Kruk; Department of Education, Training and Youth Affairs [1999] AATA 27 (20 January 1999)

Last Updated: 18 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 27

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/1514

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS

Applicant

And JANE KRUK

Respondent

DECISION

Tribunal R P Handley, Senior Member

Date 20 January 1999

Place Sydney

Decision The Tribunal sets aside the decision under review and substitutes a decision that the Respondent was not qualified for AUSTUDY in 1997.

(Sgd) R P Handley

..............................................

SENIOR MEMBER

CATCHWORDS

EDUCATION - student assistance - AUSTUDY - whether Honours year postgraduate or undergraduate - normal entry requirement

AUSTUDY Regulations - Regs 38, 41, 47

Re Baker and Others and Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 47 ALD 756

Secretary, Department of Social Security v Jordan and Jiang (1998) 49 ALD 496

Secretary, Department of Employment, Education, Training and Youth Affairs v Lander (1996) 24 AAR 39

REASONS FOR DECISION

20 January 1999 R P Handley, Senior Member

1. This is an application by the Secretary of the Department of Education, Training and Youth Affairs, (formerly the Department of Employment, Education, Training and Youth Affairs) ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 29 September 1997 setting aside a decision of a delegate of the Applicant and a review officer that Jane Kruk ("the Respondent") was ineligible for AUSTUDY in 1997, and substituting a new decision that the Respondent was qualified for AUSTUDY in 1997.

2. At the hearing, the Applicant was represented by Geoffrey Johnson, of counsel, and the Respondent was represented by Gerald Clayton, solicitor. The Tribunal had before it the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were admitted as evidence:

Exhibit A1 Extract from the Higher Education Student Collection Documentation 1998, entitled "Element No. 310", DEETYA, March 1998

Exhibit A2 Extract from the Educational Profiles Student Load Data Collection for 1999-2001 Triennium, DEETYA, April 1998

Exhibit A3 Letter from Gem Cheong dated 9 February 1998

Exhibit R1 Extract from the 1998 Faculty of Science and Mathematics Student Guide, University of Newcastle

3. Gem Cheong gave evidence on behalf of the Applicant. The Respondent, Ellak Von Nagy-Felsovuki and Michael Hensley gave evidence on behalf of the Respondent.

Background

4. The Respondent was an undergraduate student at the University of Newcastle between 1989 and 1991 and was awarded a Bachelor of Science (BSc) degree on 8 May 1992. In 1992, she successfully completed a Bachelor of Science (Honours) degree. In 1993, the Respondent applied to undertake the Bachelor of Medicine degree at the University of Newcastle, a five year program. Her application was accepted and the University granted a deferral of her admission until 1995.

5. On 11 February 1997, the Respondent lodged a claim for AUSTUDY for 1997, the third year of her Bachelor of Medicine program (T4). By letter dated 18 February 1997 (T6), the Applicant notified the Respondent that she was not eligible for AUSTUDY because of her previous studies. On 8 April 1997, the Respondent lodged an application for a review of this decision. On 30 April 1997, a review officer decided to affirm the decision (T9). The review officer said because admission on the basis of tertiary study was not the normal requirement for admission to the Bachelor of Medicine program, the Respondent's prior tertiary studies could not be disregarded under AUSTUDY Regulation 47. Therefore, in accordance with Regulation 41 the Respondent was "only entitled to receive AUSTUDY for the minimum length of the course (five years) plus an additional year if you are studying full-year subjects". As the Respondent had already, at the beginning of 1997, completed six years of undergraduate studies, she was not entitled to AUSTUDY in 1997.

6. The Respondent appealed to the SSAT (T10). In a decision dated 29 September 1997 (T3), the SSAT, while agreeing that Regulation 47 had no operation in the Respondent's case, determined that the Respondent's Bachelor of Science (Honours) degree was a postgraduate Bachelor degree course and should not, therefore, be counted with the other years of undergraduate study undertaken by the Respondent. This meant that because the Respondent had only studied for five years at undergraduate level, she was entitled to AUSTUDY for 1997. On 4 November 1997, the Applicant lodged an application for a review by the Tribunal.

Applicable Legislation

7. The relevant law is found in the AUSTUDY Regulations made under the Student Assistance Act 1973. Regulations 38(1) to (4), 41(1) and 47 are relevant to the Respondent:

38. (1) For the purposes of AUSTUDY, tertiary courses are grouped, according to the level of study, as follows:

(a) Group A - graduate courses;

(b) Group B - undergraduate courses (except Group C courses);

(c) Group C - associate diplomas and 2 year undergraduate diplomas;

(d) Group D - TAFE courses (except Group C courses).

