Secretary, Department of Family & Community Services v Matheson [2004] FCAFC 53 (10 March 2004)

Last Updated: 10 March 2004

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Family & Community Services v Matheson

[2004] FCAFC 53

SOCIAL SECURITY – youth allowance – whether student overpaid allowance – meaning of "particular study period" in s 541B(1) – question of fact not law



Administrative Appeals Tribunal Act (1975) (Cth) s 44(1)
Social Security Act 1991 (Cth) s 541B, 1237AAD



Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 applied
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 applied
Re Secretary, Department of Family and Community Services and Zhang [2003] AATA 433; (2003) 74 ALD 226 cited
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 applied













SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES v DONNA MARIE MATHESON

No S 583 of 2003





TAMBERLIN, SACKVILLE & FINN JJ
ADELAIDE
10 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 583 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT
AND:	DONNA MARIE MATHESON RESPONDENT
JUDGES:	TAMBERLIN, SACKVILLE & FINN JJ
DATE OF ORDER:	10 MARCH 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The cross-appeal be dismissed.
3. By consent, the applicant pay the reasonable costs of the appeal as taxed or agreed.













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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 583 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT
AND:	DONNA MARIE MATHESON RESPONDENT

JUDGES:	TAMBERLIN, SACKVILLE & FINN JJ
DATE:	10 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) enables a party to a proceeding before the Tribunal to appeal to this Court "on a question of law" from a decision of the Tribunal in that proceeding. The applicant Secretary has sought to avail of this appeal procedure by advancing as a question of law what was in the circumstances a question of fact raised by the language of s 541B(1)(b) of the Social Security Act 1991 (Cth) ("the Act").

2 The issues raised both in the appeal and in the respondent’s cross-appeal fall within quite narrow compasses. Both relate to youth allowances paid to the respondent, Donna Matheson, while she was pursuing the degree of Bachelor of Arts (Communication Studies) at the University of South Australia. The issue in the appeal is whether Ms Matheson was not entitled to the allowance she received between the end of the 2000 academic year and 26 July 2001. The issue in the cross-appeal relates to the manner in which the Tribunal determined that a debt arising from overpayment of the allowance for the period 20 October 2000 to the end of the 2000 academic year, ought not be waived under s 1237AAD of the Act.

Statutory Setting

3 "Youth Allowance" is a payment for which provision is made in the Act for young Australians who are, amongst other things, studying or looking for work. The qualifications for this allowance are set out in Div 1 of Pt 2.11 of the Act. For present purposes it is sufficient to indicate that a person is qualified for the allowance "in respect of a period if, throughout the period ... [that] person satisfies the activity test". Subject to immaterial exceptions, a person will satisfy the activity test in respect of a period if, as stated in s 541(i)(a):

"(a) the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B)."

4 Insofar as presently relevant s 541B(1) provides that a person is undertaking full-time study if:

"(a) the person:

(i) is enrolled in a course of education at an educational institution;

... and

(b) the person:

(i) is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course, or

...

either:

(iii) in a case to which subsection (1A) does not apply – at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); or

(iv) in a case to which subsection (1A) applies – at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4))." Emphasis added.

5 We have emphasised sub-par (b)(i) as its proper application is in issue in this appeal.

6 It is unnecessary for present purposes to set out the definitions of "normal amount of full-time study" (s 541B(2)). We would, though, note the provisions of s 541B(1A) in view of the reliance placed upon the subsection by the applicant. It provides:

"This subsection applies for the purposes of subparagraph (1)(b)(iv) if the person cannot undertake the normal amount of full-time study in respect of the course for that period:

(a) because of the usual requirements of the institution in question in respect of the course; or

(b) because of a specific direction in writing to the student from the academic registrar, or an equivalent officer, of the institution in question; or

(c) because the academic registrar, or an equivalent officer, of the institution in question recommends in writing that the person undertake the amount of study mentioned in subparagraph (1)(b)(iv) in respect of the course for specified academic or vocational reasons.

Paragraph (c) applies for no longer than half of the academic year."

Factual Background

7 Ms Matheson commenced studies for her degree in 1997. The degree involved a three year programme and it required Ms Matheson to complete courses (i.e. subjects) amounting to 108 units. Each such course was allotted 4.5 credit points. At the end of 2000 Ms Matheson needed 27 points (i.e. needed to do 6 courses) to complete her degree.

