Higher Education Funding Act 1988 s.34

Harradine v. Secretary, Department of Social Security [1989] FCA 200; (1989) 87 ALR 305

Re O'Brien and Secretary, Department of Social Security (1990) 20 ALD 539

The Tribunal decides to affirm the decision under review.

The respondent applied for job search allowance in March 1992. His claim was rejected on the ground that section 531(1) of the Social Security Act 1991 ("the Act") precluded payment of the allowance to him. That decision was reviewed by the Social Security Appeals Tribunal ("the SSAT") , which decided that the allowance was payable to the respondent. The application which is now before the Tribunal was then made to it by the Secretary to the Department of Social Security. Essentially, he asserts that section 531(1) does preclude payment of the allowance.

2. At the hearing of the application the applicant was represented by Mr D. Perdon, a departmental officer, and the respondent by Mr D.Fanning, of Counsel. Oral evidence was given by Mr D.M. Nash, who is employed at Moorabbin College of Technical and Further Education ("TAFE") , and by the respondent. Documentary evidence was received from the Deputy Director, Programs, at Holmesglen College of TAFE, from Mr Nash and from the Department of Employment, Education and Training; also part of a handbook produced by Moorabbin College of TAFE, Curriculum Services Unit, containing details of the Associate Diploma of Business (Marketing) and a document signed by the Manager, Student Administration and Information Services, Holmesglen College of TAFE were received in evidence. Mr Perdon also provided the Tribunal with copies of part of an Explanatory Memorandum relating to the Social Security Legislation Amendment Bill 1990 and of the second-reading speech of the Minister in respect of that Bill.

3. At the time when the respondent lodged his claim for job search allowance, provision for such allowances was made by section 513 of the Act, which had been added to the Act by the Social Security (Job Search and Newstart) Amendment Act 1991. It read as follows:-

"513. (1) Subject to section s514, 515 and 519, a person is

qualified for a job search allowance in respect of a period if:

(a) the person satisfies the Secretary that throughout the period

the person is unemployed; and

(b) throughout the period, or for each period within the period,

the person either:

(i) satisfies the activity test; or

(ii) is not required to satisfy the activity test; and

(c) throughout the period, the person:

(i) is at least 16 and has not reached the pension age; and

(ii) is an Australian resident; and

(iii) is in Australia; and

(iv) is registered by the CES in an allowance category as being

unemployed; and

(d) throughout the period, or throughout each period within the

period, the person:

(i) has not turned 18; or

(ii) has turned 18 but has not been registered as required by

subparagraph(c) (iv) for longer than 12 months."

4. Notwithstanding the fact that section 513(1) contains no reference to section 531, the entitlement of some students to job search allowance was removed by sub-section (1) of section 531. That sub-section read as follows:-

"531. (1) Subject to subsection (2) , a job search allowance is

not payable to a person who is enrolled in a full-time course of

education or of vocational training for the period that:

(a) starts when the person starts the course; and

(b) finishes when the person:

(i) completes the course; or

(ii) abandons the course; or

(iii) gives notice to the provider of the course that the person:

(A) wishes to withdraw from the course; or

(B) wishes to withdraw from such number of subjects that the

person's course will no longer be a full-time course; and

(c) includes periods of vacation."

5. There is no dispute that the respondent was unemployed at the time when he lodged his claim and that he met the requirements of paragraphs(c) and (d) of section 513(1). He gave evidence of his having actively sought work throughout 1992 and I am satisfied that he met the requirements of paragraph(b) of the section. Mr Perdon did not suggest otherwise. The only matter which he put in issue was whether the allowance was not payable to the respondent because he was enrolled in a full-time course of education.

6. It is not in dispute that the respondent was enrolled in a course of education, a course for the Associate Diploma of Business (Marketing) provided by Holmesglen College of TAFE. That was a two-year course; the respondent was enrolled for the first year of it. The college provided two alternative courses for the Associate Diploma; one of them was taught during normal working hours on weekdays and the other was taught on Friday evenings and Saturdays and Sundays, and for a brief period on Thursday evenings. The respondent enrolled in the latter course.

7. The respondent gave unchallenged evidence that out of the 25 students in his class 16 were in full-time employment, working from Monday to Friday, and also that for the first few months of each semester he studied at home for about 4 hours a week but that later in each semester, when the students were required to undertake written assignments, the time spent studying at home increased to about 9 hours a week. The SSAT's statement of the reasons for its decision reveal that the respondent told that the Tribunal that he had done the work on two or three evenings a week.

