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[2001] VCAT 2413
respondent. The respondent’s determination was affirmed. Costs were reserved.
The Tribunal upheld the Minister’s refusal to accredit WBI’s proposed law degree. It said that using Deakin’s course materials was not enough: the way the course was taught and assessed also mattered. The proposed intensive monthly schedule was too compressed, and the Tribunal was not satisfied about assessment, staffing and resources. It also held that the Minister could ask about matters such as WBI’s business plan and student contract when considering accreditation. The Tribunal did not make formal findings on the applicants’ complaints about the Ministerial process.
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Dr Leon Loftus applied on behalf of Western Business Institute Pty Ltd (WBI) for accreditation of a Bachelor of Laws course. The application was dated 28 July 1999 and lodged on 9 August 1999 ([16]). WBI proposed to use teaching materials supplied by Deakin University Law School under a formal agreement, but to deliver the course through its own intensive monthly-unit model ([17]-[19]).
6 cited instruments linked from this judgment.
The Minister referred the application to a panel of the Higher Education Advisory Committee and accepted the substance of the panel’s final report dated 23 May 2000 ([3]). The Tribunal’s reasons give 18 September 2000 as the date the Minister determined the application should be refused ([2]). The formal order, however, identifies the determination affirmed as having been made on 7 September 2000. The Tribunal did not explain that difference in the extract.
Dr Loftus sought review on 10 October 2000. WBI was added as a co-applicant, and the respondent was identified as the Minister ([2]). A direction confined the hearing to whether accreditation should be granted having regard to the criteria in s 11(3) of the Tertiary Education Act 1993 (Vic), and to questions about interpreting or applying those criteria ([7]).
The applicants also challenged aspects of the Ministerial process. Dr Loftus argued that National Competition Policy constrained the Minister’s discretion, that accreditation should concern course content rather than institutional matters, and that the advisory panel included competitors. The Tribunal rejected the proposed competition-policy reading of the Act and decided the merits question under the statutory words as they stood ([8]). It ultimately affirmed the refusal and reserved costs.
The statutory criterion required the Minister to have regard to whether the course was “equivalent in standard to a course leading to an award of that type or level in a University” ([10]). The Tribunal accepted that the words could arguably be read in more than one way, but construed them as requiring comparison with a university Bachelor of Laws course, not with bachelor degrees generally ([35]). Its reasons were that degrees in different fields can differ in intellectual content and rigour, and a general comparison risked depriving “equivalence” of meaningful content ([35]).
The Tribunal rejected the argument that using Deakin’s curriculum demonstrated equivalence by itself. It accepted that the proposed course attained equivalent curriculum because it used Deakin materials ([37]). But it held that course equivalence also required attention to teaching and assessment. Its hypothetical examples illustrated the point: identical materials might not produce an equivalent course if teaching time were drastically reduced or examinations demanded substantially different standards ([38]-[39]).
The proposed delivery schedule was central. WBI planned to teach one subject per month, sequentially. The application described a minimum undergraduate completion period of two years and eight months and a graduate completion period of 24 months ([19]). The Tribunal contrasted this with university law courses delivered over semesters or trimesters, with subjects studied concurrently and time allowed for examination preparation ([40]-[42]). It recorded that undergraduates at WBI would have at least 48 contact hours of teaching per week, while the graduate model provided 20 contact hours per week, or 60 hours for a unit ([43]-[44]).
The Minister’s witnesses described the proposed delivery as cramming, likely to produce rote or superficial learning, and lacking time for reflection or private study. The Tribunal agreed and called the proposed compression “wholly unsatisfactory” ([45]). It considered the undergraduate model especially problematic given the proposed entry requirement and the prospect that students unable to obtain places in government-funded law schools might enrol. It noted the witnesses’ view that the schedule was pedagogically unsound ([46]). It found the undergraduate course not equivalent in its teaching, and also found the graduate schedule punishing and unsatisfactory ([54]-[55]).
Assessment raised separate concerns. The application gave little direct information about how assessment would operate, and Deakin had not agreed to provide assessment services ([48], [56]). The Tribunal also considered the proposed fee arrangements, including the contemplated automatic monthly payments and penalties for failed or repeated subjects. It was concerned that the contract details had not been provided and that the arrangements could create difficulties for students unable to keep pace ([57]). It did not find that WBI would pass students improperly; rather, it identified a possible pressure and concluded it was not satisfied that the assessment arrangements were equivalent ([57]-[58]).
The Tribunal also rejected the claim that inquiries into staff, business plans and student contracts belonged only at a later authorisation stage. It accepted that ss 11(3) and 11(4) overlap, and held that resources could be relevant to the standard and continuing delivery of a course. It treated student contracts as potentially relevant to administration ([11]-[15]). The lack of an identified business plan, specific premises, committed academic staff and sufficient evidence of financial capacity contributed to its concerns about whether the proposal could be delivered as described ([60]-[64]).
The judgment does not describe a change in the law before and after the decision. It applies the existing text of s 11 of the Tertiary Education Act 1993 (Vic). The Tribunal expressly rejected the submission that National Competition Policy had implicitly amended or substantially modified that section, and said the proceeding should be determined according to the statutory words ([8]).
The decision’s interpretive contribution, within the reasoning provided, is its explanation of how the Tribunal applied the statutory “equivalent in standard” test. It treated the benchmark as a university course leading to the same type of award, here a Bachelor of Laws ([35]). It considered curriculum, teaching method and assessment together, rather than treating shared content as conclusive ([37]-[39]). It also treated the matters listed in s 11(3)(b), such as resources and staffing, as capable of informing the assessment ([14], [59]-[64]).
The Tribunal noted that s 11(3)(b) matters were matters it “may” consider, not matters it was obliged to consider, referring to s 45 of the Interpretation of Legislation Act 1984 (Vic) ([59]). It nonetheless considered several of those matters relevant in this application. The judgment does not say that every accreditation application must involve identical inquiries or that each listed matter must be established to a particular prescribed level.
At [14], the Tribunal said there was “no warrant” for restricting s 11(3) as Dr Loftus proposed. In plain English, it did not accept that accreditation was limited to checking the course’s subject content. It considered resources and administration relevant where they bore on the standard and delivery of the course.
