Church v Secretary to Department of Education [1987] FCA 229
Federal Court of Australia
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CATCHWORDS
ADMINISTRATIVE LAW - Administrative Appeals Tribunal -
Jurisdiction - Student assistance - Decision re-calculating
entitlement to benefit in respect of past period - Whether
decision authorized by statute - Overpayment - Decision to demand
repayment of amount overpaid - Whether decisions reviewable -
Whether amount overpaid recoverable.
Student Assistance Act 1973, s.45, Part III, Part V, Part VI
Student Assistance Regulations
Administrative Appeals Tribunal Act 1975, ss.3(3), 25, 44
ROSEMARY ALEXANDRA CHURCH v. SECRETARY TO THE DEPARTMENT OF
EDUCATION
No. ACT G 38 of 1986
Sheppard, Neaves and Everett Jd.
13 May 1987
Canberra
14 MAY 1987
FEDERAL COURT OF
AUSTRALIA
PRINCIPAL
REGISTRY
yo »
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
)
)
)
) No. ACT G 38 of 1986
DISTRICT REGISTRY )
)
)
GENERAL DIVISTON
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN : ROSEMARY ALEXANDRA CHURCH
t
Applicant
AND: SECRETARY TO THE DEPARTMENT
OF EDUCATION
Respondent
MINUTE OF ORDER
THE COURT : Sheppard, Neaves and Everett JJ.
DATE _OF ORDER : 13 May 1987
WHERE MADE : Canberra
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.
IN COURT OF AUSTRALIA )
y
AUSTRALI TORY )
DISTRICT REGISTRY ) No. ACT G38 of 1986
)
)
GENERAL V ON
On Appeal from the General
Administrative Division of
the Administrative Appeals
Tribunal
BETWEEN :
ROSEMARY ALEXANDRA CHURCH
Applicant
AND:
SECRETARY TO THE
DEPARTMENT OF EDUCATION
Respondent
CORAM: SHEPPARD, NEAVES and EVERETT JJ.
DATE : 13 MAY 1987
REASONS FOR JUDGMENT
SHEPPARD J.: This appeal from the Administrative Appeals
Tribunal raises questions concerning the construction and
operation of the Student Assistance Act 1973 and the regulations
made thereunder. Although the amount involved is less than $700,
the case raises important questions concerning the administration
of the scheme for which the Student Assistance Act provides.
There is also a threshold question concerning the jurisdiction of
the Administrative Appeals Tribunal to entertain the appeal
brought to it. In order that the problem may be understood, it
2.
is necessary to refer to the relevant parts of the Student
Assistance Act, the regulations made thereunder and the
Administrative Appeals Tribunal Act 1975. When that has been
done, it will be necessary to refer in a little detail to the
facts of the matter.
Section 4 of the Student Assistance Act provides that the
object of the Act is to make provision for and in relation to
benefits to students by way of assistance in the form of Tertiarv
Education Assistance of the kind provided for in Part III and
Post-qraduate Awards of the kind provided for in Part IV. The
relevant Part for the purposes of this case is Part III. It has
only two sections, sections 10 and 1l. The former provides that
an authorized person may, subject to and in accordance with the
requlations., 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, ata
tertiary education institution, a course of study or instruction
approved by the Minister for Education for the purposes of the
section. By s. 11 the benefit provided for is to consist of the
payment of amounts equal to any fees of a prescribed kind paid or
payable by or in respect of the student, the payment of a living
allowance in the circumstances provided for in para. (b) of the
section, and the payment of such other allowances as are payable
in accordance with the reaulations. The benefits provided for in
Para. (Db) are those with which this case is concerned.
Specifically, the benefits provided for are a living allowance at
such rate as is determined in accordance with the requlations and
an allowance, known as an incidentals allowance, at such rate as
3.
is prescribed for the purposes of para. 11(b) of the Act in
relation 'to the class of students in which the student is
included. Although the applicant in this case was granted an
incidentals allowance. that matter is not of concern in this
appeal. It is the amount of the living allowance which was set
at the beginning of the 1984 academic year which is in question.
Before going to the relevant provisions of the regulations it
is appropriate to refer to Part V of the Student Assistance Act.
It is entitled, "Review of Decisions". In this Part the Act
provides for the establishment of Student Assistance Review
Tribunals; see 3. 18. By 3s. 26 a Tribunal is given jurisdiction
to review what is described as "a primary decision". The
Tribunal's turisdiction is to affirm the primary decision, vary
that decision, or set it aside and make a decision in
substitution for the decision so set aside or remitting the
matter for reconsideration in accordance with any directions or
recommendations of the Tribunal by the authorized person to whom
the request provided for in s. 22(1) is made. Sub-sections 22(1)
and (3) of the Act are as follows:-
"22 (1) Where-
{a) a person who has made an application for
student assistance is dissatisfied with a
decision of an authorized person (not being a
procedural decision) relating to the
application: or
(b) a person who has been granted student
assistance is dissatisfied with a decision of
an authorized person relating to the student
assistance (including anv decision with
respect to benefit under the student
assistance or with respect to any suspension
or revocation of the student assistance but
not including a procedural decision),
4.
the person may, by notice in writing given to the
authorized person not later than 30 days after
the day on which the decision first comes to the
person's notice, or within such further period as
the authorized person approves, request the
authorized person to arrange for a senior
authorized person to consider the decision.
(3) An authorized person who receives a
request under sub-section (1) to arrange fora
senior authorized person to consider a decision
shall, as soon as practicable, arrange for a
senior authorized person to consider the decision
and the senior authorized person shall, as soon
as practicable but in any case within 60 days
after receipt of the request by the
first-mentioned authorized person, consider the
decision and-
(a) affirm the decision;
(b) vary the decision; or
(c) set the decision aside and make a decision in
substitution for the decision so set aside.
The expression "authorized person" is defined in s. 5. An
authorized person is a person who is an authorized person by
virtue of an appointment under s. 6. Section 6 provides that the
Minister may, by notice in writing published in the Gazette,
appoint persons who are officers or employees within the meaning
of the Public Service Act 1922 to be authorized persons for the
purposes of the Act. By sub-sec. 17(5) a reference to a senior
authorized person is to be construed as a reference to another
authorized person who has a classification higher than the
classification of the authorized person who made the oriqinal
decision.
Division 5 of Part V of the Student Assistance Act provides
5.
for review of decisions by the Administrative Appeals Tribunal.
The review is not of decisions of SART unless SART has made a
decision in substitution for "a primary decision" as the result
of a review under sub-sec. 26(1). That is because the review is
of what are referred to in s. 30AA of the Act as primary
decisions. "Primary decision" is defined ins. 17 of the Act as
follows:-
"17 (1) In this Part. unless the contrary
intention appears-
'primary decision' means-
(a) a decision made by an authorized person
that has been affirmed by a senior
authorized person under sub-section
22(3)3
(b) a decision made by an authorized person
as varied by a senior authorized person
under sub-section 22(3);
(c) a decision made by a_ senior authorized
person under sub-section 22(3) in
substitution for a decision of an
authorized person that has been
considered and set aside under that
sub-section; or
(ad) a decision made by an authorized person
(other than a decision referred to in
paragraph (a), (b) or (c) in respect of
which a request has been made under
sub-section 23(1A);
Sub-section 23(1A) is not relevant for present purposes.
Section 30AB of the Student Assistance Act provides that an
application may be made to the Administrative Appeals Tribunal
for a review of a reviewable decision. The Administrative
6.
Appeals Tribunal Act applies in relation to reviewable decisions
as if para. 25(3)(a) of that Act were omitted; see s. 30AC of the
Student Assistance Act. By sub-sec. 30AC(2) the Secretary of the
administering department shall be taken to be the person who made
the reviewable decision. The Secretary of the Department of
Education was named as the respondent to the appeal to the
Administrative Appeals Tribunal.
Part VI of the Student Assistance Act is entitled,
"Miscellaneous". Sections 31, 32, 33, 34 (so far as it is
relevant) and 36 are in Part VI and, at the relevant time, were
are as follows:-
"31 An authorized person may authorize the
payment of an advance on account of any benefit
that may become payable under student assistance.
32 (1) Any benefit payable under student
assistance shail be paid out of moneys
appropriated by the Parliament for the purpose,
and shall be paid at such time or times, and in
such manner and to such persons, or to a person
included in such class of persons, as the Minister
determines,
(2) In sub-section (1), benefit includes
an advance om account of benefit the payment of
which is authorized under section 31.
33 The regulations may make provision for and
in relation to the suspension and termination of
student assistance.
34 (1) An approval, direction or
determination of an authorized person under this
Act may be varied or revoked by the authorized
person or by another authorized person.
Ce SSS 2
36 The Governor-General may make regulations,
not inconsistent with this Act, prescribing all
Matters which, by this Act, are required or
permitted to be prescribed, or which are necessary
or convenient to be prescribed for carrying out or
7.
giving effect to this Act, and, in particular-
(a) making provision for and in relation to
the furnishing of information by
applicants for student assistance and by
persons to whom student assistance has
been granted;
(aa)making provision for andin relation to
the giving of notices and other documents
under this Act;
(b) making provision for and in relation to
the practice and procedure of the Student
Assistance Review Tribunal, including
provision for and in relation to the
giving of evidence before, and the
production of documents and articles to,
the Tribunal. and the summoning of persons
to appear before the Tribunal to aive
evidence and to produce documents and
articles: and
(c) prescribing penalties, by way of fines not
exceeding $100 for offences against the
requlations".
Section 25 of the Administrative Appeals Tribunal Act
provides in sub-sec. (1) that an enactment may, inter alia,
provide that applications may be made to the Tribunal for review
of decisions made in the exercise of powers conferred by that
enactment. By sub-sec. 25(4) the Tribunal has power to review
any decision in respect of which application is made to it under
any enactment. Sub-section 3(3) provides that a reference in the
Act to a decision includes, inter alia, a reference to the
making, suspending, revoking or refusing to make an order or
determination and the making of a declaration, demand or
requirement; see paras. 3(3)(a) and (e).
The regulations made pursuant to the Student Assistance Act
provide a detailed, and rather complex scheme, for the grant of
8.
tertiary education assistance to students qualified to receive it
under the scheme for which the Act provides. A person seeking
assistance under the Act is required to furnish an application to
an authorized person by delivering the application to any office
of the Department of Education (req. 32). An authorized person
is not to approve the grant of assistance in respect of a period
to a person who is not eligible to be granted assistance in
respect of that period (reg. 32A).
Sub-regulation 37(1) so far as it is relevant provides as
follows:-
"37 (1) Subject to sub-regulations (2) and (3),
Assistance to a grantee in respect of a part of an
approved course, being the part that the grantee
is undertaking in the relevant year, terminates-
(a) where the grantee completes that part of the
approved course during June or at the end of
the first semester in the relevant year - on
30 June in the relevant year:
(d) where the grantee does not complete that part
of the approved course but ceases to
undertake it as a full-time student during
the period after 30 June and before the end
of the first semester in the relevant year -
on 30 June in the relevant year;
Sub-regulations (2) and (3) are not relevant.
Sub-regulation 38(1) is as follows:-
"38 (1) Subject to sub-regulation (2), where a
grantee would, if he were an applicant for
Assistance, cease to be eligible for the arant of
Assistance, his Assistance thereupon terminates".
9.
Sub-regulation 38(2) is not of relevance.
There are then detailed provisions with respect to the
calculation of the benefits payable under the scheme; see
Division 2 of Part III of the regulations.
Part VI is entitled "Miscellaneous". It contains a number of
provisions which have a bearing on a_ student's entitlement toa
continuation of benefits payable under the Act. Sub-requlation
85(1) provides, inter alia, that a person to whom benefit is
being paid, or is payable (whether by way of advance on account
or otherwise) shall, within seven days, after the student
discontinues any part of the studies in his approved course or
has an increase in his income, give notice of the fact, in
writing, to an authorized person. Sub-regulation 92(1) provides
that the operation of a provision of the regulations that
provides, in relation to a person to whom student assistance has
been granted, that upon the happening of a specified event, or
that in specified circumstances, the assistance is suspended or
terminated, or shall be suspended or terminated by an authorized
person, is subject to a decision by an authorized person that the
event has happened or that the circumstances exist.
