FEDERAL COURT OF AUSTRALIA Layt v Secretary, Department of Family & Community Services [2003] FCA 317 SOCIAL WELFARE – whether entitled to Austudy – whether a Juris Doctor of Law is a tertiary course under Student Assistance Act 1973 (Cth) – whether graduate degree is a master's or doctoral degree – whether the Administrative Appeals Tribunal erred in law – whether error of law. Social Security Act 1991 (Cth) s 568, 569, 569A, 569B Student Assistance Act 1973 (Cth) s 3(1), 5D(1) University of Queensland Act 1998 (Qld) s 8 ANDREA LAYT v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Q 137 OF 2002 DOWSETT J 11 APRIL 2003 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 137 OF 2002 BETWEEN: ANDREA LAYT APPLICANT AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT JUDGE: Dowsett J DATE OF ORDER: 11 APRIL 2003 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 137 OF 2002 BETWEEN: ANDREA LAYT APPLICANT AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT JUDGE: Dowsett J DATE: 11 APRIL 2003 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The applicant, who holds the degree of bachelor of arts, is undertaking studies in a course leading to the degree of Juris Doctor ("JD") at the University of Queensland (the "University"). On 12 October 2001 a delegate of the respondent determined that the applicant was not entitled to further Austudy payments. That decision was based upon the delegate's view as to the nature of the JD course. Ms Tania Lacy is in a similar position, save that the decision as to her entitlement was made on 28 June 2001. Each woman sought review of the relevant decision in the Social Security Appeals Tribunal (the "SSAT"). The SSAT affirmed the decision concerning Ms Lacy but reversed that concerning Ms Layt. Ms Lacy applied for review of that decision in the Administrative Appeals Tribunal (the "Tribunal"). The respondent sought review of the decision concerning Ms Layt. The former decision was affirmed by the Tribunal; that concerning Ms Layt was set aside. Both women appealed to this Court. Ms Lacy has abandoned her appeal. Unfortunately, Ms Layt's appeal record was prepared upon the basis that much of the relevant material would be before the Court in Ms Lacy's record. It is therefore necessary to refer to both records. 2 The relevant circumstances are quite complex. To be entitled to Austudy a person must, pursuant to s 568 of the Social Security Act 1991 (Cth) (the "Social Security Act") satisfy the "activity test". Pursuant to s 569 a person will satisfy that test if he or she is "undertaking qualifying study". Section 569A provides that a person is "undertaking qualifying study" if he or she is enrolled at an educational institution in an "approved course of education or study". Section 569B defines that term to mean "… a course that the Employment Minister has determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act." Subsection 5D(1) of that Act (the "Student Assistance Act") provides: The Minister may, for the purposes of this Act, determine in writing that: (a) a course of study or instruction is a secondary course, or a tertiary course; or (b) a part of a course of study or instruction is a part of a secondary course, or a part of a tertiary course. 3 The Minister has made such a determination. It is Determination No 1999/2 (the "determination"), purportedly made pursuant to subss 3(1) and 5D(1) of the Student Assistance Act. In cl 4 thereof, the term "accredited higher education course" is defined to mean: … a course that is: (a) accredited as a higher education course by the authority responsible for the accreditation of higher education courses in the State or Territory in which the course is conducted; or (b) if a higher education institution is authorised by a law of the Commonwealth or a law of the State or Territory in which the institution is located to accredit its own higher education courses - a course conducted and accredited as a higher education course by that institution. 4 I understand it to be common ground that for the purposes of the clause, the University of Queensland is both a higher education institution and authorized to accredit its own higher education courses. It is also common ground that the JD course is an "accredited higher education course". However there may be some dispute as to the way in which it was accredited and the exact subject matter of such accreditation. Clause 7 of the determination provides: (1) For the purposes of the Act, a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course. (2) For the purposes of the Act, no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2. 5 Schedule 2 identifies categories of courses rather than courses. Two of those categories are presently relevant. They are: Undergraduate or postgraduate accredited higher education course that is an associate degree, associate diploma, diploma, advanced diploma, Bachelor degree, graduate degree, graduate certificate, graduate diploma, a NBCOTP funded course, a Master's qualifying course or a combined course which leads to two of these awards and is classified as such in the institution's handbook and is not: ® a secondary course specified in Schedule 1; or ® a Masters or Doctoral degree unless otherwise specified in Schedule 2. … Integrated undergraduate/postgraduate course leading to a Masters degree, excluding that year or years of the integrated course in excess of the normal full-time duration of the related undergraduate accredited higher education course or related undergraduate and postgraduate accredited higher education courses that are not at the Masters level. (That is, excluding the year or years relating to study at the Masters level). 