8 On 13 November 2000 she submitted her enrolment for 2001. The enrolment form (which bore the heading "Enrolment 2001") stated that she was undertaking six courses in that year. All were of semester length, three being taken in semester 1 and three in semester two. This course configuration was unable to be taken for the reason given by the Tribunal in the following passage:

"Semester 1 and lectures commenced on 26 February 2001 and the semester break commenced on 2 July, 2001. Semester 2 commenced on 23 July, 2001 and the end of year break began on 26 November, 2001. Due to the manner in which the University had scheduled its subjects, Ms Matheson could only undertake two subjects (Communication Practicum I and Media Production 5: Specialisations) in Semester 1 and four (Radio and Society, Communication Practicum II, Desktop Publishing and Media Protection 6: Professional Standards) in Semester 2 of 2001. She submitted a course Amendment to Enrolment to the University on 13 March, 2001. The University considered that Ms Matheson was enrolled as a full-time student in 2001 and indicated that in a memorandum dated 8 March, 2002 (T documents, page 34) and in its Notification of Results for 2001 (T documents, page 25). I also find that Ms Matheson was given a card indicating that she was a full-time student."

9 To anticipate matters, the applicant contends that as a consequence of the course variation Ms Matheson did not satisfy the requirement of s 541B(1)(b), hence the activity test, in the first semester of 2001. She had previously lodged a claim for youth allowance and had indicated that she was undertaking full-time study and that her 2001 course would be full-time for both semesters.

10 On 25 January 2002 the applicant determined to raise and recover from Ms Matheson a debt in respect of overpaid youth allowance payments for a period which included Semester 1 of 2001. That decision was affirmed by an Authorised Review Officer but was set aside by the Society Security Appeals Tribunal. The Secretary then appealed to the Tribunal.

The Tribunal’s Decision

11 The essence of the Tribunal’s decision is contained in the following five paragraphs of its reasons which, for convenience, we reproduce here.

"3. The issue in this case is whether Ms Matheson was overpaid youth allowance during the period 20 October, 2000 to 26 July, 2001. If she was not undertaking full-time study throughout the period, she was overpaid. Whether she was undertaking full-time study or not depends upon the amount of study that she was undertaking in the particular study period for which she was enrolled for her course, or intended to undertake in the next study period for which she intended to enrol for her course. Provided she undertook at least three-quarters of the normal amount of study in respect of the course for that period, she was regarded as a full-time student. Resolution of this issue requires a consideration of what is meant by a "study period", in particular, s 541B of the Social Security Act 1991 ("the Act").

...

26. ... [T]he emphasis of the requirements set out in s 541B is upon enrolment. It is upon enrolment in the course. It then moves to the study period for which the person is enrolled and then to the normal amount of full-time study for the period for which he or she is enrolled for that study period. The study period for which a person is enrolled then becomes a question to be ascertained on the facts of the case. Reference is made to a semester in s 541B(1)(b)(i) but it is given as an example and not as the only possible period of study for which a person may be enrolled. I note that this interpretation is consistent with s 15AD(a) of the Acts Interpretation Act 1901, which provides that "Where an Act includes an example of the operation of a provision ... the example shall not be taken to be exhaustive".

...

30. ... What is the study period for which a person is enrolled remains a question of fact to be decided in each case. This is not an easy question to answer in this case because there is very little information available to me from the University.

31. In the case of Ms Matheson, certain factors point to the study period’s being the full academic year. The first is that she has enrolled for the academic year on each occasion. Certainly, her enrolment indicates that some subjects are to be studied in Semester 1 and others in Semester 2 but that does not detract from her enrolment for the course being for the whole of the year. It only indicates an administratively expedient way of managing the load both for the student and the University. This is supported also by the reference in the Student Notes to the University’s stating that "A full-time student is one undertaking at least 75% of the load prescribed in the schedules as a normal full year’s work". The second is that the enrolment form is headed "enrolment – 2001" suggesting that enrolment is for the whole of the year and not just part of it. The third is that Ms Matheson was permitted to change subjects from one semester to the other. Certainly, changes had to be effected by certain dates in each semester in order to avoid a person’s incurring a HECS debt or a failure in the subject but that reflects only upon the person’s enrolment in particular subjects during the year and not upon his or her enrolment in the course. The fourth is that the Program Information relating to Ms Matheson’s course suggests that a person would, in a typical full-time programme, complete 36 points spread evenly over the two semesters in each of the three year course (Program Information, note 7). That general statement is, however, qualified by the further statement that the order of courses, or subjects, may be varied to suit individual students subject only to their meeting timetabling constraints and pre-requisites are met (Program Information, note 7).

