Pardo and Department of Family and Community Services - [2000] AATA 1105

DECISION AND REASONS FOR DECISION [2000] AATA 1105

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1260

GENERAL ADMINISTRATIVE DIVISION          )
           Re      FRANK PARDO
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date8 December 2000
PlaceMelbourne

Decision      The decision of the Social Security Appeals Tribunal made on 12 October 1999 is set aside and in substitution IT IS DECIDED the applicant has been at all relevant times, entitled to disability support pension.
  ......Sgd. Mr J. Handley.....
  Senior Member
CATCHWORDS
Social Security – Disability Support Pension – Sentencing Magistrate imposed a Security Order – whether applicant 'convicted' – whether order of magistrate can be disregarded – whether conviction by 'implication' - whether applicant in 'gaol' – whether undertaking rehabilitation - decision set aside.

REASONS FOR DECISION

8 December 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 12 October 1999.
The SSAT then decided to affirm a decision made by an Authorised Review Officer ("ARO") of Centrelink on 25 January 1999 to reject an application for Disability Support Pension ("DSP").
Save that both the Authorised Review Officer ("ARO") and the SSAT decided that Mr Pardo had no entitlement to DSP, the reasons for the respective decisions are not consistent.
The ARO (T-10) decided that the applicant was "confined after being charged with committing an offence". The SSAT decided that the applicant was "convicted" having been sentenced under a Hospital Security Order and was therefore undergoing a term of "imprisonment". It followed – on this reasoning – that the applicant was in "gaol" and was not entitled to DSP.
Mr Freckleton appeared on behalf of Mr Pardo at the hearing. The respondent was represented by Mr Perdon. Both representatives filed submissions prior to the hearing and gave lengthy submissions at the hearing. Evidence was also heard from Mr Poulter, a Social Worker at the Thomas Embling Hospital previously known as the Rosanna Forensic Psychiatric Centre.
The facts may be briefly summarised as follows-
On 28 September 1998 the applicant was ordered – by force of a Hospital Security Order – to be admitted and detained in the Rosanna Forensic Psychiatric Centre as a security patient pursuant to s.93(1)(e) of the Victorian Sentencing Act 1991 for a period of 12 months. This order was made by a Magistrate at the Shepparton Magistrates Court. (T-5).
A certified extract of that order is found at T-17 of the T-documents. It records that the applicant was charged at Shepparton on 15 August 1998 with committing an offence. He came before the Court on an Information lodged by a member of the Victorian Police and pleaded not guilty. The applicant and/or his counsel consented to Summary Jurisdiction. The certified extract records under the sub-heading "Court Order"-
"Under s.93(1)(e) in lieu of a term of imprisonment I sentence the defendant by way of a hospital security order to be detained in an approved mental health service for 12 months".
It is assumed that the respondent's ARO or the SSAT determined that per force of these documents, the applicant had been sentenced to a term of imprisonment in a gaol and was disqualified from entitlement to DSP.
The Social Security Act
S.98(1) of the Social Security Act 1991 provides-
"Even though a person is qualified for DSP, the pension may not be payable to the person because
……..
(e) the person is in gaol".
S.1158 of the Social Security Act provides-
"An instalment of a social security pension is not payable to a person on a day on which such an instalment would normally be paid to the person if
(a) on that day the person is
(i) in gaol or
(ii) undergoing psychiatric confinement because the person has been charged with an offence and
(b) that day is not the first day and is not the last day in the period of imprisonment or confinement on which such an instalment would normally be paid to the person".
S.23(5) of the Social Security Act provides-
"for the purposes of this Act a person is in gaol if the person
(a) is imprisoned in connection with the persons conviction for an offence; or
(b) is being lawfully detained in a place other than a prison in connection with a persons conviction for an offence; or
(c) is undergoing a period of custody pending trial or sentencing for an offence".
The expression "psychiatric confinement" is found at s.1158(1) (refer above). That expression is defined at s.23(8) of the Act, which says-
"subject to sub-section (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".
For reasons which will become apparent later in this decision, section 23(9) has relevance. It says-
"the consignment 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".

