Frantz, A.T. v Secretary Department of Social Security

[1987] FCA 424

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA 1

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AUSTRALIAN CAPITAL TERRITORY	1
DISTRICT REGISTRY	1 NO. A.C.T. G77 OF 1986
GENERAL DIVISION	1 ._

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ON APPEAL FROM THE ADMINISTRATIVE APPEALS	i:
TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION

BETWEEN: AUGUSTUS TARCISIUS FRANTZ

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Appellant

AND :	SECRETARY, DEPARTMENT
OF SOCIAL SECURITY

Respondent

CORAM: Davies J.

DATE : 23 July 1987

PLACE : Canberra

EX TEMPORE REASONS FOR JUDGMENT

DAVIES 3.

This is an appeal from a decision of the Administrative

Appeals Tribunal given on 12 May 1986. The application to the

Administrative Appeals Tribunal arose out	of a refusal to give to
the applicant, Augustus T. Frantz, in implementation of provisions of

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The circumstances pursuant to which the card was not

granted were that in 1960 the applicant, who was then a permanent

officer, was retired from the Publik Service under a s.67 of the

Public Service Act 1922 (Cth) which permitted the retirement of

officers considered to be inefficient or incompetent or unfit to

i	discharge or incapable of discharging the duties of office
efficiently. As a result of that retirement, the applicant
became entitled to a superannuation pension, and that pension has
since been paid to him. The amount of the pension would have ' _
been paid pursuant to a decision of the Commissioner for I ,
Superannuation or his delegate. As a result of the receipt of that pension over many years, the applicant's entitlement to an .. . . ___ - _. - - -
age pension has been affected, for the superannuation has been taken into account as part of his income. Affected also has been his entitlement to a pensioner card, for the definition of
pensioner in the National Health Act 1953 (Cth) picks up the
definition of "prescribed person" in s.83 CA of the Social

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Security Act 1947 (Cth). By reason of the superannation pension, P :

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the applicant is a prescribed person.

The applicant contends in substance that he was wrongfully

retired, for at the time of his retirement he was fit and well

and competent and he submits that, as a result, the payment of

the superannuation pension has been unlawful and the pension

ought not to have been taken into account either in calculating

his age pension, or in calculating his income for the purposes of

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S.83 CA.

However, the applicant was in-fact retired under s.67 of

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the Public Service Act 1922 (Cth), and, because of that

retirement, decisions were made by the Office of the Commissioner for Superannuation which resulted in his entitlement to a :..,

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pension, and that entitlement is legal and valid. As a result of

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that, his age pension entitlement is affected and the	L -
superannuation pension is taken into account in assessing whether	/ '
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or not he is a prescribed person under	s.03 CA.	.	.2
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The	Tribunal	considered	these	matters	and	rightly	held	f.'
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that it had no jurisdiction to consider whether or not the I ,'

applicant had been correctly retired from the Public Service. I >

The Administrative Appeals Tribunal is not a review tribunal of -

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general jurisdiction. It has a review function under specified

acts and it has no jurisdlction to review the circumstances of	I
the applicant's retirement from the Public Service. The Tribunal	,I .

decided that it had no jurisdiction to review the legality of the	. e
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superannuation payments, but it did that in the context of saying	' I
that it would not review the basis of the applicant's retirement

from the Public Service. The legality or otherwise 05 the

superannuation payments, if it is to be considered	at all, must	i
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be considered in the context of the retirement, for once the

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retirement has taken place in accordance with s.67, the decisions

of the Office of the Commissioner for Superannuation necessarily	I :
flow from that and those decisions presently stand and the	: >
entitlement to a superannuation pension is legal.
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The Administrative Appeals Tribunal also properly	held	i
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that it had no jurisdlction	to review the	refusal to grant to the	1 'I.
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applicant a pensioner card. That card is granted pursuant- to an i '.

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administrative practice under the National Health Act 1953 (Cth)

and it is not a matter which is within the jurisdiction of the

Administrative Appeals Tribunal. The Tribunal has jurisdiction

to consider matters arising under the Social Security Act 1947

(Cth) and, in considering the matters under that Act, it

correctly held that the superannuation pension was income f o r the

purposes of the Act and income for the purposes of s.83 CA of the

Act and that the applicant was	a prescribed person within the
meaning of s.83 CA.

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For those reasons the appeal from the decision of the ! .

Administrative Appeals Tribunal must be dismissed. l

I would make one further comment. The applicant has

contended that the Court refused press coverage of his appeal. I

should make it clear that it is not for the Court to direct

reporters to attend and be present during the hearing of any

proceeding before it and the Court does not undertake that

function. An adjournment was granted so as to enable'the

applicant to contact the press i f he wished to do so. The appeal

resumed after that adjournment.

For the reasons that I have mentioned, the decision of the

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Administratlve Appeals Tribunal was correct and the appeal must be dismissed.

I cemfy that this and the 3 1,

Preceding poses are a true copy of the	I .'
reasons for ludgrnent herem of The Honour-	i
able Mr. Justlce >-VI e5

--. J - q A . Assoclate

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