s+. CATCHWORDS Education - Student Assistance Act 1973, s.10 - whether student enrolled at the University College of the Northern Territory proceeding to a B.A. (Q.) is undertaking a tertiary course at a University. ODYSSEUS GIPALIS (First applicant), THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA (Second applicant) v. KAREN SCHNIERER (Respondent) No. NTG 5 of 1987 Beaumont J. Darwin 9 July 1987. FEDERAL COURT OF = fy / AUSTRALIA ove FRINCIPAL eeu RCGISIAr ; / IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 5 of 1987 Reece ccna c ccc cere ccc ec enna EE EERE GENERAL DIVISION BETWEEN: ODYSSEUS GIPALIS First applicant AND: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second applicant AND: KAREN SCHNIERER Respondent JUDGE MAKING ORDER: BEAUMONT J. DATE MADE: 9 JULY 1987 WHERE MADE: DARWIN MINUTES OF ORDER THE COURT ORDERS: 1. Declare that, for the purposes of s.l1O of the Student Assistance Act 1973, the first applicant 1s undertaking a course of study that the Minister has determined is a tertiary course at an education institution, namely, The University of Queensland. 2. Reserve liberty to the first applicant to apply, on seven days' notice, for further relief :f so advised. 3. Order that the respondent pay the applicants' costs. Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 5 of 1987 GENERAL DIVISION BETWEEN: ODYSSEUS GIPALIS First applicant AND: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second applicant AND: KAREN SCHNIE RER Respondent CORAM: BEAUMONT J. DATED : 9 July 1987 REASONS FOR JUDGMENT The first applicant claims to be entitled to the grant of education assistance under the provisions of s.1O of the Student Assistance Act 1973 ("the Act") which, so far as relevant, are as follows: "An authorized person may, subject to and in accordance with the regulations, approve the grant of Education Assistance to a person who Is an Australian citizen or a permanent resident of Australia and is undertaking, or proposes to undertake, at an education institution a course of study....that the Minister has determined in writing is....a tertiary course for the purposes of this section...." An "education institution" 1s defined to include "a university" which, in turn, 1s defined to mean an educational institution in Australia that under the regulations, 1s to be treated as a university for the purposes of the Act. The regulations provide that, for the purposes of the Act, an educational institution in Australia that 1s a university for the purposes of the Commonwealth Tertiary Education Commission Act 1977, 1s to be treated as a university (Reg.29(4)). By that Act, a "university" means an institution specified in Schedule | to the statute (s.4(1)). In the schedule, a number of universities 15 specified. For instance, under the sub-heading "Queensland", The University of Queensland, James Cook University of North Queensland and Griffith University are mentioned. Under "Territories", only The Australian National University 1s specified. For reasons which will subsequently appear, the applicants accept that they can succeed here only if it 1s established that the first applicant, within the meaning of s.!O of the Act, 1s undertaking a course of study at The University of Queensland. Pursuant to s.lO of the Act, by a determination made on 23 December 1986, operative from | January 1987, the Minister determined that, included in tertiary courses for the purposes of that provision 1s - "(a) a course that 1s conducted by a university...and that 1s - (1) an undergraduate bachelor degree course..." Again, It 1s accepted by the applicants that they cannot succeed here unless the provisions of this determination are satisfied. The first applicant has enrolled as a full time student at the University College of the Northern Territory ("the College"). However, he 1s undertaking the degree course of Bachelor of Arts, the degree being offered by The University of Queensland ("the University") in circumstances which will appear later. The College 1s established by the University College of the Northern Territory Act 1985 (N.T.). Amongst its functions are - ""(a) to provide undergraduate education... (b) to co-operate with....universities...., whether in the Territory or elsewhere, in relation to such education...." (s.5). The College Council 1s to include two persons nominated by the University (s.10(1)(d)).. The Council may cause instruction to be given to students for the purpose of completing the requirements for a degree or other award of any university with which the Northern Territory or the Council has made an agreement (see s.21). By agreement made on 2nd December 1985 between the University, the Northern Territory of Australia and the University Planning Authority, a body corporate established by the University (Interim Arrangements) Act 1980 (N.T.) 1t was agreed that the Territory would establish the College which in the calendar years [987-199] will prepare students for the University degrees of Bachelor of Arts and Bachelor of Science and certain other degrees (Art. 2). The University 1s to monitor the teaching of courses for its degrees and to provide opportunity in Brisbane and Darwin for contact between University and College staff (Art. 3.1). The University will assist in the framing of conditions for the appointment of College staff (Art. 3.4). The University will supply for use in the College teaching material and wil! collaborate with College staff in this regard (Art. 3.5). ©The University will assist in providing programmes in defined fields of study (Art. 4.1). A student who fulfils all requirements of the University degree and other rules will be awarded a degree of the University, endorsed to show that it was obtained through study at the College (Art. 7). The minimum level to qualify for admission to the College by Year 12 students will be determined by the Vice-Chancellor of the University after consideration of the aggregate score necessary to qualify for admission to the Universities in South Australia and Queensland (Art.8.1). From 1987 all University external students resident in the Northern Territory will be enrolled through the College (Art. 12). A recommendation for appointment of staff at lecturer and above must be approved by the VicesChancellor of the University and the Warden of the College (Art. 17). The University and the Territory will provide the services described in this agreement from its commencement until 31 December 1991. The University will consider an extension of the agreement, if invited to do so (Art. 30). The University 1s constituted by the University of Queensland Act 1965 (Q.) (s.5). Although provision is made in Part IV of that Act for the establishment of untversity colleges, it 1s not suggested that the college was established under this Act. The Senate of the University is its governing body and it has full powers of management of the affairs of the University (s.H). The Senate may from time