At [35], the Tribunal construed the comparison as one with a university Bachelor of Laws. It reasoned that degrees across different disciplines may have different levels of rigour, making a comparison with bachelor degrees generally unhelpful for this application.
At [38], the Tribunal said it would be “absurd” to assess equivalence without regard to teaching method. Its point was that suitable materials do not guarantee an equivalent course if teaching time and the way material is taught differ substantially.
At [45], it described the proposed compression as “wholly unsatisfactory”. This followed its comparison of the contact hours and timetables, and its acceptance of evidence that the schedule allowed too little time for reflection and private study.
At [65], the Tribunal stated that the Minister’s determination should be affirmed. The formal order records the result: the refusal was affirmed and costs were reserved.
The Tribunal’s comments on the alleged secondary boycott require care. At [67], it said the allegation under s 45D of the Trade Practices Act 1974 (Cth) was “clearly misconceived”. But at [68] it expressly declined to make formal findings on the process complaints, because they were outside the merits-review issue and the applicants had been prevented from fully developing those matters. The passage therefore should not be treated as a formal merits determination of a separate claim.
The reasoning is most directly relevant to applications under s 11(3) of the Victorian Act for accreditation of a non-university course leading to a university-type award. In particular, it addresses a situation where an applicant relies on university-prepared curriculum materials but proposes materially different teaching or assessment arrangements ([37]-[39]).
It is also relevant where a proposed course is delivered in a highly compressed format. The Tribunal examined contact hours, duration, whether subjects were sequential or concurrent, and whether the schedule allowed time for study and examination preparation ([38]-[46]). Its assessment depended on the proposal and evidence before it; the reasons do not establish a numerical threshold for acceptable teaching hours.
The decision also bears on applications where the regulator’s concerns extend beyond academic content to institutional capacity. The Tribunal treated staff qualifications, resources, business planning, premises and student arrangements as potentially relevant to accreditation where they bore on teaching, administration or standards ([14], [60]-[64]). It does not say that an applicant must always provide the same documents or that commercial confidentiality can never be raised.
The supplied judgment contains no discussion of later cases applying, distinguishing or reconsidering its reasoning. No later treatment can be established from this source alone. The decision itself refers to no other judicial precedent in its reasons, so the precedent-relationship field is left empty rather than inferring a later history.
For professional research purposes, the judgment supports only a source-based account of what this Tribunal decided in 2001. It does not, by itself, establish whether the statutory provisions remain in the same form, how later courts or tribunals have treated the decision, or whether subsequent legislation has altered the framework. Those matters are outside the supplied text.
The judgment leaves unresolved, on the material provided, how the equivalence inquiry would apply to a different course structure or a different evidentiary record. It concludes that WBI’s proposed schedule was unsatisfactory, but does not set a minimum number of teaching weeks, contact hours, or study hours for an accredited law degree ([43]-[55]).
It also does not determine whether particular conditions could have addressed gaps about premises or resources. At [60]-[61], the Tribunal said some matters might, if they were the only concerns, potentially be addressed through conditions, but concluded that this was not a proper response in the circumstances because other concerns remained. The reasoning therefore does not establish when conditions would be sufficient in another application.
The decision does not make formal findings on the applicants’ complaints about the Ministerial process. It states that those matters were for judicial review rather than the merits review before the Tribunal, and that the applicants had not been permitted to develop all the evidence they might have wanted ([66]-[68]). Nor does the judgment resolve the alleged competition-law claim as a separate proceeding.
Finally, the reasons do not disclose whether WBI later made another application, whether the course was ultimately delivered, or how the costs issue was decided. The order records only that costs were reserved.
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General List; Tertiary Education Act 1993, Section 11(3); Application for Accreditation of Course of Study Leading to Conferral of Degree of Bachelor of Laws by Institution Other than a University; Whether Equivalent to a Course of Study at University Leading to a Similar Award; Relevance of National Competition Policy
Respondent Minister for Post Compulsory Education Training and Employment
Medium Neutral Citation [2001] VCAT 2413
1. The respondent's determination made 7 September 2000 is affirmed.
For the Respondent: Mr Maxwell, QC and Ms Caron Beaton-Wells of Counsel
1. In early August 1999 Dr Loftus on behalf of his company, Western Business Institute Pty Ltd, sought accreditation under Section 11(2) of a Bachelor of Laws Degree to be taught and conferred by the Institute.
2. On 18 September 2000 the Minister determined that the application should be refused. On 10 October 2000 Dr Loftus lodged an application for review with this Tribunal. At the first directions hearing in the proceeding conducted on 17 November 2000, Mr Galvin, Deputy President, ordered by consent that Western Business Institute Pty Ltd be added as a co-applicant and that the respondent named on the review application as the Department of Education should be amended so as to read the Minister for Post Compulsory Education Training and Employment.
3. The Minister's reasons for decision furnished pursuant to Section 49 of the Victorian Civil and Administrative Tribunal Act 1998 extend to some 64 paragraphs. The Minister referred the question of WBI's accreditation application to the Higher Education Advisory Committee (HEAC) which constituted a panel to consider and report. She accepted the substance of the panel's final report dated 23 May 2000.
4. The consideration of the application at Ministerial level was fraught with conflict. Dr Loftus told us that in his conception the application should be "not much more complicated than applying for a dog licence". In his view, as a consequence of the State of Victoria's committing by a series of agreements with the other State and Territory Governments and the Commonwealth of Australia to a national competition policy and enacting the Competition Policy Reform (Victoria) Act 1995 there was virtually no Ministerial discretion involved in extending accreditation to the proposed degree other than on competition policy issues such as market failure. Further, he was of the view that since the Post Secondary Education Act 1993 makes separate provision in the same section which deals with accreditation (Section 11) for the Minister to approve an institution conducting a course, consideration at the accreditation stage should not extend beyond course content.
