FEDERAL COURT OF AUSTRALIA

Secretary, Department of Employment, Education, Training &

Youth Affairs v Gray [1999] FCA 1150

ADMINSTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether respondent met requirements in AUSTUDY regulations of being a full-time student.

Student and Youth Assistance Act 1973

AUSTUDY Regulations

Secretary, Department of Employment, Education, Training and Youth Affairs v Stojanovic (unreported, Tribunal Decision No 11846) cited

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 followed

Re Licensing Ordinance (1968) 13 FLR 143 cited

The Commonwealth v Baume (1905) 2 CLR 405 cited

R v Bishop of Oxford (1879) 4 QBD 245 cited

SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION,

TRAINING AND YOUTH AFFAIRS v SINCLAIR GRAY

NG 880 of 1998

HILL J

13 SEPTEMBER 1999

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     The applicant, the Secretary, Department of Employment, Education, Training and Youth Affairs (“the Secretary”), appeals from a decision of the Administrative Appeals Tribunal (“the Tribunal”) setting aside a decision of the Social Security Appeals Tribunal and remitting to the Secretary Mr Gray’s Application for AUSTUDY benefits  for the period 18-31 December 1996 with the direction that he be entitled to those benefits.  The appeal is an application in the original jurisdiction of the Court and is an appeal on, that is to say limited to a question of law.

The Factual Background

2                     Mr Gray enrolled from the commencement of the 1996 academic year as a student for the degree of Arts/Law at the University of Tasmania.  That course is a designated course for the purpose of the Higher Education Contribution Scheme (“HECS”) and is regarded by the University of Tasmania as a full-time course.  At the time of his enrolment he was advised by the University not to undertake a full workload for that year.  As a result he enrolled as a full-time student, but undertook, so the Tribunal held, 0.8% of the standard student load nominated by the University for that course (presumably the Tribunal meant 80%).  Because of the manner in which his course was constructed his workload was unequally spread over the two semesters conducted in that year.  In the result he studied courses which constituted one half (the Tribunal uses the figure 0.5%) of the full year standard student load in the first semester and 30% of the full year standard student load (the Tribunal uses the figure 0.3%) in the second semester.

3                     The respondent applied for AUSTUDY on 7 October 1996 and was advised on 8 October that he was eligible for AUSTUDY at the independent rate (ie the rate applicable to students above a certain age – 22 during the 1996 academic year) payable from 18 December 1996, the date on which he attained 22 years, up to and including 31 December 1996.  His application was originally granted but  reversed on 19 December 1996 after the Department checked the Respondent’s enrolment and determined that he did not meet the full-time study requirements specified in the AUSTUDY Regulations in semester 2.  By this time the respondent had received $55.01 which he was subsequently requested to pay back.

4                     The grant of AUSTUDY to the respondent during 1996 was significant due to an amendment to reg 68(1) (SR 323 of 1997), which increased the age for the independent living allowance to 25 years.  In the result, the respondent would only be eligible for the independent living allowance from 1997 onwards if he was entitled to AUSTUDY in 1996.  The refusal to pay him AUSTUDY for the period 18 December 1996 until the end of that year, had therefore the consequence that he had no entitlement to AUSTUDY at all in the academic year 1997, notwithstanding that he otherwise complied with such matters as full-time study and means tests.

Relevant Legislation

5                     The underlying legislative basis for the AUSTUDY scheme is the Student and Youth Assistance Act 1973 (“the Act”).  Section 7 of that Act provides, relevantly:

“7.(1)  Subject to and in accordance with this section and the regulations, the Secretary may grant a benefit under this Part to a person who:

(a)               is an Australian citizen or a permanent resident of Australia;

(b)               is enrolled, or proposes to enrol, as a student of an education institution for that year or that part of that year; and

(c)                is undertaking, or proposes to undertake, wholly at that institution in that year or that part of that year:

(i)                 a course of study or instruction that the Minister has determined in writing to be a secondary course, or a tertiary course, for the purposes of this section; or

(ii)               a part of a course of study or instruction, being a part that the Minister has determined in writing to be a part of a secondary course, or a part of a tertiary course, for the purposes of this section.