That completes the account of the relevant legislation. IT
turn to the facts of the matter. On 27 February 1984, the
applicant made application for tertiary education assistance.
Her application showed that she had obtained the Degree of
Bachelor of Arts from the Australian National University at the
end of 1983. She had received benefits under the Student
10.
Assistance Act during the years 1981, 1982 and 1983. During the
year 1984 she planned to undertake a course at the Canberra
College of Advanced Education for the purpose of obtaining a
Graduate Diploma in Legal Studies. She expected that she would
be a full-time student during the year. [In section 6 of the
application form she was required to answer questions concerning
her income for the 1984 year. The relevant paragraphs of this
section of the form were as follows:-
"If you study full-time
(1) for the full academic year - give income
from 1 January to 31 December 1984 OR
(2) for lst Semester only - give income from 1
January to 30 June OR
There were five paragraphs in all. There were boxes beside
each of the five numbers which appeared on the form suggesting
that an applicant was required to tick or cross the appropriate
box. The applicant did not mark any box but stated that her
income was $2,436.
Another part of the forn may be described as an
acknowledgement. It was signed by the applicant and was to the
effect that the applicant acknowledged:-
"1. that each payment made to me will be an
advance payment on account of benefits that
may become payable to me.
2. that in accepting each advance payment I
accept all relevant conditions attaching to
that payment (these conditions are set out in
the Student Assistance Regulations and are
summarised in the Information for Applicants
Booklet, and in the Conditions of Award
leaflet and other papers to be sent to you
when your application is assessed).
ll.
3. that I am required to notify the Department
of Education and Youth Affairs in writing
within seven days of changes in my
circumstances affecting my entitlement to
benefits as set out in Regulation 85 of the
Student Assistance Regulations (these are
summarised in Section I of the Information
for Applicants Booklet).
4. that I am required to refund any payment made
to me to which I am not entitled under the
conditions of the scheme attaching to that
payment".
On 6 March 1984, an officer of the Department of Education
wrote to the applicant saying that her entitlement each four
weeks was to $232.34 and dated from 1 January 1984. A first
payment of $534.68, including $70 incidentals allowance. was to
be made shortly after the letter was sent. It was said that this
would cover the period from 1 January 1984 to 25 February 1984.
Thereafter payments of $232.34 would be iiade on the dates given
in "the Conditions of Award leaflet", the first one to be be made
on 15 March 1984. The letter said that the applicant's
assessment was "subject to the conditions summarized in the
enclosed leaflet and to the provision of any appropriate
documents if requested later inthe year". The applicant was
asked to notify the Office promptly of any change in
circumstances which might affect her entitlement.
The leaflet referred to in the letter was not produced by the
applicant but it is clear that it must have been in terms similar
to a document annexed to the affidavit of Mr. D.C. Kennedy, who
was the Director of the A.C.T. Office of the Department, which
was relied upon without objection before the Administrative
Appeals Tribunal. The document was entitled "Conditions of
12.
Award". It bore the date 1984
statements made under the heading,
and included the
"OBLIGATIONS OF STUDENT": -
"Under Regulation 85 of the Student Assistance Act
1973, the
Scheme is paid, or payable,
the Director of the
Department within seven days
she:
eee reese noe weer
(4) discontinues
his/her
he/she is undertaking;
(12) has income from all
assistance from this
$2,000, or if income
previously declared as
varies;"
Under the heading, "WARNING",
person to whom assistance under
is required to notify
State
his/her course
studies in an approved
the
Office ef this
in writing if he or
wee ern enwene
or any part of
course that
sources (except
Scheme) exceeding
from all sources,
exceeding $2,000,
there appeared a number
further statements including the following:-
"(1)
As there may be a need to review a student's
entitlement during the year, allowance payments in
the course
the basis
writing
that the Department
within seven days
of the year are advances,
granted on
will be advised in
of any of the
aforementioned changes in circumstances.
Failure to advise
the Department promptly may
result in an overpayment, which must be refunded
to the Department.
advance payment of
acceptance by the student
conditions attaching to
part of the
result in an overpayment,
a change in the
addition render him/her
receive benefits.
it
When entitlement to assistance is
the basis of an estimate of
of the student's parents or
income assessment is
allowance may occur if
which may require the
such a payment.
particular, whilst discontinuation of a course,
course during the
student's enrolment
ineligible to continue to
sought,
the Department
notified promptly of any change
estimate
Acceptance by a student of an
allowance will
constitute
relevant
In
or
year will often
should be noted that
could in
of all
calculated on
such as that
when current
overpayment of
is not
in circumstances
provided to be
income,
spouse
following
of
13.
revised".
The applicant gave oral evidence before the Administrative
Appeals Tribunal. She said that at the time she lodged her
application for assistance, she wished to do a full time course
for the Graduate Diploma in Legal Studies and complete the course
in one year. She enrolled for four subjects and completed three
out of the four in the first semester of 1984. She withdrew from
the other subject towards the end of the semester. She said she
did so because she was advised not to take ona full loading of
law subjects because she had not done law before and it was too
much for her. She informed the Department of Education of what
occurred and was told that she would still be considered asa
full time student. She completed her first semester about the
end of June 1984. She did not continue with her studies in the
second semester. Instead. she applied for. and obtained
employment, taking up her position on 3 July 1984. She decided
to take the job at an interview which had occurred on 8 June
1984. It is clear from her evidence - there is no issue about it
- that her decision to take employment at this time arose out of
circumstances which developed late in the semester. When she
made her application for assistance in February 1984 she had
intended to study full time for the whole of that year.
The applicant was referred to the income figure shown in her
application. She was asked what the basis of the sum of $2,436
was. She said that at the end of her degree she had obtained
temporary employment which took her up to the end of February.
The amount of $2,436 was the amount earnt during this period.
14.
Thus at the date the applicant lodged her application for
assistance, she had already earnt the money. She said that she
did not expect to earn any further money in 1984. She said that
she wished to obtain credits and above for her subjects, "sol
was not looking at doing any work at all. I just wanted to study
and put everything into that". She said that she had not earnt
any money between the end of February and the time she started
her job on 3 July 1984. She received the first payment for the
work she did in that job on 17 July 1984.
After she had decided to change her plans the applicant wrote
to the Department an undated letter saying that she was writing
to inform it that she commenced full-time work on 3 July 1984.
She also said that in the first semester of 1985 she would return
to her full-time studies to complete her course and would require
assistance for that semester. Although the letter was undated,
it must have been written prior to 19 July 1984 because of
reference to the matter in the Departmental file in documents
which bear that date. One of these documents is a letter written
by the Department to the Registrar of the Canberra College of
Advanced Education. In substance 1t said that the applicant had
indicated that she had either withdrawn from units or ceased
studies completely in subjects previously undertaken at the
College. The Registrar was asked to advise the date of
withdrawal from studies by the applicant in order to assist it in
calculating "any future financial entitlement from the scheme for
assistance administered by this office". On 24 July 1984 the
applicant filled out a form entitled, "STUDENT'S ADDITIONAL
INFORMATION FORM". A section of the form is lettered "K" and is
15.
similar to section 6 of the earlier form which the applicant had
signed. On this occasion, however, she filled it out
differently. She ticked the box beside para. (2) which was for
the first semester only and then inserted the same amount as she
had previously done, namely, $2,436.
There is then a file note which has some significance because
it was suggested during the argument that it evidenced one of the
decisions made by an authorized person from which the appeal to
the Administrative Appeals Tribunal was brought. The document is
headed, "FILE NOTE". It relates to the applicant. It opens with
the words, "As income for the six months studied exceeds $1,000
the allowance will need to be recalculated". There then follows
a calculation which concludes with a statement to the effect that
the applicant has been overpaid $725.77. There follow the
initials of an officer and the date, 3 September 1984. There are
some further calculations which have been struck out and below
these a further initial and the date 11 September 1984. In
brackets after the figure $725.77 is the figure $726.28.
The next document on the file is a ledger entry. It is
headed, "COMMONWEALTH DEPARTMENT OF EDUCATION AND YOUTH AFFAIRS -
REGISTRATION OF OVERPAYMENT". The entry has two sections,
section one and section two. In the first of these appears the
name and reference number of the applicant. In the second, which
is headed, "DEBT DETAILS", are entries which show that the date
the change in circumstances was discovered was 21 August 1984,
the date the assistance had been paid to was 14 July 1984 and the
date to which the applicant was eligible for assistance was 1
16.
July 1984. The amount of the indebtedness was said to be
$726.28.
I should pause at this stage to note a submission by senior
counsel for the respondent Department of Education that there is
no evidence that the initials on the file note signed on 3 and 11
September 1984 were the initials of an authorized person, nor
that the "registration of overpayment" came about as the result
of any act of an authorized person.
On 25 September 1984, a Ms. Fiona Fisher, over the name of
Mr. Kennedy as Director, wrote to the applicant. She referred to
the history of the matter and said that it had been necessary to
recalculate the applicant's entitlement as her income up tol
July 1984 was $2,436.93. She referred to the details of
calculation and said that, upon reassessment, the applicant had
received payments which exceeded her total entitlement by
$726.28. The letter continued:-
"Please repay this amount within 14 days to the
Collector of Public Moneys, Department of
Education and Youth Affairs, at the address given
above. Payment can also be made at this office in
normal working hours. A receipt will not be
issued unless requested.
I should point out that all decisions must be made
in accordance with the Student Assistance Act and
Regulations. If you consider that these have not
been correctly applied in your c¢ase you may
request a reconsideration of your assessment (See
enclosed leaflet for details)".
The next document on the file is headed with the name of the
Department. It refers to recovery of an overpayment. There then
17.
appear the words, "JOURNAL ENTRY ROS4". Details of the entry are
given. These show an overpayment, not of $726.28, but of
$609.61. The "period affected" is said to be from 1 January 1984
to 30 June 1984 and the date of the entry, 25 September 1984.
The explanation for the apparent discrepancy is that the amount
of the debit did not include an amount of $116.17 which had been
paid to the applicant in respect of the period 1 July to 14 July
1984. That sum was dealt with separately. In passing, I should
say that it would appear that there could be no question but that
that amount is repayable, it having been paid in respect of a
period after 30 June 1984 when the applicant had commenced work.
The journal entry was prepared by Ms. Fisher.
The file then contains notes of telephone conversations with
the applicant. These conversations were between the applicant
and aMs. Ehrlich who appears to have been the officer who
entered the journal entry just referred to. On 12 October 1984,
the applicant informed Ms. Ehrlich that she found the
Department's letter confusing. She said that she was considering
requesting a reconsideration of the matter. She was given the
relevant information and said that she would be in touch again.
The relevant part of the note concludes with the words. 'No
recovery action to be done for one month".
On 17 October 1984, the applicant asked for particulars of
the calculation and reference to certain regulations. The
information she sought was furnished to her ina letter written
by Ms. Fisher on 2 November 1984 on behalf of Mr. Kennedy. The
letter said that the overpayment was $659.37, not $726.28 which
18.
had previously been notified to the applicant. It was also said
that the overpayment should be repaid within 14 days to the
Collector of Public Moneys, Department of Education and Youth
Affairs, at the address given in the letter. A similar paragraph
to that included in the Department's letter of 25 September 1984
(the second of those earlier quoted) followed,
On 25 October 1984, the applicant wrote to the Department
requesting a reconsideration of the decision to recalculate her
entitlement for 1984. Amongst other things, the applicant who
had obviously had some advice about the matter, said:-
"... adn making this decision, the Department
assumed the prescribed allowable income was $1000,
since I. changed my enrolment in mid-year.
However, reg. 41(3)(b) of the Stident Assistance
Regulations reters only to 'the prescribed
allowable income' and does not qualify that amount
by reference to 'the relevant period' i.e. the
period of entitlement. On this basis my TEAS
entitlement is $1400.60 and the amount I need to
repay is therefore $226.87".
