Secretary, Department of Education, Training & Youth Affairs v Ellem

Reasons for decision of the AAT 21 After noting the submissions of Mr Ellem and of the Secretary, the AAT gave the reasons for its decision in paragraphs [24]-[31]: 24. "The Applicant impressed the Tribunal as being very specifically focussed on his career in crime scene investigation, even to a point where, when he found out that forensic services were becoming "civilianised" he decided to change his course again in 1999 to enable his specific interests to be addressed directly. The Tribunal finds that, given the Applicant's single-mindedness about his career interests, if he continued his Bachelor of Science course at the University of Newcastle merely for the purpose of not incurring a HECS debt, he would have taken a number of risks. Such action would have caused him to miss the 1998 intake for the NSW Police Service in May. Moreover, with a history of 250 offers out of 800 applications and in the absence of any policy which allowed successful applicants to defer the commencement of their course, he was taking a material risk of not achieving entry to the Constable Training Program in the future. There was no evidence before the Tribunal to indicate that the Applicant's perceptions about entry to the Constable Training Program and crime scene investigation work was not correct, and therefore the Tribunal accepts the Applicant's evidence on this. 25. The Applicant was at risk of not fulfilling his career goal if he had decided to continue his course at University of Newcastle, instead of accepting the offer from Charles Sturt University. The Tribunal finds that this made it impracticable for the Applicant to complete the University of Newcastle course for semester 1 1998. The Applicant had no control over the delay in the commencement of the initial course at Charles Sturt University, nor did he have any control over the fact that the NSW Police Service was changing the nature of its constable education from an in-service course at the Police Academy. The Tribunal does not accept the suggestion that actions of the NSW Police Service are not material to this decision. Those actions obviously had a major personal impact on the Applicant and they are, in the words of s 106L(3) of the Act, circumstances in relation to the Applicant. 26. This matter is significantly different from those cases where a student decides to make a course change, or to notify of the withdrawal of a subject, after the census date, notwithstanding their opportunity to do so before the census date. The vast majority of course changes can be negotiated and completed before the census date and within the requirements of the Act, and indeed that is a purpose of the census date. The Tribunal notes the unlikelihood of creating a precedent on the facts in this case. The facts are very unique, and at best would apply only to the Applicant and perhaps some of his fellow students in the course at Charles Sturt University in 1998. 27. The Tribunal finds that the Applicant's circumstances were beyond his control. Although it was in his control to make the decision he made, there were other circumstances involved which related to the late commencement of the Charles Sturt University course and the change in the NSW Police Service Constable Education Program which were not in the Applicant's control and which contributed to the totality of the circumstances which caused him to make the decision to withdraw from his course after the census date. In applying the Secretary's Guidelines (T15) the Tribunal finds that this is a situation which a reasonable person would consider to be not due to the Applicant's action or inaction, either directly or indirectly, and for which he was not responsible. The Tribunal finds that the situation was unusual, uncommon and abnormal. 28. The Tribunal also finds that the circumstances did not make their full impact on the Applicant until after the census date. He did not know until after the census date that the Constable Education Program was going to be available before 6 to 12 months. The Applicant received a letter from the NSW Police Service (T3, p19) indicating that further information will be available about March 1998. He then received a telephone call from the Police Service, informing him that it may be 6 or 12 months before the course would begin. Indeed, on his evidence, which the Tribunal accepts, the first information that the Applicant received was the offer of the place at Charles Sturt University dated 23 April 1998 (T3, p21). While he had hoped that an offer would be made for the Constable Education Program, the Tribunal finds that there is no reasonable action that he could have taken prior to the census date. The alternative not to pursue any course of study at the University of Newcastle while running the risk of never getting an offer from the NSW Police Service, is in the Tribunal's view unreasonable. 29. None of the previous Tribunal decisions to which the Respondent referred were similar fact situations, and were not helpful to the Tribunal in coming to a decision in this matter. This decision, as with so many of these "special circumstances" matters, turn on their own facts. 30. For the reasons outlined above, the Tribunal finds that the Applicant has met the criteria outlined in (a), (b) and (c) of the Guidelines for the remission of his HECS debt for study commenced by him at the University of Newcastle in semester 1 1998. The Tribunal notes in the Secretary's Guidelines that the Secretary (and the Tribunal standing in the shoes of the Secretary) can also be satisfied special circumstances exist although they are not dealt within the guidelines. The Tribunal finds that even if there were parts of the Guidelines that the Applicant did not meet, on consideration of the totality of the Applicant's circumstances, the Applicant meets the terms of s 106L(3) of the Act in establishing that special circumstances exist. These circumstances warrant remitting the whole of his HECS debt in the amount of $1,792. The decision under review is therefore set aside. 31. In making this decision, the Tribunal did not find it necessary to consider the issue of the co-existence of two HECS debts being payable by or on behalf of the Applicant for part of semester 1 1998, because of the Applicant changing his course."

