Secretary, Department of Family & Community Services v Brown

Additional Factual Matters not in Dispute 7 In addition to the matters set out in [1]-[4] the following factual matters are not in dispute. Mr Brown enrolled in semester 2 at Sydney and discontinued prior to the HECS census date of 31 August 2004. He intended to re-enrol in semester 1 of 2005 when re-enrolments in his course were next accepted. In the Secretary's opinion, Mr Brown was making satisfactory progress towards completing his course. I note that his grades in 2002 and 2003 were all High Distinctions and Distinctions. 8 Arts/Law at Sydney was an approved course of education or study and Sydney was an educational institution for the purposes of s 541B(1) of the Act. The course at Birzeit was not an approved course of study or education for the purposes of s 541B(5) of the Act. Birzeit was not an educational institution for the purposes of the section, not being an 'educational institution' 'established under Australian Government or State or Territory government legislation as a higher education institution or is registered by the relevant State or Territory higher education recognition authority'(Clause 5(1) of the Ministerial Determination of Education Institutions and Courses No. 2002/1 under subsections 3(1) and 5D(1) of the Student Assistance Act 1973 (Cth), the relevant definition).

Relevant Legislation 9 In order to satisfy the activity test, relevantly because of his study, Mr Brown had to undertake full-time study (s 541(1)(a) of the Act). Section 541B sets out what is 'undertaking full-time study' for the purposes of the Act. 10 Mr Brown needs to establish that he comes within the test in s 541B(1)(a)(ii) and (c) which provide: 'For the purposes of this Act, a person is undertaking full-time study if: (a) the person: (i) is enrolled in a course of education at an educational institution; or (ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or (iii). …and … (c) the course in question is an approved course of education or study (see subsection (5))…'. (emphasis added)

