Wallis v Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education

Background 6 In the first semester of 2011, the applicant had enrolled in three subjects in a course at Flinders University and was in receipt of a Student Learning Entitlement (SLE) under the Higher Education Support Act 2003 (Cth) (HES Act). On 12 June 2011, he withdrew from all three subjects. 7 Subsequently, on 20 July 2011, the applicant sought a "re-credit" of his SLE to which his enrolment in the three subjects had been debited. Under s 79-1 of the HES Act, as then in force, Flinders University was required, on the Secretary's behalf, to re-credit the appellant's SLE if, amongst other things, it was satisfied that "special circumstances" applied to him (s 79-1(1)(c)). Section 79-5 defined "special circumstances" for the purposes of s 79-1(1)(c). 79-5 Special circumstances (1) For the purposes of paragraph 79-1(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that: (a) are beyond the person's control; and (b) do not make their full impact on the person until on or after the *census date for the unit of study in question; and (c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit. (2) The Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines. … 8 The effect of s 79-5(1) was that in order to re-credit the applicant's SLE, the University had to be satisfied that circumstances beyond his control, which had not made a full impact on him until after the Census date (31 March 2011), had made it impracticable for him to complete the assessment requirements of the subject within the stipulated times. 9 By s 79-5(2), the University was required to make its assessment of these matters in accordance with the Student Learning Entitlement Guidelines (SLE Guidelines). Those Guidelines provided (relevantly): CHAPTER 5 SPECIAL CIRCUMSTANCES 5.1 PURPOSE 5.1.1 The purpose of this chapter of the guidelines is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that: (a) are beyond the person's control (paragraph 79-5(1)(a) of the Act); and (b) do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 79-5(1)(b) of the Act). 5.5 CIRCUMSTANCES BEYOND A PERSON'S CONTROL 5.5.1 The higher education provider will be satisfied that a person's circumstances are beyond that 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. 5.5.5 This situation must be unusual, uncommon or abnormal. 5.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE 5.10.1 The higher education provider will be satisfied that a person's circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person's circumstances occur: (a) before the census date, but worsen after that day; or (b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or (c) on or after the census date. 10 The applicant's request for a re-crediting of his SLE contained the following statement of grounds: A relationship this semester made for a different balance of school/home priorities. Both situations were progressing relatively well until approximately 20th May when I had a conflict/s with one of my lecturers … who informed me that he would not accept my previous electronic submissions, effectively failing me on this topic. The strain that this school conflict put on me over the following week led my relationship at home to deteriorate to a terminal status. I have no doubt that this is due to my medical condition, to be affirmed by my medical practitioner. My priorities had to change in order to repair and maintain this relationship - so I dropped my topics - and put the full weight of my effort into this. 11 It can be seen that the applicant at that time sought to establish special circumstances by reference to relationship difficulties, the cause of which he attributed to a conflict with one of his lecturers concerning assessment and to a medical condition. He also contended that the difficulties had arisen after 20 May 2011, which was well after the Census date of 31 March 2011. 12 By letter dated 17 August 2011, Flinders University informed the applicant that his application under s 79-1 of the HES Act had been rejected. It affirmed that rejection on a reconsideration on 13 September 2011. The applicant then applied to the AAT for a review of that decision. As already noted, his application was unsuccessful. 13 A number of matters bear on the exercise of the discretion under s 44(2A) of the AAT Act to extend the time for an appeal to this Court. 14 As already noted, the applicant requires an extension of just over five weeks. This is a significant period, which, if granted, would more than double the 28 days allowed by s 44(2A) for the institution of the appeal. 15 In his affidavit of 1 July 2013, the applicant gave the following explanation for his application not having been filed in time: The application was not filed on time due to the complexity of the case, coupled with the lack of any prescribed legal aid. Also the distance from the nearest Justice of the Peace withheld speedy application. Although in my defence the Facts, Issues and Contentions of the respondent wasn't filed on time, although I allowed it. Also the case wasn't heard within the year period that the AAT normally assigns; although this largely is because one of the respondent's team members "had a leg injury" which "prevented him from working on the case", even though he wasn't the lawyer who presented it. 16 Strictly speaking, the matters referred to in the third and fourth sentences in this paragraph are not matters by way of explanation. Instead they amount to a plea by the applicant that his delay be viewed in the context of the overall progress of the matter within the AAT and that the Court take account of concessions or indulgences afforded to the respondent. 