[1989] FCA 200; 25 FCR 35

Social Services - unemployment benefit - student - enrolled in full-time law course - undertaking full-time temporary employment as high school teacher - whether eligible for unemployment benefit at expiry of teaching contract - whether "engaged in a course of education on a full-time basis" - whether statutory test refers to nature of enrolment or nature of participation in course of study.

Statutory Interpretation - Social Security Act 1947 - unemployment benefit - criteria of eligibility - "engaged in a course of education on a full-time basis" - "full-time basis" - ss.116 and 136 - legislative histories.

Words and Phrases - "engaged in a course of education on a full-time basis" - "engaged" - "full-time basis".

Administrative Appeals Tribunal Act 1975 s.44

Social Security Amendment Act 1987 (No. 77 of 1987)

Social Security Legislation Amendment Act 1986 (No. 33 of 1986)

Social Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986 (No. 106 of 1986)

Social Security Amendment Act 1987 (No. 77 of 1987)

Social Security and Veterans' Entitlement Amendment Act (No. 2) 1987 (No. 130 of 1987)

Green v Daniels & Ors [1977] HCA 18; (1977) 13 ALR 1

Evans v Muller [1983] HCA 16; (1983) 47 ALR 241

Director-General of Social Services v Thomson [1981] FCA 209; (1981) 38 ALR 624

Re Long & Secretary to the Department of Social Security (1985) ASSC 92-066

Counsel for the Appellant: Mr B.C. Harradine appeared for himself

Solicitor for the Respondent: Australian Government Solicitor

The decision of the respondent's delegate be set aside and the applicant's claim for unemployment benefit be allowed.

The respondent pay to the appellant his costs of the appeal.

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

I have had the advantage of reading in draft form the reasons for judgment of both French and von Doussa JJ. I agree with the order which they propose and with the substance of their respective reasons.

2. At one stage during the argument of the case I inclined to the view that s.136(2) of the Social Security Act 1947 required the disposal of the appeal in favour of the respondent. There is no doubt that this sub-section serves as a deeming provision, requiring any decision-maker to regard an enrolled person who has commenced a particular course as being "engaged in that course". The sub-section obviously has the result that the appellant is to be regarded as a person engaged in a full-time Law course at Adelaide University. But is this the same thing as being engaged in that course "on a full-time basis"? Upon reflection, I do not think that it is. It may have been the subjective intention of the draftsman of s.136(2) that the irrebuttable presumption which it would create would always govern the operation of s.135(1)(b); but, if so, I do not think that he or she succeeded in using words which achieve that result. I think that, as a matter of ordinary English usage, the whole of the phrase "in a course of education on a full-time basis" qualifies the word "engaged". In other words s.136(1)(b) directs attention to the nature of the person's engagement, rather than to the nature of the course in which that person is engaged. No doubt the vast majority of people pursuing a full-time course do so on a full-time basis. But, just as one may give full-time attention to a course which is designated by the relevant educational institution as a part-time course, so it may be possible -- though difficult -- to undertake a full-time course on a part time basis. Where a difference between classification of course and engagement does occur, the critical matter is the nature of the student's engagement, not the nature of the course.

3. The orders which the Court proposes to make are somewhat unusual. Ordinarily, if the Court considers that the Administrative Appeals Tribunal has erred in law in its consideration of a matter, the Court orders that the Tribunal's decision be set aside and remits the matter to the Tribunal for further hearing and determination according to law. But, having regard to the concessions made on behalf of the respondent during the hearing before the Tribunal, it was agreed in the present case, by both the appellant, who argued the matter in person, and counsel for the respondent, that the only issue for determination in connection with the matter was the correct construction of s.136; and that whichever party was successful upon that issue was entitled, as a matter of law, to succeed in the Tribunal. The issue of construction having been resolved in favour of the appellant, it follows upon this analysis of the position, with which I agree, that the Tribunal would be bound, upon any remission, to make an order allowing the appellant's claim for unemployment benefit. That being so, it is appropriate for the Court itself to make that order, thus relieving both the Tribunal and the parties of the burden of a further hearing.

