Higher Education Contribution - claim for remission of higher education contribution debt - withdrawal from course - death of fiancee in car accident 16 months previously - whether "special circumstances" - guidelines promulgated by Minister - nature of "special circumstances".

Higher Education Funding Act 1988 s.63

Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1974) 74 CLR 492

Re Drake and the Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634

This is an application for review of a decision of the Delegate of the Secretary of the Department of Employment, Education and Training under Section 63 of the Higher Education Funding Act 1988 (the Act) not to remit any part of the applicant's higher education contribution (HEC) semester debt for the first semester of 1989. At the hearing, the Tribunal had before it a medical report and notes of Dr R.W. Fisher, a schedule of remission rates under the Act and documents tendered pursuant to Section 37 of the Administrative Appeals Tribunal Act (the T documents).

2. Under Section 62 of the Act, a contributing student incurs an HEC semester debt if, under Section 57(3) of the Act, the Commonwealth is required to make a loan to that student and to apply the amount lent to an institution in discharge of that student's liability under Section 39 of the Act to pay a contribution for a semester in respect of the designated course of study. The amount of the HEC semester debt is the amount of the loan and the HEC census date is incurred immediately after the semester date for the designated course of study in respect of that semester. In the first semester of 1988 the census date was declared by the Delegate of the Minister of State for Employment, Education and Training to be 31 March. A copy of that declaration is at page 5 of the T documents.

debt, the Secretary may, on written application

made by the student within 3 months after the

debt was incurred, if the Secretary is satisfied

that there are special circumstances that justify

so doing, by writing signed by the Secretary

remit the whole, or such part as the Secretary

thinks fit, of the debt.

(2) Where an application referred to in

subsection (1) is made, the Secretary shall as

soon as practicable consider the matter to which

the application relates and notify the student of

the decision on the application.

(3) Where the Secretary remits the whole or a

part of an HEC semester debt, the Secretary shall

give to the Commissioner written notice setting

out the name of the student, the amount that has

been remitted and such other particulars as the

Commissioner reasonably requires."

4. "Special Circumstances" is not defined in the legislation. However, the Secretary of the Department of Employment, Education and Training published Guidelines in August 1989 part of which states:

Defining Special Circumstances

"Special Circumstances" is not defined in the

Act. However, to be "special" the circumstances

must be unusual, uncommon or abnormal in some

respect that would make it inappropriate or

unfair to insist on payment of a semester debt.

"Special circumstances" would be generally

expected to have the following characteristics:

i. they would be sufficiently grave

for it not to be possible for the student to

continue; and

ii. they would need to have either

occurred on or after the census date or be such

that their effects and/or magnitude were not

apparent until after the census date; and

iii. they would be beyond the

student's control.

Prior to this, the Guidelines say:

"THESE GUIDELINES ARE APPROVED BY THE SECRETARY

TO ASSIST IN DECISIONS CONSISTENT WITH SECTION 63

OF THE HIGHER EDUCATION FUNDING ACT 1988. THEY

ARE NOT AN EXCLUSIVE STATEMENT OF THE

CIRCUMSTANCES WHERE A DEBT MAY BE REMITTED AND

SPECIAL CIRCUMSTANCES MAY EXIST OUTSIDE THOSE

ENVISAGED IN THESE

GUIDELINES EACH CASE MUST BE EXAMINED AND

DETERMINED ON ITS INDIVIDUAL MERITS."

5. The applicant gave evidence at the hearing. He said that he had attended Mitchell College of Advanced Education in Bathurst from 1983 to 1987. During that period, his parents resided in Sydney. He went to Gilgandra to commence work in January 1988. His fiancee resided in Perth but came to Gilgandra in January 1988 to help him settle before proceeding to Sydney to seek employment. On 20 January 1988 his fiancee and the driver of the car in which he was travelling were killed in a collision. The applicant who was in the back seat of the car was treated at Dubbo Base Hospital for cuts and abrasions. He returned to Sydney on 21 January and consulted his general practitioner, Dr Fisher, whom he described as a family friend. Dr Fisher gave him sleeping pills and an injection. The applicant states that apart from seeing the chaplain at Sutherland in early 1988 and receiving counselling at the Lewisham Bereavement Centre in mid 1988, he had no other medication, treatment or assistance in relation to his bereavement.

6. In March 1988 he commenced work with a firm of solicitors and began law studies with the Solicitors' Admission Board but did not complete the first part of this course because by mid 1988 he had decided to look at other courses of study. In October 1988 he enrolled in a Higher Education course at the Northern Rivers College of Advanced Education in Lismore. He commenced that course in February 1989 and was informed at his first lecture of the census date. He had no difficulty with his course, was completing his assignments and keen to please his lecturers. He was living with family friends and driving each day to attend the college. He had made friends in Lismore and was going out socially. However, he missed his family and friends in Sydney and the emotional support of his fiancee. The applicant said that he was always conscious of the absence of his fiancee and was still mourning her loss.