6 I will refer to these categories respectively as the "first category" and the "second category". The second category describes an "(i)ntegrated undergraduate/postgraduate course leading to a Masters degree", the undergraduate part of which will be a tertiary course for the purposes of subclause 7(1). However that part which is attributable to the master's degree, going beyond the normal content of an undergraduate course, will not be such a course. This suggests an intention to classify as a tertiary course, only courses conducted at undergraduate level, and not courses conducted at postgraduate level, leading to Masters' degrees. The applicant submits that the JD course is a graduate degree within the first category and that she is therefore entitled to Austudy payments. The term "graduate degree" is apparently used to describe the prior level of educational achievement of eligible candidates for admission to a course rather than the course content. The respondent submits that the JD is a master's degree or perhaps, a doctoral degree and that the JD course therefore cannot be a tertiary course within the first category. One might, at first blush, have expected that a course leading to a degree which includes the word "doctor" would be a doctoral degree and that such a course could not be a master's degree course. Both issues are more complex, at least partly because the JD course, when first offered, led to the degree of Master of Legal Science. The relevant history is discussed below. 7 The determination refers to a "Masters or Doctoral degree" as if such a degree were easily recognizable as such, regardless of the institution offering it. In other words, it seems to be assumed that there is a common understanding as to the precise academic significance of such a degree. The evidence suggests some justification for such an assumption. The Tribunal had before it a document described as "Australian Qualifications Framework" issued by direction of the Commonwealth, State and Territory Education and Training Ministers. It prescribes a twelve-level framework of qualifications, commencing with what is described as the "Senior Secondary Certificate of Education" and ending with a doctoral degree. It is necessary for present purposes only to deal with those levels which are relevant to tertiary education as described in certain amendments made in 2001 to the original framework. They are: ® bachelor's degree; ® graduate certificate; ® graduate diploma; ® master's degree; and ® doctoral degree. 8 A bachelor's degree is said to evidence the following characteristics: ® the acquisition of a systematic and coherent body of knowledge, the underlying principles and concepts, and the associated communication and problem-solving skills; ® development of the academic skills and attributes necessary to undertake research, comprehend and evaluate new information, concepts and evidence from a range of sources; ® development of the ability to review, consolidate, extend and apply the knowledge and techniques learnt, including in a professional context; ® a foundation for self-directed and lifelong learning; and ® interpersonal and teamwork skills appropriate to employment and/or further study. A course leading to this qualification also usually involves major studies in which a significant literature is available. Course content is taken to a significant depth and progressively developed to a high level which provides a basis for postgraduate study and professional careers. 9 Entry to a bachelor's degree course is by way of the Senior Secondary Certificate of Education, a sub-degree diploma or other undergraduate study. 10 The next level includes graduate certificates and graduate diplomas. They are: … generally designed for specific vocational purposes, either the broadening of skills and knowledge already gained in an undergraduate program, or vocational skills and knowledge in a new professional area. They typically follow a Bachelor degree or Advanced Diploma and may also be accessed in part by recognition of prior learning. Relevant courses normally involve six or twelve months of full-time study. 11 The next level is the master's degree of which it is said that: Characteristics of learning outcomes at this level include the mastery or overview of the relevant field of study or area of professional practice and the emphasis may range from the acquisition or enhancement of specific professional or vocational skills and knowledge, usually undertaken in a combination of coursework and research, through to the acquisition of in-depth understanding in a specific area of knowledge which is usually undertaken through research. A graduate of a Master's degree program is able to: ® provide appropriate evidence of advanced knowledge about a specialist body of theoretical and applied topics; ® demonstrate a high order of skill in analysis, critical evaluation and/or professional application through the planning and execution of project work or a piece of scholarship or research; and ® demonstrate creativity and flexibility in the application of knowledge and skills to new situations, to solve complex problems and to think rigorously and independently. 12 There is a "range of entry pathways" to a masters degree with entry "… based on evidence of a capacity to undertake higher degree studies in the proposed field." Typical programmes include: ® coursework master's degree programmes; ® research master's degree programmes; and ® professional master's degree programmes. 