5. As a result, when the Panel constituted to advise the Minister asked searching questions with respect to the identity of proposed academic staff, the text of the contract to be entered into with students undertaking the course and called for the production of WBI's Business Plan, Dr Loftus indignantly refused. He also took exception to the constitution of the Panel which included the Dean of the Monash Law School (Professor Parker) and Professor Spencer Zifcak, a Professor in the Latrobe University Law School. In Dr Loftus' view it was unfair to require his institute to justify itself to a panel which he regarded as constituted by the Institute's competitors. The issue of commercial confidentiality assumed in Dr Loftus' view an acute significance in those circumstances.
6. Dr Loftus believes that the Minister and her advisers acting in the way that they did and in the circumstances which pertained, engaged in an illegal secondary boycott contrary to Section 45D of the Trade Practices Act 1974 of the Commonwealth. He says that when these proceedings are concluded he will lodge a complaint against the Minister and her advisers with the Australian Competition and Consumer Commission.
7. Dr Loftus felt and continues to feel substantially aggrieved by the process of Ministerial decision making. His grievances are generally along the lines already indicated but we do not purport exhaustively to have stated every respect in which he faulted the Ministerial process. His application for review contained lengthy annexures going to the detail of his criticisms of the decision making process and the witness statements which he filed predominantly dealt with these issues rather than the issue appropriately considered on a merits review viz what in the view of the reviewing Tribunal is the correct or preferable decision. At a directions hearing on 5 June this year Judge Strong, Vice President, directed:
"That the hearing be confined to consideration by the Tribunal as to whether the application of the Western Business Institute for accreditation of a course of study leading to a conferral of a Bachelor of Laws should be granted having regard to the criteria in S.11(c) of the Tertiary Education Act 1993 (Vic) and any issues that concern the interpretation or application of those criteria in this particular case, or the interpretation of S.11 generally".
8. At the outset of the hearing before us Dr Loftus submitted that Section 11 of the Tertiary Education Act 1993 to which we will go in detail shortly, was to be regarded as implicitly amended or drastically modified as a result of the National Competition Policy to which Victoria has committed itself by agreement with the other States and Territories and the Commonwealth and that only issues of market failure should now be considered. For reasons which we then gave, we rejected these submissions ruling that this proceeding should be determined in accordance with the words of the Tertiary Education Act as they stand. In particular we rejected a submission by Dr Loftus that since Victoria was obliged to remove obstacles to competition in its statutes and to avoid so on the basis of a proper cost benefit analysis the perpetuation of rules, regulations and statutes that gave preferred positions to Government entity as against private sector competitors, the words of the Tertiary Education Act should be "read down" so as to conform with those principles.
9. Section 11 of the Tertiary Education Act 1993 prohibits institutions other than
(b) those holding Ministerial approval to act as universities or
from conferring higher education awards or offering or conducting courses of studies leading to such awards unless (with the exception of certain specified institutions)
(i) the course of study is accredited by the Minister; and
(ii) the Minister has authorised the institution to conduct the course of study (Section 11(e)).
10. Sub-section (2) of Section 11 provides that a person representing an institution may apply in writing for the accreditation of a course of study or authorisation to conduct a course of study. Dr Loftus has made an application for accreditation on behalf of Western Business Institute Pty Ltd. Sub-section (3) is important and we set it out in full:
"(3) In deciding whether to accredit a course of study under sub-section (1)(e)(i), the Minister--
(a) must have regard to whether the course of study is equivalent in standard to a course leading to an award of that type or level in a University; and
(b) may have regard to all or any of the following matters--
(ix) any other matter relating to the teaching administration or standards of the course of study."
11. Sub-section (4) deals with the matters which the Minister is empowered to have regard to in deciding whether to authorise an institution to conduct a course of study. This section might be regarded as irrelevant since the Minister was considering only an application for accreditation. That is the only matter which is before this Tribunal on review. Nevertheless, Dr Loftus placed reliance on the sub-section as shedding light on the proper interpretation of sub-section (3). Accordingly we will set sub-section (4) out in full as well.
"(4) In deciding whether to authorise an institution to conduct a course of study under sub-section (1)(e)(ii) the Minister may have regard to all or any of the following matters -
(b) the views or recommendations of any relevant industrial or professional body about the course of study;
(c) the standard of the course of study including whether the course of study is accredited under sub-section (1)(e)(i);
(d) the appropriateness of the proposed method of providing the course of study;
(e) the academic, financial and staffing resources of the institution and the availability of those resources in providing the course of study;
(f) any other matter relating to the management or operations of the institution which in the Minister's opinion are relevant to its ability to provide the course of study."
12. It will be seen that whilst the sub-sections use different language, there is ample scope for overlap between the enquiries required or authorised by both of them. Dr Loftus' view as previously quoted was that obtaining the accreditation under sub-section (3) was little more complicated than obtaining a dog license. He observed that in obtaining accreditation one received no ability to actually conduct any course and accordingly the only proper enquiry under sub-section (3) (putting to one side all arguments about competition policy) was as to course content. All further matters such as specifics relative to staff numbers, business plans, contracts with students etc were properly to be considered at the "authorisation" stage under sub-section (4). It was for these reasons amongst others that his proposal was limited in detail as to these matters both at the Ministerial stage and before this Tribunal.
13. Mr Maxwell QC who appeared with Ms Beaton-Wells for the Minister said that the usual practice is for the Minister to consider both accreditation and authorisation as part of the same process. The fact that the processes were split in the present case seems to have been as a result of a decision by Dr Loftus. Nevertheless, since the statute treats the two stages as separate there can be no criticism of him for dealing with the matters sequentially rather than together. This is an option which the statute clearly offers.
14. We see no warrant for restricting the operation of Sub-section (3) in the manner which Dr Loftus submits. Clearly there may be substantial overlap between Sub-sections (3) and (4) but the plain words of the statute allow, indeed require that this be so. In our view since the Minister is authorised under Section 11(3)(b)(vii) to enquire into "resources" she was perfectly entitled through her advisers to seek access to WBI's Business Plan. The standard of a course of study are dependent upon the provider having and continuing to have sufficient resources to deliver the course of study. Further , matters such as the student contract are properly to be regarded as part of the "administration " of the course of study in accordance with Section 11(3)(b)(ix).
