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

This matter concerned an application by Ms Mouroufas for review of a decision by the Social Security Appeals Tribunal, which had affirmed the cancellation of her disability support pension (DSP). The respondent was the Secretary of the Department of Social Services. Ms Mouroufas had a history of travelling to Greece for extended periods, understanding that her DSP would be suspended after a limited time and cancelled if she did not return to Australia within a further period.

The primary legal issue before the court was whether the Department's decision to cancel Ms Mouroufas's DSP, based on an internal policy of automatic cancellation after 13 weeks of suspension, was lawful. Specifically, the court had to determine if the Department had properly exercised its discretionary power under section 80 of the Social Security (Administration) Act 1999, in conjunction with section 1217 of the Social Security Act 1991, to cancel the pension, or if the automatic application of the policy was inappropriate.

The court reasoned that while Ms Mouroufas was aware of the departmental policy and the date on which her pension would be cancelled, this knowledge alone was insufficient to justify the cancellation. The Department possessed a statutory discretion to either continue the suspension or cancel the pension, and both options had the same immediate financial impact on the Commonwealth. The court found that the cancellation power must be exercised for reasons relevant to the Act, and that a key consideration for cancellation in such circumstances would be the pensioner ceasing to be a resident of Australia. The court concluded that the automatic application of the cancellation policy, without regard to Ms Mouroufas's individual circumstances and the relevant considerations for exercising the discretion, rendered the decision unlawful.

The court set aside the decision under review.