This led to a reconsideration of the matter by "a senior
assessor". The decision was not altered. The record of the
decision is dated 20 September 1984. It notes that the
authorized person was Ms. Fiona Fisher and that the senior
assessor, whose initial is indecipherable, agreed with her
decision. It would appear, froma letter written to the
applicant, on 20 December 1984, that the senior assessor was a
Mr. P. Polglase who was said to be a senior authorized person
under the Student Assistance Act. The letter gave an explanation
for the calculation to which it is umnecessary to refer and
19.
maintained the position already taken up that the overpayment was
$659.37. There was again a request for repayment within 14 days
and, on this occasion, a statement that, if immediate repayment
would create a situation of hardship, consideration might be
given to a proposal for repayment by instalments. Reference was
made to the possibility of review by a Student Review Tribunal.
Some detail was given of the procedures necessary to obtaina
review.
Early in January 1985 the applicant wrote to Mr. Polglase
asking that his decisions notified in his letter of 20 December
1984 be referred to a Student Review Tribunal. The ground of the
request was that either no overpayment occurred or that any
overpayment alleged to have occurred was not recoverable. The
decision of that Tribunal is dated 23 April 1985. The first
ground relied upon was rejected. The Tribunal declined to decide
the second ground saying that the question whether or not a
payment is recoverable at law is not a matter over which the
Tribunal has jurisdiction to make a decision. Reference was made
to s. 25 of the Student Assistance Act.
On 29 April 1985, a further journal entry was prepared by Ms.
Ehrlich. It had the effect of reducing the amount of $609.61
shown on the previous journal entry by the sum of $66.41 to
$543.20. The entry was made on 30 April 1985. The sum of
$543.20, when added to the sum of $116.17 paid in respect of the
period 1 July 1984 to 14 July 1984, yields the sum of $659.37
which is the amount said to have been overpaid.
20.
On 15 May 1985, Ms. Ehrlich wrote to the applicant referring
to the Tribunal's decision. The letter continued, "Could you
Please repay this amount as soon as possible. Should payment of
the full amount cause financial hardship please contact the
Recoveries Clerk, Marie Ehrlich ... to arrange repayment by
instalments".
The appeal to the Administrative Appeals Tribunal was lodged
on 27 May 1985. The question of jurisdiction was determined
adversely to the Department on 29 October 1985, and the appeal to
the Tribunal was dismissed on 21 May 1986, when the Tribunal
affirmed the decision under review. It is from that decision
that this appeal is brought. By a notice of contention the
Department has submitted that the appeal to the Tribunal should
have been dismissed by it for want of jurisdiction.
The first question to be determined is the jurisdiction of
the Administrative Appeals Tribunal to entertain the appeal to
it. In order to resolve this question one first needs to
identify the decision (or decisions) which is involved. The
account of the documents contained in the Departmental file
discloses that once the Department was advised of the applicant's
change of plans, an officer recalculated her entitlement. This
occurred in July 1984. The first calculation was not correct,
but that is not of any consequence so far as these proceedings
are concerned.
In summary the steps taken by the Department after the
recalculation were as follows. A letter was written to the
21.
applicant requesting her to repay the amount (in the first
instance the incorrect amount). The journal entries and the
ledger entry (the registration of overpayment) which are in
evidence show that a debit was raised in respect of the amount
debiting it to the account of the applicant. There was further
correspondence in which the matter was clarified. In each of its
letters the Department made it clear that it expected the
applicant to pay the amount and that the amount was due asa
result of the operation of the Student Assistance Act and the
regulations made thereunder. In its last letter the Department
offered the applicant the opportunity of making a case for the
payment of the amount by instalments.
There is no evidence that the original calculation and the
decision to write the original letter requesting payment were the
actions of authorized officers or senior authorized officers
within the Department. But it is clear that the later
reconsideration was carried out by an authorized officer, namely,
Ms. Fisher, and that her actions were approved by a_ senior
authorized officer, namely, Mr. Polglase.
The primary submission of senior counsel for the Department
on the question of jurisdiction was that the Administrative
Appeals Tribunal had no jurisdiction to review a decision which
was not "a reviewable decision" and that the decision in question
here was not such a decision. It followed, so counsel contended,
that the provisions of the Administrative Appeals Tribunal Act
which gave to the word "decision" an extended definition, did not
apply. Thus, even if there had been a demand for payment (which
22.
counsel denied), that was not a relevant matter for
consideration.
In my opinion counsel was correct in her contention that the
jurisdiction of the Administrative Appeals Tribunal was limited
to the review of "reviewable decisions". That conclusion must
follow from the terms of s. 30AB of the Student Assistance Act
which is the section which confers jurisdiction on the
Administrative Appeals Tribunal. The jurisdiction is to review
"a reviewable decision".
If there is a reviewable decision in this case, 1t is,
effectively, the decision of Ms. Fisher, who was an authorized
person, that the amount of $659.37 had been overpaid and was
recoverable. It is her decision which is the relevant decision
because it was affirmed by a senior authorized officer, Mr.
Polglase, and a Student Assistance Review Tribunal; see s. 30AA.
In the way that the matter has been considered until now there
has been a tendency to dissect Ms. Fisher's decision into two
parts - really into two decisions - namely, the determination
that an amount had been overpaid and the amount of the
overpayment, and a decision to request or demand payment of the
amount which had been overpaid, in other words a decision that
the amount was recoverable. I shall deal with this matter in
more detail a little later, but at this point I should say that
it seems to me to be difficult to view a decision to raise an
overpayment as having any operation or effect until it is
followed by a communication of the decision to the person who has
received the benefit of the overpayment coupled with a request,
23.
to use a neutral word, for its repayment. Unless there be that
communication, there could not arise any question of an appeal to
a Tribunal. The potential appellant would know nothing about the
Matter.
The commencement of the review procedure provided for in the
Student Assistance Act is found in the provisions of s. 22. The
relevant part of that section for present purposes is para.
22(1)(b) which in effect provides that, where a person who has
been granted assistance is dissatisfied with a decision of an
authorized person relating to the student assistance, including
any decision with respect to benefit under the student assistance
or with respect to any suspension or revocation of the student
assistance, he may request consideration of the decision by a
senior authorized person. The words of the paragraph are
expressed in wide and general language. The matters that follow
by way of inclusion are not words of limitation. But the
expression, "any decision with respect to benefit ..." is itself
of wide import. In my opinion the words of the paragraph were
intended to confer on a student dissatisfied with any decision at
all concerning his entitlement to benefit, or the amount of it, a
right to have the matter reviewed.
Counsel for the respondent placed reliance on the fact that
there is not to be found in the Student Assistance Act, or the
regulations made thereunder, a provision vesting in a Secretary
of a Department or an officer, such as the Director-General of
Social Services, the responsibility for the due administration of
the Act, nor is there contained in the Act any express power
24.
pursuant to which the Commonwealth may recover an overpayment.
In this respect the Student Assistance Act is to be contrasted
with the Social Security Act 1947 which has been the subject of
consideration in the area of overpayment of social service
benefits in a number of cases un this Court, including
Director-General of Social Services v. Hangan (1982) 45 A.L.R. 23
and Director-General of Social Services v. Hales (1983) 47 A.L.R.
281.
These considerations are important, but whatever the outcome
of this case, there are clearly cases in which the Commonwealth
will be able to recover overpayments of benefit paid under the
Student Assistance Act. An example is a case where the benefit
has been obtained by the fraud of an applicant not entitled to
it. Another is a case where the benefit has been paid under a
mistake of fact, but without any fraudulent conduct on the part
of the applicant. In either case an action would lie at the suit
of the Commonwealth for money had and received to the use of the
Commonwealth. Ina case of fraud, there would also be an action
for deceit. The circumstances of the present case are different
because there has been no fraud or mistake. The applicant has at
all times acted honestly and, except for a short period early in
July 1984, was not paid benefit after she ceased her studies at
the end of the first semester. It is that circumstance which is
at the heart of the question of substance which will require
determination if the Administrative Appeals Tribunal, and thus
this Court, have jurisdiction.
It follows that, when the question of jurisdiction is being
25.
considered, the considerations are similar to those which would
apply if there were a clear entitlement to recover the
overpayment, as would be the case if the moneys had been paid as
a result of fraud or mistake. The question is whether the
absence of an express power to recover requires the conclusion
that the actions of the relevant officers in deciding that there
has been an overpayment and that it should be recovered,
constitute a decision contemplated by the Act asa "primary
decision" and thus, in the circumstances of a case such as this,
"a reviewable decision".
I have earlier referred to the fact that a decision that an
amount has been overpaid would have no practical effect for the
purposes of the provisions of the Student Assistance Act
conferring a right of review unless it were communicated to the
student concerned with an indication that he was expected to
repay the amount. If he were not told about it, he would not
know that he had a right to have the matter reviewed: if,
although he were told about the matter, he were also told that it
was not proposed to seek recovery of the amount, perhaps because
of extenuating circumstances, it would be pointless for him to
invoke the process of review. These considerations lead me to
think that, for the purposes of the Act, there will not bea
reviewable decision unless the Department informs the student of
a decision that there has been an overpayment, the amount of it
and that he is expected to repay that amount. Each of these
steps is to my mind part of a single process. Without any one of
them, it seems unlikely that the process of review would be
invoked.
26.
The critical factor underlying the process I have described
is that it has been decided by an authorized officer that there
has been an overpayment. It would seem wrong to me for a public
department to raise an overpayment in its books unless there were
at least the colour of a legal right to recover the amount which
was debited. If a public department comes to the conclusion that
money is owing to the Commonwealth as a result of some set of
circumstances such as an overpayment, it would not be in
accordance with proper administrative practice to raise an
indebtedness unless there were, in law, a debt. Obviously there
will be many cases where a defendant's potential liability wilt
be uncertain. This will occur where facts may have to be found
before the question of legal liability can be determined; there
will be other cases where the legal position is not
straightforward and where it would be quite proper to take the
view that the matter should be tested in a court. But if it 1s
clear that there is no legal liability at all, then the debit
ought not to be raised.
The width of the language of para. 22(1)(b) plainly extends
to a decision that there has been an overpayment of benefit and
the determination of the amount of it. If the allegation were
that a student had made deliberately false statements about his
income or studying intentions in his application for assistance,
an authorized officer's decision that there was an overpayment
and the calculation of the amount of it would plainly be a
"primary decision" for the purposes of the Act and thus open to
the review procedure for which the Act provides. If the student
denied the allegation, he could seek the review of the decision
27.
by a senior authorized person and, if that were unsuccessful, by
a Student Appeal Tribunal. The issue would be whether he had
been guilty of the fraudulent conduct alleged against him. The
question of recoverability or not would therefore be a matter
which both the senior authorized officer and the Tribunal would
have to consider. I do not perceive why this case stands ina
different category. The question is, has there been an
overpayment which is recoverable. The applicant will not have
been overpaid unless the amount in question is, in law, an
overpayment. Ms. Fisher and those who reviewed her decision
were, or should have been, concerned with that question in the
sense that all should have been satisfied that there was
disclosed inthe material before them a sufficient basis for
drawing the conclusion that there was at least the colour of a
legal liability to repay the money. If that were not the case,
it would have been wrong for officers in the Department to debit
the overpayment to the applicant's account, let along ask her to
repay it.
In reaching these conclusions I have found assistance in what
was said by both Fox J. and Toohey J. in Hangan's case (supra).
Fox J. said (p. 26):-
"The submission Cthat there was no decision] fails
adequately to recognize that what is under
examination is an administrative process. It isa
necessary pre-requisite to legal action, but nota
determinant to legal rights. Facts are not facts
in the abstract; they must be collected and
evaluated. A subordinate officer makes a decision
or determination affecting matters such as_ the
fact of overpayment, the amount of overpayment and
recoverability. There is a decision to approve
this decision, and approval".
28.
Toohey J. said (p. 31):-
"Let it be assumed that the recoverability of an
overpayment as a debt due to the Commonwealth does
not depend upon a decision by the Director-General
and that such a debt may not be waived by him. It
does not follow that a decision by the
Director-General is not a pre-requisite to any
action taken for that recovery. Indeed, a3 a
mattec of administration, it is hard to see how
such recovery could be effected without a decision
by the Director-General or some other officer
competent to make it. Certainly s. 140(2) Cof the
Social Services Act] vests in the Director-General
a discretion to determine whether any overpayment
may be deducted from future benefits".
