Editors --- "Student assistance: Ministerial determination: defined course of study" [2007] SocSecRpr 41; (2007) 9(3) Social Security Reporter, Article 15

• WECKER v Secretary to the DEWR
• Background
• Formal decision

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Student assistance: Ministerial determination: defined course of study

WECKER v Secretary to the DEWR

(Federal Court of Australia)

Decided: 2nd July 2007 by Graham J.

Background

Wecker began a Bachelor of Laws and in the third year transferred to a Masters of Education at another tertiary institution. During the period of study, Wecker received Austudy from Centrelink. There was conflicting evidence before the Court as to whether Centrelink was informed at the relevant time of the change.

In March 2005, a Centrelink officer determined Wecker was not entitled to Austudy for the entire period of masters level study, raising a debt of $10,946.20. This decision was affirmed at all levels of review.

On 10 July 2006, an appeal was lodged with the AAT. The application was made on the basis that:

‘The SSAT has: disregarded Minister’s Determination2002/1 (s5D SAA 1973). Both the SSAT’s decision and a part of the Minister’s Determination are inconsistent with the legislation.

The SSAT’s decision is inconsistent with s569(2)(b) of the SSA 1991.

The SSAT has relied on policy which is inconsistent with the SSA 1991.

The SSAT has referred to policy above legislation.’

(Reasons, para 15)

In its decision of 22 March 2007, the AAT disagreed with each of Wecker’s contentions and affirmed the decision of the SSAT. The Tribunal also found there were no grounds to waive the debt or any part of it on the basis that Wecker had not advised Centrelink of the change of course. Wecker’s statements regarding advice of the change were found to be inconsistent, and his evidence unreliable.

Wecker then appealed to the Federal Court on 18 April 2007 arguing that there had been an error of law regarding the interpretation of s.569 of the Social Security Act 1991 (the Act), and that a finding be made setting aside the AAT’s decision.

The interpretation of the Minister’s Determination

Section 569(2) of the Act relevantly provided:

‘569(2) A person cannot be taken to satisfy the activity test if the person:

...

(b) has completed a course for:

(i) a degree of Master or Doctor at an educational institution; or

...’

Wecker submitted that this provision suggests that a student will relevantly qualify for Austudy until such time as they have completed a Masters degree course. However, the Court said that this submission overlooked the requirements of s.569(1) which are expressed as follows:

‘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).’

The Court said it was clear that an entitlement to Austudy depends upon a person satisfying the ‘activity test’ and that in turn requires a person to be ‘undertaking qualifying study ‘within the meaning of s.569A of the Act.

Section 569A(b) provides:

‘569A For the purposes of this Part, a person is undertaking qualifying study if:

...

(b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section569B); ...

...’

Section 569B provides:

‘569B For the purposes of paragraph 569A(b), a course is an approved course of education or study if it 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.’

Section 5D of the Student Assistance Act 1977 empowers the Minister to determine in writing that a course of study or instruction is a ‘tertiary course’.

For Wecker to qualify for an Austudy payment it was necessary for him to be enrolled in a course of education which answered the description of being a tertiary course within the relevant Ministerial Determination.

Relevantly, paragraph 7 of the Ministerial Determination provided:

‘Tertiary Courses

7. (1) For the purposes of the Act, a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course.

(2) For the purposes of the Act, no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.’

The relevant words contained in Column 1 of Schedule 2 to the Ministerial Determination were expressed as follows:

‘Undergraduate or postgraduate accredited higher education course which is at the level

of:

...

. graduate degree;

...

. 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 course at the level of a Masters or

Doctoral degree unless otherwise

specified in Schedule 2.’

Wecker argued that his circumstances were covered by the expression:

‘ ...postgraduate ... course which is at the level of:

...

. graduate degree’

The Court acknowledged that there was a difficulty in the Determination that at one point implied there was no bar to Masters and Doctors’ level studies attracting Austudy (Reasons, para 44). However, it wanton to find that

‘...graduate degree, properly construed, does not include degree courses at the Masters level.’

(Reasons, para 47)

It was reinforced in this finding by its examination of Masters qualifying courses, graduate certificates and bridging courses, all of which do attract Austudy as they lead to a Masters course or provide specialist discipline study, such as for nursing and engineering. It was noted payment could be made in those cases to the end of the bridging course but not covering Masters level study.

‘A postgraduate course at the level of ‘graduate degree’ does not, as I see it, include a course at the level of a Masters degree, in the context in which it appears in paragraph 7 of the Ministerial Determination and Column 1 of Schedule 2 taken as a whole’. (Reasons, para 52).

Wecker also argued that regard should be had to the last box within Column 1 of Schedule 2 of the relevant Minister’s Determination which provides as follows:

‘Integrated undergraduate/postgraduate course leading to a Masters degree, excluding that year or years of the integrated course in excess of the normal full-time duration of the related undergraduate accredited higher education course or related undergraduate and postgraduate accredited higher education courses that are not at the Masters level. (That is, excluding the year or years relating to study at the Masters level).’

The Court said that this last box did not have any application to Wecker’s circumstances as he was not studying an integrated course, in that it was not a course which included elements of an undergraduate as well as a post graduate course.

The ability of the Court to make findings of fact

Section 44 (7) of the Administrative Appeals Tribunal Act 1975 (Cth),allows the Federal Court to make findings of fact in some circumstances.

Wecker requested that the Court make a finding of fact that, contrary to the AAT’s view of the facts, Wecker had advised Centrelink of a change of study. The Federal Court said:

Whilst s 44(7) of the AAT Act confers a limited power on the Court hearing an appeal on questions of law under s 44(1) to make findings of fact if, after considering a series of matters, it appears to the Court to be convenient to do so, the Court is precluded from making any findings of fact that are inconsistent with findings of fact made by the AAT, other than findings that were made by the AAT as the result of an error of law.

Plainly, the Tribunal Member did not commit any error of law in evaluating the applicant’s credit on the issue as to whether or not the applicant had informed Centrelink of his changed circumstances on 26 August2004. The Tribunal Member having rejected the applicant’s evidence that he made a disclosure of his change of course to the Braddon office of Centrelink on 26August 2004, the Court may not make a finding of fact inconsistent with the Tribunal Member’s finding.

(Reasons paras. 26, 27)

Formal decision

The decision of the AAT was affirmed and Wecker ordered to pay the respondent’s costs of the appeal.

[J.S.]