Garden v Secretary, Department of Family and Community Services

[2001] FCA 827

Garden v Secretary, Department of Family and Community Services [2001] FCA 827
Social Security

Garden v Secretary, Department of Family and Community Services

[2001] FCA 827

SOCIAL SECURITY - pension - eligibility - whether applicant in gaol - hospital security order made following conviction - applicant transferred from psychiatric facility to prison and back to psychiatric facility - whether second period of detention in psychiatric facility in connection with applicant's conviction for an offence - whether connection between mental state and crime for which convicted required - whether more than temporal coincidence between detention and conviction required

WORDS & PHRASES - "in gaol", "in connection with"

Social Security Act 1991 (Cth) ss 23(5), 23(8), 23(9), 98(1), 1158

Sentencing Act 1991 (Vic) s 93

Mental Health Act 1986 (Vic) ss 16(2), 16(4), 44, 45

Blunn v Bulsey (1994) 53 FCR 572, disapproved

NEVILLE GARDEN v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

V 458 of 2000

GRAY J

2 JULY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 458 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	NEVILLE GARDEN APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	2 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the appeal be dismissed.

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 458 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	NEVILLE GARDEN APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	GRAY J
DATE:	2 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant has appealed to this Court from a decision of the Administrative Appeals Tribunal ("the AAT"). By s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), the appeal is limited to an appeal on a question of law. The issue is whether, whilst in an institution known as Thomas Embling Hospital, the applicant was "in gaol" as that term is used in certain provisions of the Social Security Act 1991 (Cth) ("the Social Security Act"). The facts, which I set out in summary form, are taken from the reasons for decision of the AAT, published on 30 May 2000.

2 Section 98(1) of the Social Security Act provides relevantly as follows:

"Even though a person is qualified for disability support pension, the pension may not be payable to the person because:

...

(e) the person is in gaol (see Part 3.13)".

3 In Pt 3.13 is to be found s 1158, which provides as follows:

"A social security pension (other than pension PP (single)) is not payable to a person on a pension payday if:

(a) on that payday the person is:

(i) in gaol; or

(ii) undergoing psychiatric confinement because the person has
been charged with committing an offence; and

(b) that payday is not the first pension payday and not the last pension
payday in the period of imprisonment or confinement."

4 The effect of this strangely complex provision is that, while a person is in gaol, or undergoing psychiatric confinement because the person has been charged with committing an offence, that person is not entitled to receive a social security pension, other than a pension PP (single), which is not relevant to the present case. Section 23 contains definitions of terms used in the Social Security Act. Section 23(5) provides:

"For the purposes of this Act, a person is in gaol if the person:

(a) is imprisoned in connection with the person's conviction for an
offence; or

(b) is being lawfully detained in a place other than a prison, in connection
with the person's conviction for an offence; or

(c) is undergoing a period of custody pending trial or sentencing for an
offence."

5       A definition of "psychiatric confinement" is found in subss 23(8) and (9):

"(8) Subject to subsection (9), psychiatric confinement in relation to a
person includes confinement in:

(a) a psychiatric section of a hospital; and

(b) any other place where persons with psychiatric disabilities
are, from time to time, confined.

(9) The confinement of a person in a psychiatric institution during a
period when the person is undertaking a course of rehabilitation is not
to be taken to be psychiatric confinement."

6       It is also necessary to set out relevant provisions of the Sentencing Act 1991 (Vic) ("the Sentencing Act") and the Mental Health Act 1986 (Vic) ("the Mental Health Act"). Section 93 of the Sentencing Act provides:

"(1) If on the trial of a person for an offence-

(a) the person is found guilty; and

(b) the court is satisfied by the production of a certificate in the prescribed form of a psychiatrist and any other evidence that it may require that-

(i) the person appears to be mentally ill and to require
treatment for the illness; and

(ii) the treatment can be obtained by admission to and detention in an approved mental health service; and

(iii) because of the person's mental illness, the person should be admitted and detained for treatment as an involuntary patient for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and

(c) the court has received a report in the prescribed form from the authorised psychiatrist of the approved mental health service to
which it is proposed to admit the person recommending the proposed admission-

the court may-

(d) instead of passing sentence make an order (a hospital order) under which the person is admitted to and detained in an approved mental health service as an involuntary patient; or

(e) by way of sentence make an order (a hospital security order) under which the person is admitted to and detained in an approved mental health service as a security patient for a period specified in the order.

(2) A court must not make a hospital security order unless, but for the
mental illness of the person, the court would have sentenced the
person to a term of imprisonment.

