Barrett and Secretary, Department of Social Services (Social services second review)

[2023] AATA 2194

Barrett and Secretary, Department of Social Services (Social services second review) [2023] AATA 2194 (25 July 2023)

Division:                  GENERAL DIVISION

File Number:          2021/8000

Re:Keith Barrett

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:25 July 2023

Place:Sydney

The reviewable decision dated 13 October 2021 is affirmed.

...............................[sgd].......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – Commonwealth Seniors Health Card – whether the applicant’s CSHC should be cancelled – public health order related to COVID-19 prevented return to Australia before end of period of 19 weeks – whether the applicant is qualified for energy supplement and economic support payments – reviewable decision affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999

Commonwealth of Australia Constitution Act (Cth)

Social Security Act 1991 (Cth)

Social Security Administration Act 1999 (Cth)

CASES

Addy v Commissioner of Taxation [2021] HCA 34

Curnow v Goodstart Early Learning (2022) FWC 1234

Falconer v Commissioner of Police (No.4) (2022) WASC271

Kimber v. Sapphire Coast Community Aged Care Ltd (2021) FWCFB 6015

Palmer v Western Australia (2021) HCA 5

Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited (2022) FWC 92

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

25 July 2023

Introduction

1. The Applicant, Mr Barrett, is seeking to have the cancellation of his Commonwealth Senior Health Card (CSHC) set aside. It was cancelled from 28 June 2020 pursuant to section 86 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) because he was overseas for more than 19 weeks, the maximum non-cancellation period under section 1061ZUB of the Social Security Act 1991 (Cth) (the SSAct). Consequently, he did not receive his quarterly Energy Supplement or the 2020 Economic Support payment which were payable after 28 June 2020.   

2. Mr Barrett departed Australia on 16 February 2020 for the Philippines, intending to return on 9 May 2020. In March 2020 the Australian Government issued a public health order (the Order) which had the effect of shutting Australia’s borders. Mr Barrett’s return flight was cancelled. He did not return until 7 December 2020. 

3. The reviewable decision was made on 13 October 2021, with the effect of affirming cancellation of the CSHC and consequently non-payment of the quarterly Energy Supplement and the 2020 Economic Support payment.

4. In summary, Mr Barrett submitted that for both legal and ethical reasons, justice would be best served by him being put back into the position that he would have been in had he been allowed to return to Australia on 9 May 2020.

   Mr Barrett’s circumstances in the Philippines and on return to Australia

5. Mr Barrett submitted that the Order placed thousands of Australian citizens into a temporary indeterminate exile. He suffered a great deal of mental distress as a result of nine months of being in a foreign country where COVID-19 was rampant and the medical and hospital resources were grossly inadequate. A number of hospitals in Manila had to close to new patients.

6. Mr Barrett lived in constant fear that he if he had to go to hospital to be treated for any illness or accident, he would probably not come out alive. This was a fear not faced by Australians in Australia and not acknowledged by the Prime Minister, who had said that citizens stranded overseas were required to make the sacrifice of remaining overseas, to keep Australians in Australia safe.  

7. He also incurred significant additional living expenses and inconvenience.

8. He wrote to the Department on 19 July 2020, during his ‘enforced absence in Manila’ advising of his situation and requesting that his card not be cancelled and that his quarterly Energy Supplement and the 2020 Economic Support Payment, to which he was entitled, be paid, and that his CSHC be reissued on expiry in September 2020. His request was ignored.

9. On 8 December 2020, during his mandatory hotel quarantine in Sydney, Mr Barrett contacted the Department again by phone. He had a call reference. The call lasted 107 minutes. The officer informed Mr Barrett that his card had been cancelled on 28 June 2020, offered to lodge an appeal, took down relevant details, and provided Mr Barrett with the appeal reference number. The officer advised Mr Barrett that the appeal would take some months to process and to lodge a new application for a CSHC.

10. On 20 January 2021, Mr Barrett contacted the Department again and spoke with another officer who informed him that there was no record on his file of any outstanding appeal and the appeal reference number he had been given did not exist.

11. On 21 January 2021, Mr Barrett lodged an application for a CSHC which he received on 7 March 2021. The expiry date was 30 September 2021, not 12 months hence, suggesting to him that the card was not a new card but a continuation of the card which had been cancelled.

    Relevant legislation

12. Section 1061ZUB of the SS Act is entitled ‘Non-cancellation of concession cards for temporary overseas absences’. It provides:

    (1)  Throughout the persons maximum non-cancellation period (see subsection (3)), the person’s qualification for the concession card is not affected merely by the absence.