First ground of appeal - invalidity of the Secretary's Guidelines 22 Subsection (3A) of s 106L of the Act was set out earlier. It empowered the Secretary to issue guidelines. I was informed by Counsel for the Secretary, without objection by Counsel for Mr Ellem, that it has become apparent since the AAT's decision that the guidelines to which the AAT referred in its Reason for Decision ("the Guidelines") were not valid at the time of its decision on 1 February 2000. Counsel informed me that the Guidelines were approved on 2 November 1999, gazetted on 15 December 1999 and tabled in Parliament on 15 February 2000. Section 110 of the Act provided that guidelines issued under subs 106L(3A) were a disallowable instrument under s 46A of the Acts Interpretation Act 1901 (Cth). Accordingly, they were not valid at the time of the AAT's decision: see ss 46A(1) and 48(1)(a) of that Act and Watson v Lee (1979) 144 CLR 374. 23 What effect does the invalidity of the Guidelines have on the AAT's decision? The Reasons for Decision refer to the Guidelines in three places. First, the AAT set out the relevant part of the Guidelines in para [10] of its Reasons as follows: "Under subsection 106L(3A) of the Act the Secretary may issue guidelines outlining in what circumstances the Secretary will be satisfied that the matters in (a), (b) or (c) above are met. These guidelines are set out below. The Secretary can also be satisfied that special circumstances exist although they are not dealt within the guidelines. GUIDELINES Each application will be examined and determined on its merits. The Secretary will consider the person's claims together with independent documentary evidence which substantiates these claims. The Secretary may be satisfied that a person's circumstances: (a) are beyond a person's control if: a situation occurs which a reasonable person would consider is not due to the person's action or inaction, either direct or indirect, and for which the person is not responsible. This situation must be unusual, uncommon or abnormal. A lack of knowledge or understanding of HECS….Is not considered to be beyond a person's control. (b) do not make their full impact on the person until on or after the census date for the course of study for the semester or the study period (as the case requires) if the person's circumstances occur: (i) before the census date, but worsen after that day, or (ii) before the census date, but the full effect or magnitude does not become apparent until on or after that day, or (ii) on or after the census date. (c) make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs or the units of study for which he or she was enrolled for the study period (as the case requires) if the person is unable to: (i) undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements, or (ii) complete the required assessable work, or (iii) sit the required examinations, or (iv) complete any other course requirements because of their inability to meet (i), (ii) or (iii). Special circumstances might arise from medical, family, personal, employment or course related reasons. In considering a person's application, the Secretary must be satisfied that the person has met the criteria outlined above in (a), (b) and (c)." (emphasis in original). 24 In the preceding paragraph (para [9]) the AAT had set out the relevant provisions of s 106L of the Act, including subs (3A). It is clear that the AAT thought that its decision was required by that subsection to be "in accordance with" the Guidelines. But this was not so because the Guidelines were not valid. I note, in passing, that no blame is attributed to the AAT for this error: indeed, Counsel for the Secretary has indicated that if his client succeeds on the appeal, he will not seek an order for costs. 25 The AAT referred to the Guidelines in paras [27] and [30] of its Reasons for Decision. Those two paragraphs were set out earlier. The AAT there found that the Guidelines were satisfied, but that if parts of them were not, nonetheless, on a consideration of "the totality" of Mr Ellem's circumstances, Mr Ellem met the terms of subs 106L(3) because he had established that "special circumstances" existed in any event. The "special circumstances" referred to are also those referred to in para (b) of subs 106L(1). 