17 In his second affidavit, the applicant referred in addition to difficulties in filing his appeal within the time arising from his lack of access to the internet at his home, his limited access to public transport and what he described as "geographical isolation issues" and other "socio-economic issues", particularised by reference to the costs of printing and travelling. 18 It is pertinent to add in the context of the explanation for the delay, that the applicant has a psychiatrically diagnosed Attention Deficit Hyperactivity Disorder (ADHD), one of the manifestations of which appears to be a degree of disorganisation. 19 The applicant lives at Clarendon, a town only a little to the south of metropolitan Adelaide. I doubt that it can reasonably be described as "geographically isolated". Further, it is difficult to understand that lack of access to a Justice of the Peace or limited access to the internet is the explanation for the appeal to this Court not having been filed within the 28 day period, or for that matter until 1 July 2013. It seems more likely that the true explanation may lie in the applicant's personal disorganisation to which his ADHD appears to be a contributing factor. 20 The principal matter on which the respondent relied in resisting the grant of an extension was the contention that the proposed appeal would, in any event, be devoid of merit. This meant, the respondent submitted, that there was no point to an extension, and that no prejudice would be occasioned to the applicant if an extension were refused. The respondent referred, quite fairly, to the decision of Jessup J in Culley v Australian Securities and Investments Commission [2008] FCA 1784. After referring to the principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, Jessup J continued at [5]: I consider that the Court should be slow to reject an application for an extension of time under s 44(2A) of the AAT Act, where otherwise the principles in Hunter are appropriately satisfied, for no reason other than that the appeal, if prosecuted, would be unlikely - even very unlikely - to succeed. 21 Justice Jessup went on to recognise, however, that if the examination of the merits at the extension stage (which might well be a cursory examination) indicated that the proposed appeal was "conspicuously devoid of merit, the application might well be rejected upon the ground that the prosecution of it would, in effect, be pointless". The respondent contended that the applicant's proposed appeal should be so characterised. 22 By virtue of s 44(1) of the AAT Act, an appeal lies to this Court on a question of law only. Absent a question of law, the jurisdiction of the Court is not enlivened. That is because it is the question of law which is the subject matter of the appeal itself: Jones v Chief of Navy [2012] FCAFC 125 at [24]-[25]; (2012) 205 FCR 458 at 465. It is for the applicant to identify a question of law arising from the decision of the AAT, the proper resolution of which may have affected that decision. As the respondent has pointed out, the Federal Court Rules require that the draft notice of appeal, on an application such as the present, state the precise question or questions of law to be raised on the appeal (rule 33.12(2)(b) and rule 33.13(2)(d)). 23 The revised proposed notice of appeal filed by the applicant on 15 August 2013 identifies two questions as the questions of law which the applicant wishes to raise: 1. Whether the rejection of what has been confirmed through medical testimony as reasonable adjustment constitutes indirect discrimination pursuant to s 5 of the Disability Discrimination Act 1992 (Cth). 2. Whether the respondent's repeated attempts at all levels to force the applicant to pursue a "Disability Access Plan" constitutes direct discrimination pursuant to s 6 of the Disability Discrimination Act 1992 (Cth). 24 Some further background is needed in order to understand these proposed grounds. To satisfy the assessment requirements of one subject being studied in the first semester of 2011, students had to submit weekly summaries of assigned readings in hard copy form to the lecturer and to attend a minimum number of tutorials in the groups to which they had been assigned. Despite several reminders and warnings as to the consequences, the applicant did not submit the written summaries in the required form, choosing to do so instead by email. This conduct commenced before the Census date of 31 March. It also seems that on occasion, some of his summaries were late. On 20 May 2011, the lecturer in this subject confirmed to the applicant his previous advice that the written summaries which had not been submitted in the requisite form would not be assessed. 25 In the same subject, the applicant failed a tutorial exercise for which he had been paired with another student and the lecturer refused his request to be allowed to do the presentation again. The applicant also chose, unilaterally, to attend a tutorial group which was different from that to which he had been assigned. This occurred on 19 May 2011. The lecturer treated his failure to attend the assigned group as a failure to attend at all. 26 In another subject, the applicant did not attend several tutorials, even though attendance was mandatory. 