The Applicant's Case

Mr Freckleton outlined at the commencement of the hearing that the applicant's case was that he was not at all relevant times in "gaol" because he was not imprisoned in connection with any conviction for an offence and secondly because he was not lawfully detained in a place other than a prison in connection with any conviction for an offence. Additionally, it would be argued that the applicant was not undergoing psychiatric confinement because any confinement of the applicant arose because he had been sentenced to a Hospital Security Order.
Further to this or in the alternative, if it was found that the applicant was undergoing psychiatric confinement the applicant was, during the relevant period, undertaking a course of rehabilitation. This was because the operation of s.93 applied to the applicant because he had been found guilty, he had not been convicted, he was sentenced, a Hospital Security Order was imposed and he subsequently was detained in an approved mental health service as a security patient for a period specified by the Order.
The above submission concerning rehabilitation has its origin in s.93 of the Victorian Sentencing Act 1991. That section is reproduced later in these reasons.
Mr Freckleton also drew attention to s.7 and s.8 of the Sentencing Act to demonstrate (particularly s.7(1)(aab)) that a conviction can be recorded against a person after a finding of guilt. Authority for this is found within s.8 and particularly s.8(2).
Mr Freckleton also submitted that the applicant was not at all relevant times in a "gaol". He was in fact in a hospital by force of the Hospital Security Order and he was not therefore in a "gaol" because he had not been "imprisoned" within the meaning of s.23(5) of the Social Security Act.
Mr Freckleton submitted that the applicant's case would be that he had been engaged in rehabilitation at the Thomas Embling Hospital and that a decision of the Tribunal in Secretary, Department of Family & Community Services & Fairbrother 1999 AATA 580 (decision of Deputy President Blow) of 6 August 1999 would be argued as being narrow. This part of the submission will be referred to at the conclusion of this decision.
The Victorian Legislation
"s.93 Hospital orders and hospital security orders
(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 submitted 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)".
"s.7 Sentencing orders
(1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Part-
(a) record a conviction and order that the offender serve a term of imprisonment; or
(ab) record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community (a combined custody and treatment order); or
(aab) subject to Part 5, record a conviction and order that the offender be admitted to and detained in an approved mental health service as a security patient (a hospital security order); or
(b) record a conviction and order that the offender serve a term of imprisonment by way of intensive correction in the community (an intensive correction order); or
(c) record a conviction and order that the offender serve a term of imprisonment that is suspended by it wholly or partly; or
(d) in the case of a young offender, record a conviction and order that the young offender be detained in a youth training centre; or
(da) in the case of a young offender, record a conviction and order that the young offender be detained in a youth residential centre; or
(e) with or without recording a conviction, make a community-based order in respect of the offender; or
(f) with or without recording a conviction, order the offender to pay a fine; or
(g) record a conviction and order the release of the offender on the adjournment of the hearing on conditions; or
(h) record a conviction and order the discharge of the offender; or
(i) without recording a conviction, order the release of the offender on the adjournment of the hearing on conditions; or
(j) without recording a conviction, order the dismissal of the charge for the offence; or
(k) impose any other sentence or make any order that is authorised by this or any other Act.
(2) If the Magistrates' Court finds a person aged 17 years or more but under 25 years of age guilty of an offence, it may defer sentencing the person in accordance with section 83A."
"8. Conviction or non-conviction
(1) In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including-
(a) the nature of the offence; and
(b) the character and past history of the offender; and
(c) the impact of the recording of a conviction on the offender's economic or social well-being or on his or her employment prospects.
(2) Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.
(3) A finding of guilt without the recording of a conviction-
(a) does not prevent a court from making any other order that it is authorised to make in consequence of the finding by this or any other Act;
(b) has the same effect as if one had been recorded for the purpose of –
(i) appeals against sentence; or
(ii) proceedings for variation or breach of sentence; or
(iii) proceedings against the offender for a subsequence offence; or
(iv) subsequent proceedings against the offender for the same offence."

