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

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.
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.
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.
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barrett and Secretary, Department of Social Services (Social...

Details

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

CaseChat Overview and Summary

This matter concerned an application by Mr Barrett for review of a decision by the Secretary of the Department of Social Services to cancel his Commonwealth Seniors Health Card (CSHC). Mr Barrett contended that a public health order related to COVID-19 prevented his return to Australia for a period exceeding 19 weeks, and that this circumstance should have been taken into account to avoid the cancellation of his CSHC. He also argued that he should have been eligible for energy supplement and economic support payments during the period his CSHC was cancelled. The review was heard by Mrs J C Kelly, Senior Member.

The legal issues before the Tribunal were whether the cancellation of Mr Barrett's CSHC was justified, and consequently, whether he was eligible for energy supplement and economic support payments. Mr Barrett also raised arguments concerning discrimination, asserting that the Secretary had treated CSHC holders unfairly compared to other customer cohorts by not introducing a similar exception for extreme events preventing return to Australia.

The Senior Member rejected Mr Barrett's reliance on unfair dismissal cases and the High Court decision in *Palmer*, finding them irrelevant to the present matter which concerned Commonwealth legislation and not State legislation or constitutional validity. The Senior Member also dismissed the discrimination argument, noting that the Prime Minister's assurance of unity did not create a legal entitlement to equal treatment in the application of social security law. The Tribunal found that the public health orders, while preventing Mr Barrett's return, did not alter the operation of the relevant Commonwealth social security legislation concerning the CSHC.

The Tribunal affirmed the reviewable decision to cancel Mr Barrett's CSHC. Consequently, it was held that Mr Barrett was not eligible for energy supplement or economic support payments during the period his CSHC was cancelled.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 The reviewable decision dated 13 October 2021 is affirmed.

Ratio Decidendi

Legal Principle Established

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 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”. 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. 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. 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 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. Mr Barrett’s contention was as follows. 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. 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. 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’.