I have mentioned that a difference between the legislation
under consideration in Hangan's case and the Student Assistance
Act in question here is that the Social Services Act (as the
Social Security Act then was) contained an express provision for
recovery; the Student Assistance Act does not. But for the
reasons earlier given, I do not consider that circumstance to be
of importance.
I think the problem which is involved in this case, and cases
like it, is better understood if one concentrates on the fact
that what is involved is a question concerning the due
administration of an Act of Parliament and not the determination
in judicial proceedings of a question of the recoverability of an
amount of an overpayment. It is not always easy for lawyers,
whether judges or practitioners, trained in a legal system which
usually requires the determination of liability for a debt to be
decided by a court exercising judicial power, to appreciate that
in the complex process of administrative review which now exists
29.
in the Commonwealth area, tribunals and courts exercising
supervisory jurisdiction over their decisions, will be called
upon to consider questions touching upon the liability of persons
to pay money. This will often involve an approach similar to
that which is called for in a conventional judicial proceeding.
I recognize that such an approach involves difficulties. I
referred to some of these in my own judgment in Hale's case; see
47 A.L.R. at pp. 318, 319-320 and 324-325. I refer also to the
decision of the Administrative Appeals Tribunal (Davies J. and
Messrs. Jennings, Q.c. and Dwyer ) in Re Taylor and
Director-General of Social Security (1984) 6 A.L.D. 500. In
saying what I have, I do not mean to indicate that in cases of
this kind tribunals will always be required to express a
concluded view on the question of the liability of a person to
pay a sum of money to the Commonwealth. In many cases they will
be unable to do more than express the view that it was proper for
the officer in question to decide that money was owing because
the facts of the matter, so far as they are known, lead to the
conclusion that there is a basis upon which legal liability may
exist. On the other hand, it should be remembered that in
Hangan's case the question at issue was whether a mis-statement
made by an applicant for benefit under the Social Services Act
would justify an action for recovery if it were but a
contributing cause to the overpayment, rather than the effective
cause of it. That was the question of law which both the
Administrative Appeals Tribunal and the Court decided.
For the reasons T have given I have reached the conclusion
that the Tribunal did have jurisdiction to determine the matters
30.
here in question. Before proceeding to deal with the question of
substance that arises for decision, I should mention a final
matter. I have earlier said that I do not consider that the
jurisdiction of the Administrative Appeals Tribunal extends to
the review of any decision which is not "a reviewable decisiun".
If that conclusion be right, the provisions of the Administrative
Appe rib Act which operate to widen the ordinary meaning
of decision do not apply. If, however, my view be wrong, the
Tribunal plainly had jurisdiction because there was here the
making of a demand or requirement within the meaning of para.
3(3)(e) of the Administrative Appeals Tribunal Act. Counsel for
the Department contended that the language in the various letters
was that of request, not of demand. I do not accept that
submission. The letters each make it clear that payment is
required and that if payment cannot be made because of financial
hardship, consideration will be given to payment being made in
instalments. The letters need to be understood against the
background of decisions made that the amount in question had been
overpaid and ought to be recovered, and also in the light of the
fact that journal entries had been made raising the debit and
debiting the amount of it to the applicant's account.
I turn then to the questions of substance which are involved.
In the submission of counsel for the respondent, the amount of
the overpayment is recoverable by the Commonwealth pursuant to
the principle propounded in the decision of the Privy Council in
Auckland Harbour Board v. The King £19243 A.C. 318. That case
decided that there was no authority in the Crown to make a
payment which was not authorized by the proper appropriation by
31.
the legislature of moneys to meet the payment. An action lay to
recover moneys paid by the Crown otherwise than pursuant to such
an appropriation. It was submitted that the only circumstances
in which the principle might be overcome were if there were a
decision by the Minister for Finance or his delegate, pursuant to
s. 70C of the Audit Act 1901, to write off the debt or to waive
it. There was no evidence that there had been any such writing
off or waiver.
Alternatively it was submitted by counsel for the respondent
that the moneys had at all times been paid in advance of the
applicant's entitlement to benefit for the year in question,
1984. Accordingly, it remained open to the Department to make
such adjustments of the applicant's entitlement from time to time
as were appropriate in the light of circumstances as they
developed. Actions for money had and received would lie to
recover any overpayment found to have occurred.
As I understand the submissions made on behalf of the
applicant, she does not challenge that, in the events that have
happened, she was in fact paid more than the amount to which she
would have been entitled had she disclosed in her original
application that she intended to remain a full time student for
only the first semester of 1984. But what 1n essence counsel
submitted was:-
(a) There is no express power to recover an overpayment
provided for in the legislation.
32.
(b) The payments were not made in advance.
(c) The payments were made pursuant to an appropriation by
Parliament.
(d) In the absence of a statutory power to recover an
overpayment, any right to recover must depend on the
common law.
(e) The only causes of action which were available were
actions for deceit, in the event of fraud, and for money
had and received to the use of the Commonwealth by reason
of its having been paid under a mistake of fact.
(f) There was no deceit and the moneys which were paid were
not paid under a mistake of fact. Until the applicant
changed her plans at the end of June 1984, she had
intended to study full time throughout the year. In that
event her earnings would have been no more than she had
originally stated them, that is, $2,346.
(g) The moneys were not therefore recoverable.
I propose, first of all, to consider the submission based on
the proposition that the moneys were paid in advance. The
starting point for the consideration of it is s. 31 of the
Student Assistance Act which provides that an authorized person
may authorize the payment of an advance on account of any benefit
33.
that may become payable. In the acknowledgement which the
applicant signed, when making her application for assistance in
February 1984, the applicant acknowledged that each payment made
to her "will be an advance payment on account of benefits that
may become payable to me". The applicant further acknowledged
that, in accepting each advance payment, she accepted all
relevant conditions attaching to the payment, including, inter
alia, the conditions summarized in the Conditions of Award
leaflet which was referred to therein. In the Conditions of
Award leaflet there appeared, under the heading, "WARNING", a
number of statements, including one which said that, as there
might be a need to review a student's entitlement during the
year, allowance payments in the course of the year were advances.
Later the leaflet said that discontinuance of a course during the
year would often result in overpayment. Finally, the leaflet
stated that, when entitlement to assistance is calculated on the
basis of an estimate of income, overpayment might occur if the
Department were not notified promptly of any change in
circumstances.
In my opinion, the terms of the acknowledgement, when read in
conjunction with the statements in the leaflet to which I have
referred, disclose that the payments were made in advance with
the intention that the applicant's actual entitlement to benefit
would be determined at the end of the year when the relevant
facts relating to her entitlement would be clear. This is not to
say that there would necessarily have been any recalculation if
things had gone as the applicant had expected. In that event the
Department would have assumed that she had earnt no more than the
34.
sum of $2,436 disclosed in her application and that she had
continued as a full time student throughout the year. But her
change of circumstances, which she notified early in July 1984,
brought about a change of circumstances. Not only was she no
longer entitled to payment of benefit; the payments which she had
already received were too large, having regard to the fact that
her entitlement was, in the events which transpired, for a period
of six months rather than twelve months.
Once it is concluded, as I think it should be. that the
payments were all in advance, it would seem to me that' the
applicant has no answer to the respondent's submission. So long
as the payments were in advance, the amount could always be
adjusted for the purpose of calculating the applicant's proper
entitlement. If, that having been done, she failed to pay what
the account disclosed as overpaid, she would be liable in an
action at the suit of the Commonwealth for that amount. The
cause of action would be for money had and received to the use of
the Commonwealth. This cause of action will be available
whenever "the fiction of a promise" can, consistently with the
claim, be imputed by the law to the defendant; see Sinclair v.
Brougham £1914] A.C. 398; Bullen & Leake and Jacob's Precedents
of Pleadings, 12th ed., pp. 665-6. Plainly such a promise ought
here to be inferred.
My conclusion in relation to the respondent's submission
based on the moneys having been paid in advance makes it
unnecessary to deal with the respondent's other submission which
was based on the Auckland Harbour Board case. On the basis that
35.
the payments were all made in advance, that submission must fail
because moneys were appropriated for the purposes of the Student
Assistance Act and s. 31 authorized payments of a benefit to be
made in advance. If, contrary to the conclusion which I have
reached, the moneys were not paid in advance, I would,
nevertheless, reject the submission. In my opinion the Act
clearly contemplates payments being made in the circumstances in
which they were made here and the appropriation of moneys for the
purposes of the Act would have applied to and authorized such
payments.
In the result I would dismiss the appeal. In the course of
her submissions, senior counsel for the respondent said, that if
the respondent were successful in the appeal, he did not ask for
costs. In those circumstances there should be no order as to the
costs of the appeal.
( certify that this and the 4% preceding
pages are a true copy of the reasons for
judgment herein of The Honourable
Mr Justice Sheppard. ' "A x A
Asscciate
pated /3 VAY /787
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
as No. ACT G 38 of 1986
DISTRICT REGISTRY
ewe vevrrw
GENERAL DIVISION
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN : ROSEMARY ALEXANDRA CHURCH
Applicant
AND: SECRETARY TO THE DEPARTMENT
OF EDUCATION
Respondent
CORAM: Sheppard, Neaves and Everett JJ.
DATE: 13 May 1987
REASONS FOR JUDGMENT
NEAVES J.:
In considering this application by way of appeal from
a decision of the Administrative Appeals Tribunal, it is
convenient to begin by referring to some of the provisions of
the Student Assistance Act 1973 (Cth) ("the Student Assistance
Act") and the Student Assistance Regulations ("the
regulations") made thereunder. The provisions referred to are
those which were in force at the relevant time.
The object of the Student Assistance Act (s.4) 1s to
make provision for and in relation to benefits to students by
2.
way of assistance in the form, inter alia, of tertiary
education assistance of the kind provided for in Part III.
That Part consists of ss3.10 and 11 which provide:
"10. An authorized person may, subject to
and 1n accordance with the requlations, approve
the grant of Tertiary Education Assistance toa
person who 1s an Australian citizen or a
permanent resident or Australia and 1s
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 or a part of a course of
study or instruction, being a part approved by
the Minister for the purposes of this section.
ll. 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;
(b) where the person is a full-time student
and a living allowance 1s payable under
the regulations in respect of the
person, or in respect of the person and
any dependants - the payment of -
(i) a living allowance at such rate
as is determined 1n accordance
with the regulations; and
(ii) an allowance, to be known as an
incidentals allowance, at such
rate as 18 prescribed for the
purposes of this paragraph in
relation to the class of students
in which the person is included;
and
(c) the payment of such other allowances, if
any, as are payable in accordance with
the regulations."
The expression "authorized person" 1s defined in s.5 to mean
a person who is an authorized person by virtue of an
appointment under s.6. That section provides:
3.
"The Minister may, by notice in writing published
in the Gazette, appoint persons who are officers
or employees within the meaning of the Public
Service Act 1922 to he authorized persons for the
purposes of this Act."
By virtue of s.3l1, am authorized person may
authorize the payment of an advance on account of any
benefit that may become payable under student assistance, an
expression which includes assistance under the Student
Assistance Act by way of tertiary education assistance
(s.5). Any benefit payable under student assistance 1s to
be paid out of moneys appropriated by the Parliament for the
purpose and 1s to be paid at such time or times, and in such
manner and to such persons, or to a person included ina
class of persons, as the Minister determines (s.32(1)). For
the purposes of that sub-section, benefit includes an
advance on account of benefit the payment of which is
authorized under s.31(s.32(2)). An approval, direction or
determination of an authorized person under the Act may be
varied or revoked by the authorized person or by another
authorized person (s.34(1)).