The Respondent's Submissions

Mr Perdon completed a comprehensive Statement of Case prior to the commencement of the hearing. The document was exchanged with the applicant's representatives. He did not speak to it before the hearing commenced however the respondent's case – as found within that document at paragraph 10(a)(i) is as follows-
"10 Contentions:
Substantive issue
a     DSP was not payable to a person who was in gaol [s93(1)(e) of the Act].
Neither was any social security pension payable to a person on any pension payday that they were in gaol or undergoing psychiatric confinement because the person had been charged with committing an offence, unless the payday was the first and last paydays within the period of imprisonment or confinement (S1158). A person is "in gaol" for the purposes of the Act if they are being lawfully detained in a place other than a prison in connection with their conviction for an offence [s23(5)(b)]. A person is in "psychiatric confinement" for the purposes of the Act if they are in a psychiatric institution such as the Centre [s23(8)]. However, they will not be considered to be in "psychiatric confinement" during any period when they are confined in a psychiatric institution such as the Centre but are undergoing a course of rehabilitation [s23(9)];
b     The respondent contends that the applicant was "in gaol" for the purposes of the Act during the period 28/9/98-27/9/99 and that DSP was therefore not payable to him;
c    While the magistrate who sentenced the applicant to his 12 month hospital security order did not formally record a finding of guilt or a conviction, the respondent contends that this technical defect in the court order does not preclude a finding under the Act that the applicant was being lawfully detained in a place other than a prison in connection with his conviction for an offence [s23(5)(b) refers];
d S7 of the Sentencing Act provides that before a court makes a sentencing order, it must find a person guilty of an offence. S7(aab) of the Sentencing Act states that a court may, subject to Part 5, record a conviction and sentence a person to a hospital security order. The respondent contends that a person cannot be sentenced to a hospital security order without the requisite conviction by the court;
e S93(1)(a) of the Sentencing Act (which appears in Part 5) makes a finding of guilt a prerequisite to the making of a hospital security order. S93(1)(e) provides that a court may make a hospital security order by way of sentence. S93(2) stipulates that 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. As all the parts of S7 of the Sentencing Act which provide a sentencing order encompassing imprisonment also contain the requirement of recording a conviction, the respondent again contends that a person cannot be sentenced to a hospital security order without the requisite conviction by the court;
f While s8(2) of the Sentencing Act provides that except as otherwise provided by that Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose, the respondent contends that Ss 7 and 93 of the Sentencing Act do so otherwise provide;
g    If the applicant was "in gaol" pursuant to s1158(1)(a)(i), then he was precluded from DSP by that provision and there is no need to further consider s1158(1)(a)(ii);
h    In the alternative, if the applicant was not "in gaol," then he was undergoing psychiatric confinement because he had been charged with an offence [Ss1158(1)(a)(ii) and 23(8) refer];
i     However, the applicant was not in "psychiatric confinement" for any period when he was undergoing a course of rehabilitation. The respondent contends that a "course of rehabilitation" for "a period" means a formal course of rehabilitation with a finite duration, a structure, a beginning and an end. While the applicant was undergoing some planned rehabilitation from December 1998, the respondent contends that it was not until 22/2/99 when he entered Ward M5 that he engaged in a course of rehabilitation for a period with sufficient temporal and structural characteristics to activate the legislative exception to continued "psychiatric confinement;"