(2)               Without limiting the generality of matters that may be dealt with by the regulations the regulations may:

(a)               specify the benefits that may be granted under this Part; and

(b)               specify circumstances in which benefits are not payable under this Part.

(3)               Where a person undertaking:

(a)               a course of study or instruction; or

(b)               a part of a course of study or instruction;

offered by an education institution is required or allowed by that institution to attend, and attends, for the purposes of that course, or that part of the course, a place other than that institution (not being a place in respect of which a determination under subsection (4) is in force), the person shall, for the purposes of paragraph (1)(c), be taken to be undertaking that course or that part of the course wholly at that institution.

(4)        The Minister may determine, in writing, that subsection (3) does not apply in relation to a place, or to a class of places, specified in the determination.

(5)        Where a person is undertaking, or proposes to undertake, by  correspondence with an education institution:

(a)               a course of study or instruction; or

(b)               a part of a course of study or instruction;

offered by that education institution, the person shall, for the purposes of paragraph (1)(c), be taken to be undertaking that course, or that part of that course, wholly at that institution.

(6)        A determination under subparagraph (1)(c)(i) or (ii) or subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1991.

(7)        Subsection (6) does not apply to a determination made before the date of commencement of that subsection (which was also the date of commencement of section 4 of the Student Assistance Amendment Act 1991).

(8)               A person who received a benefit under this Part during any period being:

(a)               the part of a year beginning on 1 January and ending on 31 May; or

(b)               the part of a year beginning on 1 July and ending on 30 September;

may, before the end of the period, repay to the Commonwealth the whole or any part of the benefit and, if an amount of benefit is so repaid, the amount is taken, for the purposes of this Act, never to have been paid to the person.”

6                     Subsection (2) stipulates the matters which may be dealt with by regulation including the specifying of benefits and the circumstances in which benefits are not payable.

7                     The relevant regulations are the AUSTUDY Regulations.  A student seeking AUSTUDY in respect of tertiary education must comply with the requirements set out in both Part 1 and Part 3 of Chapter 2 of the Regulations.  The requirements in Part 1 of the Regulations are general and cover matters such as citizenship.  Regulation 6 of Part 1 repeats the requirement of the Act that to get AUSTUDY the student must take a course approved under s 7(1)(c) of the Act.  It adds, however, that an approved course can take one of three forms:

“(a)     a short course – that is a course that lasts for 30 weeks or less (including vacations); or

(b)        a late starting course – that is a course that:

(i)                 lasts for more than 30 weeks (including vacations); and

(ii)               starts after 31 March but before 1 July, or starts after 31 July; or

(c)                a full year course – that is a course that lasts for more than 30 weeks (including vacations) and is not a late starting course.”

8                     The distinction between full year courses and shorter courses carries over into other regulations, eg Regulation 7. 

9                     Part 3 of the Regulations deals specifically with the special requirements applicable to tertiary students.  Under reg 33(2) the student must undertake a tertiary course approved for the purposes of the scheme at a higher education institution of TAFE.  Regulations 34 and 35 then provide:

“34  Workload: tertiary students

34. (1) A tertiary student must study full-time.

(2) To be a full-time student, a student must be enrolled in and undertake at least three-quarters of the normal amount of full-time work for a period as set out in regulation 35.¹

(3) A student is not full-time in a period if the amount of work of the course that he or she is undertaking in, or is enrolled in for, that period is less than three-quarters of the normal amount of full-time work for that period.

(4) However, a student is full-time in the period from the first day of classes to Friday in the second week of classes in a term or semester if the student enrols in and undertakes at least three-quarters of the normal amount of full-time work on at least 1 day in that period.²

            Notes to regulation 34

1                     In some situations, a student may be full-time if he or she is undertaking two-thirds of the normal full-time workload – see regulation 36.

2                    Subregulation 34(4) gives a period of grace of up to 2 weeks while the student arranges his or her studies for the term or semester.  If the student studies full-time during any stage of these 2 weeks, he or she satisfies the workload requirements from the beginning of the term or semester.               