...

(3) Group A courses are:

(a) a postgraduate bachelor degree course, with or without honours;

(b) a graduate or postgraduate diploma course;

(c) a course of practical legal training at a higher education institution;

(d) a course of advanced education regarded by an accrediting authority as being at GP1 level;

(e) a graduate certificate course.

(4) Group B courses are:

(a) a bachelor degree course (other than a postgraduate course), with or without honours;

(b) the bachelor level component of a masters degree course with concurrent bachelor and masters level study;

(c) a diploma course other than:

(i) a graduate or postgraduate diploma course; or

(ii) a course which an entry requirement is successful completion of year 10 of secondary studies; or

(iii) a TAFE course;

(d) a Master's qualifying course;

(e) the Barristers or Solicitors Admission Board's course;

(f) a course of advanced education regarded by an accrediting authority as being at UG1 or UG2 level.

...

41. (1) A Student can get AUSTUDY in a year of study for a tertiary course only if, at the relevant date, the time already spent by the student in full-time study at the level of the tertiary course, is less than:

(a) if the minimum time for the course if more than one year - the sum of the minimum time for the course plus:

(i) half a year, or

(ii) if the student is enrolled in a year-long subject - on year; or

(iii) if the student's further progress in the course depends on passing a whole year's work in the course - one year; or

(b) if the minimum time for the course is one year or less - the minimum time.

...

47. For the purposes of subregulation 41 (1), no account is taken of a course completed by a student if completion of the course is the normal requirement for admission to the student's current course (unless the current course is a Master's qualifying course).

Oral Evidence

* Gem Cheong

8. Mrs Cheong is the University Secretary and Registrar at the University of Newcastle, a position she has held since January 1994. Mrs Cheong said she is the University's spokesperson for advice on the University's Degree Rules, and her division collects data and reports on that data to the Respondent. She said the University deems the BSc(Hons) to be an undergraduate course and gave the following examples: Honours degree enrolments are reported to the Respondent as undergraduate; Honours degree courses are treated as undergraduate for the purpose of student representation within the University; the University charge collected from Honours degree students is assigned to the undergraduate student body; Honours degree courses are classified as undergraduate in University reports and publications. Mrs Cheong said, in the case of the BSc, the Honours course is seen as a continuum of the BSc course.

9. Mrs Cheong said the inclusion of Honours courses in the Postgraduate Degree Rules is incorrect. She explained that Faculty Publications which describe Honours courses as postgraduate are "unofficial" in the sense that they are not the "legal" documents of the University. Mrs Cheong was referred to the Postgraduate Degree Rules - Bachelor of Science (T8, A28) and to the admission requirements stated in paragraph 2. She said it is correct to say that students are admitted into the BSc(Hons) degree course on the basis of their having first completed the requirements for admission to the BSc. This rule would have been rigidly applied in 1992, although today the University may be more flexible in order, for example, to attract overseas students.

10. Mrs Cheong confirmed that within the University of Newcastle there are two different types of Honours courses: those based on the student's overall academic performance in their undergraduate course measured by a cumulative Weighted Average Mark (WAM), such as in Engineering; and those where Honours requires the student to undertake a distinct Honours year as an adjunct to their Bachelor's degree, such as in Science or Economics and Commerce. Of the second category, for some degrees, such as Science, all students who satisfy the degree requirements are awarded a BSc at the end of three years and then those completing Honours receive a second testamur of satisfactory completion of their Honours year. For other degrees, such as Economics and Commerce, during the third year of their degree program, some students may be invited to undertake Honours the following year. Those who do undertake the Honours year receive only one award, on satisfactory completion of their Honours course.

11. Mrs Cheong said the classification of students was according to the classification of their course. For example, a student who already has a PhD but is enrolled in a further Bachelor degree course is regarded as an undergraduate student.

12. Mrs Cheong referred to Higher Education Student Collection Documentation 1998 (A1) which indicates that Honours degrees are not regarded as a postgraduate qualification. She also referred to the 1998 Educational Profiles Student Load Data Collection for the 1999-2001 Triennium (A2) which classifies Honours degrees as undergraduate courses. Mrs Cheong said she did not have similar data for 1992 but she was confident that the classification of courses has not changed, and was the same in 1992.

13. Mrs Cheong was asked about special privileges granted to Honours students. She said Honours students may be granted special privileges, for example, in relation to use of the library. Students with disabilities and Aboriginal students are also permitted special privileges. However, the grant of special privileges does not affect the status of the student as either undergraduate or postgraduate.

