Re Secretary, Department of Employment Education and Training v Geoffrey Robin Stewart [1991] FCA 239; 13 Aar 529; (1991) 24 ALD 7 (6 June 1991)

FEDERAL COURT OF AUSTRALIA

Re: THE SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION AND TRAINING
And: GEOFFREY ROBIN STEWART
No. V G267 of 1990
FED No. 303
Student Assistance
[1991] FCA 239; 13 AAR 529
(1991) 24 ALD 7

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.(1)

CATCHWORDS

Student Assistance - living allowance - means test - whether regulations applicable - definition of "grantee" - whether applicable only to someone already in receipt of benefit - scheme of legislation.

Words and phrases - "Assistance" - "grantee".

Student Assistance Regulations regs. 29, 32, 32A, 42, 42A.

Student Assistance Act 1973 ss. 7, 8, 10, 11, 14.

Student Assistance Amendment Act 1989 s.8.

HEARING

MELBOURNE
6:6:1991

Counsel for the applicant: Mr B.J. Shaw QC, Mr T. Ginnane

Solicitor for the applicant: Australian Government Solicitor

The respondent did not appear on the hearing of the appeal.

ORDER

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal is set aside.

3. For that decision there is substituted a decision that the decision of the Student Assistance Review Tribunal is affirmed.

Note: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.

DECISION

The respondent to this appeal, Geoffrey Robin Stewart, received a letter dated 27th May 1987, from the Department of Employment Education and Training. The letter advised him that his claim for a living allowance under the Student Assistance Regulations had been refused. He was unsuccessful in seeking to review that decision before the Student Assistance Review Tribunal, which gave its decision on 31st October 1989. He then applied to the Administrative Appeals Tribunal for review of that decision. At the hearing before the Administrative Appeals Tribunal, Mr Stewart appeared in person. Counsel (who did not appear on this appeal) appeared for the secretary of the Department. It was apparent to the Tribunal that, because of the level of his parents' income, Mr Stewart could not bring himself within the means test provisions of either reg. 42 or reg. 42A of the Student Assistance Regulations, if either regulation were applicable.

2. Instead of affirming the decision under review, however, the Tribunal set it aside and remitted the matter to the secretary of the Department for reconsideration in accordance with:
"(i) the finding that the Student

Assistance Regulations, as in force
in 1987 did not contain any parental
income test applicable to the income
of parents of applicants for
Assistance and,
(ii) the recommendation that amendments
be made to the Regulations to
provide that the amendment to the
definition of grantee made by the
Student Assistance Regulations No.
402 of 1989 have a retrospective effect."

The Tribunal took this course because each of reg. 42 and reg. 42A used the word "grantee", which was defined in reg. 29 in the following terms:

""grantee" means a person granted Assistance in
respect of an approved course".

The Tribunal took the view that, unless a person had already been granted some form of payment under the Student Assistance Act 1973, he or she did not fall within the terms of the regulations providing for living allowances.

3. If this view were correct, it would follow that payments which have been made by way of living allowances, to students who have not previously been granted some form of payments under the Student Assistance Regulations, would have been made without proper statutory authority. For this reason, the secretary of the Department appealed to this Court. Mr Stewart did not appear and was not represented at the hearing of the appeal, the outcome of which did not affect his rights in any event, because it is not in dispute that he failed to satisfy any relevant parental income test.

4. In its original form, the Student Assistance Act 1973 provided in Part II for Senior Secondary Scholarships, Part III for Tertiary Education Assistance and Part IV for Post-Graduate Awards. In each case, there was a section providing for the grant of the relevant form of assistance, followed by a section describing the nature of the benefit under that form of assistance. Thus, Part II contained s.7, which provided that an authorised person might, subject to and in accordance with the regulations, approve the grant of a Senior Secondary Scholarship to a person who fulfilled certain conditions. Section 8 began with the words "Benefit under a Senior Secondary Scholarship shall consist of -" and then set out the nature of the payments available under such a scholarship. Sections 10 and 11, in Part III, provided as follows:

"10. An authorized person may, subject to and
in accordance with the regulations, approve the
grant of Tertiary Education Assistance to a
person who is an Australian citizen or a
permanent resident of Australia and is
undertaking, or proposes to undertake, at a
tertiary education institution a course of study
or instruction approved by the Minister for the
purposes of this section.
11. Benefit under Tertiary Education
Assistance granted to a person shall consist of -
(a) the payment of amounts equal to any
fees of a prescribed kind paid or
payable by or in respect of the
person; and
(b) where the person is a full-time
student and a living allowance is
payable under the regulations in
respect of the person, or in respect
of the person and his dependants -
the payment of -
(i) a living allowance at such rate as is determined
in accordance with the regulations;
(ii) an allowance, to be known as an incidentals
allowance, at such rate as is prescribed for the
purposes of this paragraph in relation to the
class of students in which the person is
included; and
(iii) such amounts as are determined in accordance with
the regulations in respect of fares paid or
payable by or in respect of the person."

Similarly, s.14, in Part IV, provided that an authorised person might, subject to and in accordance with the regulations, approve the grant of a Post-Graduate Award to a person who fulfilled certain requirements, and s.15 set out what benefit under a Post-Graduate Award consisted of.