The Act confers a very wide regulation making power
(see ss.33 and 36). The regulations provide (reg.32(1)) for
the furnishing to an authorized person of an application for
tertiary education assistance by a person who is an
Australian citizen or a permanent resident of Australia and
who is undertaking, or proposes to undertake, in a year ata
tertiary education institution an approved course. The
application may be for assistance in respect of the year or
4.
apart of the year. The regulations prescribe, inter alia,
the circumstances in which a living allowance 1s payable to
a full-time student and make detailed provision for the
calculation of the amount payable (see, generally, Part III
and, in particular, regs 29 and 41). The rate at which an
incidentals allowance is payable 1s also prescribed
(reg.48).
On 27 February 1984 Rosemary Alexandra Church ("the
applicant") lodged an application dated 12 February 1984 for
assistance under the tertiary education assistance scheme.
She stated that she held a Bachelor of Arts degree within
the Australian National University and that she proposed, in
1984, to undertake as a full-time student a one year course
at the Canberra College of Advanced Education with a view to
obtaining a Graduate Diploma in Legal Studies. She
estimated her personal income from all sources, other than
the technical education assistance scheme and scholarship
benefits, at $2,436. It is clear from the evidence before
the Administrative Appeals Tribunal that, although she did
not make the relevant notation on the form of application,
that figure was intended to be an estimate of her income for
the period 1 January to 31 December 1984. It also appears
from the evidence that, at the date she completed the
application, the amount of $2,436 had already been earned
and received by her. The applicant also signed a statement,
being part of the application form, by which she
acknowledged:
5.
"1. that each payment made to me will be an
advance payment on account of benefits
that may become payable to me.
2. that in accepting each advance payment I
accept all relevant conditions attaching
to that payment (these conditions are
set out in the Student Assistance
Regulations and are summarised in the
Information for Applicants Booklet, and
in the Conditions of Award leaflet and
other papers to be sent to you when your
application 1s assessed).
3. that I am required to notify the
Department of Education and Youth
Affairs in writing within seven days of
changes in my circumstances affecting my
entitlement to benefits as set out in
Regulation 85 of the Student Assistance
Regulations (these are summarised in
Section I of the Information for
Applicants Booklet).
4. that I am required to refund any payment
made to me to which I am not entitled
under the conditions of the scheme
attaching to that payment."
By letter dated 6 March 1984, the applicant was
informed that her application had been assessed on the basis
that she was deemed to be a student of independent status
(see reg.30). I interpolate that, as such, the living
allowance payable was to be calculated in accordance with
regs 41(3) and 41(4) read with regs 29(6) and 29(7)(c). It
is unnecessary to set out these provisions in full. Suffice
it to say that the calculation which those regulations
required resulted in a living allowance being payable in
respect of the year 1 January to 31 December 1984 of $3,037,
being $3,255 (the amount prescribed in reg.29(7)(c) less one
half ($218) of the difference ($436) between the applicant's
income ($2,436) and the amount of $2,000 prescribed in
reg.29(6). The applicant was informed by the letter that
6.
living allowance of $232.34 would be paid each four weeks
dating from 1 January 1984. In addition, the applicant was
informed that an incidentals allowance of $70 (reg.48(1)(b))
was also payable. The letter stated:
"Your assessment 15 subject to the conditions
summarised in the enclosed leaflet and to the
provision of any appropriate documents if
requested later in the year."
The applicant was asked to notify the Department promptly in
writing of any change in her circumstances which might
affect her entitlement.
The leaflet, entitled "Conditions of Award 1984",
contained the following under the heading "Warning":
"(1) As there may be a need to review a student's
entitlement during the year, allowance payments
in the course of the year are advances, granted
on the basis that the Department will be advised
in writing within seven days of any of the
aforementioned changes in circumstances."
The circumstances so referred to included a discontinuance
by the student of the course or part of the course of study
being undertaken and a variation in the student's income
from all sources except assistance under the scheme. The
warning in the leaflet continued:
"Failure to advise the Department promptly may
result in an overpayment, which must be refunded
to the Department. Acceptance by a student of an
advance payment of allowance will constitute
acceptance by the student of all relevant
conditions attaching to such a payment. In
7.
particular, whilst discontinuation of a course,
or part of the course during the year will often
result in an overpayment, it should be noted that
a change inthe student's enrolment could in
addition render him/her ineligible to continue to
receive benefits. As far as possible you should
consult with or advise the Department prior to
discontinuing study or changing your enrolment
thereby avoiding overpayments of allowance and
the possibility of prosecution.
When entitlement to assistance is calculated on
the basis of an estimate of income, such as that
of the student's parents or spouse when current
income assessment 1s sought, overpayment of
allowance may occur 1f the Department 1s not
notified promptly of any change in circumstances
which may require the estimate provided to be
revised."
The applicant continued her full-time studies until
30 June 1984. However, she then decided not to continue
with her course at that stage and commenced employment on 3
July 1984. After deciding to change her plans, the
applicant wrote to the Department an undated letter (which
was received early in July 1984) stating that she commenced
full-time work on 3 July 1984 and intended to return to
full-time study to complete her course in the first semester
of 1985. On 24 July 1984 the applicant completed a
Student's Additional Information Form showing that the
income of $2,436 previously disclosed related to the period
1 January to 30 June 1984.
In the light of the changed circumstances, a
re-calculation was made of the living allowance to which the
applicant was entitled. More than one calculation of the
amount was made but, in the end, the amount of the
applicant's entitlement in respect of the period 1 January
to 30 June 1984 was calculated to be $897. This amount was
calculated by deducting from that proportion of the annual
living allowance of $3,255 that was referable to the period
of 182 days from 1 January to 30 June 1994, namely $1,618
(see reg.29(7)(c)), the amount of $721 being one half of the
difference ($1,442) between the applicant's income for the
period 1 January to 30 June 1984 ($2,436) and the
applicant's prescribed allowable income ascertained in
accordance with reg.29(6), namely $994. No adjustment was
made to the incidentals allowance of $70 previously paid so
that the applicant's total entitlement under the scheme was
calculated to be $967 ($897 living allowance and $70
incidentals allowance).
The applicant had, in fact, recelved amounts
totalling $1,626.37 including a payment of living allowance
of $232.34 on 5 July 1984 in respect of the period of four
weeks from 17 June to 14 July 1984. The applicant was
regarded as having no entitlement to the proportion of that
amount referable to the period 1 to 14 July 1984 ($116.17).
The result of these calculations was that the
applicant had received amounts totalling $1,626.37 under the
scheme and was said to have been entitled only to amounts
totalling $967, the difference amounting to $659.37.
By letter dated 25 September 1984 the applicant was
informed that a re-calculation of her entitlement had been
made. She was asked to repay within 14 days the amount paid
9.
in excess of her entitlement (the amount to be repaid being
incorrectly stated to be $726.28). She was also informed
that she could request a reconsideration of the assessment
in accordance with the details shown on an enclosed leaflet.
Further details of the re-caliculation were
requested by the applicant and these were supplied by letter
dated 2 November 1984. The applicant was informed that an
overpayment of $659.37 had been incurred and that the amount
should be repaid within 14 days. She was again informed
that she might request a reconsideration of the assessment.
I interrupt the narrative at this point to refer to
the provisions of Part V of the Student Assistance Act
headed "Review of Decisions". Again, I refer to the
provisions in the form in which they stood at the relevant
time.
Sub-sections (1), (3), (4) and (5) of s.22 provide:
"(1) Where -
(a) a person who has made an application for
student assistance is dissatisfied with
a decision of an authorized person (not
being a procedural decision) relating to
the application; or
(b) a person who has been granted student
assistance 1s dissatisfied with a
decision of an authorized person
relating to the student assistance
(including any decision with respect to
benefit under the student assistance or
with respect to any suspension or
revocation of the student assistance but
not including a procedural decision),
10.
the person may, by notice 1n writing given to the
authorized person not later than 30 days after
the day on which the decision first comes to the
person's notice, or within such further period as
the authorized person approves, request the
authorized person to arrange for a senior
authorized person to consider the decision.
(3) An authorized person who receives a
request under sub-section (1) to arrange fora
senior authorized person to consider a decision
shall, as soon as practicable, arrange for a
senior authorized person to consider the decision
and the senior authorized person shall, as soon
as practicable but in any case within 60 days
after receipt of the request by the
first-mentioned authorized person, consider the
decision and -
(a) affirm the decision;
(b) vary the decision; or
(c) set the decision aside and make a
decision in substitution for the
decision so set aside.
(4) A decision of an authorized person as
varied by a senior authorized person, or a
decision made by a senior authorized person in
substitution for a decision of an authorized
person, shall, unless the senior authorized
person otherwise directs, be deemed to have had
effect on and from the day on which the decision
of the authorized person had effect.
(5) A senior authorized person who considers
a decision of an authorized person pursuant to a
request made under sub-section (1) shall give the
person who made the request notice in writing of
the result of the consideration setting out the
findings on material questions of fact, referring
to the evidence or other material on which those
findings were based and giving reasons for the
primary decision resulting from that
consideration."
Sub-section 17(5) provides:
"(5) A reference in this Part to a senior
authorized person, in relation to a decision made
by a person who was, when the decision was made,
li.
an authorized person by virtue of performing the
duties of an office in the Australian Public
Service, shall be construed as a reference to
another person who is an authorized person by
virtue of performing the duties of an office in
the Australian Public Service, being an office
the classification of which 15 higher' than the
classification of the first-mentioned office."
Part V also provides for the establishment by the
Minister of one or more Student Assistance Review Tribunals
(s.18). Section 23(1) provides:
"(1) If, upon receipt of a notice under
section 22 setting out the result of the
consideration by a senior authorized person of a
decision of an authorized person, the person who
made the request under that section for the
consideration of the decision is dissatisfied
with the result of the consideration, that
last-mentioned person may, unless the person has
already made a request under sub-section (1A) in
relation to the decision, by notice in writing
given to the senior authorized person within the
period of 30 days after receiving the
first-mentioned notice, or within such further
period as the senior authorized person allows,
request the senior authorized person to refer the
primary decision to a Tribunal for review."
A Tribunal that reviews a primary decision is,
after due consideration of the matter, to give a decision in
writing affirming the primary decision, varying the primary
decision or setting aside the primary decision and making a
decision in substitution for the primary decision so set
aside (s.26(1)). The expression "primary decision" is
defined in s.17(1) to mean:
"(a) a decision made by an authorized person
that has been affirmed by a= senior
authorized person under sub-section
22(3);
12.
(b) a decision made by an authorized person
as varied by a senior authorized person
under sub-section 22(3);
(c) a decision made by a senior authorized
person under sub-section 22(3) in
substitution for a decision of an
authorized person that has been
considered and set aside under that
sub-section; or
(ad) a decision made by an authorized person
(other than a decision referred to in
paragraph (a), (b) or (c)) in respect of
which a request has been made under
sub-section 23(1A)."
It is unnecessary for present purposes to refer to s.23(1A).
A primary decision as varied by a Tribunal, ora
decision made by a Tribunal in substitution for a primary
decision is, for the purposes of the Act, other than Part V,
to be deemed to be a decision of an authorized person and,
unless the Tribunal otherwise directs, is to be deemed to
have had effect on and from the day on which the primary
decision had effect or was deemed to have had effect
(s.26(3)).
Under Division 5 of Part Van application may be
made to the Administrative Appeals Tribunal for a review of
a "reviewable decision" (s.30AB). The expression
"rveviewable decision" is defined in s.30AA as follows:
"'reviewable decision' means -
(a) a primary decision that has been
. affirmed by a Student Assistance Review
Tribunal as the result of a review under
sub-section 26(1);
13.
(b) a primary decision as varied by a
Student Assistance Review Tribunal as
the result of a review under sub-section
26(1); or
(c) a decision that has been made by a
Student Assistance Review Tribunal in
substitution for a primary decision as
the result of a review under sub-section
26(1),
but does not include a decision relating to the
approval of a period for the making of a request
under sub-section 22(1)."
By letter dated 25 October 1984 the applicant
requested a reconsideration of the decision to re-calculate
her entitlement for 1984 under the scheme. She contended
that no amount was repayable by her, that the amounts paid
to her had been properly paid and that there was no power to
vary the decision to pay. In the alternative, she
questioned part of the calculation that had been made.