* The Respondent

14. Because the Applicant does not dispute the facts found in the SSAT decision, it was unnecessary for the Respondent to give a detailed account of the matters which affected her student status. The Respondent spoke of the privileges granted to Honours students in access to materials and computer equipment in the Library - by means of a different student identification code. She also said that, as in the Faculty of Arts, BSc students receive a different hood on graduation from that received by BSc(Hons) students, whereas Bachelors of Economics and Commerce (Hons) students receive the same hood.

* Professor Michael Hensley

15. Professor Hensley is a Professor of Medicine in the Faculty of Health and Medical Sciences at the University of Newcastle. He said that in 1995 there were three streams of entry into the Bachelor of Medicine:

(i) Selection based on Higher School Certificate results - requiring a very high Tertiary Entrance Ranking (TER) (accounting for about 30% of places);

(ii) Selection based on tertiary results for a completed degree or diploma, together with a satisfactory interview (accounting for about 20% of places);

(iii) Selection based on Personal Qualities Assessment Results including psychometric tests for students with a minimum TER of approximately 90 or who have completed at least one year of full-time tertiary education achieving a grade point average of at least 2.5 (that is, at least a credit average) (accounting for about 50% of places).

16. Professor Hensley said the University records showed the Respondent was admitted to the Bachelor of Medicine course through the second stream, on the basis of her previous tertiary studies. Since the Respondent was admitted to the course, the streams of entry have been changed. In 1997, the Faculty agreed to one composite stream of entry. But in April 1998, the University Council approved a special program for graduate entrants - a B.Med (Graduate). Council agreed that graduate students currently enrolled in the B.Med could transfer into the B.Med (Graduate). The Respondent has done this for the fourth year of her degree, there being no difference in the actual program of study.

* Associate Professor Ellak Von Nagy-Felsovuki

17. Professor Nagy-Felsovuki was Sub-Dean of the Faculty of Science during the years 1988 to 1990. He said the BSc is a difference degree from the BSc(Honours). There are separate graduation ceremonies for each. For the BSc(Hons), admission is open to students with a degree or degree equivalent and a certain level of distinction in their third year results.

18. Professor Nagy-Felsovuki said the Royal Australian Chemical Institute which accredits subjects for the courses treats the Honours year as a postgraduate degree. He said the various funding bodies treat courses in different ways. However, it is the University Council which determines the level of a course within the University, according to their powers in the University's statute.

19. Professor Nagy-Felsovuki said he is not and never has been a member of the University Council or Senate. Mrs Cheong, the University Secretary and Registrar, is Secretary to the University Council and an ex-officio member of the Senate. He acknowledged the veracity of the Faculty of Science and Mathematics Guide could be disputed because it is not a legal document of the University.

Submissions

* Applicant

20. Mr Johnson said there was no dispute as to the facts found by the SSAT. He submitted there are two issues for the Tribunal to determine. First, whether Regulation 47 is satisfied: was the completion of a BSc "the normal requirement" for admission to the B.Med at the University of Newcastle? Second, whether the BSc (Honours) course undertaken by the Respondent is an undergraduate or a postgraduate course according to AUSTUDY Regulation 38.

21. With regard to the first issue, Mr Johnson submitted the Respondent's situation is indistinguishable from that of Ms Baker in Re Baker and Others and Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 47 ALD 756 and thus the decision of the President of the Tribunal, Justice Mathews, in that case should be followed. Justice Mathews held (at paragraph 45) that Regulation 47 will only apply where

the holding of a degree is the standard or 'normal' precondition for gaining entrance to a course, rather than one of a number of possible preconditions.

22. With regard to the second issue, Mr Johnson noted that Mrs Cheong, the University Secretary and Registrar who speaks on behalf of the University by virtue of her office, stated the BSc(Hons) was an undergraduate and not a postgraduate course. Mr Johnson said an examination of the University's statute, the University of Newcastle Act 1989 (NSW) empowers the University Council to make decisions about the conferring of degrees and awards (see for example, s 16(1)(a)). Associate Professor Nagy-Felsovuki did not purport to express an opinion on behalf of any University body. He spoke of "postgraduate" in loose English phraseology only.

23. Mr Johnson said there were no authorities exactly on point but some guidance could be elicited from Secretary, Department of Social Security v Jordan and Jiang (1998) 49 ALD 496 at 502 where Hill J said, referring to the question whether a student is part-time or full-time:

The classification of the course by the educational institution offering it is a factor to consider; indeed it may provide at the least a prima facie indication and perhaps often will, absent other factors, be determinative.

However, in Secretary, Department of Employment, Education, Training and Youth Affairs v Lander (1996) 24 AAR 39 at 43, the Full Federal Court adopted the description given to a course by a University. It was not appropriate for the departmental decision-maker to go behind the University's accreditation of the course.