26 The AAT erred in thinking that subs 106L(3) required its decision to be "in accordance with" the Guidelines, but what does this mean on the facts of the present case? The Guidelines are confused. In the first paragraph that occurs under the side heading "GUIDELINES", the Guidelines state, in effect, only that the Secretary may be satisfied that the matters referred to in paras (a), (b) and (c) of subs 106L(3) exist if the criteria referred to in paras (a), (b) and (c) respectively of the Guidelines are met. But subs 106L(3A) empowers the Secretary to issue guidelines relating to circumstances in which the Secretary will be satisfied of a matter referred to in para (3)(a), (b) or (c). Clearly, the purpose of the subsection is to allow persons to be informed by the Secretary that if certain guidelines are met, there will be no further question but that the Secretary will be satisfied of the matters referred to in para (a), (b) and (c) of subs 106L(3), and therefore will be satisfied that special circumstances apply to the person. There would then remain only the residual discretion indicated by the word "may", being the third word in subs 106L(1), whether to remit the whole or part of the person's HEC Semester debt. 27 The second last sentence of the Guidelines states that the Secretary must be satisfied that the person meets the criteria set out in paras (a), (b) and (c) of the Guidelines. If this is a statement that those criteria must be met if the Secretary is to be satisfied that "special circumstances" exist, it is (a) wrong because inconsistent with the inclusory nature of subs 106L(3); and (b) inconsistent with the third sentence of the Guidelines document which reflects the inclusory nature of that subsection. 28 The AAT was satisfied that the criteria referred to in paras (a), (b) and (c) of the Guidelines were established but did not independently direct its mind to the question whether the meeting of those criteria without more satisfied it (the AAT) that the "special circumstances" referred to in para 106L(1)(b) and subs 106L(3) existed. 29 Not only were the Guidelines invalid because of the procedural deficiency mentioned earlier; they did not conform to subs 106L(3A) because they did not relate to circumstances in which the Secretary would be satisfied of a matter referred to in para (3)(a), (b) or (c). The third sentence under the side heading "GUIDELINES" said only "may be satisfied". The last sentence of the Guidelines stated only a condition precedent. Guidelines conforming to subs 106L(3A) must assure the reader that in the circumstances described in them, the Secretary will be satisfied of the matters referred to in paras 106L(3)(a), (b) and (c). Guidelines conforming to subs 106L(3A) will benefit, rather than burden, a person applying for remission of a HEC semester debt. By the operation of subs 106L(3A) they will have the effect of imposing an obligation on the Secretary for the benefit of such a person. 30 If the AAT had done no more than proceed on the basis that "special circumstances" must be taken to be established because the criteria described in paras (a), (b) and (c) of the Guidelines were satisfied, it would have erred in law by having failed to decide for itself whether "special circumstances" existed. But the AAT did more, as para [30] of its Reasons (set out earlier) shows. It found that special circumstances existed, not only because the criteria referred to in paras (a), (b) and (c) of the Guidelines were met, but because of "the totality" of Mr Ellem's circumstances. 31 I do not accept the Secretary's submission that the AAT's statement in this respect betrays a failure to state reasons. In paras [24] to [28] of its Reasons the AAT was careful to emphasise the circumstances of Mr Ellem's case that were "special". For example, in para [26], before dealing specifically with para (a)'s "beyond his control" issue in para [27], the AAT referred to circumstances that made Mr Ellem's case "unique" and not a "precedent".

