Lacy and Department of Family and Community Services [2002] AATA 598 (19 July 2002)

Last Updated: 22 July 2002

DECISION AND REASONS FOR DECISION [2002] AATA 598

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/40

GENERAL ADMINISTRATIVE DIVISION )

Re TANIA LACY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date 19 July 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

....................(Sgd).................

Ms J Cowdroy

Member

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/188

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Applicant

And ANDREA LAYT

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date 19 July 2002

Place Brisbane

Decision The Tribunal sets aside the decision under review.

.................(Sgd)....................

Ms J Cowdroy

Member

CATCHWORDS

SOCIAL SECURITY - Austudy - whether Juris Doctor degree at University of Queensland is a Master's level degree - whether Juris Doctor is an "approved course of education or study" - whether students are entitled to Austudy

Students Assistance Act 1973

Social Security Act 1991

Social Security Legislation Amendment (Youth Allowance Consequences and Related Measures) Bill 1998

Higher Education (General Provisions) Act 1993 (Qld)

University of Queensland Act 1998

Secretary, Department of Education, Training and Youth Affairs v Lander [1996] FCA 1088

REASONS FOR DECISION

19 July 2002 Ms J Cowdroy

1. These matters were heard together as they concerned identical issues. Ms Lacy and Ms Layt are students undertaking the Juris Doctor (JD) at the University of Queensland. On 28 June 2001 and 12 October 2001 respectively a delegate of the Department of Employment Training and Youth Affairs determined to cancel their Austudy payments.

2. Both students lodged a review to the Social Security Appeals Tribunal. In Ms Lacy's case, the Tribunal affirmed the decision and in Ms Layt's case the Tribunal set the decision aside and determined that Ms Layt was entitled to be paid Austudy. Ms Lacy lodged an application for review of that decision (Q2002/40) and the Secretary of the Department of Family and Community Services lodged an application for review of the decision in respect to Ms Layt (Q2002/188). The matters were heard together on 8 April 2002 with the consent of all parties.

3. Mr B Mumford of counsel represented the students. Mr T Ffrench represented the Secretary, Department of Family and Community Services. Pursuant to section 37 of the Administrative Tribunal Act 1975, the T-documents were admitted into evidence as exhibit A1. A number of other documents were also admitted into evidence and marked exhibits R1-R7. The matter was determined on the basis of those documents and the written and oral submissions of the parties.

4. The sole issue before the Tribunal is whether the Juris Doctor offered by the University of Queensland is an "approved course of education or study" for the purposes of the payment of Austudy.

Submissions

5. Mr Mumford: Both students are enrolled in the Juris Doctor at the University of Queensland. They both have undergraduate degrees. The issue is whether the JD is excluded under the Ministerial Determination pursuant to subsections 3(1) and 5D(1) of the Student Assistance Act 1973.

6. Pursuant to Schedule 2 of the Determination, only tertiary courses which fall within the criteria set out therein attract Austudy payment. The students contend that the Juris Doctor is a graduate degree, and falls within the description of "postgraduate accredited higher education course...that is a graduate degree...and which is not a Masters degree" (Column 1 of Schedule 2).

7. In regards to accreditation, it is acknowledged that the University is the accrediting body. The Law School Handbook for 2001 (T32-33 Q2002/40), provides program information for prospective students. At T32-88, the JD is described as a "graduate law qualification". At T33-91, mention is made of a change of name from Master of Legal Science. It states relevantly: "The impact of this name change is that the JD is a globally recognised graduate law qualification". Further, it states that a new curriculum had been introduced to coincide with the new name. It was stated that the new Juris Doctor curriculum includes all core courses required for legal professional admission and permitted more flexibility.

8. The entry requirements for the JD provide that students must hold an undergraduate degree in any discipline (T33-92). The overall thrust of all the University material is that the JD is a "graduate law qualification" and nowhere is there any reference to it being a Master's degree or a conversion Master's degree.