27 In an email on 22 March 2011 to the lecturer in the first subject, the applicant drew attention to his ADHD, and provided a medical certificate by way of confirmation. He asked for some consideration on that account. The lecturer informed the applicant that he could not act on the certificate unless the applicant spoke to the University's Disability Office in order to seek a Disability Access Plan. This was in accordance with the course outline for the subject which the applicant was studying, which provided: A student with a disability, impairment or medical condition who seeks reasonable adjustments in the teaching or assessment methods of a topic on the basis of his/her disability may make a request to the Topic Coordinator or the Disability Adviser as soon as practicable after enrolment in the topic. Any such reasonable adjustments must be agreed in writing between the student and the Topic Coordinator and must be in accordance with related University policy. (Emphasis added.) 28 As I understand it, the term "reasonable adjustments" in this outline and its cognate in Question One of the revised proposed notice of appeal is used in the same sense that the term is used in s 5(2) and s 6(2) of the DD Act respectively. 29 On 23 March 2011, the applicant responded to the lecturer's email of 22 March 2013 telling the lecturer "amongst other things": I don't want special considerations for a disability, I want extensions for my medical condition. 30 He went on to repeat his request for extensions of time by reference to the medical certificate. It seems that the lecturer did not respond to this further request. 31 Despite the lecturer's advice, the applicant did not approach the Disability Office until 24 May 2011 and did not speak to the Disability Adviser until 11 July 2011. 32 The applicant's claim on the application for a re-crediting of his SLE was that "special circumstances" existed in his case for the purposes of s 79-1(1)(c). 33 Section 79-5(2) of the HES Act was repealed with effect from 1 January 2012. The SLE Guidelines ceased then to have application. Decision-makers were instead to have regard to "Administration Guidelines" promulgated by the Minister under s 238-10 of the HES Act. 34 There was some uncertainty in the AAT as to whether its review should be carried out by reference to the SLE Guidelines, or by reference to the Administration Guidelines. The AAT did not reach a final determination about this, holding that the content of the two sets of guidelines was, relevantly, similar. 35 On the hearing before me, counsel for the respondent accepted that it was ss 79-1, 79-5 and the SLE Guidelines which were applicable. This was an appropriate acknowledgement having regard to the transitional provision in Schedule 2 of the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Cth). 36 The AAT accepted that the applicant's ADHD was a circumstance beyond his control. However, it did not accept that his omission to comply with the course requirements for assessments or, for that matter, that his omission to speak to the Disability Adviser, was such a circumstance. In this respect, the AAT noted that the applicant had been able to complete assessments in other subjects in previous years with, apparently, only minor concessions; that he had in any event received some concessions in 2011 with respect to assessments; and that he had been aware of the course requirements from the outset, but had, in effect, chosen to give priority to other matters. Accordingly, the AAT was satisfied that the circumstances leading to the applicant's failure to complete the assessment requirements in the required form and in time had not been beyond his control, and upheld the respondent's decision refusing the applicant's application for re-crediting of his SLE. The AAT found it was not necessary to consider whether it had been impracticable for the applicant to complete the course requirements. 37 It can be seen that neither of the questions in the revised proposed notice of appeal relate to the AAT's consideration of those matters on the materials before it. Instead, both questions concern decisions of Flinders University in relation to the assessment requirements applicable to the applicant. The first question does so by raising a complaint of indirect discrimination by the University, in contravention of the DD Act, in not making some "reasonable adjustment" to the assessment methods on account of the applicant's ADHD. The second raises a complaint of direct discrimination in contravention of the DD Act by the respondent by what the applicant describes as "repeated attempts at all levels" to force him to pursue a Disability Access Plan. 38 It is apparent immediately that the respondent cannot be responsible for the conduct to which the proposed Question Two refers. If there was an attempt to force the applicant to pursue a Disability Access Plan as the applicant claims, that was conduct of Flinders University occurring before its consideration on the respondent's behalf of the re-crediting application. That conduct, if it occurred, cannot be attributed to the respondent. Considered strictly, this indicates by itself that the respondent's contention should succeed in relation to that question. However, I consider it appropriate to deal with the application on the basis that proposed Question Two refers to the conduct of Flinders University and not to the present respondent. 39 The respondent's contention that the proposed appeal is devoid of merit gives rise to a number of issues. Are the questions in the proposed notice of appeal questions of law? If so, do they involve issues which the AAT had jurisdiction to decide? If so, were they in fact raised for the AAT's determination? 