    …

    (2A) For a concession card that is a seniors health card, throughout so much (if any) of the period of absence as occurs after the end of the period of 19 weeks, beginning on the day the person leaves Australia, the person is not qualified for the concession card.

    (3)For the purposes of subsection (1), a person’s maximum non-cancellation period is the shorter of the following periods:

    (a) The person’s period of absence;

    (b) The following:

    …

    (ii)        for a concession card that is a seniors health card – the period of 19 weeks beginning on the day the person leaves Australia.  

13. Section 86 of the Administration Act relevantly provides:

    If the Secretary is satisfied that a person to whom a concession card has been granted is not qualified for the card, the Secretary is to determine that the card is to be cancelled.

    Mr Barrett’s contentions

14. Following are Mr Barrett’s contentions as I have distilled them from the documentation he provided and discussion during the hearing, and my consideration of each.

    Contention 1 - Inconsistency

15. Section 1061ZUB of the SS Act and other similar provisions of the SS Act and the A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act) necessarily presuppose that payment recipients and concession card holders have the freedom to choose whether or not to arrange their overseas travel so as to comply with the maximum portability period.

16. The Order prevented social security and family tax recipients and concession card holders from making that choice. They were prevented from complying with the portability period limits. It therefore voided the portability provisions of the legislation and the Secretary’s power to cancel payments and benefits and CSHCs on that basis.

17. Since Palmer v Western Australia (2021) HCA 5 (Palmer), the law is that public health orders, if ‘justified by a legitimate end’ over-rides section 92 of the Australian Constitution, legislation in general, and section 1061ZUB of the SS Act in particular.

18. Mr Barrett specifically made ‘no assertion that the circumstances of the Palmer case are in any way similar to this case’. Rather, it had established the above principle.

19. The High Court set a precedent which has been universally accepted as being applicable to the Constitution, international humanitarian law, and all State and Federal legislation in so far as where the application of a public health order in relation to COVID-19 conflicts with a legislative provision, the public health order will take precedence over the legislative provision thereby rendering the conflicting provision void.

20. The Order had the effect of closing Australia’s international borders, which prevented Australians complying with certain provisions of section 1061 of the Act and Section 24 of the FA Act. It ’was justified by a legitimate end such as protecting the public from COVID-19’, as held by the High Court and therefore takes precedence over those provisions and has the effect of overruling them and rendering them void.

21. Mr Barrett also referred to a number of unfair dismissal cases where he claimed an employee had been dismissed because they were not vaccinated against COVID-19.[1] The employer was held to have acted lawfully because it had no choice but to comply with a public health order in relation to COVID-19. The public health order took precedence over and voided unfair dismissal law.

    [1] Falconer v Commissioner of Police (No.4) (2022) WASC271

    Consideration

22. I do not accept Mr Barret’s contention based on Palmer. The issue before the High Court was whether State legislation was invalid because it was inconsistent with section 92 of the Constitution which provides that ‘trade, commerce, and intercourse among the States… shall be absolutely free”.

23. The Court held:

    On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.

    The exercise of the power given by those provisions to make paras 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.

24. This case does not raise an issue under section 92 of the Constitution. The relevant legislation in this case is Commonwealth legislation, not State legislation. Palmer does not establish the principle or principles Mr Barrett claimed.

25. The ‘unfair dismissal’ cases Mr Barrett referred to are concerned with the relationship between an employer and employee and the obligations on employers and employees that arose during the COVID-19 pandemic when public health orders were issued by State governments. Those cases do not establish a relevant legal principle.

    Contention 2 – Discrimination

26. Email correspondence dated 26 May and 5 June 2023 between Mr Barrett and Mr Lozynsky for the Respondent, was provided to the Tribunal after the hearing and was taken into account in relation to this contention.  On 9 July 2023 Mr Barrett sent a further email referring to a Decision on a Freedom of Information Request which he attached. Curiously, the decision was dated 10 July 2023. The Respondent did not oppose that material being considered.

27. Mr Barrett’s contention was as follows.

28. The Prime Minister assured all Australians that ‘we are all in this together’ and created an expectation throughout the country that all citizens would be treated equally and fairly.

29. All Centrelink customers, regardless of the benefit or concession card they were receiving, who were involuntarily forced into non-compliance by the closing of borders, should be treated equally by the Secretary. 

30. The Secretary has discriminated against holders of CSHC by continuing to apply section 1061ZU of the SS Act to them but introducing a new circumstance to take into account when deciding whether to extend a portability limit (and non-cancellation periods) for a different cohort of customers: ‘an extreme event or emergency situation which prevented your return to Australia’.

31. (That circumstance was applied as an internal policy of the International Program (Services Australia) based on subsection 24(7) of the FA Act.)