...

33. Having regard to these aspects and to the evidence in the case generally, I have concluded that the particular study period for which Ms Matheson was enrolled for the course was an academic year. The subjects she studied during that study period were spread between two semesters and each only extended for the length of a semester but s 541B(1) is not referring to the study period for which Ms Matheson was enrolled in a subject but to the study period during which she was enrolled in the course. The focus is not upon the subjects at that stage but upon the course. Whether it was a matter of administrative expediency or not, the fact remains that her enrolment extended across the whole of the academic year even if the individual subjects did not. The specification of separate dates to pay student amenities fees and HECS fees in Semester 1 and Semester 2 spreads the costs but does not break the study period into two."

12 The Tribunal went on to conclude that Ms Matheson had undertaken at least three quarters of the normal amount of full-time study for that academic year and that she had not received payments of the allowance in that period to which she was not entitled. However, the Tribunal did find that the requirements of s 541B were not satisfied in respect of an earlier period (i.e. 20 October 2000 to the end of the 2000 academic year) and that the amount overpaid in this period was a debt due to the Commonwealth: s 1223(1) of the Act.

The Appeal

13 The error that the applicant attributes to the Tribunal is the determination that the words "particular study period" in s 541B(1) referred to the period for which Ms Matheson was enrolled in her course rather than to semester 1 of the 2001 academic year.

14 The basis of this contention did not emerge with particular clarity in submissions. While emphasising that in s 540 and s 541 reference is made to satisfying an activity test "throughout the period" for which a person is qualified to receive the youth allowance, the Secretary disclaimed any reliance upon those provisions as imposing any superadded requirement upon a person undertaking full-time study beyond that imposed by s 541B(1). Nonetheless, it is said these sections provided "context" in which to construe s 541B.

15 Reliance is also placed upon the rate calculation process for the youth allowance which relies upon a fortnightly rate: see S1067G-A1. The significance apparently to be attributed to this is that it illustrates that this allowance focussed on the circumstances and activities of an allowance recipient over a shorter rather than a longer period of time.

16 Reference was also made to those provisions in the Act such as s 541B(1) and s 541B(1A) which accommodate at least some contingencies which can preclude a person from undertaking three quarters of the normal amount of full-time study for the period for which the person is enrolled. It was not suggested that these were directly applicable to the present matter.

17 What the applicant is pressing on us is that to satisfy the requirements of s 541B(1) in a case such as the present, a person must at any given time within the "particular study period" be able to show that he or she satisfies the full-time study requirements of the activity test. Ms Matheson could not do this in respect of semester 1 of 2001. It was not open to her (or to the Tribunal) to average her workload over the academic year to satisfy the subsection. It was submitted that Ms Matheson’s enrolment for 2001 was semester-by-semester, and the Tribunal ought to have so found.

18 The difficulty we have with the applicant’s submission is that it collapses ultimately into a question of fact. Ms Matheson was enrolled for a degree course at the University of South Australia in 2001. The resultant questions thus posed by s 541B(1)(b)(i) and s 541B(1)(b)(iii) can be put as follows:

(i) what was the particular study period for which she was enrolled for the degree course? and
(ii) was she undertaking at least three quarters of the normal amount of full-time study in respect of the degree course for that period?

19 The first of these questions, as the Tribunal correctly recognised, involved a question of fact. As the Tribunal also correctly recognised, the question is not determined simply by the fact that Ms Matheson had completed an enrolment form covering the 2001 academic year. A student can be enrolled at an institution for an academic year, yet "the particular study period...for which he or she is enrolled for the course" may be a lesser period, such as a semester.

20 The words used in s 541B(1)(b)(i) are clearly used and are to be applied according to their ordinary meaning. The Tribunal did not misconstrue the subsection. It recognised the limitations of the evidence before it in reaching a decision as to what was the particular study period for which Ms Matheson was enrolled. Nonetheless, the conclusion arrived at – that the period was the 2001 academic year – was one reasonably open on the facts of the case in light of the words used in the subsection. That conclusion involved a question of fact: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at 451; Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 at [51] ff.

21 The evidence was such that this finding ordained the conclusion to the second of the above questions. Ms Matheson was genuinely undertaking the requisite amount of full-time study for the 2001 academic year (albeit with varying intensity from semester to semester).