Sydney James Haylock Poulter

Mr Poulter is a social worker employed at the BASS unit of the Thomas Embling Hospital. He has been employed with the Rosanna Forensic Psychiatric Centre and with Thomas Embling for approximately 4 years. Prior to the commencement of the hearing Mr Poulter prepared a statement which was not received into evidence but which was lodged with the Tribunal and a copy issued to the respondent. The Statement provides the basis for the evidence of Mr Poulter. It reads as follows-
"Rehabilitation Planning for Mr Frank Pardo at the Victorian Institute of Forensic Mental Health
The V.I.F.M.H. is a secure forensic hospital previously located until April 2000 on the Mont Park grounds in Rosanna. Patients are received from the prison system or the courts, for the purposes of treatment and rehabilitation of their psychiatric illness, and reintegration back into the community in a carefully phased manner.
Upon reception, each patient is streamed into the rehabilitation process according to the current severity of their symptoms and their prognosis for recovery. The wards are divided into a three-phase stream, Acute, (M6) Sub-Acute, (Ellery) and Continuing Care (M5). Commonly, patients move through each of these phases according to their progress in mental state and rehabilitative goals. Throughout this rehabilitative process, patients achieve specific types of leave. The process of community re-entry is therefore a carefully graduated process that relates to rehabilitation plan goals.
These individual rehabilitation goals and the timelines attaching to them, are spelt out in an Individual Service Plan, which is developed immediately following initial reception and assessment. These timelines are of course somewhat speculatory and progress through the system will be determined on an individual basis.
Overall goals and timelines are set, and the Individual Service Plans are reviewed every three months for each patient. Timelines for the rehabilitation process may therefore continue on a steady, incremental gain process, or may be modified according to unanticipated gains or setbacks in the rehabilitative process. The rehabilitation process therefore applies across all wards, acute, sub-acute and continuing care, and transfer between wards occurs according to the achievement of individual timelines attaching to successful participation in program activities.
In respect to Mr Pardo, he was initially remanded to the Rosanna centre on 25/8/98 in relation to charges of stalking. On 28/9/98, he was subsequently subject without conviction to a 12 month Hospital Security Order. Mr Pardo had been assessed during his period of remand and had been subject to treatment, principally psychotropic medication. His illness had begun to stabilise at the time of admission on 28/9/98. It was therefore envisaged that this 12 month period would involve a three month acute phase period of rehabilitation, a three month subacute rehabilitation period, and a six month intensive final phase prior to community re-entry.
Mr Pardo's initial three month rehabilitation program at the M6 acute ward, involved him in attending regular individual counselling sessions with the ward psychologist. He also attended daily activity and weekly therapy and discussion groups relevant to his needs. The four regular groups attended by Mr Pardo were 'Clear the Air', which is a subjectively focussed ventilation group, 'Understanding Mental Health', which is a more structured psychoeducaton group, 'Keeping Cool' an anger management group, and 'Stress-Less' which was a stress management technique group. The rehabilitation plan during this acute phase was therefore clearly structured and of a specific duration.
Mr Pardo's progress continued to be monitored at weekly clinical meetings. At the clinical meeting 28/10/98 it was confirmed that his progress was continuing on track and that transfer to Ellery, the subacute ward, was likely to occur as projected within a three month timeframe. Assessment of suitability to enter the sub-acute stream was then made by Ellery ward on 9/12/98 and he was considered not to be suffering any psychotic symptoms. Mr Pardo was consequently transferred to Ellery on 11/12/98 with a view to a possible three month transition before referral to M5.
Due to the Christmas New Year break in scheduled program activities, Mr Pardo did not enter the formal program stream of Ellery until late in January 1999, but was nonetheless subject to weekly clinical monitoring. Mr Pardo then in late January 1999 entered a 'Men's Issues' group which examines relationship issues, the 'Clear the Air' ventilation group, a Drug and Alcohol education group, and an exercise group. His rehabilitation plan within the Ellery ward was therefore clearly structured and was of a specific planned duration.
Mr Pardo's progress at Ellery was observed to be sustained and in a clinical review meeting of 11/2/99, immediate referral to the M5 final phase program was decided. Mr Pardo was then assessed by M5 on 16/2/99 found suitable for their intensive final phase program, and transferred to that ward on 22/2/99.
Mr Pardo was given medical, psychological and occupational therapy assessment on reception at M5, and allocated to program activities of drug and alcohol education, psychoeducation, daily living skills, outdoor adventure therapy, literacy and numeracy, and preparing for community transition. Mr Pardo continued with these group programs and was discharged as planned on 27/9/99.
The overall rehabilitation plan of Mr Pardo in its three phases of acute, subacute and continuing care, was therefore clearly structured and of specific duration, and which ran in almost text book fashion according to plan. Within each of these three phases, the rehabilitation plan for the specific phase was even more closely structured, with specific timeframes being attached to each phase, and in fact being achieved on each occasion. Structured and time limited rehabilitation plans therefore do not just begin in the intensive M5 phase.
Indeed the success of the final phase intensive rehabilitation programs of M5, are strongly dependent on the achievement of rehabilitative goals in the earlier phases. Internal checks and balances are instituted to ensure the integrity of each phase of the program, which is evidenced by the fact that each phase assesses potential candidates for transfer, and has the autonomy to refuse transfer if the rehabilitative goals of the previous phase have not been properly achieved. This was in fact in evidence with Mr Pardo, in that referral by Ellery to M5 occurred about a month ahead of schedule. Mr Pardo was given an outgoing assessment by Ellery as having achieved his rehabilitation goals ahead of schedule, but nonetheless had to be approved by M5 on an incoming assessment".