(3) A court must not in a hospital security order specify a period of
detention in an approved mental health service that is longer than the
period of imprisonment to which the person would have been
sentenced had the order not been made.

(4) A court, when making a hospital security order, must fix a non-parole
period in accordance with section 11 as if the order were a term of
imprisonment.

(5) If at any time before the end of the period specified in a hospital
security order the Mental Health Review Board or the chief
psychiatrist orders under Division 4 of Part 4 of the Mental Health
Act 1986 that the person be discharged as a security patient, the
hospital security order has effect as a sentence of imprisonment for the
unexpired portion of it and that unexpired portion must be served in a
prison unless the person is released on parole.

(6) A non-parole period fixed under sub-section (4) is only relevant in the
circumstances referred to in sub-section (5)."

7 According to s 3(1) of the Mental Health Act, a person detained in an approved mental health service under s 93(1)(e) of the Sentencing Act is a "security patient". Sections 44 and 45 of the Mental Health Act provide that a person is to be discharged as a security patient and returned to a prison if the Mental Health Review Board is not satisfied that the continued detention of the person as a security patient is necessary (s 44), or if the chief psychiatrist is satisfied that the continued detention of the person as a security patient is not necessary (s 45). Such decisions must be made by reference to the criteria found in s 16(2) and (4). Section 16 relates to the transfer of a person, who is lawfully imprisoned or detained in a prison or other place of confinement and appears to be mentally ill, to an approved mental health service. The order for such a transfer is called a hospital order. Subsection (2) provides:

"The Secretary to the Department of Justice cannot make a hospital order unless-

(a) the Secretary has received a certificate by a psychiatrist and is
satisfied that-

(i) the person appears to be mentally ill and to require treatment
for that illness; and

(ii) the treatment can be obtained by admission to and detention
in an approved mental health service; and

(iii) because of the person's mental illness, the person should be
admitted and detained for treatment for his or her health or
safety (whether to prevent a deterioration in the person's
physical or mental condition or otherwise) or for the protection
of members of the public; and

(b) the Secretary has received a report from the authorized psychiatrist
of the approved mental health service to which it is proposed to admit
the person which recommends that the transfer be made."

Subsection 4 provides:

"In determining whether to make a hospital order or a restricted hospital order the Secretary to the Department of Justice must have regard to the public interest and all the circumstances of the case including the person's criminal record and psychiatric history."

8 On 13 April 1995, the applicant was convicted of murder and attempted murder. The judge of the Supreme Court of Victoria whose task it was to sentence the applicant received a certificate of the kind contemplated in s 93(1)(b), and a report of the kind contemplated by s 93(1)(c), of the Sentencing Act. Pursuant to s 93(1)(e) of the Sentencing Act, his Honour ordered that the applicant be admitted to and detained in a psychiatric in-patient service, being the Aradale Forensic Psychiatric Centre, for a period of eighteen years and nine months. In accordance with s 93(4), his Honour fixed a non-parole period of eleven years and nine months.

9       Consequent upon this order, the applicant was detained as a security patient in Aradale. At some later time, he was transferred to Rosanna Forensic Psychiatric Centre. On 13 December 1996, the psychiatrist on whose report the court had acted in making the hospital security order recommended that he be discharged. The psychiatrist's assessment was:

"No overt psychiatric symptomatology. Compliant with medication. But, passive aggression ++ and having a negative influence on other patients."

In December 1996, the applicant was transferred to the Acute Assessment Unit/Psycho-Social Unit at Pentridge Prison. Whilst there he received psychiatric treatment and counselling until about April 1997, when he was transferred to Barwon Prison. While in Barwon Prison, the applicant received some attention from a psychiatric nurse and some treatment until at least the end of October 1997. On 29 May 1998, he was transferred to the Acute Assessment Unit at the Melbourne Assessment Prison due to "non-compliance with medication and concerns about his mental state." On 29 June 1998, he was transferred back to Barwon Prison and then to Loddon Prison. He remained there until late November 1998, when he was returned to the Acute Assessment Unit at the Melbourne Assessment Prison and then transferred back to Rosanna. For the whole of the period from December 1996, until his return to Rosanna in November 1998, the applicant was on anti-psychotic medication.