24. Mr Johnson said the present case does not involve factual considerations. Rather it was a matter of the description of the BSc(Hons) according to the University. Mr Johnson noted Regulation 38 provides for both undergraduate and postgraduate degrees with Honours. He referred to Justice Mathews' discussion of "postgraduate bachelor degree" in Baker (supra). She said (at para 47) this

must be taken to refer to a course, leading to a bachelor degree, which is to be undertaken by students who are already graduates.

25. This was not the case with the Respondent's BSc(Hons) course which was an adjunct to the Respondent's undergraduate course.

* Respondent

26. Mr Clayton addressed the same issues identified by Mr Johnson. With regard to the applicability of Regulation 47, Mr Clayton submitted that the holding of a degree was, for practical purposes, always "the normal requirement" for admission to the B.Med course being undertaken by the Respondent. This had been formally acknowledged by the University Council in April 1998 when they created a separate course code for the graduate degree course. The Respondent transferred into the fourth year of the graduate course, and the first three years of her studies were credited towards that course, because, in essence, she has followed the same course since admission.

27. Secondly, with regard to Regulation 38, and Justice Mathews' interpretation of "postgraduate bachelor degree" in Baker (supra), Mr Clayton submitted the BSc(Hons) course the Respondent undertook was clearly a postgraduate course because at the time she commenced the course she was already a graduate, having attended a graduation ceremony and been awarded a testamur. Mr Clayton said this view was supported by Associate Professor Nagy-Felsovuki's evidence. He was Sub-Dean of the Faculty of Science and Mathematics from 1988 to 1990 and is still a member of staff. He gave evidence that a student could not be admitted to the BSc(Hons) course on the basis of their TER, and the Royal Australian Chemical Institute regarded the Honours course as a postgraduate degree.

28. Mr Clayton said the Respondent's evidence indicated the University also treated BSc(Hons) students differently from undergraduates. Honours students were given special library privileges and a different hood was worn on the separate graduation.

29. Mr Clayton noted the Applicant had not produced the "legal' version of the BSc(Hons) Degree Rules for 1992, the year the Respondent commenced the Honours course. Only the "unofficial" Faculty Rules had been produced (T8, A28) and Mr Clayton pointed out that the decision to admit a student to a course is made at the Faculty level. The Applicant had provided no evidence as to how the two sets of rules differed. Mrs Cheong was not able to give evidence as to how the course was regarded in 1992 because she did not commence her employment with the University until January 1994. Mr Clayton also commented on the absence of the Higher Education Collection Documentation (A1) or Educational Profiles Student Loan Data Collection (A2) from 1992.

Consideration of Law and Findings

30. The parties have asked the Tribunal to determine two issues. First, should the BSc(Hons) degree which the Respondent undertook in 1992 be classified as a "graduate course" or an "undergraduate course" for the purpose of AUSTUDY Regulation 38? Second, was completion of the BSc the normal requirement for admission to the B.Med undertaken by the Respondent at the University of Newcastle so as to attract the concession to Regulation 41(1) provided by Regulation 47?

31. Regulation 38(1) provides for tertiary courses to be grouped according to the level of study, for the purposes of AUSTUDY. In particular, a distinction is drawn between "Group A - graduate courses" and "Group B - undergraduate courses". The term "graduate" course is defined in Regulation 38(3) as including "a postgraduate bachelor degree course, with or without honours". The term "undergraduate course" is defined in Regulation 38(4) as including "a bachelor degree course (other than a postgraduate course) with or without honours". The Tribunal notes Justice Mathews' interpretation of "postgraduate bachelor degree" in Baker (at para 47):

it must be taken to refer to a course, leading to a bachelor degree, which is to be undertaken by students who are already graduates.

32. Sub-Regulations 38(3) and (4) indicate the Regulations anticipate that Honours may be part of either a postgraduate bachelor course or an undergraduate bachelor course. Whilst it is correct to say the Respondent had graduated with a BSc and was therefore a graduate when she commenced her Honours year, this was because of the Degree Rules for the University of Newcastle which provide for separate graduations for the BSc and the BSc(Hons). In other Faculties at Newcastle, students undertaking Honours only graduate at the end of the Honours year without there being a separate graduation for the Bachelor degree.

33. Mrs Cheong, the University Secretary and Registrar, an official spokesperson of the University with regard to the Degree Rules in relation to admission and graduation, said the University has two types of Honours courses: those where an Honours classification is based on the student's overall academic performance in their bachelor degree course, measured by a cumulative Weighted Average Mark (WAM), such as Engineering; and those where the student is required to undertake a distinct Honours year as an adjunct to their Bachelor's degree, such as in Science or Economics and Commerce. She said the University regards bachelor degree Honours courses as undergraduate courses and this is how such programs are classified for the purpose of reporting student data to the Respondent, and in other University reports and publications. The BSc(Hons) course is seen as a continuum of the BSc course.