5. Part II was later repealed, and some amendments were made to the other sections to which I have referred. In a reprint of the Act, as at 31st March 1986, published by the Commonwealth Government Printer, s.11 contains an additional paragraph (c), including in the benefit under tertiary education assistance "the payment of such other allowances, if any, as are payable in accordance with the regulations."

6. Further amendments were made after the reprint, but before the date on which Mr Stewart's claim was first determined. Unfortunately, these amendments, which came into operation on 1st January 1987, were not drawn to the attention of the Tribunal in the present case. As a result of those amendments, at the relevant time, ss. 10 and 11 provided as follows:

"10. An authorised person may, subject to and
in accordance with the regulations, approve the
grant of Education Assistance to a person who is
an Australian citizen or a permanent resident of
Australia and is undertaking, or proposes to
undertake, at an education institution -
(a) a course of study or instruction that the Minister has
determined in writing is -
(i) a secondary course for the purposes of this
section; or
(ii) a tertiary course for the purposes of this
section; or
(b) a part of a course of study or instruction, being a
part that the Minister has determined in writing is -
(i) a part of a secondary course for the purposes of
this section; or
(ii) a part of a tertiary course for the purposes of
this section.
11. Benefit under Education Assistance granted to a person
shall consist of -
(a) where the person is a full-time student, the payment
of such amount of living allowance as is payable under
the regulations in respect of the person or in respect
of the person and any dependants of the person; and
(b) the payment of such other allowances, if any, as are
payable in accordance with the regulations."

It will be noted that the reference to fees had disappeared from s.11. This was a belated recognition by the legislature of the abolition of tertiary fees.

7. It will be seen that the receipt by a student of a living allowance or other allowances resulted from a two stage process. The first stage, under s.10, involved the approval by an authorised person of the grant of what became on 1st January 1987 "Education Assistance", to a person who satisfied the requirements. The second stage was the calculation under the regulations of the benefit under Education Assistance.

8. The Student Assistance Regulations, as in force at the time when Mr Stewart's rights were determined, reflected this dichotomy. Part III of those regulations was headed "Education Assistance". Division 1 of that Part was headed "Grant of Education Assistance". Division II was headed "Benefit under Education Assistance". Regulations 42 and 42A, which contained the provisions against which Mr Stewart's claim was tested, were found in Division II. The definition of "grantee" appeared in reg. 29(1), which provided a series of definitions for terms used throughout Part III. It will be noted that, in the definition, which I have already quoted, the word "Assistance" is spelt with its initial letter capitalised. Regulation 32 provided for the making of applications for Assistance and for the form and lodging of each such application. It was followed by reg. 32A, which provided that an authorised person should not approve the grant of Assistance to a person who was not eligible to be granted Assistance in respect of the relevant period. The succeeding regulations in Division 1 of Part III excluded from eligibility various classes of students. Division II, which commenced with reg. 41, contained provisions for the calculation of the benefit. It follows that the use of the word "grantee" in reg. 42 and reg. 42A, coupled with the definition of "grantee" in reg. 29, was appropriate. A grantee, for the purposes of the regulations dealing with benefit, was a person who had already been granted "Assistance" under Division 1 of Part III of the regulations. A grant of "Assistance" did not necessarily involve the receipt by the grantee of any benefit. The regulations reflected the two stages for which the Act provided.

9. It is appropriate that I should say something about the amendment to the definition of "grantee", to which the Tribunal referred in the second paragraph of its order. That amendment was made by regulation 4(a) of S.R. No. 402 of 1989. The effect of the amendment was to omit from the definition of "grantee" in reg. 29 of the Student Assistance Regulations the word "granted" and to substitute the words "eligible for the grant of". The Tribunal took the view that the difficulties it perceived would have been overcome, had the operation of that amendment been made retrospective. In fact, the amendment followed amendments to the Student Assistance Act 1973, effected by the Student Assistance Amendment Act 1989. Section 8 of that amending Act amended s.10 of the Student Assistance Act 1973, by omitting the opening words of sub-s.(1) and substituting the words, "Subject to and in accordance with this section and the regulations, an authorised person may grant a benefit under this Part to a person who:". A new sub-s.(1A) was inserted, providing that the regulations may specify the benefits that may be granted under Part III of the Student Assistance Act 1973 and specify circumstances in which benefits are not payable. The effect of this amendment was to substitute for the earlier two stage process a single stage process, under which the entitlement of a person to a benefit is assessed. The change made to the definition of "grantee" adapts that definition to this new process. Prior to the amendment, the definition of "grantee" was, as I have said, appropriate to the statutory provisions under which it was brought into being.

10. It is fair to say that this argument was not put to the Tribunal, at least not in the detail in which it was put to the Court. The Tribunal was most concerned about the difficulty of ascertaining the precise terms of the regulations. By not being given the benefit of full argument as to the manner in which the regulations reflected the structure of the Act, the Tribunal was led into error. The proper course for it to have taken would have been to affirm the decision under review, that Mr Stewart was not entitled to a living allowance. In view of the fact that I have reached the conclusion that the Tribunal erred in law in this respect, it is appropriate that I allow the appeal, set aside the decision of the Tribunal and substitute for it a decision that the decision of the Student Assistance Review Tribunal be affirmed.

11. Counsel for the secretary of the Department did not seek costs. It would be inappropriate to award costs against Mr Stewart, who was a student when he appeared in person in the Tribunal, in circumstances in which counsel for the secretary of the Department did not acquaint the Tribunal fully with the history of the legislation.