32. In Addy v Commissioner of Taxation [2021] HCA 34, the High Court was unanimous in finding that the backpacker tax was discriminatory because the Government ignored the non-discrimination clause in the tax treaty it had entered into with the UK.

33. Similarly, the Secretary has chosen to ignore the new criterion introduced with respect to other Centrelink customers, to overcome the unintentional harm caused by the Order, and is discriminatory.

34. Mr Barrett provided three letters to Centrelink customers, whose identity had been deleted, which he said were examples of such cases.

    Consideration

35. I am unaware of any legal principle that requires the outcome Mr Barrett seeks. The case of Addy does not assist him. As he clearly set out, that case was concerned with a non-discrimination clause in the relevant tax treaty which the High Court found the government had ignored. I was not directed to any non-discrimination principle that applies to the application of the SS Act.

36. That a different approach was taken under different legislation (the FA Act) by the Department/the Minister does not have the consequence Mr Barrett seeks.

37. The Respondent acknowledged that the Secretary has a discretion to extend the portability period for recipients of some social security payments under section 1218C of the SS Act if they are overseas and unable to return to Australia due to specified reasons.

38. Concession cards are not social security payments. They allow holders to access certain concessions, such as Pharmaceutical Benefits Scheme and Medicare.  

39. There is no discretion under section 1061ZUB of the SS Act to extend the non-cancellation period of a concession card. There is no discretion under section 86 of the Administration Act not to cancel a concession card.

    Contention 3 – Entitlement to Energy Supplement and Economic Support Payments

40. Energy Supplement and Economic Support Payments are defined in the SS Act as ‘social security payments’. As a recipient of these ‘social security payments’, Mr Barrett is entitled to extend the portability limit of those payments in ‘an extreme event or emergency situation which prevented’ his return to Australia.

    Consideration

41. A person is qualified for the Energy supplement if they hold a CSHC on or after 19 September 2016.[2] Energy Supplement is payable in relation to each day on which the person is qualified.[3]

    [2] Social Security Act 1991 (Cth) ss 1061U(1)-(2).

    [3] Social Security Act 1991 (Cth) s 1061UA.

42. Section 308 of the SS Act provides for the eligibility to receive Economic Support Payments. The Determinations for the second (10 July 2020) and third (27 November 2020) Economic Support Payments required persons to hold the CSHS on the relevant day.

43. Mr Barrett did not hold a CSHC as required by those provisions.

44. There is no legislative basis for Mr Barrett’s claimed entitlement.

    Contention 4 - Failure to provide natural justice

45. Mr Barrett contended that the Government cannot legislate to limit temporary overseas absences and then make a law preventing citizens from complying with that law and penalise them for failing to comply with that law. That is patently absurd and makes a mockery of judicial norms.

46. The Secretary’s decision was indisputably unfair, unreasonable, unjust, unconscionable and an affront of the principles of natural justice.

    Consideration

47. I understand that Mr Barrett believes that is the case. Those assertions do not establish a legal basis for setting aside the reviewable decision which was made pursuant to the SS Act.

    Contention 5 - Maladministration

48. The Secretary’s failure to assess Mr Barrett’s decision review request under the new criterion was maladministration regardless of whether that failure was an administrative error or a considered decision.

    Consideration

49. The decision was made pursuant to section 86 of the Administration Act. There was no relevant discretion.

    Contention 6 – A breach of international humanitarian law

50. The order was illegal under international humanitarian law to which Australia is a signatory.

    Consideration

51. Mr Barrett did not specify any such laws or otherwise develop the argument. I do not consider it further.

    Contention 7 – The decision exposes the law to ridicule

52. Penalising citizens for failing to comply with portability limits by a government edict preventing their return to Australia ‘exposes the law to ridicule’. 

    Consideration

53. This is an assertion and not a legal basis for setting aside the reviewable decision. 

    Conclusion

54. I understand that Mr Barrett is very aggrieved by what he believes is an unfair decision.  However, I am unable to discern any legal basis for setting the decision aside.

55. For the above reasons, I affirm the reviewable decision dated 13 October 2021.

56. It follows from my decision to affirm the reviewable decision to cancel his CSHC, that Mr Barrett was not eligible for either Energy Supplement or Economic Support payments while his CSHC was cancelled.

    DECISION

57. The reviewable decision dated 13 October 2021 is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................

Associate

Dated: 25 July 2023

Date of hearing:	29 March 2023
Date final submissions received:	9 July 2023
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Services Australia

  Kimber v Sapphire Coast Community Aged Care Ltd (2021) FWCFB 6015
  Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited (2022) FWC 92
  Curnow v Goodstart Early Learning (2022) FWC 1234