Bull v Attorney-General

The expression "accredited tertiary course" is defined as a course that is: "(a) accredited as a tertiary course by the authority responsible for the accreditation of tertiary courses in the State or Territory in which the course is conducted; or (b) if a tertiary institution is authorised by the law of the State or Territory in which the institution is located to accredit its own tertiary courses - a course conducted and accredited as a tertiary course by that institution."

The Tribunal's decision The parties were agreed that the MA (Psych) course is a course for which the entry requirement is "an undergraduate bachelor degree", that it is "an accredited tertiary course", and that the University of Sydney is a "higher education institution". The only issue between them was whether the course is a "graduate diploma course" as the respondent contended, or a master's degree course as the applicant contended. The Tribunal thought the meaning of the words "course of a type specified in Column 1 of Schedule 3" in para.6(1) of the Determination was not entirely clear. It said the Act was beneficial legislation which ought to be construed in a manner favourable to those it was intended to benefit. The Tribunal then referred to dictionary meanings of the word "type", and concluded that the question for determination was whether the MA (Psych) course possessed "the characteristic qualities of, or the particular characteristics which distinguish it as, a graduate or postgraduate diploma course". In pursuing this line of enquiry the Tribunal derived assistance from the "Australian Qualifications Framework" ("AQF") published by the Ministerial Council on Education, Employment, Training and Youth Affairs. According to the AQF implementation Handbook, AQF provides "a comprehensive, nationally consistent yet flexible Framework for all qualifications in post-compulsory education and training". It was developed and assented to by Commonwealth, State and Territory Ministers responsible for education and training, and was introduced throughout Australia on 1 January 1995. Within the Handbook are guidelines which are said to "contain the main criteria for defining qualifications based on the general characteristics of education and training at each qualification level". These characteristics are expressed as "learning outcomes". The relevant guidelines are the Graduate Diploma Guideline and the Masters Degree Guideline. The characteristics of learning outcomes at graduate diploma level include "the broadening of skills already gained in an undergraduate program, further specialisation within a systematic and coherent body of knowledge, or developing vocational knowledge and skills in a new professional area". The characteristics of learning outcomes at master's degree level include "the enhancement of specific professional or vocational skills which may be undertaken by directed coursework and/or research, and the acquisition of in-depth understanding in a specific area of knowledge which is usually undertaken through research". The Guidelines also deal with the prerequisite knowledge for the relevant qualification. Candidates for the graduate diploma will typically hold the equivalent of a bachelor degree or a diploma. Candidates for the master's degree will typically hold an honours bachelor degree.

The University of Sydney Department of Psychology Postgraduate Handbook discloses that a bachelor pass degree with a major in psychology is the entry requirement for the MA (Psych) course, whereas a bachelor degree with honours is necessary for entry to the other postgraduate degree courses offered by the Department. The Tribunal had before it evidence from Dr Kavanagh, Head of the Department of Psychology at the University, which disclosed the nature and content of the MA (Psych) course. Dr Kavanagh expressed the opinion that the course "resembles the Graduate Diploma in Science and ... would be more suitably offered as a graduate diploma in psychology". On the basis of the Guidelines and that evidence, the Tribunal concluded that the prerequisites for entry to the MA (Psych) course matched the description of the pathways qualifying a student to study for a graduate diploma set out in the Implementation Handbook rather than those for a master's degree, and that the characteristics of learning outcomes of the MA (Psych) course were those of a qualification at graduate diploma level rather than at master's degree level. Accordingly, the Tribunal found that the MA (Psych) course "is a course of a type of graduate diploma for which the entry requirement is an undergraduate bachelor degree". "Course of a type specified" Schedule 4 and other parts of Schedule 3 throw some light on the meaning of the words "course of a type specified" in para.6(1) of the Determination. The courses in the Schedule 3 table range from pre-vocational courses, through vocational programmes, certificate courses, diploma courses, bachelor degree courses, graduate or postgraduate diploma courses, postgraduate bachelor degrees, to master's qualifying courses. "Masters qualifying course" is defined as "a bridging course which gives participants the qualifications necessary for entry into a Masters degree course, but does not include any course which forms part of a Masters degree course". Schedule 4 identifies specific courses offered by named institutions. An example is the Master of Engineering in Information Technology and Telecommunications offered by the University of South Australia. Column 1 of Schedule 3 does not name particular courses. It does not, for instance, list all the bachelor degree courses that qualify for AUSTUDY benefit (bachelor of arts, bachelor of laws, bachelor of science etc). It speaks of a "[b]achelor degree course leading to a pass or honours degree". Column 2 does not name particular institutions. In connection with bachelor degrees, for example, it refers to "higher education institution[s]" and other institutions and schools. The contrast between Schedules 3 and 4 is clear. The former refers to types of courses and types of institutions, and the latter to particular courses at particular institutions. The difference is reflected in the headings to the Schedules - "Tertiary Courses - General" and "Tertiary Courses - Specific". This in turn reflects the different language used in sub-paras. (1) and (2) of para. 6. The former speaks of "a course of a type specified" and "an institution of a type specified", and the latter of "a course specified" and "the institution specified". It is clear, therefore, that in sub-para.(1) "a course of a type specified" is one that falls within the general description of courses (as in "bachelor degree course" or "graduate diploma course") in the Schedule. The task for the delegate considering the respondent's application was simple. It was to determine whether: (a) the MA (Psych) was an accredited tertiary course; (b) an entry requirement for the course was an undergraduate bachelor degree or diploma course or equivalent; and (c) the successful outcome of the course would result in the award of a graduate or postgraduate diploma. That the words "Graduate or postgraduate diploma" in the course description "Graduate or postgraduate diploma course" (and the comparable introductory words of many other course descriptions) look to the outcome of a successful completion of the course is shown by the description of "Bachelor degree courses" in Schedule 3 - a course "leading to a pass or honours degree", and the description of "Combined course" - a course "consisting of two separate accredited tertiary courses undertaken concurrently and which lead to a bachelor degree at a higher education institution and an associate diploma at a TAFE institution (emphases added). "Bachelor degree" and "[a]ssociate diploma" both appear as courses in column 1 of the Schedule.