35    Workload: normal amount of full-time work

35. (1) If a course is a designated course for the Higher Education Contribution Scheme (called HECS) under subsection 34 (1) of the Higher Education Funding Act 1988:

(a)               the normal amount of full-time work for a year of the course is the standard student load determined by the institution for the purposes of HECS; and

(b)               the normal amount of full-time work for a semester of the course is 0.5 of the standard student load.¹

(2) If the course is not a designated course for HECS, the normal amount of full-time work for a year of the course is:

(a)               if the institution specifies an amount that a full-time student should typically undertake – the amount specified; or

(b)               in any other case – the amount calculated using the following formula:

                                                total work of course

                                    total length of course

where:

“total work of course” is the total amount of work of the course;

“total length of course” is the minimum number of years needed to complete the course.

(3)   If the course is not a designated course for HECS, the normal amount of full-time work for a semester of a course is:

(a)               if the institution specifies an amount that a full-time student should typically undertake – the amount specified; or

(b)               in any other case – half the normal amount of full-time work for a year of the course.

(4)   If the course is not usually offered on a full-time basis² – the normal amount of full-time work for a year is the normal amount of full-time work of another course that:

(a)                 is offered on a full-time basis; and

(b)                 is in a comparable field of study and is of the same level.

Notes to regulation 35

1                   HECS liability is calculated once each semester, but the AUSTUDY workload test is a continuing test

2                   Subregulation 35 (4) defines the normal full-time workload for courses that are essentially part-time.  This is because occasionally students undertake a full-time workload in such courses.

            Mr Gray did not claim to be entitled to a workload concession for academic or vocational reasons.

The Competing submissions advanced before the Tribunal

10                  For Mr Gray (he was represented by his mother, a barrister) it was submitted that in reg 35(1)(a) and (b) as a matter of English grammar, the word “and” separating the two paragraphs is used as a co-ordinate conjunction, that being indicated by the semi-colon appearing before it.  In other words each of paragraphs (a) and (b) described alternative tests and alternative periods, so that a student is required to satisfy only one of them to qualify for an AUSTUDY benefit.   In further support of this submission it  was said that in the alternative construction the word “and” indicated a conjunction, so that a student enrolled in a HECS approved course must satisfy both the conditions in paragraph (a) and (b) produced the absurd result that there became no role at all for paragraph (a) because a fortiori satisfaction of paragraph (b) produced satisfaction of paragraph (a).  It was submitted also that the Secretary’s interpretation produced the result that a full-time student would not be able to utilise payments made progressively throughout the year until the year was finally completed and it was known that both paragraphs had been complied with.  Finally, it was submitted that the words “a period” and “that period” appearing in reg 34 referred to a single period whereas the Secretary’s interpretation required the words to be interpreted as “any period” or “those periods”.

11                  For the Secretary it was submitted that the word “and” both usually and in the present context indicated a conjunction rather than an alternative so that the requirements of paragraphs (a) and (b) were as a matter of ordinary English cumulative requirements which had to be satisfied.  It was said that this accorded with the policy underlying AUSTUDY that a student had to study full-time and this was only achieved if the matter was tested both on an annual and on a semester basis.  Otherwise, it was submitted, a student could complete the requirements for a full year course in one semester, do nothing in the second but continue to receive the AUSTUDY benefit.

The Tribunal’s decision

12                  The Tribunal accepted the submissions put to it by Mr Gray.  Indeed it did so by adopting the submissions in total, setting them out in full in its reasons.  In so doing the Tribunal noted that the result was contrary to the decision of Deputy President Burns in Secretary, Department of Employment, Education, Training and Youth Affairs v Stojanovic (unreported, Tribunal Decision No 11846) and another unreported decision of the Tribunal (Decision No 12293), handed down by the learned Senior Member who presided in the present matter.  In so doing Senior Member Allen noted that he was now convinced that these decisions were wrongly decided.

13                  The Tribunal also rejected two alternative submissions advanced on behalf of Mr Gray.  The first related to a suggested estoppel, the second was that as the respondent applied for AUSTUDY during university holidays when there was no student workload it was sufficient if the student had been enrolled by the university as full-time during the year.  These submissions were not repeated in this Court.

The submissions advanced on the appeal

            Both sides adhered to the major submissions which they had advanced before the Tribunal.  Counsel for the Secretary, however, elaborated upon the submissions which had been advanced before the Tribunal.

