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Indigenous Law Bulletin

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Richardson, Joanna --- "Money and Study: Abstudy and the Right to Review" [1998] IndigLawB 37; (1998) 4(11) Indigenous Law Bulletin 15

Money and Study: Abstudy and the Right to Review

By Joanna Richardson

Whilst the provision of income support by the Federal Government to students over the last 25 years has been the subject of constant review and change, it is worthwhile comparing the rights of indigenous students with those of non–indigenous students, pursuant to the provisions of the Student And Youth Assistance Act 1973 (‘SYAA’).

Special financial assistance for indigenous students was first introduced in 1969, with the present scheme, Aboriginal Study Assistance Scheme (‘ABSTUDY’) implemented in 1988, with the aim of achieving ‘increased indigenous participation in key educational activities’, providing both income support and an incentive to study and to ‘promote equity of educational opportunity’. The present Government has said it is committed to attracting and retaining indigenous students, with ABSTUDY one of the ways it will address the special needs of indigenous students. This Scheme is presently the subject of review by the present Federal Government, however, and as a result of the 1997 Federal Budget there has been significant erosion of the benefits and support available to indigenous students and their dependants.

Unlike students in receipt of AUSTUDY, students who participate in ABSTUDY do not have access to the same right of external review of decisions that the same student would have if they were receiving AUSTUDY payments.

The Commonwealth Services Delivery Agency (‘Centrelink’), is an amalgam of delegated functions of the Department for Employment, Education, Training and Youth Affairs and the Department of Social Security. Decisions made by delegates of Centrelink, including decisions about the payment of AUSTUDY, and made pursuant to the provisions of the SYAA and the AUSTUDY Regulations, can be reviewed by the Social Security Appeals Tribunal (‘SSAT’) pursuant to s309(a) of the SYAA. That section provides that ‘all decisions of an officer under this Act relating to the AUSTUDY scheme’ are subject to external review, once the internal review process has been completed. This includes most decisions about qualification for and payability of allowances. Decisions about the raising and recovery of overpayments are included. This is a right of review frequently exercised by people who have been affected by decisions.

ABSTUDY does not exist pursuant to the provisions of the SYAA. It is a special scheme which comes under the control of the Minister for Schools, Vocational Education and Training. The manner in which the scheme operates is guided by the ABSTUDY Policy Guidelines Manual (‘PGM’), which in turn acknowledges that payment procedures and practices are, unless otherwise stated, to be carried out in accordance with the Audit Act 1901 and the Finance Regulations and Finance Directions of the Department of Finance.

Unlike decisions made by Centrelink delegates in relation to AUSTUDY, there is no right of external review through the SSAT of decisions made under the ABSTUDY Guidelines. This includes decisions about eligibility, rate of payment, period of payment, cancellation or rejection of claim, which can only be reviewed internally, and ultimately by the Minister. This is also true of decisions that a people have been overpaid an amount of ABSTUDY. If the payments were AUSTUDY, people could apply for review by the SSAT and subsequently the Administrative Appeals Tribunal and in appropriate cases, the Federal Court.

ABSTUDY recipients can only seek external review with respect to the decision to recover from them an overpayment, and exercise of the discretions contained in the SYAA to write–off (defer) or waive the right of the Commonwealth to seek recovery of an overpayment.

ABSTUDY Guideline 1.5.1.4. provides:

Provisions relating to overpayments and recovery matters, including delegations to waive or recover student assistance debts, are authorised under the Students and Youth Assistance Act 1973.

Section 309(c) SYAA provides that review to the SSAT lies in relation to:

all decisions of an officer under this Act relating to the recovery of amounts paid under a current or former special education assistance scheme.

But even this right of external review may be short lived. The Minister for Social Security commissioned a review of the Social Security Review and Appeals System by Dame Margaret Guilfoyle, which was finalised in August 1997. Apart from a number of significant recommendations about the operation, structure and ambit of the present external review system it was recommended at Recommendation 42 that:

Where a debt to the Commonwealth has been established under the Social Security Act 1991, or the Student and Youth Assistance Act 1973, the powers of the Secretary; to waive debts; to write off debts; to recover debts by instalments from a pensioner or beneficiary or a person not currently in receipt of payments should be non–reviewable and are to be included in section 1250 of the Social Security Act 1991 and the relevant section of the Student and Youth Assistance Act 1973.

Does this mean that indigenous people who seek ABSTUDY will have the only right to external review presently available removed from them? Will the decision that there has been an ABSTUDY overpayment be a decision under the SYAA? Or, will we be left with a completely anomalous situation where recipients of ABSTUDY have no right of external review with respect to all decisions but the recovery of debts, whilst all other recipients of AUSTUDY and payments under the Social Security Act 1991 will have the right to external review with respect to a significant range of decisions, but not the decision to recover a debt?

The present arrangements disadvantage indigenous people, as they are effectively excluded from the right to seek external review of administrative decisions. Consideration of the proportion of decisions with respect to AUSTUDY which are changed on review will show that administrators do not always get it right. People in receipt of AUSTUDY have their rights and obligations set out in legislation and the AUSTUDY Regulations made pursuant to the SYAA. There is no such legislative basis to ABSTUDY. There is no access to scrutiny of decision–making.

Furthermore, people who are affected by decisions with respect to ABSTUDY are not clearly and simply advised of the avenues of review which are available to them. It appears to be a haphazard process to have decisions reconsidered, and certainly all who have overpayments raised against them are not clearly advised of their right to have the decisions reconsidered by the SSAT.

Joanna Richardson is a Civil Solicitor with the Aboriginal Legal Rights Movement (SA) Inc.


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