9. The minutes of the Academic Programs Policy Committee (APPC) for its meeting on 13 December 1999 refer to a meeting on 23 March 1998 when the APPC had considered a proposal from the Faculty of Business, Economics and Law to establish a "Graduate Degree in Law - Juris Doctor (JD)" (T7-29 Q2002/40). In debating the redesignation of the Master of Legal Science to Juris Doctor the comment was made that "many lawyers were trained through a virtually identical degree (ie a three year postgraduate program) termed Juris Doctor, and that the term Juris Doctor was widely recognised in the legal profession".

10. The Minutes of the Academic Board meeting on 31 January 2000 contain a Report from the APPC which referred to its July 1998 meeting, at which time it was resolved that the "proposal to introduce a graduate degree in Law be supported with caveats", one of which is that the subjects proposed would consist of postgraduate level subjects or subjects taught at postgraduate level. In summary, there was no material issued by the University which contradicted the contention that the JD is a postgraduate degree in law. It is viewed that way in all its publications and its marketing strategy reflects that viewpoint.

11. Counsel referred the Tribunal to R3, a letter from Professor O'Connor, President of the Academic Board. In paragraph 2 of that exhibit, Professor O'Connor makes the comment that the JD program was "explicitly approved as a Master's level program". The University Minutes contain no such reference. More particularly, if the JD was intended to be a course accredited at Masters level, why was it not so described in any of the University material? Further, the point was made that Professor O'Connor had not used the term "Master's level" synonymously with "accreditation". He does not specifically state that the JD has been accredited as a Master's degree.

12. In respect to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) (T38-134 Q2002/40), which describes the JD at the University of Queensland as a course at the level of "Masters Coursework", this is material published by a body independent of the University, and is not to be regarded as authoritative.

13. At T36-106 (Q2002/188), Professor Anthony A Tarr, Head of the TC Beirne School of Law makes the statement that the JD "precedes a masters level qualification". In a later letter dated 26 March 2002 (R5), Professor Tarr states that the JD is not a Master of Laws, and whilst he states that it could be "viewed" in terms of what is loosely referred to as a "conversion Masters", he does not state that the JD is "specified" or "accredited" at that level.

14. In respect to course content, there is no indication of the subjects that were previously taught and whether they were of an advanced nature. At T36-125 and 126 (Q2002/40), the core course descriptions do not refer to study of an advanced nature. In any event, the manner in which the subjects are coded does not assist in determining whether they are subjects taught at an advanced level. All that can be said is that the coding ascribed indicates that the level of study is appropriate for a graduate course.

15. It was pointed out that Centrelink's letter, querying the status of the JD (R6), is couched in terms of "accreditation" and therefore it was implicit that the author in responding to Centrelink's questions, was mindful of the stress being placed on the issue of "accreditation".

16. Mr Ffrench: The Department relied partly on the response provided by Professor O'Connor. He states that the JD program was explicitly "approved" as a Master's level program. The statement of Associate Professor Riha (T14-51, 52 Q2002/40) to the effect that the JD is not accredited at Master's level represents the expression of a personal view. The Department contends that the JD is accredited at Master's level.

17. Even if the Tribunal was to find that the JD is not a Master's degree or taught at Master's level, it does not necessarily mean that it fits one of the classifications outlined in Schedule 2.

18. Section 569H of the Social Security Act 1991 describes four levels of tertiary courses. Each refers to the type of "course", and not to the award that is ultimately conferred. The alternative submission of the Department is that inability to fit the JD course within any of the categories of tertiary course means that it cannot be properly regarded as a tertiary course for the purposes of the Act.

19. When considering the issue, regard should be had to the intention of the Austudy scheme. In the explanatory memorandum to the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Bill 1998, the statement is made "AUSTUDY is intended to assist students to complete their secondary education and an initial tertiary qualification" (R7).

20. Subsequent to the setting up of the JD, opinions as to its status have been provided by Professor O'Connor, Professor Tarr and Ms J Dendle, Manager, Enrolments Section. Professor Tarr couches his opinion in terms of the manner in which the JD can be "viewed" and refers to the term "conversion masters" which, in the Department's view lend weight to the concept that the JD is a Master's degree.