14                  For the Secretary it was submitted that  reg 35 acted as a definition section and should be read together with reg 34. So much can be confidently accepted.  However, it was said that the conclusion that “and” be treated as a co-ordinating conjunction was not necessary to interpret the Regulations and imposed a form of interpretation which was “rarely accepted”. 

15                  Second, the concept of categories of students, namely those enrolled on a yearly basis and those enrolled on a semester basis, was not evident in the Regulations and “was devised by the respondent to meet the circumstances of his particular case.” 

16                  Counsel for the Secretary repeated the submission advanced before the Tribunal that an interpretation that allowed a student’s workload to be calculated on a yearly basis only, did not give effect to the requirement in reg 34(1) that a student must study full-time to be entitled to AUSTUDY.  So, it was said that a consequence of the Tribunal’s decision was that a student who completed a year’s workload in first semester could receive AUSTUDY during second semester even though not studying at all, and that this went against parliament’s purpose of providing AUSTUDY for consistent work as a full-time student over the entire year. 

17                  This requirement of consistent work throughout an entire year was, it was submitted to be found in other provisions of the Regulations.  So, it was said, in times of illness or during the vacation periods, specific regulations were required to allow a student to continue receiving AUSTUDY for in such a case the student was not studying full-time: see regs 9–11.   Regulation 8 provides that if full-time study is discontinued before the end of a course, AUSTUDY entitlements will cease on the last day of full-time study undertaken.

18                  Finally, it was submitted for the Secretary that the necessity that both the full year test and the semester test be applied cumulatively did not render the full year test in 35(1)(a) otiose as reg 35(1)(a) was necessary for the calculation of the full-time work for a semester, and was addressed to those courses that were not conducted in semesters.

Discussion

19                  Whatever the outcome of the present application it is clear that the drafting of the Regulations lacks clarity.  The ambiguity in the Regulation has already been the subject of comment in the Tribunal, see Re Secretary, Department of Employment, Education, Training and Youth Affairs and Stojanovic (1997) 25 AAR 63 at 70.  It is regrettable not only that a regulation upon which the support of qualifying students  and the administration of the AUSTUDY Scheme may depend, is unclear, but that, once pointed out, it is allowed to continue without being rectified.

20                  The legislation and regulations made under it fulfil a socially desirable purpose.  Education and the support of those who desire to undertake it are important to our society.  The Regulations which have been adopted to flesh out the Act should not be given a narrow interpretation so as to defeat this social policy.   But this having been said the Regulations must be interpreted by reference to the Act and the context in which the Act was enacted, context being given the broad meaning adopted by the High Court in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384.

21                  With respect to the submissions of the Minister it would seem unlikely that the explanation for the two requirements in regs (a) and (b) is to be found in the possibility that a full year course could be completed in one semester.  Apart from the fact that  compliance with the requirements of (b), that is to say full-time study in each semester would invariably render the need to comply with paragraph (a) otiose, (it would automatically be complied with and no submission to the contrary of that can be accepted) the situation would be, if at all possible, extremely rare that a course which has requirements, whether for exams, assignments or just course attendance for a year could be completed in one semester.

22                  I challenged counsel for the secretary to provide illustrations of courses which would be HECS approved courses where students enrol on a full year basis but where the course could be completed in one semester.     Upon reflection it would be dangerous for me to rely on such information, involving, as it does, questions of fact which could require elucidation.  For example, in response it was suggested that the Legal Practice course conducted by the Australian National University was a course which could be completed in one semester by a student studying full-time and which that University regarded as one equivalent full-time student unit.  However, it is also the case that if a student enrolled in that course for a full year, that student would not be a full-time student, and would not comply with the tests in paragraph 35(1)(a).

23                  The word “and” when it appears in legislation and joins two requirements, usually will indicate that the requirements are cumulative.  But that is not an invariable rule, nor was it suggested that it was.  The question will always be one of construction in the particular context:  Re Licensing Ordinance (1968) 13 FLR 143 at 147.  It is likewise correct that courts will strain against a construction which renders some words used by Parliament, or some provision, superfluous: The Commonwealth v Baume (1905) 2 CLR 405, R v Bishop of Oxford (1879) 4 QBD 245.  On the other hand, if this is what the context requires, then so be it.  