13 A coursework master's degree programme will comprise: … coursework, project work and research in varying combinations (with entry) from a Bachelor degree, a Bachelor Honours degree or a Graduate Diploma. 14 A doctoral degree is characterized by: … learning outcomes (which) include a substantial original contribution to knowledge in the form of new knowledge or significant and original adaptation, application and interpretation of existing knowledge. These characteristics of learning outcomes may be based on a comprehensive and searching review of the literature, experimentation, creative work with exegesis or other systematic approach may be based on advanced, searching and expansive critical reflection on professional theory and practice. 15 The holder of such a degree should be able to: carry out an original research project, or a project(s) addressing a matter of substance concerning practice in a profession at a high level of originality and quality; and present a substantial and well-ordered dissertation … . 16 This material was not referred to by the Tribunal in its reasons. 17 In the University Handbook for 2002 the JD is described as follows: The program aims to equip students with frameworks, concepts, knowledge and skills integral to legal practice together with appropriate professional values and a professional attitude towards learning. … Graduates will possess knowledge of legal principles and doctrines which will give them skills in - ® practical problem-solving; ® factual analysis; ® understanding between proof and evidence; and ® presenting and sustaining a legal argument, both verbally and in writing, using and applying the law. 18 A student is required to undertake forty-eight units, including thirty-six from "compulsory courses in the JD list" and twelve elective units to be taken from "LAWS 7 courses". The "JD list" follows. It contains both compulsory and elective courses, probably reflecting the distinction between compulsory and elective units referred to above. The JD rules deal with credits for previous study, providing that "Credit will only be granted for postgraduate courses which the executive dean decides are comparable to courses in the JD list." In another publication described as "Postgraduate Law" the JD degree course is described as follows: This program is specifically designed for graduates seeking legal professional admission. The program comprises the academic qualifications required for admission but also offers flexibility in the choice of elective courses. The program is attractive to graduates because it offers small group interactive teaching in all core courses, incorporates advocacy, clinical and research skills in the teaching program and assessment methods which reflect the program's graduate status. The final year of the program may be completed concurrently with the Graduate Diploma in Professional Legal Education and Training (PLEAT) allowing graduation and admission as a solicitor almost simultaneously. 19 The entry requirement is a non-law tertiary qualification. The JD course is said to lead to further study in various masters' courses and for the degree of Doctor of Philosophy. Another publication specific to the JD degree states that: The JD has been well received and accepted by all branches of the legal community as a graduate law program which prepares graduates for the rigours of practice in an increasingly complex and competitive environment. … The JD is recognised as a graduate law qualification nationally and internationally. The Law School has a commitment of ensuring that the JD has excellence in academic integrity by integrating a comprehensive, professional curriculum with clinical, research and advocacy skills. … The JD curriculum includes all 'areas of knowledge' required for legal professional admission in Queensland and Australia. These 'areas of knowledge' are incorporated into the core courses of the curriculum. The curriculum reflects its graduate status and has the following features: ® includes six elective courses which may be of personal or professional interest ® includes clinical, research and advocacy skills in all core courses ® includes flexible assessment arrangements. 20 In the body of the brochure it is said that the JD programme has been designed specifically for graduates and that only graduates are accepted into the programme. It seems that the course is open to non-legal graduates from any tertiary institution in any discipline, law graduates from any "civil law jurisdiction" and law graduates from "any overseas common law jurisdiction". In other words, all graduates, other than graduates in law from Australian universities, are included. Clearly the course is being marketed as a course to be undertaken by graduates in other disciplines and overseas graduates in law who wish to practise law in Australia. In effect the applicant's argument is that the Court should accept this view of the course and infer that it is a graduate degree course offered at undergraduate level and not a master's degree course. Had this matter involved a dispute between the University and a student, the former may well have been bound by the various documents to which I have referred. They are presumably public, or at least available to potential students. However the current proceedings are between a student and the respondent. The respondent is not bound by the conduct of the University. Further, the determination refers to accredited courses, not to courses as offered. The question is whether or not the JD course, as accredited by the University, is a master's or doctoral degree course. 