In 1987 Brendan Conway Harradine was enrolled as a full-time undergraduate student at the University of Adelaide in the third year of a course leading to the degree of Bachelor of Laws. Being already the holder of a Bachelor of Education from Sturt College of Advanced Education he was ineligible for any tertiary student allowance. From February until September of that year, while pursuing his studies, he also worked on contract for the State Department of Education as a high school teacher. At the expiry of his contract he applied for unemployment benefit. This was refused on the basis that he was a full-time student and he appealed to the Social Security Appeals Tribunal which recommended that the decision be reversed. This recommendation was not accepted and the respondent's delegate rejected the claim for benefit. The appellant unsuccessfully challenged that rejection in the Administrative Appeals Tribunal. From that decision he appealed to a single Judge of this Court under s.44 of the Administrative Appeals Tribunal Act 1975 but the appeal was dismissed. He now appeals from that dismissal to the Full Court.

2. The facts are not in dispute. The appellant who is now 36 years of age was born on 1 May 1953. He was educated to matriculation level and left school in 1971 although without having completed the matriculation qualification. He worked in clerical positions with the South Australian Railways until appointed as a stationmaster in 1975, an appointment he held until 1978. In progressing to that position the appellant had undertaken the studies and passed the examinations necessary to qualify him for it. In 1977, he completed the matriculation requirements by studying and passing Biology by correspondence.

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.

4. In 1987 he enrolled in and successfully completed the third year of the course together with the second year unit that he had failed in 1986. From February to September of that year he also taught on contract with the Department of Education at Unley High School. He attended only 35 hours of lectures and no tutorials during that time. After the conclusion of his contract in September the appellant again applied for unemployment benefit. It is the ultimate refusal of that benefit and his successive applications to the Administrative Appeals Tribunal and a single Judge of this Court that have led to the appeal which now falls for consideration.

5. Eligibility for unemployment benefit is and was at the material time governed principally by s.116 of the Social Security Act 1947. The exclusion from eligibility of persons engaged in courses of education on a full-time basis is provided by s.136. Prior to the Social Security Amendment Act 1987 (No. 77 of 1987) these sections were numbered 107 and 133 respectively.

6. Sub-section 116(1), in the parts relevant for present purposes, sets out the qualifications for unemployment benefit in terms substantially unchanged since their enactment as part of s.107 in the original 1947 Statute. The sub-section provides:-

"116(1) Subject to this Part, a person (not being

a person in receipt of a pension under Part IV or V

or a benefit under Part VI) is qualified to receive

an unemployment benefit in respect of a period (in

this section referred to as the "relevant period")

if, and only if -

(a) the person attains or had attained the age of

16 years on or before the commencement of the

relevant period and, being a man, had not

attained the age of 65 years, or, being a

woman, had not attained the age of 60 years,

before the end of the relevant period;

(b) the person was an Australian resident and in

Australia throughout the relevant period and

on the day on which the person lodged the

claim for the benefits;

(c) the person satisfies the Secretary that -

(i) throughout the relevant period he was

unemployed and was capable of

undertaking, and was willing to

undertake, paid work that, in the opinion

of the Secretary, was suitable to be

undertaken by the person; and

(ii) he had taken, during the relevant period,

reasonable steps to obtain such work;

and

(d) the person was, throughout the relevant

period, registered as being unemployed by the

Commonwealth Employment Service."

Section 136 was first introduced into the Act by the Social Security Legislation Amendment Act 1986 (No. 33 of 1986) and amended by the Social Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986 (No. 106 of 1986) with effect from 1 January 1987. It was again amended by the Social Security Amendment Act 1987 (No. 77 of 1987) with retrospective effect from 1 January 1987 and renumbered as 136 along with s.107 as 116 with prospective effect from 2 July 1987. It was yet again amended with retrospective effect from 1 September 1987 by the Social Security and Veterans' Entitlement Amendment Act (No. 2) 1987 (No. 130 of 1987) assented to on 16 December 1987. Sub-section 136(2A) was introduced by the last mentioned amendment. In the form in which it stood (as retrospectively amended) in October 1987 s.136 read as follows:-

"136(1) Subject to sub-section (2A), a benefit is

not payable to a person (not being an eligible

person) in respect of any period during which -

(a) a payment in respect of the person has been or

may be made under a prescribed educational

scheme; or

(b) the person is engaged otherwise than in

compliance with a requirement made of the

person under section 170, in a course of

education on a full-time basis.