15. Clearly particular difficulties attend a "start up" course with a "start up" institution. We believe however, again, that the Minister and her advisers were entitled to press as they did for some idea as to specific identities of leading staff members and not be satisfied with mere general assurances that appropriately qualified staff would in due course be appointed.
16. Dr Loftus' application for accreditation on behalf of Western Business Institute Pty Ltd was lodged with the Office of Higher Education on 9 August 1999. The application bore date 28 July 1999. According to the application the principal officers of the Institute were Dr Loftus who is described as "head and CEO"; the Deputy Head was Dr Segu Suhair and the Registrar was Dr Allan Hulls. Part-time officers to take up appointments when operations commenced were Mr Jack Hoadley and Dr Raj Vasudeva to serve as Planning Officer and Quality Officer respectively. When the Institute was accredited "a suitably qualified academic in law will be appointed to take over the control of the teaching of the LLB program". This person would "have the experience and qualifications that would normally be expected of a professor of law in an Australian university".
17. The course materials were to be supplied by the Deakin University Law School. The Institute has entered into a formal agreement with Deakin providing for those materials to be supplied on an annual basis.
"that teaching for all students in the course would be through an intensive short-term mode. It will be based on a modular unit of one subject per month with monthly enrolments in subjects, students will have greater flexibility to plan their studies. Should circumstances prevent them, or they desire to break their studies for a month or longer, it is anticipated that as the course develops, the required subject would be available when they wish to recommence studies".
19. The undergraduate form of the degree modelled on the Deakin course would consist of 32 units and graduate and mature age students would be required to complete 24 units. Consequently the minimum time for an undergraduate to complete the units would be two years and eight months and a graduate would be able to complete the degree in 24 months. According to the proposal "in each case the length of the course depends primarily on the circumstances and motivation of each student".
20. The degree was proposed to be called Bachelor of Laws (LLB). The proposal noted that access to law degrees at Australian universities was
"limited compared with the demand from applicants, and consists mainly of students commencing tertiary study. Graduates from other professions seeking a law degree are confined at gaining entry to an external studies degree or are normally required to attend day classes if they are selected within the restricted numbers attending the course."
"WBI have recognised the need to offer an alternative approach for graduate students and businesses seeking a legal qualification as well as full time students commencing tertiary studies."
21. The proposed degree will be identical in content to the Deakin Bachelor of Laws degree. The degree both at the undergraduate and post graduate level would consist of 24 "core" subjects and in the case of the undergraduate version would include four optional law subjects and four commerce subjects.
22. Assessment would be by way of an open book exam consisting of three and a half hours writing (and presumably half an hour reading). Provision is also made for "assignments" in each unit which in most cases would be "structured in the form of a letter of advice to a client". There would also be a requirement for students to take part in a number of forms of dispute resolution, playing the role of judge or counsel. In each academic year each student would be required to take 10 working days of practical experience.
23. Undergraduates would be required to have completed the Victorian Certificate of Education or interstate equivalent. Admission to the graduate program would "be restricted to those persons who hold a degree from an approved institution, or equivalent qualification, together with an assessment of their relevant work and life experience". Credit would be allowed for prior legal studies but "students who have been refused continuing enrolment at another university normally would not be allowed to enrol".
24. Students would also be required to undertake "practical legal skills tasks".
25. The mode of study would be sequential rather than concurrent. That is, whilst each unit would be required to be completed within one month, only one unit per month would be undertaken at a time. The first three weeks of the month would be taken up with teaching with assessment in the fourth week. Full time students would undertake four hours of lectures per day, six days a week for three weeks in each unit with a four hour tutorial or workshop each working day, six days a week. Part time graduate students would be offered four hours of lectures four evenings a week and on Saturday mornings and four hours of tutorials on Saturday afternoon.
26. "When appropriately qualified staff are available to teach, WBI will enrol undergraduate students who together with the graduate students will form a total of about 100 enrolments per month". The Institute anticipated "that the optimum student numbers for the full-time and the part-time load would each be between 7-800 students. However, a limiting factor may be the recruitment of suitable staff. Additional subjects and enrolments will not be added until appropriate staff are available."
27. Lecture groups would be limited "to 100 or fewer students, while tutorial/workshop classes would be between 20 to 25 students".
28. Each unit would have three short assessment tasks to be done every five days of lectures and tutorials. Each of those three would represent 10 percent of the final assessment for that subject, meaning that 70 percent of the assessment for each subject would depend upon the written examination and 30 percent would depend upon the assignment tasks.
29. The Institute noted the technological changes that are underway in the library field, remarking:
"WBI initially plans to establish a limited library of reference books supported by CD-roms and digital video disks (DVD) when available. Under the agreement with Deakin University all course materials including legal cases and relevant articles would be specified in the material made available to students."
30. Though "a high proportion of lecturers and tutors are expected to be engaged on short-term contracts away from their practice, they will be current in their specialist areas. However the library requirements for lecturers and tutors will be assessed and provided as the course develops."
31. The Institute proposes to acquire accommodation in the Central Business District or its close proximity, including a number of lecture theatres, the largest with a capacity of 100 students and tutorial/workshop rooms. These would be in the vicinity of the library which would make extensive use of internet based library systems and acquire a CD-rom collection of law journals.
32. The staff will consist of a course leader, deputy course leaders, lecturers, tutors and special lecturers. "In order to attract and retain competent well qualified staff, lecturers will be paid at commercial rates of not less than $12,000 per month". Tutors would be paid not less than $6,000 per month. Dr Loftus said in the course of his oral presentation that lecturers and presumably course leaders and deputy course leaders would be expected to hold doctoral qualifications and tutors would be expected to hold a Master of Laws or equivalent qualification. The proposal also provides for the appointment of administrative, computing and general staff.
(b) the establishment of a legal studies advisory committee "made up of members of the legal profession, plus current and retired academics to overview the operations of the course. In addition the committee will provide advice on proposed changes or difficulties associated with the course."; and
(c) meeting the educational quality assurance system of the Institute "to the overall mission, vision and goals of the Institute". The proposal described the proposed educational quality assurance system in some detail.