What was 'the course' for the purposes of s 541B(1)(a)(ii)? What was 'the course in question' for the purposes of s 541B(1)(c)? 11 The contention of Mr Brown, for the purposes of s 541B(1)(c), is that the 'course in question' was the approved course at Sydney in which he was enrolled and intended to re-enrol and that, for the purposes of his undertaking full-time study, the course at Birzeit was irrelevant. The Secretary submits that 'the course in question' was the course at Birzeit, as was 'the course' for the purposes of s 541B(1)(a)(ii). The facts in [8] above mean that, if "the course" was the one at Birzeit, Mr Brown was not relevantly undertaking full-time study. 12 The Tribunal at [8] rejected the Secretary's submission and held that 'the course' in each case was the Sydney course, on the basis that '[t]he interpretation urged by [the Secretary] is simply not available on the basis of the words of the text', so that 'course of education at an education institution' of the kind under discussion in the application was the BA/LLB course at Sydney. 13 Sections 15AA and 15AB of the Acts Interpretation Act 1901 (Cth) did not assist the Secretary. The Tribunal considered the purpose and object of the Act as a whole and held that it was to provide for the payment of benefits to persons who are entitled to those benefits. There was, in the Tribunal's view, no alternative construction reasonably available for the purposes of s 15AA (R v L (1994) 122 ALR 464 at 468-9). As to s 15AB, the Tribunal considered that the purpose and object of the Act and the purpose of s 541B(1)(a) as stated in the Explanatory Memorandum (referring to a person enrolled and intending to re-enrol), were not at odds with the ordinary meaning of the words of the section: '[t]he difficulty that arises in this application is that the text in the provision also does other work beyond the purpose stated in the Explanatory Memorandum, that is, it allows for a hiatus in enrolment of a different kind' at [12]. 14 The Tribunal then turned to consider, for the purposes of s 15AB, whether the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable. That result is that a student is taken to be undertaking full-time study despite a hiatus in enrolment if the student is enrolled in a course and intends to re-enrol when enrolments are next accepted, without addressing the nature of activity that the student may be engaged in during that hiatus period (by s 541B(i)(ii)). While the activity engaged in during the Sydney enrolment hiatus by Mr Brown was serious study which was to be credited to his Sydney degree, the words of the section, so construed, would allow for an enrolment hiatus spent, for example, snowboarding. The Tribunal found that result to be unreasonable but concluded, nevertheless, that this does not permit an unreasonable or unnatural construction or a rewriting of the provision (Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113 per McHugh J). 15 Accordingly, the Tribunal upheld the interpretation based on the ordinary meaning of the words in s 541B(1) rather than upholding the Secretary's construction of the section which it consider to be 'strained' and 'unnatural or unreasonable'. As a result, the Tribunal considered that when studying at Birzeit, Mr Brown would be undertaking full-time study and would therefore satisfy the activity test. 16 The Secretary submits that the Tribunal erred in its construction of s 541B(1) by failing to have regard to the narrow and broad context of the provision. The "narrow context" was the "proper" construction of the section: 'the Tribunal was required to ask itself first whether, during the relevant period, [Mr Brown] was enrolled in a course of education at an educational institution.' The broad context was in fulfilling the purpose of the provision. 17 The Secretary also submits that because the Birzeit course was non-approved and Mr Brown was in fact enrolled at Birzeit, s 541B(1)(a)(ii) also is not satisfied. In the Secretary's submission, the Tribunal wrongly dealt with the criterion of that section by reference to Sydney because Mr Brown was not at Sydney for the relevant period. 18 In my view, it is clear from the wording of s 541B that the 'course' as referred to in the various sub-sections of that section refer to the same course. That is the course referred to in sub-section (a)(i): 'a course of education at an educational institution'. That can only be the Sydney course. Sub-sections (a), (b) and (c) are linked to (a)(i) and provide for further criteria to be satisfied with respect to that course or the person enrolled in it. Each of the subparagraphs that follow (a)(i), namely (a)(ii) and (iii) and sub-sections (b) and (c) refer to 'the course'. That must be the same course as in subsection (a)(i) and is a reference back to 'a course of education at an educational institution', the Sydney course. 19 During the period at Birzeit, Mr Brown was enrolled in an approved course of education (Arts/Law) at an educational institution (Sydney). Mr Brown has satisfied s 541B(1)(a)(ii). The fact that during the relevant period Mr Brown was enrolled at Birzeit, and was enrolled at Sydney prior to that period, meant that s 541B(1)(a)(ii) applied rather than s 541B(1)(a)(i). 20 The Secretary contends that s 541B(1)(a)(ii) has a broad context which is also necessary to take into account when construing the provision so as to fulfil its purpose. Mr Smith, who appears for the Secretary, submits that the Explanatory Memorandum of the Act, as quoted by the Tribunal in its decision at [11], shows the broader context in which the provisions were inserted into the Act. The Explanatory Memorandum, in his submission, indicates that the section was intended to cover the short periods between enrolments in educational institutions. The section, he says, ought to be construed with a view to its 'restricted purpose' so as not to apply to a person who is enrolled in a course of education for reasons other than those required by the education provider. 21 The Court may construe words in a statute so as to operate in a particular way, even if the words used would not, on a literal construction, so operate. However, the words which actually appear in the statute must be reasonably open to such a construction. As Spigelman CJ held in R v Young (1999) 46 NSWLR 681 at 687 '[c]onstruction must be text based'. Mr Smith was not able to point to a construction of s 541B(i)(a)(ii) or to specific words which could be read down or be given an effect as if they contained additional words, so that the section only gives effect to the 'restricted purpose' he supports. Mr Smith accepts that the words, read on their face, apply to Mr Brown but submits that the Court must look at the purpose of the section and construe the whole section accordingly. 22 The only way that the words of the section could be interpreted in accordance with the proposed 'restricted purpose' would be to say that the expression 'enrolled in the course' brings with it the requirement that enrolment must last for the whole of the term of the course, that is the whole of the semester. Mr Colborne, who appears for Mr Brown, submits that such a construction of 'enrolled in the course' is not available, as "the course" refers to the 'course of education', that is to the degree as a whole, not just to a subject. I agree with that submission. 23 Mr Smith submits that the 'modern approach to construction of statues' requires that regard be had to the purpose of the statute or section, which is ascertained by having regard not only to the grammatical meaning of the words but also to the broad context. He submits that CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 and Newcastle City Council establish that, regardless of clear words, a strained construction of actual words is permitted in order to fulfil the purpose of the provisions. 24 A particular statutory provision is construed in its context, so that it is consistent with the language and purpose of all the provisions of the statute (CIC Insurance at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (per McHugh, Gummow, Kirby and Hayne JJ); Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273 at [11] (per McHugh, Gummow and Hayne JJ); Rieson v SST Consulting Services Pty Limited [2005] FCAFC 6 at [14] and [20]). Context or purpose can thus justify a court in giving a 'strained construction' to cure the mischief the provision was intended to cure or to achieve its clear legislative purpose: see Newcastle City Council at 113. 25 It is impermissible, however, as Newcastle City Council makes clear at 113 and as reiterated in Rieson at [20], to use purpose or context to give a provision a construction which, in light of the language used, is unreasonable or unnatural. As Jacobson J observed in Comcare Australia v Pires (2005) 143 FCR 104 at [33]; 'This is not to say that resort to extrinsic material can override the language of the statute'. Where the ordinary meaning of the provision is clear, it is not ambiguous or obscure and does not lead to a result that is manifestly absurd or is unreasonable, s 15AB of the Interpretation Act does not permit the use of extrinsic material to arrive at the construction contended for (Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 at [11] per Moore and Gyles JJ). 26 In order to construe s 541B(1)(a)(ii) in accordance with Mr Smith's 'restricted purpose', the provision would have to be given an unnatural construction. As Mason CJ, Wilson and Dawson JJ observed in Re Bolton: Ex parte Beane (1987) 162 CLR 514at 518: 'It is always possible that through oversight or inadvertence the clear intention of Parliament fails to be translated into the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.' The ordinary meaning of s 541B(1) is clear. It is not ambiguous or obscure and does not lead to a result that is manifestly absurd or unreasonable. 27 As the Full Court observed in Secretary, Department of Family and Community Services v Matheson (2004) 38 AAR 417 at [20], '[t]he words used in s 541B(1)(b)(i) are clearly used and are to be applied according to their ordinary meaning'. The same applies to s 541B(1)(a). 28 The fact that the course at Birzeit was not an approved course was irrelevant if the hiatus in Mr Brown's enrolment at Sydney satisfied the requirements of s 541B(1)(a)(ii). There is nothing in the ordinary meaning of the words in the section or in the context in which the section appears in the Act to suggest that the section includes a qualification limiting what students can do during a hiatus in their enrolment. 29 It may also be observed that the 'restricted purpose' articulated by Mr Smith, that the section only apply to persons who are not enrolled in a course of education because of a requirement of the education provider, is satisfied in Mr Brown's case. As noted above at [3], Mr Brown deferred his enrolment in Arts/Law at the direction of Sydney.