(2) For the purposes of paragraph (1)(b), a

person who is enrolled in a course of education

shall be taken to be engaged in that course from

the day on which the person commences that course

until the person completes or abandons that course,

including during periods of vacation but not

including during periods of deferment.

(2A) Where:

(a) a person may commence a course of education on

a full time basis; and

(b) a payment may be made to or in respect of the

person under a prescribed education scheme;

the Secretary may decide that a benefit may be

granted to the person or may continue to be payable

to the person but, if the person commences that

course, the benefit ceases to be payable on the day

on which the person commences that course.

(3) (Not material for present purposes)

(4) (Not material for present purposes)

The Act it should be noted contains no definition of "full-time" or "full-time basis" in relation to courses of education.

7. It is necessary, before turning to the merits of the appeal, to consider the way and basis upon which the Administrative Appeals Tribunal went about its task. The factual background set out in these reasons reflects its findings. As appears from the transcript of argument in the Tribunal, which was before us but was not shown to his Honour the trial judge, it was expressly conceded by the respondent Secretary that the appellant satisfied the qualifying requirements of sub.s.116(1) in relation to the grant of unemployment benefits. And it was accepted before this Court that that concession still stands. Necessarily that involved a concession that in October 1987 the appellant, although enrolled and continuing his studies in the third year of his Law course was, "unemployed and was capable of undertaking, and was willing to undertake, paid work that, in the opinion of the Secretary, was suitable to be undertaken" by him. Counsel for the respondent before the Tribunal relied only upon the provisions of s.136. He submitted that they had the effect that if a person were enrolled in a course of education and regarded by the enrolling institution as a full-time student that was the end of the enquiry. Sub-section 136(2), he argued, was a deeming provision and if the relevant institution said the applicant for benefit was enrolled as a full-time student doing a full-time course the person concerned would be debarred from benefit. Speaking of the effect of sub.s.(2) in the circumstances of this counsel said, of the appellant (at p 31):-

"He was engaged in a course of study and the

measurement of that engagement in the course of

study on a full-time basis is to be judged by the

fact that he is enrolled for it; no more, no less."

The Tribunal having set out the factual history said that in arriving at its decision it had "taken into account all the evidence before it, including (sic) the submissions by the applicant and by Mr F. Taylor, counsel for the respondent". The Tribunal observed, incorrectly, in the light of the concession made, that Mr Taylor had "restricted his submissions to arguing the provisions of sub-section 116(1)(c) which defines the eligibility for Unemployment Benefit, and section 136 which sets out the disqualifying provisions". On Mr Taylor's concession there was no room for argument that the appellant did not qualify under sub.s.116(1)(c). Having said this and made further brief reference to Mr Taylor's submissions the Tribunal concluded:-

"The Tribunal has considered the whole of the

evidence before it, including Mr Harradine's very

able submissions and the material upon which he

based them. The Tribunal records specifically

that it has made these considerations bearing in

mind the provisions of section 136 of the Act.

The Tribunal, although quite sympathetic towards

the applicant who has illustrated a keen

willingness to succeed, is unable to support his

contention that he is eligible for Unemployment

Benefit during the period in question, because he

was engaged in a full-time course of study."

8. The reasoning does not disclose why the Tribunal concluded that the appellant was "engaged in a full-time course of study". But having regard to the way the case was conducted before it and the concession made the conclusion could only have been based upon an acceptance of the construction of s.136 for which the respondent contended.

9. His Honour the trial judge does not appear to have accepted the construction advanced by the respondent but decided that the Tribunal had made its finding that the appellant was engaged in a full-time course of study as a finding of fact. That finding he said was open to the Tribunal on the evidence and no error of law was disclosed. That view may well have depended upon the way in which the case was argued before his Honour. There is nothing in the judgment to indicate that he was informed, as we were, of the concession made by the respondent and the Tribunal's own reasons did not make clear its scope and effect. Whatever elements of fact underpinned the Tribunal's conclusion it could only properly have been based upon the construction of s.136 for which the respondent contended. And it is the proper construction of s.136 and its relationship to s.116 which are critical to the outcome of this appeal.