34. Both the Minister and this Tribunal on review are required by Section 11(3) of the Tertiary Education Act 1993 to place in the forefront of consideration for course accreditation a consideration of "whether the course of study is equivalent in standard to a course leading to an award of that type or level in the university". Mr Maxwell and Ms Beaton-Wells on behalf of the Minister submitted that this directed attention to at least three facets of the question, namely:
35. Dr Loftus submitted that in considering whether the proposed WBI Bachelor of Laws degree achieved an equivalent in standard for the purposes of Section 11(3)(a) of the Tertiary Education Act 1993 one considered bachelors degrees generally as awarded in universities and not specifically degrees of Bachelor of Laws or equivalent. In reply Mr Maxwell QC submitted that the correct benchmark or equivalent was a university Bachelor of Laws degree. This was the way that the members of the Panel who advised the Minister and who gave evidence before us approach the question. The proper construction of the relevant paragraph on this point might be regarded as arguable both ways according to the text of the legislation. On balance we think the text supports Mr Maxwell's contention. University degrees traditionally lie at different levels, the bachelors degree being the primary one; the second "level" of qualification being a masters degree and the highest being a doctoral qualification. Had Parliament intended attention to be directed only to those sorts of matters it would likely have mentioned only "levels" of award, rather than type. On the other hand the point would be clearer if the words "type" and "level" were joined (or separated) by the conjunctive "and" rather than the disjunctive "or". We are fortified in adopting Mr Maxwell's construction by the view that various disciplines have different degrees of rigour. Professor Zifcak a professor of law at Latrobe University said that he found more rigour in the law degrees than in legal studies taught in the Humanities and Social Sciences School of the University where he also taught. Some of the students there who have succeeded in their legal studies would not in his view succeed in attaining a law degree. Other disciplines such as physics or pure or applied mathematics might be regarded as having a higher intellectual rigour than either. Correspondingly students of the sciences and mathematics may have lessor skills in essay writing than students of law and the humanities. Given that bachelors degrees (or for that matter masters or doctorates) have such varying degrees of intellectual content and rigour, to adopt the criterion suggested by Dr Loftus might rob the concept of of most of its content. Dr Loftus said that he had more degrees than the other people in the hearing room put together and he was concerned not to see the standard of university degrees debased or devalued. One imagines that the controls imposed by Section 11 has this as one of its objectives together with a purpose of consumer protection so that students do not spend large amounts of time and money upon qualifications which have similar names to university qualifications but neither have nor are viewed as having the same intellectual quality or status. The attainment of these objectives is better achieved by adopting Mr Maxwell's construction. Section 35 of the requires us in case of doubt to prefer the construction which best attains these statute's objectives.
36. We also note that the criterion for Ministerial accreditation is "equivalent" not "identity". In English speaking societies and probably in all European and North American nations, the "university experience" has entailed far more than the mere acquisition of vocational qualifications. Traditionally it has entailed the initiation of graduates through their university careers into the wider social intellectual and cultural life of society. For those who choose the academic path it constitutes the transition from adolescence to adulthood. For those of the "baby boomer" generation who graduated from university it represented a crucible of experience leavened by a social revolution in the wider society and the radicalisation of politics by the Vietnam War controversy. Where a non-university seeks accreditation under the Tertiary Education Act, by definition the context is different. An accredited non-university qualification may provide equivalence of qualification, it would not provide identity of experience.
37. The present proposal entails the use of materials prepared by Deakin University Law School. It must be accepted as the Minister does accept that the proposal therefore attains equivalent in curriculum. There may be issues of the quality of "updating" which may be necessary where after preparation of materials and important legislative change or court decision sheds new light upon a particular area. In our view however these "updating issues" should fall to be considered in the context of a consideration of the academic staff which the Institute would appoint to carry its program into effect.
38. Dr Loftus' submission is that the demonstration that the Institute will use a university curriculum and one which is employed for the purposes of a Bachelor of Laws program at Deakin University in itself and without more demonstrates that the criterion of equivalence laid down by Section 11(3) of the Tertiary Education Act 1993 has been met. The Minister's submission is as previously noted to the contrary. In our view it would be absurd to assess the quality of a course of study with a view to establishing its equivalence to another course without regard to the mode of teaching. To take some hypothetical examples, the materials which the Institute proposes to use are those employed by Deakin for its "Distance Learning" Program, that is a program which is not taught by the traditional classroom method. It is common ground however that the Deakin materials are quite satisfactory for employment in a course of study taught by the classroom method. Consider however a hypothetical set of materials found acceptable and satisfactory for use in a four year classroom study course. Could it be said that a one year "distance learning" program could be regarded as of equivalent standard merely because it employed the same materials? Surely not. The materials might, indeed would likely contain many gaps which it would be intended would be filled by lectures and tutorials, processes that would either be wholly or largely absent from a "distance learning" program. Again Dr Loftus at various points in his submissions laid stress upon the very limited number of hours of teaching employed in Australia for full time undergraduate study, whether by the semester system or the old three term system. He explained this phenomenon by saying that traditional university terms were set with a view to allowing the students to go home for the harvest season. We need not stay to consider the correctness of the historical analysis. The relatively long periods of vacation traditionally provided by academic institutions to facilitate amongst other things, research projects by the staff, provide very substantial scope for the provision of alternative intensive learning programs particularly for those students who already have a primary degree. The Melbourne University Program of which more will be said later might be regarded as an example of this phenomenon. Nevertheless the period of time for teaching, whether by the model or the classroom model is not infinitely reducible. Where the teaching time is excessively cut the hypothetical course of study cannot be regarded as in standard to a course leading to similar qualification in the university. We will consider later whether the Institute's proposal amounts to an unreasonable compression of teaching time. It is sufficient for our present purposes to demonstrate that the time allowed for teaching is together with other aspects of the teaching of a course of study relevant in considering its equivalence to another course of study.