to time make Statutes for the management of the University, including the powers to make Statutes with respect to the granting of degrees (s.34(1)). By Statute No. 16 the Senate may confer degrees of Bachelor and may make rules for the award thereof (s.1). It 1s common ground that the course being undertaken by the first applicant ts substantially the same as the course which would be undertaken by a student undertaking a Bachelor of Arts degree on the campus of the University. Consistently with this, 1t 1s also common ground that the courses offered on the Brisbane and Darwin campuses are provided by different teachers and are not identical in content. It 1s also common ground that the first applicant 1s enrolled as a student to the College and is not enrolled as a student of the University. The procedure contemplated by the agreement made with the University was implemented in the case of the first applicant. In the u first place, he signed an "application for admission form to the College. He was asked to indicate the course for which admission was sought as follows: "8. Course for which admission its sought in 1987: 8.1 Undergraduate At the UniversityCollege, Darwin: B.A. [| Full-time [I or B. se] Part-time i] As an external student with the University of Queensland: B.A. Fy B. Comm. CI B. Ec(—] B.Ed. Cl " By virtue of the decision of the Vice-Chancellor of the University, the application of the first applicant was accepted. He thereafter completed an enrolment form addressed to the College but indicated that he was enrolling in the course of Bachelor of Arts. It 1s common ground that the first applicant 1s a candidate for the degree of Bachelor of Arts of the University and that if he fulfils the requirements of that University he will be awarded that degree by the University. That 1s to say, it 1s not suggested that the degree which would be awarded 1s a College degree. By application made in February 1987, the first applicant sought a tertiary allowance pursuant to s.lO of the Act. By letter dated 24 April 1987 a director of the Department of Education informed the first applicant that he was not entitled to receive assistance under the Act because the Institution at which he 1s studying does not meet the definition of "an education institution" as expressed in the legislation. The respondent is "an authorised person" for the purposes of s.lO of the Act. In her affidavit sworn in these proceedings it was explained that she could not approve a grant of assistance to the first applicant because the view was taken that he was undertaking a course at the College and the College 1s not, under the regulations, to be treated as a university for the purposes of the Act. On behalf of the respondent, it 1s submitted that both in form and 1n substance, the first applicant 1s undertaking a course at the College. It follows, the argument runs, that he ts not undertaking a course at the University. Nor, it 1s said, ts his course one that is "conducted by" the University for the purposes of the Ministerial determination. It may be accepted, for the purposes of the argument, that a literal approach to the interpretation of s.1O could yield that result. If so, then, in my opinion, such a literal result should, as a matter of the ordinary processes of statutory construction, be rejected. It should, in my view, be rejected in favour of an interpretation which eliminates the absurd and irrational consequences which would otherwise flow from a literal application of the words used. In my opinion, a "purposive" construction, which reflects the underlying policy of the Act,should be adopted. (See Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297 per Mason and Wilson JJ. at pp.319-321). 7. It should be kept steadily in mind that the underlying philosophy of the Act, so far as presently relevant, 1s to provide assistance to students proceeding to a tertiary degree awarded by one of our established universities. The matter ts to be considered from the perspective of the student in the context of the particular tertiary course he is undertaking. It should be presumed that such legislation was intended to be construed beneficially from the standpoint of the student; and it should not be presumed that anomolies were intended in the operation of the Act. If the respondent's contentions were correct, a serious anomoly would occur. For instance, a student on the Darwin campus proceeding to a B.A. (Q.), as in the case of the first applicant, would be denied the allowance. Yet a student on the Brisbane campus proceeding to the same degree and doing the same course would receive the grant. It is difficult to imagine that the Parliament intended that the legislation produce such an inequitable result. Instead, in my opinion, s.lO was intended to pick up an undergraduate degree course offered by the College and the University as a joint, Co-operative enterprise in which a candidate, as in the case of the first applicant, proceeds towards a Bachelor of Arts degree awarded by the University. It 1s true that the necessary infrastructure on the Darwin campus ts provided by the College;and that the College and the University are separate institutions. On the other hand, the University 1s actively involved in the academic services provided to students. It monitors the standard of those services. In conjunction with the College, :t assesses and examines the students. Most important, It is the degree of the University which is awarded. It is quite artificial to suggest, as the respondent's argument must, that it 1s possible to separate the course A ee ~~ nase & from the degree. There is no question here of any honorary degree. The course and the degree go hand in hand. In truth, both the course and the degree are those of the University provided in co-operation with the College and through the medium of its infrastructure. In this sense, both the course and the degree may accurately be characterised as provided by the University. Nor 1s it any disqualification of the first applicant that he 1s not studying on the University campus at Brisbane. It 1s accepted that external students may qualify under s.lO. It follows, in my view, that it would be accurate to describe the first applicant as a student undertaking a course of study, 1.e. a Bachelor of Arts course, at the University. In my view, he qualifies as a person entitled to receive a grant under s.lO. I propose to grant declaratory relief accordingly. I hereby certify that this and the preceding seven (7) pages are a true copy of the judgment of his Honour Mr. Justice Beaumont freohh, /7 flbuse HW Slusen sociate to Beaumont J. Dated: 9 July 1987 Course! and Solicitors for Applicants: R.A. Conti Q.C. with G. Nicholson instructed by Northern Territory Department of Law. Couns«¢/ and Solicitors for D. Grieve Q.C. with T. Riley Respondent: instructed by Australian Government Solicitor Dates of Hearing: 8 and 9 July 1987 Date of Judgment: 9 July 1987