10. Before addressing the language of s.136 it is desirable to review briefly the operation of s.116. The fulfilment of the qualifying requirements of sub.s(1) is in part dependent upon the satisfaction of the Secretary as to the factual issues set out in para.(c). It is not thereby a question whose determination is in any real sense discretionary (albeit there may be a discretion in the choice of fact finding procedures to be adopted) - Green v. Daniels [1977] HCA 18; (1977) 13 ALR 1 at 9 (Stephen J.); Evans v. Muller [1983] HCA 16; (1983) 47 ALR 241, at 262 (Mason & Dawson JJ., Wilson J. agreeing at 272). The state of being "unemployed" is said to arise, in the case of a student leaving school, if the student seeks employment with the intention of entering the work force and not with the intention of returning to school - Green v. Daniels (supra) at 9. That is necessarily to be seen as a sufficient condition in the circumstances of that case. In a strict sense the term "unemployed" may be said to extend to all who are without paid work. Ordinary parlance would however require some limitation to exclude, for example, the very young or elderly retirees - Director-General Social Services v. Thomson [1981] FCA 209; (1981) 38 ALR 624 at 626-627 (Bowen CJ, Fisher and Fitzgerald JJ). The question whether a person who undertakes a course of study whilst seeking paid work is "unemployed" is a matter of fact and degree. Prior to the introduction of s.136 an attempt to exclude from the class of the unemployed contemplated by s.116(1)(c), those who are engaged in a "full-time" course was rejected by the Full Court in Thomson's case. After noting that some "full-time" courses may require attendance by students between 9.00 a.m. and 5.00 p.m. Monday to Friday while others may require only attendance at lectures for an insignificant part of the week, the Court said at 629:-

"Counsel for the Director-General recognised

these differences. His submission was 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.

We see no warrant for the substitution of this

test for that set out in the statute. It

involves, incorrectly in our view, the isolation of

one aspect of the circumstances surrounding an

applicant for a benefit, to the exclusion of all

others. For the reasons we have given, we prefer

the view that the activities being pursued by an

applicant for a benefit are to be considered with

all other relevant factors in determining whether

he or she is unemployed. One important matter for

consideration is the applicant's intention at the

relevant time."

By way of example, in Re Long & Secretary to the Department of Social Security (1985) ASSC 92-066 the Tribunal referred to a number of its own decisions in which the question whether a student engaged in "full-time" studies was unemployed had, since Thomson's case, been resolved one way or the other according to the particular circumstances. The Tribunal extracted a number of factors which it regarded as relevant to that consideration. These included such matters as the applicant's intentions, the nature of the course, the amount of time required to attend the course and complete its requirements, the opinion of relevant institutions and authorities in respect of course requirements and generally the surrounding circumstances of the case and the applicant's fitness for and willingness to obtain suitable paid work.

11. The Full Court in its consideration of the requirements of s.116 in Thomson seems to have paid some regard to the social utility of a construction that would benefit those who, while seeking paid work, also make some determined attempt to improve their qualifications or to engage in constructive activity other than "leisure or indolence". The lack of appeal in an approach which would confer the mantle of being "unemployed" only upon those who abstain from significant constructive self-improvement between jobs was not lost on the Court which could see no reason why Parliament would have intended such a result "unless that reason lay in apprehended difficulties in processing claims for benefit, or perceived risks of potential abuse" (at 628). And in the legislative framework now in place regard can still be paid to the social utility of the contending constructions.

12. As in all cases of statutory construction, however, the point of departure must be the ordinary meaning of the words used. Relevantly excluded from eligibility for benefit under sub.s.136(1)(b) is a person "engaged...in a course of education on a full-time basis". The word "engaged" used in this context as an intransitive verb means to "Take part in" (see Concise Oxford Dictionary). It connotes activity and must be taken to refer to the activities of students enrolled in the relevant course. The question then arises whether the words "on a full-time basis" describe the nature of the engagement or the nature of the course of education. The respondent contends for the latter. And this construction it is said is supported by subs.s.136(2) which makes enrolment in and commencement of, a course the sufficient conditions for a person to be taken as "engaged in that course". In my view however sub.s.136(2) begs the question of the proper construction of sub.s.(1). It defines the period during which a person will be taken to be engaged in a course of education as bounded by the commencement and the completion or abandonment of the course and includes therein periods of vacation. It does not indicate the way in which the term "full-time basis" is to be applied in sub.s.136(1). And the applications of that term which are arguably open are:-

1. As a reference to the time spent by the person

who engages in the relevant course.