39. Likewise, the test of equivalence necessarily brings to account the issue of assessment. Particularly in "essay" based study there is a degree of art rather than mere science in the process of assessment. Again to take a hypothetical example, a course of study might have precisely the same sort of content but be examined and assessed by setting problems which were either vastly more complex and demanding by reference to the same underlying material than the university course with which it is being compared, or at a more facile level. Even more obviously, a course of study which contained the same content as a university course of study might be examined and assessed upon the basis that the pass mark was 34 percent rather than 50 percent, again we are not suggesting that any of these phenomena is exemplified in the Institute's proposal. We refer to these examples merely to demonstrate that in this context "equivalence" cannot be judged in isolation from mode of assessment.
40. How then does the Institute's proposal compare with the mode of teaching of university law school primary law degrees in Victoria? Deakin University, the most obvious comparison offers its law degree over four years at full time study or part time equivalent for school leavers and for three years for graduate students. Teaching at Deakin and at the other law schools subjects are taken over a 13 week semester with a maximum of four units per semester. Many students do not take as many as four units according to Professor Spencer Zifkac a professor in the Faculty of Law and Management at Latrobe University. Both Melbourne and Monash Law Schools offer a two year full time or four year part time course for qualification in law, known in the case of Melbourne Law School as the "JD" (Juris Doctor) on a full fee paying basis. According to Melbourne Law School's published material this program "is open for admission to mature graduates with a good degree in a discipline other than law and significant employment experience. Applicants must have demonstrated ability to achieve in demanding organisational settings. They must also be prepared to commit themselves to studying principally towards a law degree of the highest standard." The program is taught over some six trimesters with four units assigned to each trimester. The corresponding program at the Monash Law School is known as the "Monash Masters".
41. According to Professor Zifcak at Latrobe Law School compulsory units require four contact hours per week, two hours of lectures and two hours of tutorials and elective subjects have three contact hours per week. Accordingly a typical undergraduate at that school taking four subjects or units, two compulsory and two elective would have a total of 14 contact hours per week. The Professor said:
"It would be rare for a part time student to do more than two subjects per semester which means a maximum of eight contact hours per week (assuming the two subjects taken are compulsory subjects)."
42. According to the Professor "university students have no less than two, and often up to four, weeks to study for exams at the end of the semester".
43. How then does this compare with the Institute's proposal? At the Institute an undergraduate student would have no less than 48 contact hours of teaching per week spread over six days. Dr Loftus observed that the afternoon tutorials are taken up with the performance of written tasks. Once a student has completed his tasks he might leave the tutorial. Moreover attendance at lectures and tutorials is not compulsory. Given that the curriculum materials have been prepared for a distance learning program it would be possible for a student simply to rely upon the materials and attend the end of month examination.
44. Part time students, who are generally assumed to be graduates, would have four hours of teaching four evenings a week and on Saturday morning, making 20 contact hours per week or 60 contact hours for a unit, there would be 144 contact hours for each unit for undergraduates.
45. All of the Minister's witnesses - Professor Parker, the Dean of Monash Law School; Professor Zifkac, a Professor at the Latrobe Law School and Mr Ian Dunn, the Executive Director of the Law Institute of Victoria agreed that this program constituted undesirable "cramming". They said it was conducive only to rote or superficial learning. It allowed for no time for reflection or private study. We agree. It was common ground that a bachelors degree in Australia typically takes three academic years of study. Dr Loftus drew attention to the relatively limited number of teaching weeks in each so called "year". We accept that this gives scope for compression, nevertheless we regard the compression which Dr Loftus and the Institute propose as being wholly unsatisfactory.
46. The only qualification for admission to the undergraduate program is a pass at the VCE level. Given that the course will be fully fee paying it is realistic to conclude at least at the outset that only those who have sought and failed to obtain admission to Government funded law schools would be likely enrolments in the undergraduate program. No doubt the potential to complete a degree in a bare two years would be a great attraction. One may debate, as Dr Loftus did, the predictive quality of the tertiary entrance sources now used to ration university places. Generally however if our premise is correct, namely that the undergraduate body at the Institute would be made up of those with lower scores than would enable them to win places at Government funded law schools, a relatively less able undergraduate body would be faced with a punishing study schedule. The ability of these undergraduates to meet this schedule would be in doubt. All of the Minister's witnesses, namely Professors Parker and Zifkac and Mr Dunn were of the view that this program was pedagogically unsound.
47. According to the Minister's witnesses, Professor Clarke, the Dean of the Faculty of Business and Law at Deakin University also described the Institute's program as pedagogically unsound and that his faculty had studiously avoided involvement beyond merely providing the curriculum materials. Professor Clarke gave a short statement in support of the Institute's case. The operative part being that the Professor "formed the opinion that the materials which were covered by the licensing agreement dated 14th day of May 1999 [that is the Deakin materials to be supplied to the Institute] were suitable for the purposes for which they were proposed to be used". Professor Clarke attended the hearing on the afternoon of the first day. Dr Loftus elected not to call him to the witness box because the Minister did not seek to challenge any part of the Professor's written statement. Regrettably therefore, Professor Clarke did not give evidence directly at to whether he really did regard the Institute's proposal as "pedagogically unsound". Dr Loftus said that he was in a state of confusion at the end of the first day's hearing and did not abstain from calling Professor Clarke for fear that he would express directly the adverse opinions attributed to him by the Minister's witness. Dr Loftus said that no account should be paid to the alleged statement of the Professor because they were at best hearsay. Dr Loftus said that Deakin's limited involvement with the Institute's proposal came from an apprehension that competition law issues would arise if it became too closely involved.
48. In the end it is unnecessary for us to reach a view as to whether Professor Clarke really did condemn the Institute's program as pedagogically unsound. It is common ground that:
(a) the Institute sought additional services from Deakin including the provision of assessment services but none have been forthcoming; and
(b) Deakin have not agreed to give credit for any unit in the Institute course against any qualification which it might offer.