7. In the mid semester break he returned to Sydney and stayed with his family. On his return to Lismore after the break, he realised how much he missed the company and support of his family and friends in Sydney and decided to return. He withdrew from the course on 8 May 1989 and received a Notice of Liability for the Semester Debt dated 30 April 1989. (See page 9 of the T documents.)

8. At the date of the hearing, the applicant was engaged to be married, employed with a firm of solicitors and had recommenced his studies with the Solicitors' Admission Board. He could not quite recall when he had met his current fiancee. He admitted that he had had no treatment and had not sought any counselling or advice while in Lismore in relation to his mourning for his fiancee. He stated that his former fiancee was always in the back of his mind.

9. The Tribunal perused the clinical notes of Dr Fisher provided by the respondent and noted that there was no indication of any medication or other treatment for depression. There was only one mention of depression in March 1988. Although Dr Fisher was described by the applicant as a family friend, he was not called to give evidence on behalf of the applicant.

10. It was agreed by the parties that the definition of "special circumstances" contained in the guidelines was lawful and adequate and should be applied in this case. Counsel for the applicant acknowledged that although it might be necessary to look at circumstances outside those envisaged in the definition in the Guidelines, this would only be in exceptional circumstances and was not necessary in this particular case.

11. In considering the general exercise of discretion under an enactment, the Tribunal had regard to the case of Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492. That case dealt with an unfettered discretion residing in the Commission. In deciding what was an appropriate exercise of discretion Latham CJ said at page 496:

"The intention of the legislature is to be

ascertained from the words of the statute as

applied to the subject matter with which the

statute deals."

12. The Tribunal is of the view that the Guidelines reflect the spirit and intention of the Act. The Act is a statute designed to levy fees on students undertaking prescribed courses of tertiary education. Furthermore, the Tribunal is of the view that it is appropriate for guidelines to be promulgated to assist in consistency of decision-making. In Water Conservation and Irrigation Commission (NSW) v Browning Dixon J said at page 506:

"The application of a rule antecedently

adopted does not vitiate an exercise of a

discretion of the kind belonging to the

Commission unless there was a failure to consider

the application as an individual

case."

13. In Re Drake and the Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634 at 642 Brennan J said:

"Not only is it lawful for the Minister to form a

guiding policy; its promulgation is desirable..."

14. At page 639, he notes its effectiveness in promoting consistency stating:

"Inconsistency is not merely inelegant: it

brings the process of deciding into disrepute..."

"Of course, a policy must be consistent with

the statute. It must allow the Minister to take

into account the relevant circumstances, it must

not require him to take into account irrelevant

circumstances, and it must not serve a purpose

foreign to the purpose for which the

discretionary power was created. A policy which

contravenes these criteria would be inconsistent

with the statute."

16. The Tribunal finds the guidelines as promulgated to be lawful and consistent with the statute.

17. The Tribunal notes that the decision of the primary decision-maker at page 14 of the T documents considered only that section of the Guidelines headed "Defining Special Circumstances". The Tribunal is of the view that this may not be adequate. Although that section will suffice for the overwhelming majority of cases it will always be necessary for the decision-maker to examine and determine each case on its individual merits as stated in the general introduction to the Guidelines.

18. Having taken into account all of the evidence, the Tribunal concludes that the circumstances of the applicant do not constitute "special circumstances" whereby the applicant should be released from the semester debt for the first semester of 1988 under Section 63 of the Act. The Tribunal accepts that the applicant was still in mourning for his deceased fiancee. However, on his own evidence, the effects of the grief appear to have become progressively less disruptive to his functioning since the early months of 1988 to the point where he was coping well with his life and studies in Lismore. He was leading a normal social life, was studying well, and had no other difficulties. Accordingly, the Tribunal finds that the degree of his mourning was not sufficient to prevent him from succeeding in his course. Furthermore, it was a factor known to him before he embarked on the course and known to him before the census date and there was no evidence of any other difficulties.

19. The Tribunal could find nothing in the evidence of the applicant which constituted circumstances which were so unusual, uncommon or abnormal as to make it inappropriate or unfair to insist on payment of the semester debt. In particular, it could find nothing sufficiently grave for it not to be possible for this student to continue with his course, or which occurred either on or after the census date or was such that the effects and/or magnitude were not apparent until after the census date and which was beyond the student's control. Furthermore, the Tribunal could find no other special circumstances which were sufficient to constitute special circumstances whereby the debt should be remitted.

20. Accordingly, the Tribunal is satisfied that there are no "special circumstances" which would justify remission of the semester debt in whole or in part under Section 63 of the Act and affirms the decision under review.