21. The key to the determination of this issue is the University Senate's treatment of the JD. In the Academic Board Minutes of 31 January 2001 (T8-32 Q2002/40), it is reported that a member of the Academic Programs Policy Committee "commented that the titles of programs should be based on marketability rather than internal coherence or logic and was not convinced that, particularly in the case of postgraduate programs, the proposed nomenclature enhanced marketability".

22. The Academic Board had resolved to recommend that the Master of Legal Studies be renamed Juris Doctor for marketing reasons and this was borne out by the comments contained in the APPC Minutes (T7-30) to the effect that reconsideration of the change of nomenclature was prompted by the University of Melbourne marketing virtually the same degree (Master of Legal Science) under the Juris Doctor title from 2000.

23. In respect to the contention that there were program changes which complemented the new title of JD, the University had been asked a specific question by Centrelink (R6): "Were any substantive changes made to this course when it was renamed Juris Doctor", to which the response was "It subsequently underwent a name-change with no other substantial change to the program". The response to R6 was provided by Professor Margaret Gardner, Deputy Vice-Chancellor (Academic), relying on advice provided by the President of the Academic Board, Professor O'Connor.

24. In that advice, Professor O'Connor stated that the Master of Legal Science was explicitly approved as a Master's level program. He goes on:

"No substantive changes were made when the program was renamed Juris Doctor. Academic Board approved the changed nomenclature on 31 January 2000. This change was subsequently approved by Senate. The Juris Doctor has not been recaccredited at a different level."

25. In Mr Ffrench's submission, that document provides clear confirmation that the JD is a Master's level course. The argument that the term "approval" carries with it a different meaning than "accredit" is one of semantics only.

26. The Tribunal was referred to the comments of the Full Court of the Federal Court of Australia in Secretary, Department of Education, Training and Youth Affairs v Lander [1996] FCA 1088 where the dictionary definitions of "accredited" were discussed. It was considered that that term is to be construed as "officially recognised...or certified as meeting official requirements". On that interpretation, it is sufficient for a course to be taken to be accredited at Master's level if it is officially recognised in that manner.

27. Document R3 states that the Senate approves programs on the recommendation of the Academic Board Committees, namely the APPC and the Academic Programs Review Committee (APRC). The Academic Board makes recommendations to the Senate and once a program is approved it can therefore be taken to be accredited. There is no suggestion that the Master of Legal Science, which was "approved" as a Master's level program was "reaccredited".

28. At T7-30 (Q2002/40), the minutes do not reflect any re-accreditation process, merely a change of nomenclature.

29. Additionally, Ms J Dendle (T17) stated that the JD was a postgraduate degree and that all subjects were taught and coded as coursework Master's subjects. Further she states that the degree "was approved by the University's Senate on that basis". Whilst Associate Professor Riha, Director of Studies, Faculty of Business, Economics and Law stated that the degree was not accredited as a Master's course (T14), his opinion should be viewed on the basis that it is at odds with the opinions offered by other academic and administrative staff.

30. The principles emanating from Lander make it clear that a decision-maker is not to "second guess" the accrediting body's intention in approving a course of study. Even if the JD is inappropriately described, it is not permissible to go behind the accreditation process. Whilst the University handbook terms it as a "postgraduate degree" this does not assist the Tribunal in determining the JD's true nature.

31. The University handbook material is ambiguous and does not assist the Tribunal. Moreover, the reference in Schedule 2 which refers to "classification in the institution's handbook" could be construed as referring to the need to only have regard to the handbook in respect to a combined course. If one takes that view, then once a course is accredited at a particular level, the handbook's description is irrelevant.

32. In respect of the weight to be accorded to Professor Tarr, whose opinions lend most support to the students, it was pointed out that nowhere does he use the word "accredited" and the inference can fairly be drawn that as he knew the importance of the issue, if evidence exists that the JD is not a Master's degree or a conversion Master, he would have pointed to it.