Pursuant to the applicant's request, the decision
re-calculating the amount of the living allowance to which
she was entitled, a decision admittedly made by an
authorized person, was reconsidered by "a senior assessor".
It appears that the person who reconsidered the decision was
a Mr P. Polglase and that he was, in relation to the
authorized person who made the decision being reconsidered,
a senior authorized person. By letter dated 20 December
1984 the applicant was informed that the decision made as to
the level of her entitlement in 1984 under' the scheme had
been affirmed. The letter requested repayment of the amount
of $659.37 within 14 days and stated that, if immediate
. 14.
repayment would create a situation of hardship,
consideration might be given to a proposal for repayment by
imstalments. Reference was also made to the further review
procedures open to the applicant.
By an undated letter received by the Department on
7 January 1985, the applicant requested that the decisions
notified 1n the letter dated 20 December 1984 be referred to
a Student Assistance Review Tribunal. The ground of the
request was stated to be that no overpayment occurred or
that any overpayment alleged to have occurred was not
recoverable.
A Student Assistance Review Tribunal considered the
Matter on 17 April 1985. At the hearing before the
Tribunal, it was submitted for the applicant that no
overpayment had occurred as she was entitled to each payment
at the time it was made. The Tribunal affirmed the
authorized person's decision and declined to consider the
question which the applicant's representative sought to
raise concerning the legality of recovering any overpayment.
The Tribunal considered that it had no jurisdiction to make
a decision whether an overpayment 1s recoverable at law.
On 20 May 1985 the applicant lodged an application
dated 15 May 1985 with the Administrative Appeals Tribunal
for a review of the decision of the Student Assistance
Review Tribunal. The Administrative Appeals Tribunal
affirmed the decision under review. It is from that
decision that the applicant has appealed to this Court.
15.
I shall deal first with the question whether, in
the light of the applicant's decision not to continue her
studies during the latter half of 1984 but to defer them
until the following year, the authorized person was
empowered to re-calculate the amount of the living allowance
to which the applicant was entitled under the scheme in
respect of the period 1 January to 30 June 1984. There is
no dispute that, if there were power to make that
re-calculation, the amount of the living allowance properly
payable under the scheme was the revised amount calculated
by the authorized person, namely $897 to which would be
added the incidentals allowance of $70 making a total
entitlement of $967.
In my opinion, the authorized person was entitled,
in the light of the changed circumstances, to re-calculate
the amount of living allowance properly payable in respect
of the period 1 January to 30 June 1984. I accept the
submission made on behalf of the respondent based on s.31 of
the Act that the payments which were in fact made to the
applicant were payments by way of advances on account of any
benefit that might become payable to her under the scheme
for which the Act provided. It follows that it was open to
an authorized officer, whenever the circumstances required,
to make such adjustments as were appropriate in the light of
any changed circumstances which affected the amount of
benefit payable. The conclusion that the payments were made
by way of advances is, I think, required when one has regard
16.
to the general nature of the scheme under which, if
effective assistance 1s to be given, payments must be made
before all the objective facts on which the determination of
the quantum of benefit depends can be known and is supported
by the form of acknowledgment which the applicant was
required to, and did, complete, to the statements made in
the leaflet to which [I have referred and which were brought
to her notice and to the terms of the letter to her dated 6
March 1984. It was clearly intended that the amount of
benefit (including living allowance) properly payable under
the scheme would be determined when all the relevant facts
upon which entitlement depended should become known. By
reason of the applicant's change of circumstances, not only
did living allowance cease to be payable at all after 30
June 1984 but the amount already paid was demonstrably
greater than that to which the applicant would have been
entitled had she always intended to engage in full-time
study during the first semester only.
In so far as the Administrative Appeals Tribunal
held that it had jurisdiction to entertain the question
whether the authorized person had power to make the
re-calculation and affirmed the authorized person's decision
re-calculating the applicant's true entitlement under the
scheme with the consequence that she had received a greater
sum than that to which she was properly entitled, I am of
opinion that no error of law has been disclosed.
17.
The Administrative Appeals Tribunal was also asked
to review the decision reflected in the letters sent to the
applicant by the Department that the applicant be called
upon to repay the amount by which the living allowance paid
to her exceeded her proper entitlement. The Tribunal
considered, and answered affirmatively, the question whether
it had jurisdiction to review that decision and went on to
affirm the decision itself.
The question whether the Administrative Appeals
Tribunal had jurisdiction to review the decision reflected
in the request or demand conveyed to the applicant that she
repay the amount overpaid depends, in the final analysis,
upon whether that decision is properly characterised as a
decision of an authorized person falling within the terms of
8.22(1) of the Student Assistance Act and, in consequence, a
decision which the applicant could require to be reviewed by
a senior authorized person under that sub-section. Unless
it were such, none of the other levels of review available
under the Student Assistance Act, including review by the
Administrative Appeals Tribunal, were available.
The provisions of s.22(1) have already been set
out. The sub-section refers to a person being dissatisfied
with a decision of an authorized person. A_ reference to
such a decision is, by virtue of s.17(2), to include, unless
the contrary intention appears -
"(a) a reference to any approval, direction
or determination of an authorized
person;
18.
(b) a reference to any variation or
revocation by an authorized person of
any such approval, direction or
determination; and
(c) a reference to any refusal or tailure of
an authorized person to give any
approval or direction, or make any
determination, under this Act or the
regulations."
The Student Assistance Act clearly requires that
any grant of tertiary education assistance under the Act,
whether by way of advance or otherwise, be approved by an
authorized person (ss.10 and 31). In considering whether a
grant should be approved, the authorized person may have to
consider questions of eligibility of the applicant, the
course of study proposed, the institution at which the
course of study is to be pursued and other matters germane
to the applicant's entitlement. It may also be accepted
that the Act requires that an authorized person determine
all questions relating to the type of allowance payable and
the quantum thereof. Such a person also has the
responsibility of determining whether a grant should be
suspended, revoked or terminated and whether the quantum of
any benefit should be varied. A decision made in respect of
any of these matters clearly would fall within the language
of s.22(1) of the Act and thus be reviewable by the
procedures there provided.
A decision taken by an authorized officer in
exercise of the authority so conferred upon him may result,
as occurred in the present case, in a person having received
19.
a greater amount by way of benefits under the Act than the
amount to which that person was properly entitled. In
consequence, an overpayment will have occurred. The
question whether a request or demand for repayment should be
made and the further question whether, if the request or
demand is not met, legal proceedings should be instituted to
recover the amount are not questions which, by the Act or
the regulations, are to be decided by an authorized person.
Indeed, the Act andthe regulations are silent on the
question of recovery so that any right of recovery must
depend on the principles of the common law. The fact, 1f it
be the fact, that a decision to request or demand repayment
1s made by an officer of the Department who has been
appointed an authorized person for the purposes of the
Student Assistance Act does not have the consequence that
the decision is a decision of an authorized person within
the meaning of that expression in s.22(1) of the Act. Nor,
so it seems to me, is a decision to demand or request
repayment or a decision to institute legal proceedings for
recovery in the circumstances here under discussion a
decision of the kind to which s.22(1) is directed. Sucha
decision clearly does not fall within s.22(1)(a) in that 1t
does not relate to an application and, in my opinion, it is
not a decision relating to the student assistance or a
decision relating to benefit under the student assistance
within s.22(1)(b). It may properly be described as a
decision made consequently upon a decision of the kind to
which s.22(1)(b) refers but 1t 1s not itself a decision of
that character.
20.
It is not, I think, a correct legal analysis of the
position to say simply that the authorized person made a
decision that there had been an overpayment of $659.37 to
the applicant which she was required to repay. What the
authorized person did was to calculate the amount of living
allowance to which, on the true facts as then known, the
applicant was entitled. Indeed, the decision of the
authorized person that the applicant was entitled to an
amount of $897 by way of living allowance was the first
decision definitively determining the applicant's
entitlement, the earlier decision being to quantify the
payments to be made by way of advances pursuant to s.3l. It
was because the amount so calculated by the authorized
person (to which was to be added the incidentals allowance)
was less than the amount which the applicant had, in fact,
received that there was an overpayment. The decision was
not that there was an overpayment: that was but an
inevitable consequence of the decision by the authorized
person applying the statutory provisions to the facts as
they were then known.
The decision re-calculating the amount to which the
applicant was entitled was, for the reasons I have given, a
reviewable decision. The consequential decision that the
applicant be called upon to repay the excess over her proper
entitlement was not a decision required to be made by an
21.
authorized person and was not, as I have said, a decision
falling within s.22(1) of the Student Assistance Act.
I should add that, even if, contrary to the view I
have expressed, the decision to set in train procedures for
the recovery of the amount overpaid is to be treated as a
decision of an authorized person falling within s.22(1) of
the Student Assistance Act, the question for the Student
Assistance Review Tribunal and for the Administrative
Appeals Tribunal would be whether that decision was the
correct or preferable decision in the circumstances. In
determining that question, neither the Student Assistance
Review Tribunal nor the Administrative Appeals Tribunal
would be bound to form a view on the question whether the
Commonwealth had a legally enforceable right to recover the
amount. Such a_ tribunal might well find, in the
circumstances, that it was a proper administrative decision
to require repayment and, indeed, to commence proceedings
for recovery even if the likely outcome was the subject of
uncertainty.
It will be apparent that, in considering the
question of the jurisdiction of the Administrative Appeals
Tribunal in relation to decisions concerning the tertiary
education assistance scheme, I have had regard only to the
provisions of the Student Assistance Act and, in particular,
3.22(1) thereof. In my opinion no assistance in resolving
22.
the question is to be found in s.25 of the Administrative
Appeals Tribunal Act.
I donot regard the decisions of this Court in
Director-General of Social Services v. Hangan (1982) 45
A.L.R. 23 and Director-General of Social Services v. Hales
(1983) 47 A.L.R. 281 as decisive of any of the questions
that arise in this case. Those decisions were concerned
with a different set of statutory provisions and are, in my
view, distinguishable.
It follows from what I have said that the
Administrative Appeals Tribunal fell into error in holding
that it had jurisdiction to review the decision which was
reflected in the request or demand made upon the applicant
for repayment of the amount overpaid. This conclusion makes
it unnecessary for me to consider the submission put on
behalf of the applicant that the Administrative Appeals
Tribunal fell into error in failing to hold that there was
no legal basis upon which the Commonwealth could recover
from the applicant the amount of $659.37 overpaid. However,
as the matter was fully argued I think it proper to express
my view upon the question, particularly as it has a close
relationship to the conclusion which I have already reached
that the payments made to the applicant were made by way of
advances pursuant to s.3l1 of the Act. Once that conclusion
is reached, and regard is had to the acknowledgment signed
by the applicant, it follows, in my view, that the moneys
overpaid are recoverable as moneys had and received by the
23.
applicant to the use of the Commonwealth. I agree with what
_has been said on this aspect of the case by Sheppard J.
In the result, I would dismiss the application.
I certify that this and
the preceding 22 pages are
a true copy of the Reasons
for Judgment herein of the
Honourable Mr Justice
Neaves.
Associate
Dated: 13 May 1987
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
)
)
DISTRICT REGISTRY No. ACT G 38 of 1986
GENERAL DIVISION
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: ROSEMARY ALEXANDRA CHURCH
Applicant
AND: SECRETARY TO THE DEPARTMENT
OF EDUCATION
Respondent
CORAM: Sheppard, Neaves and Everett JJ
DATE: 13 May 1987
REASONS FOR JUDGMENT
EVERETT J:
This appeal involves a challenge to a decision of a
Deputy President of the Administrative Appeals Tribunal
affirming a decision of a Student Assistance Review Tribunal
(SART) under the Student Assistance Act 1973 (Cth) ("the
Act") in relation to assistance to the appellant. A
cross-appeal was filed and served, but at the hearing of the
appeal the cross-appeal was, without formal amendment or
objection, treated as a notice of contention.
The issues raised by the appeal, in final form, were in
the following terms:
"(A) Whether the Tribunal erred in law and in the
exercise of 1ts discretion in failing to determine
whether the respondent had an available cause of action
to recover moneys allegedly overpaid to the appellant.