49. Dr Loftus said that he was undertaking the Deakin law course at a rate similar to the one assumed for undergraduates in the Institute's course. He conceded however that he had to obtain special dispensation for this and that whilst others may be attempting to complete the course in a similar manner, this was unusual. We do not regard Dr Loftus as an appropriate example against which to compare the Institute's undergraduate proposal. He is a post doctoral student and therefore any comparison between his intellectual capacities and ability to progress through a bachelors degree with the ability of a school leaver who for the reasons already given would likely have a relatively low tertiary admission score would be quite inappropriate. Nor do we think that there is any realistic comparison to be made between this proposal in so far as it deals with undergraduate students and the Melbourne JD or Monash Masters. True it is that these course provide for the completion of the degree in two years but they are open only to graduates. Again a comparison with the undergraduate element of the Institute's proposal would be inappropriate. Further, the model adopted in the Melbourne JD is for the concurrent study of subjects not the consecutive model provided for by the Institute.
50. Dr Loftus noted that it would be possible for students to defer particular units, in effect taking breaks in the middle of their course. To do this would be to destroy what is apparently one of the principal attractions of the proposal, namely its ability to complete a legal qualification in approximately two years, moreover the fact that this is mentioned as an option is really a concession that the primary proposal entails an unreasonable compression of the undergraduate course.
51. Dr Loftus complained that none of the Minister's witnesses either had formal qualifications in pedagogy or had checked their opinions against pedagogical literature. Of course Dr Loftus referred us to no pedagogical literature himself. Dr Loftus relied upon the evidence of Professor Lindsay Mackay a Pro-Vice-Chancellor in charge of contractual arrangements and strategic alliances at Deakin University who does hold pedagogical qualifications but not in association with the teaching of law. In examination-in-chief he said there was no reason in his view why the materials could not be used in the manner proposed. Also Dr Hulls, an officer of the Institute holding pedagogical qualifications, said that in his view the proposal was pedagogically sound.
52. We reject the view that nobody other than a person skilled in pedagogy can express a view as to the proper mode of teaching the law. Professors Parker and Zifkac were shown to have an extensive practical experience in these matters and in the nature of things a wide comparative knowledge as to modes of teaching law elsewhere. Their views ring true to us.
53. Dr Loftus in cross-examination and submission asserted that law schools in Singapore and Malaysia taught law at the undergraduate level in the same manner as the Institute's proposal. He produced no one who had taught or graduated from such an institution either in person or as a witness or as the author of a written statement. He did not even refer us to anything in the nature of a faculty handbook. In the end therefore these matters do not rise above the level of mere assertion. Aside from any other consideration, the very different social setting in which university education is undertaken in these countries would have to be considered before simply adopting models that may have been found satisfactory in those countries.
54. We conclude therefore that the undergraduate portion of the Institute's proposal is not relative to its teaching to be regarded as equivalent to a similar course of study at a university. In oral presentation to the Minister's advisory panel and in submission before us Dr Loftus said that the Institute's written proposal was misleading if it suggested an equal interest in undergraduate teaching with the graduate program. He said the Institute's primary focus would be on "retreads" viz persons who already hold degrees. The undergraduate portion of the program is given equal prominence in the written application for accreditation. There was nothing in Dr Loftus' presentation before us to suggest that the Institute abandoned that part of its proposal. It represents a negative for the reasons which we have given.
55. Nor for a similar reason is the graduate program satisfactory as to its teaching. The assumption is that someone undertaking that course would be pursuing full time employment. In that context the program is once again very punishing. Nor is it obvious how these graduates would be able to complete their subjects with less than half of the contact time that the undergraduates would have viz. 60 hours as against 144 hours. Certainly the assumptions made in the structuring of courses is that graduates will be able to progress more rapidly and learn in a more concentrated manner. So much seems to be assumed by the Melbourne JD program and the Monash Masters Program. It is noteworthy however that the Melbourne JD for instance is to be taken over four years of part time study giving far more time to learn than the Institute's proposal would. In any event we accept the evidence of Professor Zifkac who has taught both graduate and undergraduate students of law that the gap in ability and efficiency between the two groups is in truth far less than the structuring of a program such as the JD at Melbourne would suggest.
56. We now turn to assessment. The proposal itself gives no very direct clue as to how assessment is to be carried out. As previously noted the services of Deakin University Law School were sought but not provided. Dr Loftus said that he would appoint an independent academic to oversee assessment. That sort of response leads us to misgivings as to the proposed staffing of the Institute to which we will refer in greater detail later.
57. Our present concerns are however of a somewhat different character. According to the proposal as outlined to the Minister's advisers in December 1999 the Institute's fees would be financed according to a model used in North America by an as yet undetermined financial institution entailing a requirement "that a student would enter an agreement having first obtained an irrevocable letter of credit from a bank such that, once the contract with WBI was signed, payment would be deducted automatically for the next 24 months on the first Monday of each month and penalties would apply if necessary to recover payment for failed or repeated subjects". If undergraduates failed subjects or could not meet the pace they would be in obvious difficulties in extracting themselves from financial commitments. Dr Loftus first agreed to provide a proforma of the proposed contract to the Minister's Panel but ultimately declined. When we broached the subject with him and observed that we could subpoena the proformas if necessary, he said that he no longer had it. Ultimately his answer was unclear as to whether he meant that he was in possession of no piece of paper answering the description or merely that he had no intellectual property rights to such a piece of paper. Be that as it may, he has been deliberately unforthcoming on that point he says on the grounds of commercial confidentiality. An alternative possible problem is of course that to avoid contractual conflict with students, the Institute would be under commercial pressure simply to pass students on units which in truth they ought not to be regarded as having passed. Clearly the establishment of an examinations board independent of those in the Institute with the responsibility of fee collection would be a protection against this sort of problem. As Professor Zifkac noted, however, despite this proposal having been on foot for two years, the Institute has been either unable or unwilling to "sign on" a single recognised legal academic either on the basis that he or she would accept appointment to a senior position in the Institute's teaching staff or that he would act as "patron". Professor Parker observed with respect to other law school "start ups" in recent years "for example, Sir Zelman Cowen and Bob Baxt, a former Dean of the Monash University Law Faculty, were members of the advisory committee to the Griffith University Law Faculty. Again, Sir Zelman Cowen and the former Attorney-General, Ms Jane Wade, were advisers to VUT [Victoria University of Technology]
58. It follows that with respect to issues of assessment we are not satisfied that the WBI proposal is equivalent in standard to a similar course at university law school.