The Legislation and its Application

33. Sections 568 and 569 of the Social Security Act 1991 states that a person is qualified for Austudy if, among other things, they satisfy the activity test, and a person will satisfy the activity test if that person is "undertaking qualifying study". The term "qualifying study" is defined in section 569A of the Act. One of the criteria is that the person is enrolled or intends to enrol in an "approved course of education or study".

34. In section 6569B of the Act, the term "approved course of education or study" is "a course that the Employment Minister has determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act". Determination No 1999/2, made pursuant to subsections 3(1) and 5D(1) of the Student Assistance Act 1973, commenced on 1 January 2000. Clause 7 of that determination states as follows:

"(1) For the purposes of the Act, a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course.

(2) For the purposes of the Act, no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2."

35. The relevant courses under Column 1 are as follows:

"Undergraduate or postgraduate accredited higher education course that is an associate degree, associate diploma, diploma, advanced diploma, Bachelor degree, graduate degree, graduate certificate, graduate diploma, a NCBCOTP funded course, a Master's qualifying course or a combined course which leads to two of these awards and is classified as such in the institution's handbook and is not:

§ a secondary course specified in Schedule 1; or

§ a Masters or Doctoral degree unless otherwise specified in Schedule 2."

36. The JD is not a course which is specified in Schedule 2. It follows that if the JD course is accredited at Master's level then it will not be a tertiary course. The Higher Education (General Provisions) Act 1993 (Qld) gives each university the accrediting authority for courses that lead to awards that it confers, "university" meaning a higher education institution that is, among other things, established or recognised as a university under an Act. In the present matter, the University of Queensland Act 1998 states that the University's Senate is the governing body of the institution. It is that body which is the "accrediting authority".

37. The T-documents contain Minutes of the Meeting of the Academic Programs Policy Committee on 13 December 1999 (6/99) and the Academic Board Minutes (1/2000) in respect to its meeting on 31 January 2000. No Minutes of the meetings of the Senate of the University of Queensland were provided.

38. Professor O'Connor, President of the Academic Board states relevantly in R3:

"The Senate of the University of Queensland formally approves programs and their associated rules on the recommendation of the Academic Board. Proposals are first considered by the relevant Board committees - the Academic Programs and Policy Committee (APPC) and the Academic Programs Review Committee (APRC)."

39. Professor O'Connor attended the APPC on 13 December 1999. In his position of President of the Academic Board, he is the principal of the body which puts program proposals to the University Senate for its acceptance.

40. At its meeting on 13 December 1999, the APPC considered a proposal for a change of nomenclature for the Master of Legal Science to Juris Doctor.

41. The history to the proposal, as stated in the minutes, is that on 23 March 1998, the APPC had considered a proposal to establish a Graduate Degree in Law - Juris Doctor. At that time the Committee did not approve the proposal as it had concerns about that title, and it had referred the matter back to the faculty for further consideration.

42. On 27 July 1998 the APPC considered a revised proposal for the course under the name Magister Juris. Approval in principle was given, with one of the conditions of approval being that English nomenclature replace the term "Magister Juris". Subsequently the course was approved and taught as Master of Legal Science.

43. After the course had been taught for either one or two years (and the evidence does not permit me to make a definitive finding on that aspect), the faculty had asked the APPC to revisit the course, in light of the fact that the University of Melbourne was marketing virtually the same degree (Master of Legal Science) under the title Juris Doctor from 2000. Consequently, consultation occurred with the students then undertaking the Master of Legal Science who, it is reported, were unanimous in their support of the redesignation of the Master of Legal Science to that of Juris Doctor.

44. After discussion as to methods by which it could be ensured that the JD was not thought to be a professional doctorate, it was resolved to recommend that the Master of Legal Science (it states Legal Studies but clearly this is in error), be renamed Juris Doctor effective from the date of Senate approval.

45. The Academic Board Minutes of its meeting on 31 January 2000 received the report of the APPC that basically mirrors the statements made in the APPC's minutes. The matter was forwarded to the Senate who gave its formal approval.