2. As a description of the status of the course

by reference to institutional or some other

relevant standard.

3. As a reference to the status of the student

i.e. "a full-time student" or otherwise.

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.

13. On this basis the Tribunal arrived at the result it did on a wrong construction of the section. The facts it found, in my opinion, admitted of no conclusion other than that the appellant was not engaged full-time in his course even though it was designated as full-time by the university. That being so he was not excluded from eligibility by s.136. It was conceded that he was eligible under s.116 and therefore he must be regarded as having been eligible for unemployment benefit. In the circumstances the Tribunal was wrong to affirm the decision under review and the appeal must be allowed.

14. As to the form of order that should be made, the Court is empowered by sub-s.44(4) of the Administrative Appeals Tribunal Act to "hear and determine the appeal and make such order as it thinks appropriate by reason of its decision". By sub-s.44(5) the power extends to the making of an order affirming or setting aside the decision of the Tribunal and an order remitting the case. The Tribunal itself is empowered by para 43(1)(c) to set aside the decision under review and make a decision in substitution for it. It was common ground on the hearing of the appeal that if the applicant won on the point of construction, he would win the appeal and would be entitled to receive benefit for the period under review. In these circumstances the form of order I propose is as follows:

1. The appeal be allowed.

2. The decision of the Tribunal be set aside.

3. The decision of the respondent's delegate be set

aside and the applicant's claim for unemployment

benefit be allowed.

4. The respondent pay to the appellant his costs of

the appeal.

The circumstances which give rise to this appeal are set out in the judgment

of French J., and I gratefully adopt his summary. The appeal raises an important question as to the proper construction of sub.ss.(1)(b) and (2) of s.136 of the Social Security Act 1947 ("the Act"). Section 136 is one of the "general" sections contained in Division 8 of Part XIII of the Act which deals with unemployment and sickness benefits. The sections in Divisions 1 to 6 inclusive of Part XIII lay down the qualifications for benefits, and provide for the rates of benefits, the making of claims, and for payment. In particular s.116 in Division 2 provides, so far as is relevant:

"116(1). Subject to this Part, a person...is

qualified to receive an unemployment benefit in

respect of a period (in this section referred to

as the "relevant period") if, and only if - ...

(c) the person satisfies the Secretary that -

(i) throughout the relevant period he was

unemployed and was capable of

undertaking, and was willing to

undertake, paid work that, in the opinion

of the Secretary, was suitable to be

undertaken by the person; and

(ii) he had taken, during the relevant period,

reasonable steps to obtain such work..."

Division 7 deals with the review of benefits. Division 8 contains five sections dealing with topics which are unrelated to one another. So far as is relevant s.136 provides:

"136(1) A benefit is not payable to a person (not

being an eligible person) in respect of any period

during which -

(a) a payment in respect of the person has been or

may be made under a prescribed educational

scheme; or

(b) the person is engaged in a course of education

on a full-time basis.

(2) For the purposes of paragraph (1)(b), a

person who is enrolled in a course of education

shall be taken to be engaged in that course from

the day on which the person commences that course

until the person completes or abandons that

course, including during periods of vacation but

not including during periods of deferment."

Section 136 is a disentitling provision. It may operate where the conditions for payment of benefits, including those in s.116(1)(c), are otherwise fulfilled. In this case it was conceded by counsel for the respondent before the Administrative Appeals Tribunal that apart from s.136, the appellant was eligible for benefits.

2. The appellant has from the outset made his claim on the footing that he was enrolled during the relevant period in a full complement of subjects for a third year student, and was what the University of Adelaide called, for administrative purposes, a "full-time" student. That description is applied by the University having regard to the curriculum and to the content of the subjects undertaken by the student. The description does not depend on the number of contact hours of lectures and tutorials provided by the relevant faculty, on whether attendance of a student at the University during set hours for tuition is compulsory, or on the hours an enrolled student in fact devotes to study.