Section 1218 of the act 30 The Secretary also challenged the Tribunal's construction of s 1218 of the Act. 31 Section 1218 of the Act provides: '1) This section applies if, immediately before the period of absence commenced: (a) the person was undertaking full-time study as part of a course of education at an educational institution; and (b) the person was receiving youth allowance or austudy payment. 2) The person's right to continue to be paid youth allowance or austudy payment is not affected merely by the person's absence throughout so much of the period of absence as is for the purpose of undertaking studies that form part of the course of education. 3) If the person returns to Australia for a period of 13 weeks or less, the return is taken not affect the continuity of the period of absence.' 32 It is not suggested that s 1218(3) of the Act applied. Mr Brown was absent from Australia for a period in excess of 13 weeks. 33 The Secretary submits that s 1218 must be construed having regard to the provisions in Part 2.11 (including s 541B) dealing with eligibility for youth allowance. In Mr Smith's submission, the student has to be undertaking full-time study in accordance with s 541B and has to continue to be enrolled in the Australian education institution during the period of absence. That is to say, Mr Brown does not satisfy s 1218 because, during the hiatus period, Mr Brown was not enrolled at Sydney. 34 Section 541B does not require continuing enrolment. Indeed, it provides for a hiatus in enrolment in s 541B(1)(a)(ii). Section 1218 does not import a requirement of current enrolment. 35 Section 1218(1) does provide that the section will only apply if the person was undertaking full-time study as part of a course of education at an educational institution and was receiving youth allowance. However, as the Tribunal observed, s 1218 does not specifically require the person to be enrolled at the educational institution during the period outside Australia for the purpose of an Australian course. There is no reference to enrolment. 36 Mr Smith also submits that s 541B provides guidance on what is specifically meant by the words 'studies that form part of the course of education' in s 1218. Mr Smith submits that the Tribunal should have held that the words of s 1218 are 'form part of the course of education' not will form part. In his submission the words 'form part of the course of education' must mean 'are required to be undertaken as part of the course of education' and are studies that are part of the curriculum set in respect of that course of education. 37 The words 'form part of the course of education' are to be used and applied according to their ordinary meaning. The studies undertaken by Mr Brown at Birzeit were to be undertaken in accordance with the permission given by Sydney for him to complete an equivalent of full-time enrolment at Birzeit. If successfully completed, he would be credited 2 units of that study towards his degree. It follows that those studies were to be treated as equivalent to those at Sydney and thus formed part of Mr Brown's course of education.

conclusion 38 An appeal lies to this Court from the Tribunal only on an error of law. The Tribunal did not err in its construction of the relevant statute. Nor did it improperly apply that construction to the facts. 39 It was reasonably open to the Tribunal on the evidence to hold that Mr Brown was undertaking full-time study in accordance with s 541B(1) and therefore that he satisfied the activity test for the purpose of s 540 of the Act. His absence was for the purpose of undertaking studies that formed part of the course of education within the meaning of s 1218. It was not suggested that there was no evidence before the Tribunal to support its factual findings. It was not suggested that the findings were unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223). Given the proper construction of s 541B(1) and s 1218 as discussed above, the Tribunal did not ignore any relevant considerations. It follows that the Tribunal's conclusions cannot be overturned on appeal under s 44 of the AAT Act. 40 The appeal is dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: Welfare Rights Centre