46. Clearly, the Juris Doctor had had a chequered history. Whilst it was planned initially to be a new course, what ultimately occurred was that the new course was introduced under the title of Master of Legal Science. According to the minutes of the APPC, it had originally considered a proposal to "establish" a graduate degree in law. The use of the term "establish" means the creation of a new course. This is borne out by the use of the words "introduction" of a graduate degree in law. At that time, the proposed nomenclature for the new course was Juris Doctor, which was then revised to Magister Juris. In turn, the title Magister Juris was subsequently abandoned and the nomenclature Master of Legal Science was decided upon.

47. Clearly, the term "graduate degree in law" can encompass a Master's degree, in that a Master's degree is undertaken by students who already hold an undergraduate degree. As an example, the course which was approved and taught under the title Master of Legal Science was described by the Academic Board minutes as a graduate degree in law. Significantly, the understanding of Professor O'Connor is that the Juris Doctor has not been reaccredited at a different level than the Master of Legal Science.

48. At T33-91, the University handbook acknowledges that the JD commenced in 1999 under the name Master of Legal Science. It also states that there is a new curriculum. No information was before the Tribunal about the subjects offered under the Master of Legal Science curriculum and whether they differ to the subjects offered in the JD program in any substantive manner. However, as there were students the Master of Legal Science at the time the change of name was implemented, it is a reasonable assumption that any changes to the curriculum were of a cosmetic nature. It is also a reasonable assumption that, by consenting to the renaming, the students were of the view that the status of the course as a Master's was being retained. Ultimately, however how the students perceived the course is not definitive to the decision at hand.

49. In any event, Professor O'Connor stated that no substantive changes were made when the program was renamed. However, I am mindful of the fact that the handbook states that graduates of the JD are eligible for admission to the Master of Laws program which lends some weight to the proposition that it does not have the equivalent status to a Master's degree. This is the single piece of evidence, other than opinion evidence, which goes against the proposition that the JD is not "accredited" at Master's level.

50. There were a variety of opinions expressed about the status of the JD, including two opinions from Professor Tarr, who is of the view that the JD could be loosely referred to as a "conversion masters".

51. With respect to the other opinions, I consider that I cannot place as much weight on the opinions of Ms Dendle and Associate Professor Riha as they are removed to some extent from the Senate deliberations. In any event, Ms Dendle is reliant on Professor O'Connor for her information.

52. Clearly, Professor O'Connor was at the nub of the discussions involving the implementation of the JD and his understanding of the JD's status is reflected in the University Minutes. He was present at both the meetings, in respect of which minutes have been provided. Whilst it is unfortunate that the minutes do not definitively state that the course is one at Master's level, it is noteworthy that this was also the case when the Master of Legal Science was "approved" or "accredited" by the Senate under the guise of a "graduate degree in law". It has not been contended that the Master of Legal Science was not a Master's level course.

53. The reference in the University handbook to the JD being a graduate law qualification is not particularly helpful, insofar as its accreditation is concerned, in view of the fact that the University Senate approved what ultimately was introduced as the Master of Judicial Science on the basis that it was "a graduate degree in law". In any event, I am not persuaded that the fact that the JD is classified as a "graduate degree" in the handbook necessarily precludes it from also fulfilling the status of a Master's degree.

54. The overall thrust of the material before me from the Committees, whose responsibility it is to make recommendations to the Senate in relation to the status of courses offered at that institution, is that the JD is a Master's degree.

55. Accordingly, in relation to the decisions under review, the Tribunal finds as follows:

* Q2002/40 - Ms Lacy: The decision under review is affirmed.

* Q2002/188 - Ms Layt: The Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes its decision that the Juris Doctor is a course at Master's level. Accordingly it is not an "approved tertiary course" for the purposes of Austudy.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: Sarah Oliver

Associate

Date of Hearing 8 April 2002

Date of Decision 19 July 2002

Counsel for the Applicant Mr B Mumford

Solicitor for the Respondent Mr T Ffrench, Departmental Advocate