22 That the Tribunal committed no error of law in reaching the conclusion it did, does not mean that, in every instance in which an enrolment at an educational institution relates to periods which aggregate to an academic year, the "particular study period" for s 541B(1) purposes is that academic year. Each case depends on its own facts and circumstances. We recognise that educational institutions have a real interest in the decisions made in such cases. What should be emphasised is the contribution they can make in providing information that allows informed judgments to be made.

23 In the present case the Tribunal remarked that the question of fact was not easy to answer "because there is very little information available to me from the University". For example, the Tribunal was apparently not given information about any fees payable by or chargeable to Ms Matheson, nor as to the point at which she incurred any indebtedness in respect of the subjects for which she was enrolled. Similarly, the Tribunal appears not to have been given information as to whether a student in Ms Matheson’s position could have enrolled for a period less than an academic year and, if so, what practical consequences flowed from such an enrolment. Evidence on these matters may not have produced any different result, but they would have allowed the Tribunal to make a decision on the basis of more detailed information.

24 By way of illustration, the Tribunal observed in Re Secretary, Department of Family and Community Services and Zhang [2003] AATA 433; (2003) 74 ALD 226 at [36]- [39], that the determination of a particular study period may include a variety of circumstances such as the way the study is viewed by the University, having regard to the particular character of the work which is being undertaken. Considerations such as whether results are annual, for example, may be of importance. Other considerations may involve the types of subjects on offer and the way in which the student load is determined in the particular institution. That is to say, whether the subjects are semester based or sessional. The Tribunal has referred to the way in which the institution has organised the program and more specifically, whether it is organised around semester based or sessional subjects. In Zhang’s case the determination was that the particular study period was for a single semester and the fact that students enrol for both autumn and spring sessions at the beginning of the academic year was a matter of administrative convenience. These considerations highlight the factual nature of the inquiry and the types of matter which may be relevant in arriving at a conclusion in particular cases.

The Cross-Appeal

25 The Tribunal found that Ms Matheson had been overpaid youth allowance for the period from 20 October 2000 to the end of the 2000 academic year. No challenge has been made to that finding. By virtue of s 1223(1) the amount overpaid was a debt due to the Commonwealth. However the Secretary (and the Tribunal) had a statutory power to waive the debt. That presently relevant was conferred by s 1237AAD in the following terms:

"The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that makes it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt."

26 The cross-appeal relates to the alleged manner in which the Tribunal applied this provision adversely to Ms Matheson.

27 We can dispose of it shortly. The cross-appeal attempts to convert into an error of law what is manifestly a clerical error in the expression of what is otherwise an unexceptionable conclusion. The Tribunal was satisfied that the debt did not arise as a result of Ms Matheson making a false statement or representation (i.e. s 1237AAD(a) was established). The Tribunal then turned to the "special circumstances" requirement of s 1237AAD(b). It considered the principles to be applied and their proper application in a setting in which debts are raised for overpayments irrespective of whether the recipient received the overpayment in good faith or not. It considered that while Ms Matheson had acted honestly, she had made a false statement and her attention had been drawn to the course workload rules she had to meet if she were to be a full-time student and so eligible for youth allowance. It concluded:

"As Ms Matheson does not meet the requirements of s 1237AAD(a) [sic] of the Act, I am unable to waive the debt."

28 On a fair reading of this conclusion in its context the reference to s 1237AAD(a) was clearly a clerical error. That sub-paragraph had already been considered and its requirement found to be met. The discussion and analysis that preceded the above conclusion related directly to s 1237AD(b) and the conclusion was the culmination of that discussion and analysis. The Tribunal’s intended meaning was clear enough and was unexceptionable even if it was inaccurately expressed.

Conclusion

29 We order that the appeal and the cross-appeal be dismissed. It has been agreed by the parties that, irrespective of the result, the applicant will pay the reasonable costs of the appeal as taxed or agreed. We order accordingly.

30 We make no order as to costs in relation to the cross-appeal.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Sackville and Finn.

Associate:

Dated: 10 March 2004

Counsel for the Applicant:	R Sallis
Solicitor for the Applicant:	Sparke Helmore
Counsel for the Respondent:	S D Ower
Solicitor for the Respondent:	Welfare Rights Centre (SA), Inc
Date of Hearing:	27 February 2004
Date of Judgment:	10 March 2004