21 Professor O'Connor, the President of the Academic Board of the University, said, in a letter dated 26 March 2002: 1. The Senate of the University of Queensland formally approves programs and their associated rules on the recommendation of the Academic Board. Proposals are first considered by the relevant Board committees - the Academic Programs and Policy Committee (APPC) and the Academic Programs Review Committee (APRC). 2. On 27 July 1998, APPC gave in principle approval for the introduction of Master of Legal Science, subject to appropriate assurances that courses were to be at postgraduate level, and that the courses were taught separately from undergraduate courses. These assurances were given and the program was considered by APRC on 31 July 1998, and subsequently approved by the Academic Board and Senate. The program was explicitly approved as a Masters' level program. 3. No substantive changes were made when the program was renamed Juris Doctor. Academic Board approved the changed nomenclature on 31 January 2000. This change was subsequently approved by Senate. 4. The Juris Doctor has not been reaccredited at a different level. In his submission to the APPC, Professor Ian Zimmer, Executive Dean of the Faculty, stated "it should be stressed that the request is not for a new degree, it is merely asking for a change of name". 22 Pursuant to s 8 of the University of Queensland Act 1998 (Qld), the Senate is the ultimate governing body of the University. There is nothing surprising about the proposition that the Senate should be the appropriate approving body, nor in the organizational arrangements involving the Academic Board and its committees. In the absence of any evidence to the contrary there was no reason to reject this evidence. It was accepted. 23 The relevant minutes of the meeting of the Academic Board at which the change of name was approved record the history of the JD course as follows: E. Faculty of Business, Economics and Law - Master of Legal Science - change of nomenclature At its 23 March 1998 meeting, APPC had considered a proposal from the Faculty of Business, Economics and Law to establish a Graduate Degree in Law - Juris Doctor (JD). The Committee had resolved to recommend that the Faculty's proposal be not approved and had referred its concerns, including concerns about the degree nomenclature Juris Doctor, back to the Faculty. APPC had considered a revised proposal from the Faculty for the introduction of a Graduate Degree in Law - Magister Juris at its 27 July 1998 meeting. The proposal had arisen as a result of comments raised at the meeting of 23 March 1998. At the July 1998 meeting the Committee had resolved: '(a) that the proposal to introduce a graduate degree in Law be supported with the following caveats: 1. Assurance that the Schedule of subjects proposed would consist of postgraduate level subjects or subjects taught at postgraduate level; 2. English nomenclature to replace Magister Juris; and 3. Confirmation of the Executive Dean's support for the proposal. (subsequent to the meeting, the Executive Dean had advised the Chairperson that he endorsed the proposal before the Committee and, at the Executive Dean's request, the Head of the School of Law had confirmed that the nomenclature Master of Legal Science would be an acceptable substitute).' At the APPC meeting of 13 December 1999, the Faculty of Business, Economics and Law had requested that APPC reconsider the issue in light of an initiative from Melbourne University to market virtually the same degree (Master of Legal Science) under the Juris Doctor (JD) title from 2000. The Faculty had advised that the current restriction on the degree title would appear to be placing the Law School at a marketing disadvantage compared with the School of Law at Melbourne University, another Universitas 21 partner. The Head of the TC Beirne School of Law, Professor Tarr, had consulted with current Master of Legal Science students and stated that they were unanimous in their support of the redesignation of the degree as a Juris Doctor (JD). The Executive Dean of the Faculty stated that many lawyers were trained through a virtually identical degree (ie a three year postgraduate program) termed Juris Doctor (JD) even though it was not recognised as a 'doctorate'. The Committee noted that the term 'Juris Doctor' was widely recognised in the legal profession. The Committee noted that some details would require clarification. Publicity and course materials should make it clear that the Juris Doctor course was not a professional doctorate and graduates would therefore not be entitled to use the title of 'Doctor'. Academic Board resolved to recommend that - the Master of Legal Studies be renamed Juris Doctor effective from the date of Senate approval. This recommendation of the Academic Board was, according to Professor O'Connor, subsequently adopted by the Senate. 24 The evidence suggests that the requirement in par 2 of Professor O'Connor's letter and in the minutes, that the JD courses be taught separately from undergraduate courses, has not always been observed. JD students, unable to attend lectures offered in connection with that course, have been permitted to attend equivalent undergraduate lectures. Nevertheless, it appears from a letter dated 26 September 2001 from an officer of the University, that: All (JD) courses are taught and coded as '7' - coursework masters subjects. The degree was approved by the University's Senate on that basis. 