characteristics of a masters course is not a matter on which this Tribunal should offer comment.
The Tribunal reached the view that Juris Doctor at Bond University is a course which is accredited at Masters level. That being the case, the respondent cannot bring himself within the eligibility requirements for Austudy.
The Tribunal sets aside the decision under review and in its place substitutes its decision that the respondent does not qualify for Austudy benefits as the Juris Doctor course at Bond University is a course at Masters level.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  14 December 2001
Date of Decision  6 March 2002
Applicant  Mr P Kanowski
Respondent  In Person