Re Brendan Conway Harradine v Secretary To the Department of Social Security [1989] FCA 200; 10 Aar 412 25 FCR 35

Re Brendan Conway Harradine v Secretary To the Department of Social Security [1989] FCA 200; 10 Aar 412 25 FCR 35 - FCA 1989 case summary — Zoe

[29]

3. In 1978 the appellant resigned from the South Australian Railways and enrolled in a four-year Bachelor of Education course at the Sturt College of Advanced Education. While undertaking this course he engaged in some casual and seasonal work. He passed all the requirements for a Bachelor of Education in 1981 and in 1982 commenced work as a teacher at the Christian Brothers' College, Adelaide. In 1983 he applied to enrol in a course leading to the degree of Bachelor of Laws at Adelaide University. His application was accepted and in February 1984 he commenced the first year of the course as a full-time student. He encountered financial difficulties and in May decided to defer his studies and get a job with the State Department of Education. His employment was on a contract basis teaching in State High Schools in the second and third terms of 1984. When these contracts expired he worked as a car detailer at Commercial Motor Industries until the beginning of 1985. He then re-enrolled in the Bachelor of Laws course and successfully completed his first year. He was still under financial pressure, however, and in October 1985 applied for, and in November 1985 was granted, unemployment benefits for about five weeks. At the end of that time he obtained employment at a weight loss studio. In February 1986 he embarked upon the second year of the Law course, but in May was again compelled by financial necessity to seek employment with the Department of Education. He worked as a contract teacher at Croydon High School until 19 December 1986 but this time did not withdraw from the Law course. Although he was unable to attend lectures and tutorials, attendance at them was not compulsory and he continued to study privately, passing all but one of the units required for the second year. Again he received unemployment benefit after the expiry of his contract at Croydon High School. He disclosed to the Commonwealth Employment Service that he was enrolled as a full-time student at Adelaide University.

[49]

In my opinion the construction of the words "on a full-time basis" that most accords with their natural meaning, alone or in context, is that by which they are taken to describe the nature of the activity undertaken by the student. That is to say the section excludes from eligibility for benefit the student who is engaged "full-time" in a course of education. So construed it requires a consideration of the question of fact which will no doubt involve judgments of degree, whether the objectively ascertainable activity of the student may be described as a full-time engagement in his course of education. In the light of Thomson's case such judgments might well have had to be made under s.116 as it stood prior to the enactment of the predecessor to s.136. But the section is not thereby otiose for it avoids the need which would otherwise arise under s.116 to make assessments of an applicant's efforts to seek, and intention to undertake, paid employment, his readiness to abandon the course if such employment becomes available and other factors of the kind listed in Long's case. What the legislature appears to have done is to give statutory effect to the test unsuccessfully advanced by counsel for the Director-General in Thomson's case when he submitted in the context of s.116 that it was a question of fact whether a course was or was not "full-time" but that, if that question of fact be answered affirmatively the student was not unemployed as a matter of law. The question of fact is not however to be answered simply by reference to course classifications. On this construction of sub.s.136(1) the sole and sufficient test for exclusion from eligibility for benefit is that the student be engaged full-time in the course. This test is applied by reference to what he or she does. Sub-section 136(2) is then a direction to the decision-maker, in making the assessment whether a person is engaged full-time in a course, to treat as time in which he is engaged in the course all that which lies between commencement and completion or abandonment. The decision-maker will therefore be required to consider the time spent by the student in study during term and not to treat the engagement as other than full-time because he takes a vacation.

[69]

7. I am unable to accept this argument for a number of reasons. Firstly there is no close relationship in time between the decision in Director-General v. Thomson and the enactment of s.136. On the contrary, the separation in time of several years suggests to me that the two are not directly related. There is nothing in the Administrative Appeals Tribunal decisions to which I have referred which appears so remarkable that legislative intervention could be expected. Secondly, the section as originally enacted did not contain a provision similar to sub.s.(2) of s.136 on which the respondent's construction argument principally depends. Furthermore, as first enacted, the section applied "where a person is engaged, on a full-time basis, in a course of education at an educational institution...". A literal interpretation of those words lends no support to the respondent's argument. Thirdly, the amendments to the several sections to which we were referred disclose no discernible pattern of the kind suggested. On the contrary, a consideration of s.126(1) as substituted by Act No.106 of 1986 shows that the scheme is still very much one that "accepts the operational burden of numerous individual decisions": cf Director-General v. Thomson at p 628, cited above. Fourthly, the argument assumes that by committing eligibility, or rather disqualification, to a course classification nominated by the institution which conducts the course of education, objective certainly will be introduced. This is a doubtful proposition. For example, how is it to be determined if a university student is engaged on a full-time basis if the course of study involves inter-disciplinary subjects, or some subjects failed in a previous year, and others taken for the first time? Counsel very properly was frank enough to say that he understood universities encounter difficulty in a high percentage of cases in determining whether a particular student is "full-time". It is hardly likely that the legislature would intend eligibility to turn on the decision of a particular institution conducting the course of study from which no appeal would lie.

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Judgment (76 paragraphs)

Re Brendan Conway Harradine v Secretary To the Department of Social Security [1989] FCA 200; 10 Aar 412 25 FCR 35 (5 June 1989)

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Legislation Cited (28)

Cases Cited (4)