As to (a), it was common ground that the University of Sydney is authorised to accredit its own tertiary courses, and that the MA (Psych) course is accredited as a tertiary course by the University. As to (b), it was common ground that an entry requirement for the course is a bachelor degree. As to (c), a person who successfully completes the course is not awarded a graduate or postgraduate diploma, but a master's degree. Master's degree courses do not feature in Schedule 3. Accordingly, the MA (Psych) is not a tertiary course for the purposes of para.6(1) of the Determination. The enquiry engaged in by the Tribunal, namely whether a particular course possesses the characteristic qualities of one of the courses described in the Schedule, is of considerable complexity. Rather than the simple exercise outlined above, it involves those who administer the AUSTUDY scheme second-guessing the judgment of the institution which provides the course and awards the qualification. In the present case, the Tribunal has in effect said that in its opinion the University of Sydney has inappropriately described its own course. It has overdignified it by calling it a master's degree course. It should have called it a graduate diploma course. There is little likelihood that in formulating the Determination the Minister contemplated that he or his delegates would perform that task. Neither he nor they could be expected to be qualified to do so. But more importantly, the Tribunal's approach is inconsistent with the notion of accreditation contained in the definition of "accredited tertiary course" - "a course conducted and accredited as a tertiary course by that institution". In the context of the Determination the word "accredited" means "officially recognized" (The New Shorter Oxford English Dictionary (1993)) or "certif[ied] as meeting official requirements" (The Macquarie Dictionary, 2nd ed. (1991)). It is quite at variance with the Determination's concern with the course the tertiary institution conducts and accredits for the applicant or Tribunal to go behind the accreditation as the Tribunal has in the present case. "Beneficial legislation" Before embarking on an examination of the Determination the Tribunal said that in "considering the meaning to be given to [the words 'course of a type specified'], the Tribunal is mindful that the Act in providing Austudy benefits is a piece of beneficial legislation which ought to be construed in a manner favourable to those whom it was intended to benefit". In his dissenting judgment in Zangzinchai v Millanta (1994) 53 FCR 35 at 43-44 Burchett J, after referring to authorities in the High Court and in this court, said that the beneficial approach to the construction of remedial legislation - "does not proceed on the basis that, before it can be applied, an ambiguity must first be found. On the contrary, the rule is one of the intellectual tools brought to the task of construction whenever the statutory provision to be construed is of a remedial nature. This understanding of the way the principle operates is simply a corollary of the recognition that words do not have fixed meanings, regardless of context. The rule is really an appeal to context - the words to be construed are used in the context of remedial legislation." In Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622 at 638, Mason, Brennan, Deane and Dawson JJ said: "[T]he rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must ... be restrained within the confines of 'the actual language employed' and what is 'fairly open' on the words used." In the context provided by para.6 and Schedules 3 and 4, the meaning of the words "course of a type specified" in para. 6(1) is clear. The words contemplate a course which falls within the descriptions of courses contained in Schedule 3. In relation to the type of course in question in the present case (and many other types of course), the words are directed to the type of course officially sanctioned by the relevant institution; that is to say, to the description given to a course by that institution. This is what is "specified" - "a strong word" signifying precision or precise statement: Tickner v Chapman (1995) 57 FCR 451 at 480-481; TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 62 FLR 366 at 375. The meaning the Tribunal attributed to the language is, with respect, not fairly open.

Conclusion The Tribunal made an error of law in coming to its decision by misconstruing the phrase "course of a type specified" in para. 6(1) of the Determination. The decision should be set aside. In lieu thereof, since the facts have been fully found, it should be ordered that the decision of the Social Security Appeals Tribunal be set aside, and that the decision of the Secretary be affirmed. There should be no order as to costs, the applicant having informed the Court during argument that no such order was sought. I certify that this and the preceding twelve pages are a true copy of the Reasons for Judgment herein of the Court Associate: Date: 11 December 1996 Counsel for the Applicant: R. Henderson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: C. Whitelaw Solicitors for the Respondent: Kessells & Associates Date of hearing: 12 September 1996