10       In April 1999, the applicant and other patients at Rosanna were transferred to the Thomas Embling Hospital, a brand new "purpose designed" hospital run by Forensicare. Forensicare is the trading name for the Victorian Institute of Forensic Mental Health, a statutory agency created by the Victorian Government to provide a range of specialist mental health and associated services to the criminal justice system. There are six categories of patients at the Thomas Embling Hospital:

*       patients on remand;

*       patients found not guilty on the ground of mental impairment;

*       patients found unfit to stand trial on the ground of mental impairment;

* patients the subject of hospital orders pursuant to s 93(1)(d) of the Sentencing Act;

* patients on hospital security orders pursuant to s 93(1)(e) of the Sentencing Act; and

* patients transferred pursuant to hospital orders made by the Secretary to the Department of Justice as involuntary patients or security patients pursuant to s 16 of the Mental Health Act.

11 On 6 May 1999, shortly after he was transferred to Thomas Embling Hospital, the applicant lodged a claim for a disability support pension. His application was rejected. He sought review of that decision by the Social Security Appeals Tribunal, which remitted the matter to the Chief Executive Officer of Centrelink for reconsideration in accordance with a direction that, for the purpose of s 98(1)(e) of the Social Security Act, the applicant was not in gaol or undergoing psychiatric confinement because he had been charged with an offence. The Secretary of the Department of Family and Community Services applied to the AAT pursuant to s 1283 of the Social Security Act for review of the decision of the Social Security Appeals Tribunal.

12 The AAT set aside the decision of the Social Security Appeals Tribunal and sent the matter back to the Secretary of the Department of Family and Community Services for reconsideration in accordance with a direction that while the applicant is in Thomas Embling Hospital he is "in gaol" for the purposes of ss 98(1)(e) and 1158(1)(a)(i) of the Social Security Act within the extended meaning of that term in s 23(5)(b) of the Act. It is this decision of the AAT from which the applicant has appealed.

13 At the heart of the applicant's case is the period he spent in prison between December 1996 and November 1998. This represented a break between the period he spent in institutions other than prisons immediately following the order of the Supreme Court of Victoria and the subsequent period he spent in psychiatric institutions, including Thomas Embling Hospital. Counsel for the applicant argued that the applicant was to be treated as if he were a prisoner who had become mentally ill while serving a sentence of imprisonment and who had been transferred to a hospital for treatment. The argument was that such a person either fell outside s 1158 of the Social Security Act altogether, or fell within s 1158(a)(ii), as being in psychiatric confinement because the person had been charged with committing an offence. In the latter case, if the person were undertaking a course of rehabilitation, the application of the exception in s 23(9) of the Social Security Act would have the effect of enabling him or her to receive a social security pension, if otherwise entitled to it.

14       The argument on behalf of the applicant is not entirely without merit. It appears to have succeeded in the Social Security Appeals Tribunal. It must fail in this Court, however.

15 In the AAT, it was accepted by both parties that the applicant was not "in gaol" whilst in Thomas Embling Hospital, unless he was "in gaol" within the extended meaning of that term in s 23(5) of the Social Security Act. In reliance on Blunn v Bulsey (1994) 53 FCR 572, the AAT took the view that a person was not "imprisoned" within the meaning of s 23(5)(a) of the Social Security Act unless incarcerated in a prison; otherwise, s 23(5)(b) would have no meaning. The case therefore fell to be determined by reference to par (b), as par (c) was clearly not relevant. It was common ground that the applicant was being lawfully detained in a place other than a prison. The question that arose, therefore, was whether he was being so detained in connection with his conviction for an offence.

16       In Blunn v Bulsey, at 575 - 576, the Court dealt with the meaning of the phrase "in connection with" in s 23(5)(b) of the Social Security Act. Einfeld J cited authorities to the effect that the words "in connection with" are words of wide import and that the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear. His Honour went on to say:

"On the other hand, although clearly not requiring a causal relationship, the words `in connection with' in the context of s 23(5) require some real relevance of the conviction to the detention. There must be more than just a temporal coincidence. The requirement is not satisfied merely by the fact that Mr Bulsey also happens to be serving a prison sentence, or that the conviction has some impact on the details of his detention. There was not even the vaguest suggestion of a link between Mr Bulsey's mental condition and either of the crimes for which he was imprisoned. The possibility of a connection appears never to have been investigated."

His Honour then referred to the argument, put to him by the Secretary of the Department of Social Security, to the effect that the Social Security Act evinced an intention that no person serving a term of imprisonment should receive social security benefits. His Honour said:

"However, the statute could easily, but does not, provide specifically to that effect. Rather it provides that the particular detention must be connected with the offence. Although there might be reasons for depriving convicted prisoners of social security benefits regardless of the form of their imprisonment, there must also be serious policy reasons for putting mentally ill inmates of hospitals on a financial footing that allows them an equal opportunity of rehabilitation and recovery, notwithstanding that some might be serving sentences of imprisonment.