3. The appellant contends that s.136, and in particular sub.s.(2), does not automatically deny unemployment benefit to a person otherwise eligible who is as a matter of fact enrolled in a course of education as a full-time student according to the designation given to the student by the education institution concerned. The respondent, on the other hand, contends that the combined effect of sub.ss.(1)(b) and (2) of s.136 is that a person who is enrolled by the institution as a full-time student shall be taken or deemed to be engaged in that course on a full-time basis, and whilst so engaged shall not be eligible for benefits.

4. It is helpful first to consider the application of s.116(1)(c) to a student enrolled in a course of education who is a claimant for unemployment benefits. To qualify the person must satisfy the Secretary, among other requirements, that he or she was "unemployed" during the relevant period. Green v. Daniels & Ors. [1977] HCA 18; (1977) 13 ALR 1 concerned a claim for unemployment benefits during the school vacation by a person who had recently left school. Eligibility was governed by s.107. This section was renumbered 116 by the Social Security Amendment Act 1987 (No.77 of 1987), but for present purposes the terms of the section have remained substantially the same. Stephen J. said, at p 8:

"...I have adopted as correct what was implicit in

the arguments of both parties, namely that a

person is not unemployed within the meaning of

s.107 either when actually attending school or

tertiary institution or when on vacation before

returning to school or other institution. The

term 'unemployed' is not defined in the Act and it

would, in my view, be inconsistent with ordinary

usage to describe such a student as unemployed in

the context of this legislation's provision of

benefits for the unemployed."

"The state of being 'unemployed' I regard as

satisfied as soon as a student leaves school, with

the intention of not returning but, instead, of

entering the workforce, and begins to seek

employment."

Shortly after the decision in Green v. Daniels & Ors., the Act was amended by the Social Services Amendment Act 1977 (No. 159 of 1977) to insert what is now s.127. This section imposed a non-payment period for six weeks of unemployment benefit in the case of persons ceasing education. The section employs the expressions "full-time secondary school student", "full-time course of study at an institution of tertiary education" and "full-time course of secondary education provided by a correspondence school". This amendment was an obvious response to the decision.

5. In 1981 this Court in Director-General of Social Services v. Thomson [1981] FCA 209; (1981) 38 ALR 624 also considered the meaning of "unemployed" in s.107. The claimant was a commercial artist. She was without work in that field and whilst looking for work enrolled in a course at a college without any commitment to complete it. She genuinely and actively continued in search of work and did not allow her course to interfere with her efforts to obtain work. Had she found work she would have ceased to attend the course. The Act then contained no provision like s.136. The Director-General argued that the course in which the claimant had enrolled was a "full-time" course which was inconsistent with her being "unemployed". The words "full-time" were the description adopted by the Director-General to describe the particular course. It is relevant to note the Court's observation at p 629:

"To describe her, and others undergoing different

courses, as 'full-time', serves, in our opinion,

only to disguise the problem. Some 'full-time'

courses may be 9 am to 5 pm, Monday to Friday, or

even more demanding. At the other extreme a

'full-time' course may require attendance at

lectures for only a relatively insignificant part

of the week. In Miss Thomson's case, she

attended lectures on two days per week in the

first semester and on four days per week in the

second semester in the relevant year."

The Court held that it was open on the facts for the Administrative Appeals Tribunal to find, as it did, that as a matter of fact the claimant was not "unemployed" within the meaning of s.107. The Court said at pp 628-629:

"...it must be kept in mind that the material part

of the legislation treats questions such as the

present as matters of fact and degree. Terms are

undefined and detailed tests are not prescribed.

Matters are left to the decision of the

Director-General, subject to review by the

Tribunal. Such a legislative scheme seems to us

to accept the operational burden of numerous

individual decisions, and at the same time to

provide by way of safeguard a need for the

applicant for benefit to satisfy those

administering the scheme that he or she qualifies

for entitlement.