(B) Whether the Tribunal erred in affirming a decision
without determining whether or not the decision to
institute proceedings to recover moneys allegedly
overpaid to the appellant was a decision to take action
which was within the power of the respondent."
By the notice of contention the following questions of
law were asked:
"(a) Whether or not the decision to raise or to recover
an overpayment of benefit paid under the Student
Assistance Act 1973 was made in the exercise Of powers
conferred by an 'enactment' within the meaning of section
25(1) of the Administrative Appeals Tribunal Act 1975.
(b) Whether or not the decision to raise or to recover an
overpayment of benefit paid under the Student Assistance
Act 1973 is a 'decision of an authorised person relating
to the application' within the meaning of those words in
section 22(1) of the Student Assistance Act 1973.
(c) Whether or not the decision to raise or to recover an
overpayment of benefit paid under the Student Assistance
Act 1973 may be reviewed by the Administrative Appeals
Tribunal.
(d) Whether or not the decision to recover an overpayment
of benefit paid under the Student Assistance Act 1973 or
to review the legality of the said recovery by the
Administrative Appeals Tribunal 1s an exercise of the
judicial power of the Commonwealth."
The claim by the appellant that she was not legally
liable in any way to the respondent in relation to assistance
she had received under the Act was the subject of an
application to the Administrative Appeals Tribunal.
As a preliminary issue, the Administrative Appeals
Tribunal's jurisdiction to review the decisions of the SART
was challenged. The Administrative Appeals Tribunal, on 29
October 1985, decided that it had jurisdiction to do so, and
reserved liberty to apply for directions with respect to the
further hearing and determination of the application.
Following a further hearing, the Administrative Appeals
Tribunal on 21 May 1986 affirmed "the decision" under
review. The appeal to this Court followed. Although the
description "applicant" 1s used in the title of the
proceedings, I have preferred to use the description
"appellant" in order to avoid any possible confusion.
There was no dispute in respect of the findings of fact
or the statement of the facts by the Deputy President of the
Administrative Appeals Tribunal and ut is convenient to adopt
the following summary of the facts as set out in the reasons
for the decision of 21 May 1986:
"On 12 February 1984 M1ss Church applied for tertiary
education assistance (referred to, for convenience, as
'TEAS') in relation to her proposed enrolment as a
full-time student in the Graduate Diploma in Legal
Studies, a one-year full-time course of study offered by
the Canberra College of Advanced Education ('CCAE'). In
answer to one of the questions on the application form
Miss Church estimated that her income from all sources
(except TEAS and scholarship benefits) for the period
from 1 January to 31 December 1984 would be $2 436.00. A
grant of assistance was duly approved on or about 6 March
1984 with effect from 1 January 1984 at the rate of
$232.34 per four-weekly period. In her application for
TEAS, Miss Church had acknowledged that each payment made
to her would be an advance payment on account of benefits
that may have become payable to her and that she would be
required to refund any payment made to her to which she
was not entitled under the conditions of the scheme
attaching to that payment (Exhibit T3).
On 18 July 1984 an undated letter was received by the
Department of Education from Miss Church advising that
she had commenced full-time work on 3 July 1984 and that
she would be resuming full-time studies in order to
complete her graduate diploma course in the first
semester of 1985 (Exhibit T5). On or about 3 September
1984 the appellant's entitlement to assistance in the
light of her changed circumstances was recalculated by an
'authorised person' (Exhibit T9). Subsequently, a
document entitled "Commonwealth Department of Education
and Youth Affairs Registration of Overpayment" was
prepared by an unidentified officer recording that Miss
Church had been overpaid student allowance in the sum of
$726.28 (Exhibit T10).
On 25 September 1984 a letter was sent to Miss Church,
advising her of the overpayment and requesting that she
repay the sum of $726.28 within 14 days (Exhibit T11).
By a further letter dated 2 November 1984 (Exhibit 115)
the overpayment was recalculated and reduced to $659.37.
Following a request by Miss Church for reconsideration of
the decision to recalculate her TEAS entitlement for
1984, the matter was reconsidered on 20 December 1984 by
Mr P Polglase, a 'senior authorised person' for the
purposes of the Act. On that date a further letter was
despatched to Miss Church affirming the decision of the
authorised officer that an overpayment of $659.37 had
been made and requesting repayment within 14 days. [No
argument was presented to the Court in respect of the
actual amount.)
On 7 January 1985 an undated letter was received by the
Department from M1SS Church under the letterhead of the
Welfare Rights Centre (Canberra) requesting Mr Polglase
to refer his decisions notified in his letter of
20.12.1984 to a Student Assistance Review Tribunal (the
SART). This was duly done and on 23 April 1985 a SART
affirmed the decision that an overpayment in the sum of
$659.37 had been made. The Tribunal went on to Say:
'The appellant's representative raised the question
of the legality of recovering any overpayment. As to
whether or not an overpayment is recoverable at law
1s not a matter over which the Tribunal has
jurisdiction to make a decision. The Tribunal's
jurisdiction is set out in s.25 of the Act empowering
1t to review a decision of the authorised person,'
On 20 May 1985 Miss Church lodged an application for
review with this Tribunal, seeking review of the decision
as affirmed by the SART. At the hearing before me Mr T
Brennan, who appeared on behalf of Miss Church, submitted
an amended statement of the decisions sought to be
reviewed before the Tribunal and the reasons in support
of the application (see Exhibit A). That statement was
as follows:
'AMENDED DECISIONS TO BE REVIEWED AND REASONS FOR
APPLICATION
Decisions to be reviewed.
1. That an overpayment occurred.
2. That an overpayment of $659.37 occurred.
3. That any overpayment be recovered,
4. That the whole of any overpayment be recovered,
Reasons for application.
As to decisions 1 & 2
Regulation 41 was at all times properly applied.
Payment of assistance was terminated not later than
the date upon which the appellant's eligibility for
assistance ceased.
The legislation neither reguired nor authorised
recalculation of assistance payable because of
cessation of full-time studies in respect of the
period prior to cessation of full-time studies.
As to decision 3
Recovery action is not authorised by legislation or
otherwise.
The Commonwealth has no prospects of success in any
recovery action.
As to decision 4
The Commonwealth's prospects of success in any
recovery action are doubtful and the appellant 15
willing to agree to a reasonable compromise.'
In my view, however, as I indicated in my earlier
@Gecision (at paragraph 17), [that is, the decision on
29 October 1985 that the Administrative Appeals Tribunal
had jurisdiction to review the decisions of the SART]
there are essentially 3 decisions embodied in the primary
decision that was reviewed before the SART:
'(i) A decision that, 1n the light of the circum-
stances which ultimately transpired, the benefits
in fact paid to the appellant in respect of the
period from 1 January to 30 June 1984 exceeded
her entitlements by $726.28 (reduced on
reconsideration to $659.37);
{ii) a decision that an overpayment should therefore
be raised; and
(iii) a decision to make a demand for recovery of that
overpayment.'"
The Act was enacted in 1973. It repealed the Education
Act 1945, the Education Act 1959 and the Scholarships Act
1969. Its object, expressed in s.4, is:
*,... to make provision for and in relation to benefits to
students by way of assistance in the form of Tertiary
Education Assistance of the kind provided for in Part III
and Post-graduate Awards of the kind provided for in
Part Iv."
By s.10, an "authorised person" may approve the grant of
tertiary education assistance to certain persons. Such
"authorised persons" may be appointed by the Minister
pursuant to s.6. Although the Act itself does not provide
for the appropriate administrative basis for the scheme,
regulations made pursuant to s.36 make provision in detail
for the actual benefits and entitlements payable. It 1s not
necesSary to canvass such detail in order to determine the
appeal,
What 1s important is to consider Part V of the Act
(ss.17-30AC) 1n relation to the issues raised by the appeal
and the notice of contention. Part V provides for the review
of decisions at a number of levels after an "authorised
person" has made an initial decision, In this case such a
decision was made (Exhibit T9 before the Administrative
Appeals Tribunal) and the authorised officer determined that,
in the circumstances, the occurrence of which was not
disputed, the appellant had been overpaid $725.77. Section
17(2) of the Act provides:
""(2) In thas Part, unless the contrary intention appears,
a reference to a decision of an authorised person shall
be read as including -
(a) a reference to any approval, direction or
determination of an authorised person; [emphasis
The first review of the authorised officer's decision was
sought in accordance with s.22(1), the relevant part of which
18:
"22(1) Where -
(a) ...
(b) a person who has been granted student assistance 1s
dissatisfied with a decision of an authorised person
relating to the student assistance ...
the person may, by notice in writing given to the
authorised person ... request the authorised person to
arrange for a senior authorised person to consider the
decision."
A senior authorised person, Mr Polglase, affirmed the
decision (s.22(3)).
The appellant then initiated the second step in the
review process by requesting the senior authorised person to
refer his decision to the SART, as established by s.18 of the
Act. The decision of Mr Polglase was, by virtue of the
definition in s.17(1), a "primary decision" for the purposes
of Part V of the Act. The definition includes "a decision
Made by an authorised person that has been affirmed by a
senior authorised person under sub-section 22(3)"*.
The statutory provisions for the exercise of jurisdiction
by the SART were followed. The SART affirmed the "primary
decision" of the authorised person as affirmed by a senior
authorised person (Mr Polglase). The latter affirmation was
thus expressed (formal parts omitted) in a letter from the
ACT office of the Department of Education to the appellant
dated 20 pecember 1984:
"I refer to your letter received on 25 October 1984
requesting consideration of the decision concerning your
level of entitlement under the scheme this year. The
decision has been considered by Mr P Polglase, a senior
authorised person under the Student Assistance Act 1973.
Sub-regulation 41(3) of the Student Assistance
Regulations provides that a grantee's income must be
taken into account in determining the grantee's living
allowance entitlement in respect of a day in a relevant
period. Where the grantee's income during the relevant
period exceeds the 'prescribed allowable income', the
grantee's living allowance for the relevant period 1s
reduced by $1 for every $2 by which his or her income
exceeds the 'prescribed allowable income'. Under
sub-regulation 29(6), the 'prescribed allowable income'
1s $2000 x C where -
D
C is the number of days in the relevant period; and
D is the number of days in the relevant year.
Also under the above Regulation the 'relevant period' is
a period in the relevant year that commences on a
commencing date and ends on the day (a) immediately
preceding another commencing date; or (b) on which
Assistance to the grantee terminates, whichever first
occurs,
In your case you deferred your course after completing
the first semester of your Graduate Diploma in Legal
Studies at the CCAE. Therefore you were deemed eligible
for benefits for the period lst January to 30 June 1984.
Your income for this period was $2436.93 which 1s in
excess of the 'prescribed allowable income' for the
'relevant period'.
Accordingly, I advise that the initial decision is
affirmed.
To date you have been paid benefits totalling $1626.37
which exceeds your entitlement by $659.37.
Please repay this amount within 14 days of the date of
this letter, making your remittance payable to the
Collector of Public Moneys, Department of Education and
Youth Affairs at the above address.
If immediate repayment would create a situation of
hardship, consideration may be given to a proposal for
repayment by instalments.
I am attaching a statement to assist you should you wish
to seek review of the decision by a Student Assistance
Review Tribunal. I should point out, however, that the
Tribunals are also bound in reaching their decisions to
operate within the provisions of the Student Assistance
Act 1973 and Regulations,
Under section 23 of the Act, a request for review by a
Tribunal normally must be lodged within 30 days of the
receipt of the result of consideration. Tribunals are
not empowered to review a decision if the grounds on
which the request is made are not specified.*
I have set out the letter of 20 December 1984 in full
because 1t is basic to a consideration of the primary
submission of counsel for the respondent that the
Administrative Appeals Tribunal did not have Jurisdiction to
entertain the application for review by it of the decision
a@escribed in the application. I shall consider that
submission later in these reasons.
It is also desirable to state the essential reasoning of
the SART as follows:
"The applicant, having graduated from the Australian
National University in 1983, enrolled in 1984 as a
full-time student in the Graduate Diploma in Legal
Studies at the Canberra College of Advanced Education.