...

The Department pressed the fact that s 43 of the Queensland Act involves patients retaining some connection with their convictions. It was said that this connection, maintained in part by the fact that the patient continues to serve a sentence whilst in the hospital, means that the detention in the hospital is in connection with the conviction. However, the relevant inquiry is not whether the conviction of the person so confined continues, but whether the detention in the hospital is itself connected with the conviction, that is, whether there is some firm relationship or connection between the conviction and the hospitalisation, as would clearly be the case, for example, if the sentencing judge had recommended psychiatric counselling or treatment after sentence."

17       In the present case, the AAT applied the principles expressed by Einfeld J in Blunn v Bulsey. The learned senior member who constituted the AAT relied on several factors in concluding that the applicant's detention was "in connection with" his conviction, and that he was therefore "in gaol" within the extended meaning given to that term by s 23(5) of the Social Security Act. Some of these factors were factual. The applicant had received psychiatric treatment in the form of medication throughout the period since his arrest. He had been in psychiatric centres or units for much of the time leading up to and since his conviction. He had undergone psychiatric counselling or treatment for some of the time that he had spent in prisons. Another factor was the effect of s 93(5) of the Sentencing Act, whereby the unexpired portion of the hospital security order made in respect of the applicant had effect as a sentence of imprisonment. The applicant submitted that, because he was transferred from hospital to prison and then back to hospital when his mental health deteriorated, he became a "security patient" within the meaning of the Mental Health Act, which put him in the same category as the patient in Blunn v Bulsey. The AAT rejected this submission. The learned senior member distinguished Blunn v Bulsey on the facts. She found that, in the applicant's case, there was a link between his mental condition and the crime for which he was imprisoned, a connection strengthened by the continuing treatment he had received. The learned senior member also pointed out that, unlike the patient in Blunn v Bulsey, the applicant was receiving some money from Forensicare while in Thomas Embling Hospital.

18 Counsel for the applicant in this Court sought to attack the finding of the AAT that there was a connection between the applicant's mental state and the crime of which he was convicted. As I have said, this was a finding of fact made by the AAT on the evidence before it. No appeal lies to this Court from such a finding of fact, unless it can be shown that the AAT has made an error of law in making the finding. Section 44 of the AAT Act restricts an appeal from the AAT to this Court to an appeal on a question of law.

19 Counsel for the applicant attempted to characterise the appeal as raising questions of the construction of s 23(5)(b) of the Social Security Act. He also sought to argue that the principles laid down in Blunn v Bulsey had not been applied properly. These attempts conceal the fact that the complaint is really one that the AAT reached a wrong conclusion as a matter of fact. The AAT was bound to apply the meaning given in Blunn v Bulsey to the phrase "in connection with" in s 23(5)(b) of the Social Security Act. The AAT did apply that meaning. In applying it to the facts found by the AAT, the learned senior member made no error of law. The distinction that she drew between the facts of Blunn v Bulsey and the facts of the present case was a legitimate distinction.

20       In my view, in following Blunn v Bulsey, the AAT adopted a narrower test for the existence of a connection than is necessary. As I have said, the AAT was bound to follow Blunn v Bulsey. Whilst I must accord great respect to the judgment of Einfeld J in that case, I am not bound by it if I consider it to be fundamentally wrong. If it were the case that the AAT applied the principles from Blunn v Bulsey incorrectly, I would still hold that the AAT made no error of law.

21 The question posed by s 23(5)(b) of the Social Security Act is whether a person is being detained in connection with his or her conviction for an offence. It is not, as Einfeld J characterised it in Blunn v Bulsey at 576, a question of a connection between the mental condition of the person concerned and a crime for which that person has been imprisoned. The required connection is a connection between the lawful detention and the fact of a conviction for an offence. It is unnecessary to inquire whether mental illness played a role in the commission of the offence, only whether the detention is connected with the conviction.

22 The power of a sentencing judge to make a hospital security order pursuant to s 93(1)(e) of the Sentencing Act is not predicated upon any connection between the mental condition of the person being sentenced and the offence for which he or she is being sentenced. A hospital security order is made in substitution for a sentence of imprisonment on the basis of the certificate of a psychiatrist required by s 93(1)(b) and the report of the psychiatrist required by s 93(1)(c). The question for the sentencing judge is not whether the convicted person suffered mental illness at the time of commission of the offence, but whether that person ought to be detained in an approved mental health service having regard to his or her condition at the time of sentence. A fact of which the sentencing judge must be satisfied is that the person convicted requires treatment for the mental illness.