Second ground of appeal - finding that Mr Ellem's circumstances were beyond his control 32 The Secretary relies on the fact that Mr Ellem elected to change courses and submits that it is not enough that what prompted him to do so was a change of circumstances beyond his control. The Secretary relies on, and Mr Ellem seeks to distinguish, the following cases in which courts have considered similar or related concepts described in legislation: Atomic Skifabrik Alois Rohrmoser v Registrar of Trade Marks (1987) 13 FCR 199 (Jenkinson J) at 206; Secretary, DEETYA v Ferguson (1997) 76 FCR 426 (Mansfield J) at 437E-439G; Secretary DSS v Secara (1998) 89 FCR 151 (FC) at 159G-162B per Mansfield J; and The Turul [1919] AC 515. The Secretary submits that, in accordance with these authorities, "circumstances … beyond the person's control" cannot refer to circumstances that the person can do something about, or voluntary acts of the person, and that for circumstances to be "beyond the person's control" they must be in the nature of force majeure. 33 I have read all these cases but do not find them particularly helpful. The reason is the familiar one that the statutory language must be understood in the context of the purpose of the provision in which it occurs. 34 The expression "beyond the person's control" occurs in subs 160L(3) which describes circumstances included within the notion of "special circumstances" referred to in para 160L(1)(b). But the circumstances described in subs 160L(3) do not exhaust the field covered by the "special circumstances" referred to in para 160L(1)(b). The special circumstances to which para 160L(1)(b) refers are circumstances additional to the conditions specified in paras 160L(1)(a) (non-completion of course requirements) and (c) (application for remission within 12 months) which take the case out of the "non-special" category in which the HEC semester debt cannot reasonably be expected to be remitted. Those special circumstances would definitely include, but are not limited to, circumstances that the Secretary is satisfied meet all three criteria described in paras (a), (b) and (c) of subs 106L(3). Accordingly, there may be circumstances which are not "beyond the person's control" but which are nonetheless "special" for the purposes of para 106L(1)(b). The ultimate question is that posed by subs 106L(1) and, relevantly, para (b) of that subsection: is the Secretary (or the AAT) "satisfied that special circumstances applied to the person". 35 In my opinion the AAT understood this to be the position and correctly directed its mind to this question in para [30] of its Reasons. The AAT was there saying, relevantly, that even if the circumstances were not "beyond [Mr Ellem's] control", nonetheless it was satisfied that "special circumstances" applied to Mr Ellem. 36 It is not possible to conceive of all the possible sets of circumstances that might be considered "special" for the purpose of para 160L(1)(b) and it would be unwise to attempt to define them or describe them in a limiting way. The legislature has recognised this fact by expressing subs 106L(3) in inclusory terms. 37 An element of choice by a person must surely be present in almost all cases where he or she has not completed course requirements. It seems that the only case where this would not be so is where the institution of higher education itself prematurely terminates the course. 38 A person may choose not to complete a course on account of circumstances as multifarious as human experience allows. Examples are: sudden and unforeseeable family or economic exigencies; a change in professional qualification requirements; a change in the teaching staff of the institution of higher education; a developing appreciation by the person that the course is not well adapted to his or her needs or desires; a developing appreciation by the person that he or she is not well equipped to undertake the course. In some circumstances the voluntary element will be so dominant that it could not reasonably be suggested that special circumstances apply to the person, as where the person simply decides, as a matter of "preference", not to complete the course. In other cases, the pressure of external circumstances on the person may be almost irresistible, such as circumstances associated with a death or terminal illness in the person's family. The point is that there is a continuum on which sets of circumstances can be placed according to the degree to which circumstances within the person's own control, or external circumstances beyond his or her control, are properly to be seen as causative of his or her non-completion of the course requirements, and it is a misconception to think that "special circumstances" cannot apply to the person whenever it can be said that an element of his or her decision-making is involved. 39 In the present case, the AAT found that Mr Ellem's mind was always fixed on a forensic career, indeed, one more specifically in crime scene investigation. Circumstances beyond Mr Ellem's control prevented him from pursuing that career at his first attempt and he was "forced" to take an alternative course of action, at least for the time being. Shortly afterwards, institutional arrangements beyond Mr Ellem's control made it possible for him to pursue his ever fixed objective. At a fundamental level, his decision was dictated, not by a mere change of mind on his part, but by the change in institutional arrangements. In my view, in these circumstances it was open to the AAT to conclude, as it did, that special circumstances applied to Mr Ellem. 40 It is not inconsistent with the view just expressed that in another case the person's decision-making might be seen to be more in the nature of the pursuit of a preference leading the Secretary (or the AAT) to a different conclusion. Third and fourth grounds of appeal - finding of special circumstances regardless of the Guidelines. 41 As noted earlier, the Secretary attacks the AAT's finding that even if there were parts of the Guidelines that Mr Ellem did not meet, on consideration of the totality of his circumstances he met the terms of subs 106L(3) (and therefore para 106L(1)(b)) by establishing that special circumstances existed. The Secretary submits that in this respect the AAT failed to give adequate reasons as required by subs 43(2B) of the AAT Act and makes the point, by reference to authorities, that a such a failure is an error of law. 42 I touched on the present submission in para [31] earlier. The sentence of the AAT's Reasons which is attacked is as follows: "The Tribunal finds that even if there were parts of the Guidelines that the Applicant did not meet, on consideration of the totality of the Applicant's circumstances, the Applicant meets the terms of s 106L(3) of the Act in establishing that special circumstances exist." 43 As noted in para [31] above, this sentence is a culmination of a process of identification of extraordinary features of Mr Ellem's case in paras [24] to [28] which were set out in full earlier. In sum, in those paragraphs the AAT showed that Mr Ellem had always had the fixed objective of pursuing a career in forensic science, and, more particularly, in crime scene investigation, and that it had only been educational institutional arrangements that had diverted him temporarily to a Bachelor of Science degree at The University of Newcastle. The AAT thought, as it was entitled to do, that all the circumstances outlined in paras [24] to [28] were special circumstances that made it appropriate to remit Mr Ellem's HEC semester debt.