40 It is arguable that the proposed questions do not raise questions of law. They inquire whether the conduct alleged "constitutes" discrimination of one or other of the types described in ss 5 and 6 of the DD Act. This seems to raise a question of the legal characterisation of the impugned conduct. Generally, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact: Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288; Bell v Commissioner of Taxation [2013] FCAFC 32 at [17]. 41 Each of the proposed questions appear to be a question of this kind and, therefore, not capable of being characterised as a question of law for the purposes of s 44(1) of the AAT Act. However, it is not necessary to express a final view on that issue. 42 The AAT did not, in any event, purport to determine any issue of discrimination. That being so, it may be preferable to regard the proposed questions as raising for consideration whether the AAT failed to address and determine matters which it should have addressed. However, doing so brings into sharper focus the next two issues identified earlier in these reasons. 43 Neither the DD Act nor the Australian Human Rights Commission Act 1986 (Cth) confer jurisdiction on the AAT with respect to contraventions of the DD Act. This means that the AAT itself did not have jurisdiction to determine the issues raised by the two questions. Nor can it be said that the determination of the questions arose necessarily in the review over which the AAT did have jurisdiction. 44 The question of law, to which s 44(1) of the AAT Act refers, must be a question relating to the jurisdiction of the AAT, or relating to the manner of its exercise in the circumstances of the given case. As the questions of law proposed by the applicant relate to matters over which the AAT did not have jurisdiction, they are not of that kind and cannot therefore enliven the jurisdiction of this Court. 45 Even if the AAT did have the relevant jurisdiction, the applicant would face a further difficulty. As he frankly acknowledged on the hearing of the application for the extension of time, in the AAT he had not made any submission concerning the DD Act, let alone a submission suggesting that the conduct of Flinders University was unlawful by reason of its contravention of the provisions of that Act. This means that the applicant wishes to advance on appeal a case which he did not advance at all in the AAT. 46 The circumstance that an applicant wishes to present a revised case may not necessarily be fatal to an appeal to this Court. A review by the AAT is inquisitorial in nature, with the consequence that the AAT must not confine itself to the case expressly articulated by an applicant: McKerlie v Repatriation Commission [2010] FCA 1127 at [40]-[41] referring to Benjamin v Repatriation Commission [2001] FCA 1879 in which the Full Court said at [47]: Proceedings before the Tribunal sometimes give the appearance of being adversarial but, in substance, a review by the Tribunal is inquisitorial. Each of the Commission, the Board and the Tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the Tribunal is one in which the Tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant. (Citations omitted.) 47 Hence, the AAT was not confined to the case as formulated by the applicant. If the determination of discrimination in contravention of the DD Act had been within its jurisdiction, the AAT should have addressed that issue if it was raised on the evidence and material before it. A failure to do so would give rise to a question of law. 48 However, the AAT is not required to go beyond the evidence and material presented to it which it accepts or, at the least, does not reject. 49 Therein lies the further difficulty for the present applicant. Because he had not sought to raise a contravention of the DD Act, the necessary material bearing on that issue was not presented to the AAT. Further, given the potential adverse effect on Flinders University of a finding of a contravention of the DD Act, the AAT would have been required to give it an opportunity to be heard. Understandably, it did not do so. These matters indicate that the "case" which the applicant now wishes to advance is not one arising on the evidence and materials before the AAT. Accordingly, even if the AAT did have jurisdiction to hear and determine a claim for discrimination in contravention of the DD Act, it was not required, given the manner of presentation of the applicant's case, to consider such a claim. It cannot be said that it failed to address matters arising fairly on the material before it. This means that the proposed questions of law do not, in any event, arise from the AAT's decision on the review. 50 In summary, it is arguable that the two questions advanced by the applicant are not questions of law. However, if they are, they go to matters over which the AAT did not have jurisdiction and which were not, in any event, raised for determination on the evidence and materials presented to the AAT. That being so, the questions in the revised proposed notice of appeal cannot enliven this Court's jurisdiction. 51 In those circumstances, I uphold the respondent's contention that the applicant's proposed appeal to this Court is devoid of merit. For that reason, his application for an extension of time must fail. 52 The application for an extension of time is refused. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.