23 Paragraphs (a) and (b) of s 23(5) of the Social Security Act present a dichotomy. A person is either "imprisoned" (ie. incarcerated in a prison), or is being lawfully detained in a place other than a prison. In each case, there is required to be imprisonment or detention in connection with the person's conviction for an offence. In my view, the legislative intention is to cover the entire field of detention resulting from a conviction. It must be remembered that the Social Security Act is national legislation. It is not drafted with the legislative regime of any particular State or Territory in mind, but is intended to apply to the variety of such regimes that might exist from time to time in Australia. When the Social Security Act is viewed in this light, it becomes more difficult to say, as Einfeld J did, that the legislative intention could have been expressed in plainer terms.

24 The legislative assumption is that a sentence will be served either in a prison or in some other place of detention. In either case, the removal of the right to social security benefits by the Social Security Act is intended to follow. If the legislation be viewed in this way, it matters not that a person might be transferred back and forth between a prison and a hospital, depending upon variations in his or her mental condition. Throughout the time of detention, the person will be either imprisoned or detained in a place other than a prison while serving the sentence imposed by the court following conviction for an offence.

25       It is therefore incorrect to say, as Einfeld J did in Blunn v Bulsey, that there must be more than just a temporal coincidence between the detention and the conviction. In my view, the temporal coincidence between the detention and the continuation of a sentence of imprisonment imposed following a conviction is of primary importance. To be lawful, detention in a place other than a prison must result from the exercise of a power to detain. In the case of a prisoner transferred to a place other than a prison because of his or her mental condition, the detention will usually only be lawful because the person continues to serve a sentence of imprisonment.

26 It is also necessary to have regard to the second limb of s 1158(a). That provision deprives a person of a right to receive social security if that person is undergoing psychiatric confinement because he or she has been charged with committing an offence. It is designed to deal with those who have been charged with offences, but not with those who have been convicted of offences. It operates in relation to those who have been remanded in custody while awaiting trial, those who have been found unfit to be tried because of their mental condition, and those who have been acquitted on the ground of their mental condition. It follows that those patients in Thomas Embling Hospital, and similar establishments, who are in these categories, are deprived of their rights to social security unless undertaking courses of rehabilitation. In such cases, successful rehabilitation will lead to a right to be released on bail, a trial with the possibility of acquittal, or to release, as the case may require. In the case of someone in the applicant's position, successful rehabilitation would lead to a return to prison, until the rest of the sentence is served. To treat someone in the applicant's position as being "in gaol" for the purposes of the Social Security Act is not therefore irrational, but accords with the legislative purpose.

27 Counsel for the applicant suggested that the legislative intention was that anyone undergoing a course of rehabilitation in respect of a mental illness should not be disentitled from claiming a pension by reason of serving a sentence of imprisonment. This intention is express in relation to those covered by s 1158(a)(ii), by reason of s 23(9) of the Social Security Act. The argument seemed to be that the intention was revealed in relation to those covered by s 1158(a)(i) by the use of the words "in connection with the person's conviction for an offence" in s 23(5)(a) and (b). As I have said, in my view, those words perform a different function altogether. They make it clear that the intention is to exclude the normal entitlement to social security pensions in respect of all convicted offenders, for so long as they continue, in effect, to serve sentences of imprisonment, whether in prisons or by means of detention in other places. If the legislature had intended to preserve an entitlement to social security pensions for all those undergoing courses of rehabilitation for mental illness while serving sentences of imprisonment, it could have made express provision to this effect. It did so in plain terms in s 23(9) for those who would otherwise have been excluded from any entitlement by reason of undergoing psychiatric confinement because of having been charged with committing offences.

28       On the assumption that the necessity for the AAT to follow Blunn v Bulsey were removed, and the AAT were to have based its decision on the words of s 23(5)(b) of the Social Security Act, its decision would have been beyond challenge by appeal to this Court. It is plain that, as a matter of law, it was open to the AAT to reach the conclusion that the applicant's detention in the Thomas Embling Hospital was in connection with his conviction for an offence. As I have said, the determination whether there was a connection was a question of fact. The facts found by the AAT plainly justified its conclusion that there was such a connection.

29       For these reasons, the appeal must be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:        2 July 2001

#DATE 02:07:2001

Counsel for the Applicant:	Dr I Freckleton
Solicitor for the Applicant:	Mental Health Legal Centre
Counsel for the Respondent:	Mr J Lenczner
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 May 2001
Date of Judgment:	2 July 2001