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

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.