59. As to the matters referred to in Section 11(3)(b) we note that these are matters to which the Minister or we may have regard of which we are not obliged to have regard to (Section 45 Interpretation of Legislation Act 1984). Mr Maxwell submitted that these matters were properly to be regarded as specific facets of the concept of equivalence. They certainly can be viewed as such but they are placed in the statute in a manner which would enable them to be considered as separate and distinct issues as well. We have already made comment on student contact hours (Section 11(3)(b)(iv)).
60. All of the Minister's witnesses, said Mr Maxwell in submission, drew attention to the lack of specificity in proposals as to premises, assessment, materials and resources. There are no specific premises identified. The resources are described in the most general of terms. Dr Loftus said that he was confronted with what might be described as a "chicken and egg" problem. Mr Dunn said that it would have been possible for the Institute to enter into conditional contracts with respect to premises and resources. We accept that this is the case but note in view of the lengthy timeframe for consideration of this proposal it is unrealistic to believe that conditional contracts could have been had tying up for instance premises for the period necessary to reach a final determination of the accreditation application. If this were the only concern we could conclude that it could be dealt with by making the accreditation subject to satisfactory specific arrangements being made as to these matters. See Section 11(7). As it is however it appears elsewhere in our reasons, these are not the only matters of concern and in the circumstances making an accreditation condition is not in our view a proper response to the issue.
61. Agreeing as we do that matters such as premises, equipment and materials might be put to one side at this stage, based upon an assurance of a condition that they will be satisfactorily addressed in due course, the issue of "resources" generally is less easy to put to one side. The proposal entails, as appears later, the appointment of a very large number of academic staff at salaries deliberately pitched above the existing market. The credibility of such a proposal depends to our minds upon demonstration that the "resources" of the Institute will enable it to make good these proposals, here we have no evidence whatsoever the view that Dr Loftus has taken is that the Institute's Business Plan is a matter of commercial confidence that examination of it at this stage would in any event be premature. No business plan is forthcoming. Again, if all else were satisfactory there might be some ground for accepting assurances or making this matter the subject of a condition in an accreditation. As things now stand however the absence of any sponsoring legal academics, leaves the proposed course without the standing and credibility which ideally it should have at an academic level. To add to that, a total absence of financial credibility which must be the result of a refusal to produce a business plan creates a very negative combined effect indeed.
62. These matters are linked with the qualifications and experience of staff (Section 11(3)(b)(viii)). Dr Loftus said that tutors would be expected to have masters degrees or equivalents and lecturers would be expected to have doctoral level qualification. Apparently the salaries offered would be $12,000 per unit which the Minister's witnesses said without contradiction would be about 20 percent above the market for academic salary. The Institute's proposal appears to suggest that many of these instructors would be practising lawyers and for that reason "up to date in their field". There is no explanation as to how practitioners could simply walk out of their practices for one month. Moreover since Dr Loftus says ideally every unit would be being offered every month of the year, either a very large number of independent lecturers would be required or the same lecturers would have to repeat teaching the same unit month after month. The combination of the "up to date" practitioner and doctoral qualification in the numbers suggested may be very difficult to come by even with a generous salary.
63. Dr Loftus drew attention to the fact that the Melbourne University Law School in the period up to 1960 when it was the only law school in Victoria, had a small core of permanent academic staff but undertook the vast bulk of its teaching by the use of "independent" lecturers being barristers and solicitors in practice. So much may be accepted; but these persons continued in full time practice and for the most part taught their subjects in the early morning or in the evening. The ability to obtain prominent practitioners teaching right through the day and holding doctoral qualifications is far more problematic and the absence of even one legal academic "signed on" either as an appointee or as a "patron" further undermines the credibility of this proposal. As previously noted there is a complete lack of demonstration of the ability to pay the above-market salaries which it is suggested would attract these academic staff.
64. Finally we come to the last of the headings which we may consider, namely other matters "relating to the teaching administrational standards of the course of study" which relates to the serious question of consumer protection. Dr Loftus himself conceded that Australia's international reputation with regard to fee paying education had taken a knock and was at the moment low. This indicates that an accrediting authority should be particularly careful to seek to avoid any events which would worsen an already bad situation which derived from the failure of a number of academies teaching English to overseas students. The present proposal entailed tying up students in some apparently elaborate and onerous arrangement for the payment of fees the details of which the Institute's proponents decline to disclose and this in a context where they also decline to provide any material to shed light on the economic substance or potential stability as a teaching institution.
65. In our view the Minister's determination should be affirmed.
66. A large part of the witness statements filed on behalf of Dr Loftus and the Institute related to complaints as to the processes involved in the Ministerial consideration of the accreditation application. We have already described some of those complaints. Mr Maxwell invited us to make a specific finding to the effect the Minister had considered and determined this matter with complete propriety. He called upon us to vindicate the Minister and her advisers.
67. We accept that the Minister not herself being either a qualified pedagogue or a qualified lawyer was in the circumstances inevitably required to obtain expert advice. Unless she is to go to the expense of flying in experts from overseas or interstate, the experts to whom she turned for advice must necessarily be at least to some degree regarded as incumbents or potential competitors of the applicants for accreditation. Given that the existing law courses have no difficulty filling their quotas according to the evidence and that they are conducted in Government funded institutions which do not require the payment of full fees "up front" (with the exception of the Melbourne JD and Monash Masters) the conflict of interest of the Minister's advisers was apparent rather than real. The allegation of a secondary boycott contrary to Section 45D is clearly misconceived.
68. Nevertheless despite having expressed these views it would be wrong for us to make any formal findings on any of these matters, first because as Judge Strong ruled, these matters are the province of judicial review and not of this Tribunal and secondly and perhaps more importantly because as a result of Judge Strong's ruling on this point Dr Loftus was prevented from developing all of the evidence and submissions which he might otherwise have desired to make in his attack upon the Ministerial processes.
69. We have heard no submissions as to costs and will accordingly reserve that issue for further consideration.
Loftus
Minister for Post Compulsory Education Training and Employment [2001] VCAT 2413
The respondent’s determination was affirmed. Costs were reserved.