Fifth ground of appeal - "Wednesbury unreasonableness" 44 In his written submissions, Counsel for the Secretary submits as follows: "Finally, the Tribunal's decision is so unreasonable that no reasonable decision maker could have come to it. It allows a waiver of the entirety of a semester debt simply because the Respondent in the circumstances decided that his career prospects were best served by changing courses. The intention of the Act, in particular s 106L(3)(a), could not have been that remission of a HECS debt should occur in such circumstances. As was submitted to the Tribunal (see [22]), by enrolling in and then failing to withdraw from his course of study at the University of Newcastle by the relevant census date, the Respondent effectively prevented another student from taking up that place and having the benefit of the funding allotted for it. The Respondent decided that his career prospects were best served by changing courses. He was entitled to do so, but as his actions prevented another student from accessing the University of Newcastle placement and funding he property incurred a HECS debt. The Tribunal's decision remits the whole of that debt in circumstances where the Respondent has simply made a voluntary decision to further his career prospects as he perceives them. Parliament cannot have intended that such decisions should lead to remission of a properly incurred HECS debt. While the Applicant acknowledges that the hurdle of unreasonableness is a high one, it was made out in Haidar [Haidar v Secretary DSS (1998) 157 ALR 359]at 369, and is also made out in this case." 45 In his written submissions, Counsel for Mr Ellem responds as follows: "In this matter the Tribunal found that the respondent was specifically focused on a career in crime scene investigation; that if he continued with the Bachelor of Science course he would have missed the May 1998 intake for the NSW Police Service; that as only 250 of 800 applicants were successful in being selected and that there was no policy of deferment that the respondent was at risk of not fulfilling his career goal if he continued at the University of Newcastle; that the respondent had no control over the delay in the commencement of the initial course at Charles Sturt University nor did he have any control over the fact that the NSW Police Service was changing the nature of its Constable education; that this case was significantly different from those cases where a student decides to make a course change after the census date notwithstanding the opportunity to do so before the census date; that the respondent's circumstances were beyond his control; that the circumstances did not make their full impact on the respondent until after the census date and that it would be unreasonable for the respondent not to pursue the University of Newcastle course while running the risk of never getting an offer from the NSW Police Service." 46 I do not think the AAT's decision unreasonable at all. It is an oversimplification to say that Mr Ellem "decided that his career prospects were best served by changing courses". So to describe his decision would be consistent with his having made a choice after the census date between two courses that had always been available to him. One could just as well oversimplify by saying that Mr Ellem's decision never changed because it was always a decision to undertake the available course best suited to qualify him to pursue his chosen career. Simplistic characterisations of either kind are not useful. I suggested earlier that it is to be expected in most cases of applications for remission of HEC semester debts that there will be operative both an element of decision-making by the person and external circumstances beyond his or her control. 47 I am not persuaded by the particular consideration identified by Counsel for the Secretary in the passage from his written submissions set out above. It may often be the case that non-completion of a course, except where the institution itself has prematurely terminated it, will signify that another person has been denied an opportunity to take up a place in the course and have the benefit of funding allotted to that place. But a failure to allow such a consideration to be determinative does not expose an error of law on the part of the AAT. Conclusion 48 For the above reasons the application will be dismissed with costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Solicitors for the Applicant: The Australian Government Solicitor

Solicitors for the Respondent: Orchiston-Ranzetta-Finney