For all that, the possibility must be recognized

that activities being pursued by a person without

paid work may be so fundamentally incompatible

with the person's being regarded as unemployed

that no further inquiry is necessary. However,

we anticipate that such a case would be

exceptional. In the usual case, of which we

think this is an example, the solution will be

arrived at by reference to all the circumstances,

of which the activities being pursued for the time

being by the applicant for benefit will be one.

As already noted the various requirements

prescribed by s.107(1)(c) are not divorced each

from the other. Thus, evidence that a person

without paid work is seeking work may be relevant,

not only to the question whether that person has

taken reasonable steps to obtain work

(s.107(1)(c)(ii)), but also to the question

whether that person is willing to undertake paid

work, and again to the question whether the person

is, in the relevant sense, unemployed.

Conversely, the fact that a person is a full-time

student may often evidence not only that the

person is not willing to undertake paid work but

also that, in a relevant sense, the person is not

unemployed."

6. The Administrative Appeals Tribunal has been called on several times since the decision in Director-General v. Thomson to consider claims for unemployment benefits by persons enrolled as students in courses of one kind or another: see re Long & Secretary to the Department of Social Security (1985) ASSC 92-066 (where the reasons for decision refer to a number of other similar cases), Donaghey v. Secretary to the Department of Social Security, unreported decision V85/450, 1 August, 1986, and Peraza v. Secretary to the Department of Social Security, unreported, decision No. N85/584, 29 September 1986. The Tribunal decided these cases according to their circumstances and treated the question of "unemployment" as a matter of fact and degree. The Tribunal does not appear to have encountered any extraordinary difficulty in deciding the matters under review. However the respondent now contends that the enactment of s.136 (initially as s.133 inserted by the Social Security Legislation Amendment Act 1986, No. 33 of 1986, and later amended by the Social Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986, No. 106 of 1986) was a legislative response to administrative difficulty encountered by the respondent in determining claims by students for unemployment benefit after the decision in Director-General v. Thomson. The Court's attention was drawn to amendments since 1977 to the sections now numbered 116, 126, 127, 136 and 137. It was contended that these amendments show a pattern designed to simplify the processing of claims for benefits by reducing administrative decisions which must be based on the circumstances and subjective intentions of particular claimants. It was argued that s.136 was one such section, intended to introduce a simple test for disqualification based on the objective fact of enrolment as a full-time student in a course of education.

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.

8. In my opinion there is no discernible feature in the history of the legislation leading up to the enactment of s.136 which helps with the question of construction. Nor do I find anything in the structure of Part XIII of the Act which assists. Before the Tribunal and the single Judge of this Court the parties, pursuant to s.15AB of the Acts Interpretation Act 1901, referred to explanatory memoranda laid before the House relating to the Bills which introduced the provisions of Acts Nos.33 of 1986 and 106 of 1986. These memoranda were not relied on by either party before this Court, and I do not think they give assistance on the question that must now be decided. In the absence of assistance from these extrinsic sources, the construction of the section must be decided on the language employed in the section, taken in the context of the Act as a whole.

9. I have already referred to the expressions used in s.127 which include the words "full-time" and to the language of s.136 as originally enacted. In s.3 "student child" is defined to mean "a person who ...(b) is receiving full-time education at a school, college or university"; and in s.120 provision is made for rent assistance to a recipient of unemployment benefits during a period when the person is "in continuous full-time training" under a training programme of a specified kind. In ordinary parlance, if one speaks of a person undertaking an occupation or activity "full-time", one is referring to the amount of time which the person spends doing so. In ss.3, 120 and 127 in my view the words "full-time" convey this notion. As a matter of consistency it could be expected that the words when enacted in s.136 would carry a similar meaning. In s.136, the expression "full-time basis" is employed. In the original terms of the section, the words "engaged, on a full-time basis, in a course of education" direct attention, in my view, to the commitment in time of the particular claimant to the course in question, and not to the designation which the institution may have ascribed to the course of education being undertaken. This is the same general notion of "full-time" appearing in the other sections to which reference has been made. When the same words "full-time basis" are found in s.136 after the amendment by Act No. 106 of 1986 it could again be expected that the words would retain the same meaning unless the context clearly indicated a different meaning.