8. Mr Nash gave evidence that the curriculum for each of the courses provided by the College was developed at Moorabbin College of TAFE; he said that he was Executive Officer of the Designated Provider for Business, Secretarial and Management Studies and as such was responsible for the development of business studies curricula for TAFE colleges throughout Victoria. He said that there were 26 sets of curricula for business courses and that there were 30 TAFE colleges. Some colleges provided more of the business studies courses than others. The courses had to be taught using the curricula which had been developed at Moorabbin College of TAFE. The course for which the respondent was enrolled was one of the courses for which Mr Nash had been responsible for developing the curriculum.

9. Mr Nash gave evidence that it was a two-tiered course, that is to say that after the first year those who passed the requisite examinations were granted the Advanced Certificate in Sales Management and Marketing and that after the second year those who passed the requisite examinations were granted the Advanced Certificate of Business (Marketing). He described how the curriculum was developed. He said that TAFE was "industry-driven"; the courses were developed to equip the students to meet the requirements of particular industries and were designed accordingly.

10. The first step, therefore, in developing the curriculum for any course was to seek the advice of industry as to the skills, knowledge and attitude required to be produced as the result of the course having been undertaken. The various skills and areas of knowledge were then grouped into like areas and became subject areas in the curriculum. The learning outcomes and behavioural outcomes were then ascertained and a course outline, including details of the subjects to be taught, was produced. Finally, each subject was considered in detail so as to ascertain how much tuition was required for a student to achieve the outcomes required in that subject. The exercise was undertaken by a group of experts in the particular subject, working with Mr Nash; although to a certain extent the decision reached as to the amount of tuition required was necessarily subjective, the decision, because it was the combined decision of the group of experts, could be expected to be reasonably sound when viewed objectively. However, when a course using the curriculum for it was taught at any particular college of TAFE, that college was free to reduce or extend the number of hours of tuition in any subject if it considered that those who would be teaching it either could teach it in a shorter time or needed further time to do so.

11. Mr Nash said that for "serious" subjects which were taught at TAFE colleges the curriculum usually provided for 18-20 hours per week of class contact tuition and there was the expectation that the students would spend more or less the same amount of time working on their own studying the subject. However, again, the amount of time which a student would need to spend studying any subject on his own would vary with the educational background and intellectual capacity of the individual student and with the teaching abilities of the individual teacher. Mr Nash said that the subjects taught for the Associate Diploma of Business (Marketing) were "serious" subjects and that the curriculum which had been developed for that course had envisaged that there would be 18-20 class contact hours of tuition per week. He was aware that Holmesglen College of TAFE was providing the course with only 16 hours of class contact per week; he said that that was entirely a matter for Holmesglen College.

12. Mr Nash gave evidence that the reason why the curricula for courses involving "serious" subjects envisaged 18-20 class contact hours per week and an equivalent amount of study by the students on their own was that that was considered to be the amount of studying that an average student enrolled for courses involving such subjects could reasonably be expected to undertake successfully. He said that the curriculum for courses for the Associate Diploma of Business (Marketing) was prepared on the basis that the students enrolled for them would either have completed successfully Year 12 of secondary education or be mature-age students with relevant business experience.

13. Before the Act was amended to provide job search allowance, it and its predecessor the Social Security Act 1947 ("the 1947 Act") provided for the payment of unemployment benefits. The benefit was not payable to certain students. Those excluded were students who received payments under prescribed education schemes, such as the AUSTUDY scheme, and also persons engaged in "a course of education on a full-time basis".

14. It may be noted that the headnote to section 136 of the 1947 Act was "Benefit not payable to full-time students" and that the headnote to sub-section (1) of section 531 of the Act is "Allowance not payable to full-time student". The expression "full-time student" was, however, not used in section 136 and is not used in section 531. It is an expression well known to tertiary educational institutions as payment of AUSTUDY benefits are dependent on a student being a "full-time student". What is meant by that expression for the purposes of the granting of AUSTUDY benefits is clearly stated in the AUSTUDY Regulations (SR 1990 No. 443) .