34. Mrs Cheong said the Faculty of Science Rules (T8, A28) which set out the rules for admission of the BSc(Hons), are incorrect in their listing of these rules under the heading "Postgraduate Degree Rules". She explained that Faculty publications are "unofficial" in the sense that they are not "legal" documents of the University.

35. The Tribunal considered what weight should be accorded to the University classification of the BSc(Hons) as an undergraduate course. Mr Johnson referred to Secretary, Department of Social Security v Jordan and Jiang (supra) where Hill J said:

The classification of the course by the educational institution offering it is a factor to consider; indeed it may provide at the least a prima facie indication and perhaps often will, absent other factors, be determinative.

However, in that case, the question of whether a student was part-time or full-time was a question of fact.

36. In Secretary, Department of Employment, Education, Training and Youth Affairs v Lander (supra), the Full Federal Court adopted the description given to a course by the University, which was authorised to accredit its own tertiary courses. The Court said (at 43):

It is quite at variance with the Determination's concern with the course the tertiary institution conducts and accredits for the applicant or Tribunal to go behind the accreditation.

37. In the present case, the Tribunal's view is that the BSc(Hons) course undertaken by the Respondent was an undergraduate course. The Tribunal gave significant weight to the University's classification of the BSc(Hons) course as undergraduate, but also had regard to the distinction in Regulation 38 between what are essentially undergraduate degree courses, with or without honours (Regulation 38(4)(a)), and postgraduate degree courses, with or without honours (Regulation 38(3)(a)). It is the point of entry to the degree, in particular whether it is open to all students or only those who already have a degree, which determines whether the degree is classified as undergraduate or postgraduate and therefore whether Honours are undergraduate or postgraduate.

38. The Tribunal notes that, in the case of the BSc at Newcastle, Honours students graduate both on completion of their BSc and again on completion of the Honours year. Technically, therefore, the Honours student is already a graduate. Nevertheless, in the Tribunal's view, all the other indicators attest to the course being an undergraduate one. While Honours students may be given special privileges, so are other students - for example, students with disabilities and Aboriginal students - and the granting of privileges is not indicative of a postgraduate classification. Further, the award of Honours is seen either as an adjunct to the Bachelors degree or as a measure of the student's academic performance over the duration of their Bachelor degree.

39. The second issue for the Tribunal to determine is whether completion of the BSc is "the normal requirement" for admission to the B.Med undertaken by the Respondent. If it is, then Regulation 47 provides that no account is taken of that BSc under Regulation 41(1) for the purpose of determining the time already spent by the student in full-time study at the level of tertiary course of the B.Med. In Baker (supra), Justice Mathews considered the wording of Regulation 47 and, in particular, the use of the phrase "the normal requirement". She stated (at paragraph 42):

reg 47 cannot apply if there is more than one standard or "normal" method of gaining admission to a course. It is only if the holding of the degree is the normal precondition to gaining entry to a course (rather than one of a number of preconditions) that a student can claim the benefit of reg 47.

40. The Respondent was admitted to the B.Med in 1994 but her admission was deferred until 1995. At that time, according to Professor Hensley's evidence, there were three streams of entry into the B.Med course, set out in paragraph 15 above. This accords with the Faculty of Medicine Undergraduate Course Information which appears in the T Documents (T8, A32). Only about 20% of students selected for admission to the B.Med were selected on the basis of their tertiary results. Thus, it cannot be said that tertiary results were "the normal requirement" for entry, as Justice Mathews explained in Baker.

41. The Tribunal notes Professor Hensley's evidence that in April 1998 the University Council approved a special course for graduate entrants (B.Med (Graduate)) with a separate course code, into which the Respondent transferred for the fourth year or her B.Med. The Tribunal notes this course is the same as the pre-existing B.Med course. However, at the time of the Respondent's admission, the B.Med (Graduate) did not exist.

42. The Tribunal therefore concludes that the Respondent cannot utilise the concession afforded by Regulation 47.

I certify that this and the 15 preceding pages are a true copy of the decision and reasons for decision herein of Senior Member R P Handley.

Signed: .....................................................................................

Associate

Date of Hearing 17 December 1998

Date of Decision 20 January 1999

Counsel for the Applicant Geoffrey Johnson

Solicitor for the Applicant Australian Government Solicitor

Solicitor for the Respondent Gerald Clayton