10. If para (1)(b) of s.136 is considered apart from sub.s.(2), the plain meaning on a literal reading is that a person is engaged in a course of education on a full-time basis when that person as a matter of fact and degree is, during the relevant period, applying so much time to the course of study that his or her commitment is full-time in the ordinary meaning of those words. I agree with the Judge below that the words "on a full-time basis" qualify the whole expression "is engaged in a course of education".

11. When sub.s.(2) of s.136 is considered, it is to be noted that it introduces the concept of "enrolled" in contrast to that of "engaged" which is employed in sub.s.(1); and that it does not refer to enrolment "on a full-time basis". In my view its evident purpose is to qualify and amplify the meaning of being "engaged" in a course, and not to give meaning to the words "on a full-time basis". The sub-section first provides when the engagement begins and ends, and then deals expressly with vacation periods and deferments which are circumstances otherwise likely to be a source of uncertainty in deciding eligibility. I am unable to read sub.s.(2), alone or in conjunction with para (1)(b), as a provision that deems the fact of enrolment in a course of education designated "full-time" by an education institution to be an absolute disqualification of a claimant from eligibility.

12. The respondent contends that the interpretation which I would place on s. 136 should be rejected as it renders para (1)(b) otiose. It is submitted that a person who, as a matter of fact and degree, is actually engaged full-time during the relevant period in a course of study would not be "unemployed" within the meaning of s.116(1)(c), and would for this reason not qualify for benefits. This submission overlooks the full import of the concept of unemployment as explained in Director-General v. Thomson. That decision recognises that there will be cases where a person who is actually engaged on a full-time basis in a course of study at a particular time is nevertheless unemployed, and capable of fulfilling the requirements of s.116(1)(c). Section 136, construed in the manner which I have suggested, would render such a person ineligible to receive benefits during the period when he or she is in fact engaged in the course of study on a full-time basis. Many courses of education undertaken by students will require their attendance at an institution for several hours on most days of the week to receive instruction. In many cases the hours of attendance, and other time which the student must commit to study, will clearly enough be an engagement on a "full-time basis" in a course of education. In such a case, s.136 will render the student ineligible for benefits, notwithstanding that the person is genuinely looking for work and is ready and willing to give up study and pursue work if it becomes available.

13. Then the respondent contends that the construction which I favour should be rejected on the ground of utility. The respondent submits that the alternative construction is "more sensible and practical than the regime which would prevail if the appellant's argument were to be accepted": cf Purcell v. Electricity Commission of N.S.W. [1985] HCA 54; (1985) 59 ALJR 689 at 692. For reasons already given, there is no basis for thinking that the respondent's construction would lead to a more sensible result, or one which would simplify the administration of the Act. The real issue in a claim by a person in circumstances similar to those of the appellant's is likely to be whether the claimant is "unemployed" and whether the requirements of s.116(1)(c) are otherwise fulfilled. Section 136 has no influence on those matters. A close consideration of the particular circumstances and intentions of the claimant for the purposes of s.116 will be necessary. If the claimant fulfills the requirements of eligibility under s.116, then the application of s.136 requires a consideration of whether the claimant's engagement in a course of education is on a full-time basis in the ordinary sense of the expression having regard to the time spent by the person in the course of education. It is likely that the delegate of the Secretary would have gathered the information necessary to decide this question in the course of enquiries about the requirements of s.116. The rejection of the respondent's construction is not likely to add significantly to the fact finding burden which s.116 already places on the delegate.

14. Before this Court the parties agreed that the only issue agitated before the Administrative Appeals Tribunal was the construction of s.136. That was a question of law. Unfortunately the Reasons delivered by the Tribunal do not make it clear that the decision turned on the construction question. The learned Judge from whom this appeal is brought considered the proper interpretation of the Reasons to be that the Tribunal had accepted the construction of the Act contended for by the appellant but had decided the matter against him on the facts. He therefore dismissed the appeal. Unfortunately the learned Judge was not informed of the concession made by counsel for the respondent before the Tribunal that the requirements of s.116(1)(c) had been fulfilled by the appellant. Before this Court the parties were agreed that the fate of this appeal should turn solely on the construction question. I would therefore allow the appeal. I agree with the orders proposed by French J.