She was granted TEAS benefits at the independent rate.
In July 1984 the applicant advised the Department that
she had commenced full-time employment on 3 July 1984 and
deferred her studies until semester I 1985.
Initially the applicant's income was assessed over the
whole of the 'relevant year'. She subsequently decided
to cease full-time studies in July 1984, and the income
she received was reassessed by the authorised person as
having been received in the relevant period of
eligibility for TEAS, namely 1 January 1984 to 30 June
1984. As a result the authorised person ruled that she
had received an overpayment of TEAS allowance.
The applicant satisfied the provisions of the Regulations
to be regarded as an independent student and her
entitlement is determined under regulation 41. Under
sub-regulation 41(3) her entitlement 1s determined by
subtracting from the maximum allowance amounts based on
her income for the relevant period. The relevant period
is defined in sub-regulation 29(1) by reference to a
commencing date and termination of Assistance, subject to
44B. The authorised person ruled that her Assistance
terminated on 30 June 1984, pursuant to sub-regulation
44B [sic], because she ceased full-time studies. He
reassessed her entitlement accordingly.
The applicant appeared at the hearing represented by Mr
Madden from the Welfare Rights Centre, It was submitted
on her behalf that no overpayment occurred as she was
entitled to the payment at the time 1t was paid.
Further, Mr Madden relied upon regulation 92.
Regulation 92 provides that termination of Assistance on
the happening of a specified event 1s subject to a
decision by an authorised person that the event has
happened. The applicant's representative submitted that
termination could not take place until the authorised
person had made such a decision, and thus the termination
takes place at the date of his decision and the relevant
period should be extended to the date of the decision, in
this case being 19 July 1984.
This Tribunal does not agree that regulation 92 has such
an effect. It is the Tribunal's opinion that regulation
92 merely declares that the authorised person has to make
a decision that an event has happened or circumstances
exist in order that the provisions of the Regulations
Operate.
The applicant's representative raised the question of the
legality of recovering any overpayment. As to whether or
not an overpayment is recoverable at law is not a matter
over which the Tribunal has jurisdiction to make a
decision. The Tribunal's jurisdiction is set out in
section 25 of the Act empowering it to review a decision
of the authorised person.
The fribunal affirms the authorised person's decision."
The appellant finally, as a third step in the review
process, made an application under s.29(1) of the
Administrative Appeals Tribunal Act 1975 for review of a
decision thus described:
"(a) that an overpayment occurred
(b) that Regulation 92 of the Student Assistance
Regulations merely declares that the authorised
person has to make a decision in order that the
provisions of the Regulations operate."
The application was based on Division 5 of Part V of the
Act, which provides for an application to the Administrative
Appeals Tribunal "for a review of a reviewable decision"
(S.30AB). For the purposes of the present case a "reviewable
decision" 18 defined to "mean" - that 1s, exclusively - "(a)
a primary decision that has been affirmed by the Student
Assistance Review Tribunal as the result of a review under
sub-section 26(1)". I have already stated the relevant part
of the statutory definition of a "primary decision".
At the hearing before the Administrative Appeals
Tribunal, counsel who appeared on behalf of the appellant
submitted an amended statement of the decisions sought to be
reviewed before the Tribunal and the reasons in support of
the application (Exhibit A). That statement, which repeats a
statement set forth in the summary of facts of the
Administrative Appeals Tribunal cited ahove, was as follows:
"AMENDED DECISIONS TO BE REVIEWED AND REASONS FOR
APPLICATION
Decisions to be reviewed.
l. That an overpayment occurred.
2. That an overpayment of $659.37 occurred.
3. That any overpayment be recovered.
4. That the whole of any overpayment be recovered.
Reasons for application.
As _to decisions 1 & 2
Regulation 41 was at all times properly applied.
Payment of assistance was terminated not later than the
date upon which the applicant's eligibility for
assistance ceased.
The legislation neither required nor authorised
recalculation of assistance payable because of cessation
of full-time studies in respect of the period prior to
cessation of full-time studies.
As_to decision 3
Recovery action is not authorised by legislation or
otherwise.
The Commonwealth has no prospects of success in any
recovery action.
As to decision 4
The Commonwealth's prospects of success in any recovery
action are doubtful and the applicant is willing to agree
to a reasonable compromise."
The Administrative Appeals Tribunal heard and determined
the application on the basis of the four "amended decisions
to be reviewed" set forth above. Its decision was formally
expressed thus:
"1. The Tribunal decides that it has jurisdiction to
review the decisions the subject of the application
for review. (emphaSis added)
2. The Tribunal reserves liberty to apply for directions
with respect to the further hearing and determination
of this matter."
In the reasons for the decision of the Administrative
Appeals Tribunal given on 29 October 1985 1t was stated
(paragraphs 17, 18 and 19):
"17. In the present case there are, in my view,
essentially three decisions embodied in the primary
decision that was reviewed before the SART:
(1) a decision that, un the light of the
circumstances which ultimately transpired, the
benefits in fact paid to the applicant in respect
of the period from 1 January to 30 June 1984
exceeded her entitlements by $726.28 (reduced on
reconsideration to $659.37);
(i1) a decision that an overpayment should therefore
be raised; and
(i121) a decision to make a demand for recovery of that
overpayment.
On the evidence before me, whether or not each of those
decisions was required by law to be made by an authorised
person, each of them was in fact taken by an authorised
person and each was in fact reconsidered by a senior
authorised person. Each of the decisions in turn was
canvassed before the SART, although in respect of the
third decision, the Tribunal declined to review the
question of recoverability on the ground that to do so
was beyond its proper review jurisdiction.
18, The first decision raises a mixed question of
entitlement and consequential quantification of that
entitlement. This is the only decision conceded by the
respondent to be within the Tribunal's review
jurisdiction. The basis for that concession, as I
understood it, was that the power to determine the
benefits payable to a student consequent upon the grant,
Variation, Suspension or termination of those benefits is
vested, by necessary implication, in authorised persons
(see, in particular, ss.10, 11, 31 and 33 of the Act and
Part III of the Regulations). Mr Brennan, of course, was
content to accept that concession although in his
submission 1t did not go far enough. For reasons that
will later appear, I am satisfied that the concession was
correct and find that the first decision is within the
Tribunal's review jurisdiction.
19, However, in Dr Flick's submission, the Tribunal's
review jurisdiction does not extend to any consequential
administrative decisions with respect to recovery that
may follow from any recalculation of benefit
entitlement. Thus the second and third decisions with
respect to raising and recovering the alleged overpayment
were excluded from review."
The Tribunal, however, after stating 1ts reasons
comprehensively, reached the conclusion that 1t had
jurisdiction to review all the three decisions which 1t had
identified as before it. After a further hearing before the
Tribunal, it decided that "the decision under review be
affirmed" (emphasis on the singular noun added). The
Tribunal's reasons for its conclusion canvassed a number of
legal propositions which, in view of the opinion I have
reached in respect of the appeal to this Court, I do not
consider it 1s necessary to traverse.
The right to seek a review by the AdminiStrative Appeals
Tribunal is conferred by s.30AB of the Act which provides
that "an application may be made to the Administrative
Appeals Tribunal for a review of a reviewable decision". It
is fundamental to the determination of the appeal to this
Court that review by the Administrative Appeals Tribunal is
confined to a "reviewable decision". I have stated above the
definition in the Act of "reviewable decision". For
completeness, I set out ss 25(1), (3) and (4) of the
Administrative Appeals Tribunal Act 1975 as follows:
"25 (1) An enactment may provide that applications may be
made to the Tribunal -
(a) for review of decisions made in the exercise of
powers conferred by that enactment; or
(3) Where an enactment makes provision in accordance
with sub-section (1), that enactment -
(a) shall specify the person or persons to whose
decisions the provision applies;
(b) may be expressed to apply to all decisions of a
person, or to a class of such decisions; and
(¢c) may specify conditions subject to which applications
may be made.
(4) The Tribunal has power to review any decision in
respect of which application 1s made to it under any
enactment,"
In my opinion, the only "reviewable decision" was the
first decision identified by the Administrative Appeals
Tribunal in paragraph 17 of the reasons for its decision
given on 29 October 1985, as set out above. Neither of the
Other two decisions identified in the same paragraph - that
1s, that an overpayment should be "raised" and that a demand
for recovery of that overpayment should be made - was a
"reviewable decision", In this respect I accept the primary
argument of counsel for the respondent. The latter two
decisions, assuming that any administrative decision
subsequent to the initial decision of the authorised person
amounted to the "raising" of an over- payment or a demand for
recovery of the overpayment, were not, on the undisputed
facts, "primary decisions" which had been affirmed by the
SART and therefore were not "reviewable decisions" for the
purposes of ss 30AA and 30AB of the Act. Neither of those
two decisions had been the subject of affirmation, variation
first decision, which I have said was, in my opinion, the
only "reviewable" decision, was contained in the orders
sought and thus expressed: "whether the amount alleged to be
recoverable overpayment was such". No argument was addressed
to the Court in respect of the actual amount of the alleged
overpayment.
After discussion before the Court concerning the precise
decision from which the series of reviews and the appeal
originated, counsel for the appellant informed the Court: "It
is that refusal to consider whether or not a payment 1s
recoverable at law which lies at the heart of our appeal
against the [decision of the] Deputy President". He further
Stated: "The decision which one is ultimately looking at 1s
the original decision of the authorised person".
In accordance with my conclusion, the essential basis of
the appeal, and the arguments submitted on behalf of the
appellant in support of 1t, were misconceived. For
completeness, I add that each of the decisions of the Full
Court of the Federal Court of Australia in Director-General
of Social Services v Hangan (1982-83) 45 ALR 23 and in
Director of Social Services v Hales (1982-83) 47 ALR 281 1s,
in my opinion, distinguishable. Each of such cases involved
the interpretation and application of s. 140(1) of the Social
Services Act 1947 (as reprinted) and the facts and relevant
statutory provisions in those cases cannot be equiparated to
those of the present appeal.
The result of my conclusion is that in determining the
appeal the Court should be concerned only with the initial
decision of the authorised officer. That decision followed
written advice by the appellant that the circumstances
relating to her full-time study had changed. The decision
was recorded on a single sheet, headed "file note", the full
text of which it is not practicable, because of the form of
1ts contents, to reproduce in these reasons. The first
paragraph states: "As income for the six months studied
exceeds $1000 the allowance will need to be recalculated".
There followed a series of arithmetical calculations. The
document ended with the words "overpaid $725.77", with a
figure of $726.28 1n parentheses and apparently in different
handwriting. The file note did not record any other
decision, recommendation or comment. In the factual
circumstances, I do not consider any of the conclusions
expressed in the reasons for judgment of the Full Court of
the Federal Court of Australia in Collector of Customs v
Lawlor (1979) 24 ALR 307 are relevant.
confined as it was to a record of what was considered by
an authorised officer of the respondent to be an overpayment
of a benefit under the Act, I am of the opinion that no basis
exists for disturbing the decision of the Administrative
Appeals Tribunal that the decision of the authorised officer
Should be affirmed. Furthermore, the claim by counsel for
the appellant that there was no power to reassess the alleged
overpayment lacks any substance in my view, particularly as
the assertion was linked in argument with the issue of the
respondent's power to recover such moneys.
The decision of the Full Court of the Federal Court of
Australia in Export Development Grants Board v_EMI
(Australia) Ltd (1985) 61 ALR 115 depended on facts and
statutory provisions which are clearly distinguishable from
those of the present case,
I would dismiss the appeal.
I certify that this and
the \7 preceding pages are
a true copy of the reasons
for judgment of his Honour
Mr Justice Everett
patea IX a4 (AR
ASsociate Ectoober us
Counsel for the applicant
Solicitors for the applicant
Counsel for the respondent
Solicitor for the respondent
Dates of hearing
oo
a
Mr J. Basten
Ms A. Durack, Welfare Rights
Centre (Canberra)
Mrs P. Flemming, Q.C. and
Mr A. Robertson
Australian Government
Solicitor
3, 4 November 1986