25 The identifying numbers of subjects prescribed for the JD course all commence with the figure "7". An available inference is that the figure is indicative of the level at which each such subject is taught. This is consistent with the approach taken by the Academic Board in approving the original master's degree course as described by Professor O'Connor. There is other evidence suggesting that "level 7" courses are taught at a higher level than other courses. See the document headed "Postgraduate Coursework Nomenclature and Structure", especially at par 4.2. It seems that there are also "level 8" subjects. See par 4.3. There was evidence from Law School staff which suggested that the JD course was not a master's course. The then Head of the Law School, Professor Tarr, said that the course was more akin to a " 'conversion' Master's degree", whatever that may mean. The applicant submitted that "the only correct approach … is to examine the way in which the JD is classified in the institution's handbook." This argument necessarily assumes that the handbook speaks authoritatively even where it departs from decisions of the Senate as the ultimate governing body of the University and as the body responsible for course accreditation. The submission is clearly untenable. In the end the Tribunal acted upon Professor O'Connor's views. 26 The status of the JD course for present purposes is complicated by the absence from the determination of any indication as to the meaning of the words, "Masters or Doctoral degree". The reference to a master's degree suggests a degree awarded after a course taught at postgraduate level. The reference to a doctoral degree suggests a degree awarded for postgraduate work, conducted at a higher level than a master's degree course. These views are based partly upon the evidence and partly upon common knowledge. The JD course, as accredited, seems to be a master's level course, leading to the degree of JD, which degree is to be distinguished from other doctoral degrees which permit the holder to use the title "doctor". 27 Whether or not a course is a master's or doctoral degree course is a question of fact. Relevant considerations might include the name of the degree to be awarded after successful completion of the course, the level at which the course is taught and the prerequisites for student admission. Initially, the JD course led to a master's degree, was taught at postgraduate level and was open only to graduates, suggesting that it was a master's degree course. At least, that was an available inference. The applicant argued that the renaming of the degree may have affected the question. However the course remains unchanged, save for the name. The Academic Board and Senate clearly intended that the course, as originally approved, should be taught at a higher level than are undergraduate courses, and therefore lead to a higher degree. The change of name makes it difficult to describe the JD course as a master's degree course, but it remains a course taught at a higher level than an undergraduate course. It seems that the present title of the degree was thought to be more, rather than less prestigious as compared to that of master or bachelor. The question is whether the title of the degree awarded following successful completion of the JD course is ultimately determinative of its status for the purposes of the determination. 28 My examination of the facts of the case should not be taken as indicating any desire to revisit the merits. The only relevant issue is whether the Tribunal erred in law. The so-called errors of law raised in the notice of appeal are that: ® the finding that the JD degree was not an approved course of education or study failed to have sufficient regard to the determination; ® the finding involved an error of law in that it was based upon an erroneous interpretation of the intention and/or application of the relevant provisions of the Social Security Act and the Student Assistance Act; and ® the Tribunal took account of irrelevant considerations, namely the minutes of the relevant Academic Board committee and the opinion of Professor O'Connor. 29 Clearly enough, these so-called grounds are little more than attempts to dress-up factual issues as questions of law. No serious argument was advanced concerning the interpretation of any relevant legislation, nor was there any real suggestion that the Tribunal had failed to give sufficient regard to the determination. As to the third ground, once it is accepted that the Senate was the appropriate accrediting authority, the importance of the recommendations upon which it acted is obvious. The only question of construction concerns the meaning of the expression "Masters or Doctoral degree" in the exclusory clause of the first category. It obviously describes degrees which are postgraduate and undertaken at a higher level than undergraduate degrees. Whilst it is arguable that the focus is on established nomenclature, it is more likely that its focus is on course content and the level at which the course is to be conducted. The second category clearly demonstrates this intention. I prefer to treat the reference to a master's or doctoral degree as describing by example the courses to be excluded from the first category, namely those offered to graduates, taught at a higher level and leading to a "higher" degree. The JD course is such a course. The Tribunal's conclusion was fairly open on the evidence. There is no demonstrated error of law inherent in that conclusion. 30 The appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 11 April 2003 Counsel for the Applicant: Mr B H P Mumford Solicitor for the Applicant: Welfare Rights Centre Counsel for the Respondent: Mr D Rangiah Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 March 2003 Date of Judgment: 11 April 2003