15. The use of the expression "engaged... in a course of education on a full-time basis" led to difficulty in administering the provisions of section 136 of the 1947 Act, as was evidenced in a number of cases in the Administrative Appeals Tribunal and one in the Full Court of the Federal Court, Harradine v. Secretary, Department of Social Security [1989] FCA 200; (1989) 87 ALR 305. Mr Harradine was apparently described as a "full-time student" by the University of Adelaide, where he was enrolled for a degree course; it would appear also that the university categorized the degree course as a "full-time course of education". However, the evidence before the Tribunal in these proceedings establishes that that expression is not one used by colleges of TAFE.

16. Holmesglen College of TAFE informed the Tribunal that it regarded the respondent as a "full-time student" but it expressed no opinion whether the course for which he was enrolled was a "full-time course of education". It stated the criteria by which it categorized a student as a full-time student. Those criteria related to the number of contact hours of tuition in the course being undertaken; Mr Nash informed the Tribunal that the criterion appeared to have been set by the Victorian State Training Board. The AUSTUDY Regulations relate the status of "full-time student" to the standard student load for a course determined by the institution providing the course or the amount of work which the institution specifies that a full-time student should typically undertake.

17. In Harradine a contentious issue was the meaning of the expression "engaged... in a course of education on a full-time basis". The Full Court of the Federal Court held that the word "engaged" connoted activity and must be taken to refer to the activities of students enrolled in the relevant course, while the words "on a full-time basis" described the nature of the activity undertaken. Exclusion from eligibility for the unemployment benefit, therefore, depended entirely on the degree of the student's activity and not on how the course was categorized by the institution which provided it.

18. Section 136 of the 1947 Act was amended by the Social Security Legislation Amendment Act 1990 to provide in respect of unemployment benefits substantially what is provided for now in respect of job search allowance by section 531 of the Act. In the Explanatory Memorandum which accompanied the Bill for that Act when it was presented to Parliament it was stated that, because of the decision in Harradine and a later decision of the Tribunal in Re O'Brien and Secretary, Department of Social Security (1990) 20 ALD 539, the amendment had "become necessary" to clarify what was intended. First, it was intended that section 136 "should apply not only to persons 'engaged' in a course of education 'on a full-time basis' but to all persons enrolled in a full-time course of education". Unfortunately, the opportunity was not taken to define the meaning of "a full-time course of education". That could readily have been done, possibly by reference to categorization of the course by the institution providing it or by reference to courses designated for the Higher Education Contribution Scheme under section 34(1) of the Higher Education Funding Act 1988.

19. In the absence of any such definition it is necessary, I am satisfied, to approach the question whether a particular course is a full-time course of education in the same manner as the Federal Court, both at first instance and in the Full Court, approached the question how a decision was to be made whether a student was engaged in a course of education on a full-time basis. That is to say, it depends on the particular facts of the actual course; in considering them judgment of degree must be exercised.

20. I accept as sound the view expressed by Mr Nash that it was reasonable for those who prepared the curriculum for the course undertaken by the respondent to expect that for an average student to complete the course successfully he would require to receive 18-20 hours of class contact tuition each week from an average teacher and to undertake 18-20 hours of studying on his own in addition. A course which involved that amount of tuition and study would, I am satisfied, be a full-time course of education for the purposes of section 531(1) of the Act. However, the hours of tuition and other study spent by the respondent in undertaking his course varied between 20 and 25 hours per week; his evidence of that was not challenged or contradicted. No evidence was presented to the Tribunal suggesting that the average student undertaking that particular course would have been expected to spend more hours of additional study than the respondent spent. Mr Nash, in answer to a question from Mr Fanning, said that the number of hours of additional study required would depend to a considerable extent upon the ability of the teacher.

21. Although no evidence was given of the reason why for that particular course the tuition was given on one evening a week and on Saturday and Sunday, it is likely that it was to enable persons in full-time employment to undertake the course. That being so, it is also likely that the amount of study in addition to the tuition which each student was expected to undertake was substantially that which the respondent undertook. On a balance of probabilities, on the basis of the evidence which is before the Tribunal, I am satisfied that Holmesglen College of TAFE, although utilizing the curriculum developed by Mr Nash and the group of experts at Moorabbin College of TAFE, decided that it could provide a course requiring only 16 hours of class contact tuition and up to 9 hours of other study per week. The question whether the particular course provided was or was not a full-time course of education is a matter of degree. I have come to the conclusion, having regard to all the facts before the Tribunal, that it was not.

22. Consequently, I am in agreement with the conclusion reached by the SSAT. Accordingly, I have affirmed the decision under review.