24                  In my view the explanation for paragraphs (a) and (b) of reg 35(1) is to be found in the context provided by the Act and the Regulations (and university practice) and once that is discerned, supports the submissions of Mr Gray.

25                  Section 7, which is the legislative foundation for the AUSTUDY scheme requires that before a student who is an Australia citizen qualifies for a benefit he or she be both enrolled in a relevant course and undertake or proposes to undertake a relevant course: ss 7(a)-(c).  A distinction is then drawn between two classes of case.  The first is where the student is enrolled in a relevant institution for the whole year.  The second is where the student is enrolled for something less than the whole year, being “part of the year”. 

26                  As may be expected this dichotomy finds its way, as well, into the Regulations.  For example courses which the Minister may approve divide into those which are full year courses or those which are not: see, eg Reg 6.

27                  This distinction finds its way then into reg 35 which operates as a definition section for reg 34.

28                  It is a requirement of reg 34(1) that a tertiary student study full-time.  Subregulations (2), (3) and (4) operate to define what is meant by full-time in this context, and, putting to one side subreg (4), this is done by reference to a concept of student work load given content in subreg (2), which refers to “normal amount of full-time work” in a period, that period being one of the periods referred to in Reg 35.

29                  When one turns to reg 35, subreg (2) refers to a course being a non-HECS designated course where the course is a full year course.  Subregulation (3) which is alternative to subreg (2) has application where the course is not a full year course.  It directs where the course is not a full year course that attention be given to each semester.  Subreg (4) is directed at the special case where the course is not offered on a full-time basis and can for present purposes be put to one side.  The same distinction that is to be found in subregs (2) and (3), runs through paragraphs (a) and (b) of subreg (1).  Para (1)(a) is directed to a course which is a full year course and stipulates a period that is the whole year.  While para (1)(b) does not say so expressly (it does, however, refer to “a semester of a course”) it would seem logical that it operate to give effect to the same dichotomy, being not applicable both to full year and part year courses, but rather applying to the case of a course which is not a full year course covered by para (1)(a).  Where it applies the period to be adopted is a semester just as the period adopted in subreg (3) is a semester where the course is a non-HECS designated course.

30                  The view that para (a) and (b) are alternatives intended to deal respectively with courses that are full year courses and those which are not is reinforced by the following matters:

·        Regulation 34 in defining what is meant by the requirement that a student study full-time requires there to be found “a period” and that that period is set out in reg 35.  While no doubt reference to the Acts Interpretation Act 1901 would permit words in the singular to be read in the plural, whether the plural should be adopted depends upon the context.  There is some difficulty in reading  the words “that period” in reg 34 as “those periods”.  The normal meaning would suggest that the Regulation contemplated one, not two, periods in the present context.  This is reinforced by the fact that, as I have already pointed out subregs (2) and (3) are clear alternative periods.

·        There is no sensible reason that could be advanced for permitting a student enrolled in a full year course which was not a  HECS designated course to complete, if he or she was able to, his or her course in less than a year but continue to obtain the AUSTUDY benefit but treating differently a student enrolled in a full year HECS designated course.  There is no reason to suppose that the Regulations were intended to treat differently students enrolled in HECS designated courses and those enrolled in non-HECS designated courses, assuming otherwise that the courses are approved for the purposes of the AUSTUDY scheme.

·        As the submissions put on behalf of Mr Gray point out a contrary interpretation leaves paragraph (a) of subreg 35(1) with no work to do and as mere surplusage.

31                  In the result, in determining whether a student in the position of Mr Gray was entitled to an AUSTUDY benefit it is necessary first to determine what course it is in which he is enrolled.  It is then necessary to determine whether that course is a HECS designated course.  Next it must be determined whether that course, if HECS designated, is a full year course or not.  If it is a full year course (not a part time course that may be undertaken full-time, when reg 35(4) will apply) then reg 35(1)(a) will be applied.  It then is necessary to enquire what the institution determines as the standard student load.  If the student is enrolled in subjects which amount to at least three quarters of that normal student load he or she will be entitled to the AUSTUDY benefit, but subject to the requirement that the course be in fact undertaken.

32                  It appears that the matters referred to in the last paragraph were all decided by the Tribunal in favour of Mr Gray.  In these circumstances the appeal should be dismissed with costs.

Associate:

Dated:              13 September 1999