Mr Poulter said that the four programs within the M6 phase were regarded as rehabilitative because it is intended to "start the rehabilitation process as soon as a person comes into the ward regardless of whether they are still suffering from psychosis and thought disorder, we find that it is helpful to address their grief or loss issues and mental health issues and all those sorts of things" (transcript p.12).
The four programs within the M6 phase would come within this analysis being entitled "clear the air", "understanding mental health", "keeping cool" and "stress less". These programs he said were intended to allow persons to discuss their personal concerns, observe their mental state and learn anger and stress management techniques. He said that participation in these programs was "critical to achieving the rehabilitative aims with Mr Pardo and enabling him to move out of the acute phase in the way it was planned".
Mr Poulter said that the rehabilitation ambitions were achieved in M6 permitting Mr Pardo to move into the Ellery Phase (middle phase) at the conclusion of three months as planned. Mr Poulter coincidently was transferred at about that time into the Ellery Ward and continued to have regular contact with Mr Pardo. When in that phase Mr Pardo was exposed to drug and alcohol counselling, and exercise, physical health and fitness program and had regular individual counselling with a ward psychologist. Mr Poulter said that the program for Mr Pardo within this phase was planned and structured. Mr Poulter said that the applicant also made advances on his achievements from the M6 phase and it was concluded at the expiration of a three month period in the Ellery Phase that Mr Pardo had made considerable gains and indeed had concluded the Ellery program ahead of schedule. Having been successfully assessed at the conclusion of the second phase Mr Pardo was admitted into the final phase of rehabilitation (M5).
Mr Poulter described the M5 program as giving the applicant medical, psychological, and occupational therapy opportunities and assessments and permitted him also to participate in a number of specific groups which are structured around a schooling curriculum and administered by the TAFE system. These groups involved drug and alcohol education, psycho education, daily living skills, outdoor adventure, literacy and numeracy.
In terms of the overall objective of social workers at the Thomas Embling Hospital Mr Poulter said "…… that's the whole purpose of our .….. organisation, is to plan courses of rehabilitation and hopefully be successful, and I do believe as an organisation we have single success in what we do because of the intensity of the way in which we approach it".
He said the programs are planned with regular review. He said the planning process involved a degree of flexibility to deal with fluctuating circumstances that persons might experience.
With respect to the applicant Mr Poulter said that the rehabilitation of him was "like clockwork". He said the applicant "responded on all fronts in terms of just pharmacological, medicational all that sort of stuff plus the programs, level of insights that he developed and in fact he was ready for release prior to his sentence. But when that happens it is often an opportunity to consolidate the gains a person can make".
In terms of availability of social security benefits, Mr Poulter said "if people don't get the social security benefits it is a distinct disadvantage in the rehabilitation process. People do not have the resources to participate in the programs and ……. we indeed increasingly plug people into outside services and resources outside the organisation and if they haven't got the income security to cope with that then they are distinctively disadvantaged in that process. As our organisation only gives people $24.50 a week and most of them smoke like chimneys and it is not even enough to cover that, so it is a distinct disadvantage to them. When they have social security benefits behind them it opens up so many options and opportunities for us to be able to plug them into other services and resources".
In answer to questions from Mr Perdon, Mr Poulter said that there was a feeling amongst the social workers at Thomas Embling that either all persons should receive a pension or no one should receive it. He said about 3 of the 15 participants in the M6 phase were receiving a pension, about ½ of the persons in the Ellery Phase and about 15 of 18 persons in the M5 phase receive the pension.
With respect to submissions made by a colleague at the Social Security Appeals Tribunal Mr Poulter said that that officer was then relatively inexperienced in his reference to M6 participants who were either psychotic or medicated and who did not receive rehabilitation training. Mr Poulter said that the M5 phase was previously regarded only as the "rehabilitation ward" but there were process difficulties within the overall management of persons at Thomas Embling (and previously at Rosanna) and some time ago it was agreed that the whole of the process commencing at the M6 phase would be regarded as rehabilitation. Indeed he said the terms "acute, sub acute and continuing care" have been given to describe the three phases were devised to avoid the previous terms of "acute, sub-acute and rehabilitation".
conclusion and reasons for decision
Mr Pardo is not entitled to a Disability Support Pension if he is in gaol – s98(1) and s1158(a)(i). S23(5) of the Social Security Act [1991] qualifies the words in "gaol" as those words appear at s98 and s1158. The section says that the person is "in gaol" if the person is imprisoned in connection with a conviction or is being detained in "a place other than a prison" in connection with a conviction or is undergoing a period of custody pending trial or sentencing for an offence.
I am not satisfied that Mr Pardo was convicted.
The order of the Shepparton Magistrate was "the defendant be admitted to and detained in the above psychiatric in-patient service as a security patient under s93(1)(e) of the Sentencing Act 1991 ….". S93 is found within Part 5 of the Sentencing Act. The SSAT found that the applicant was convicted under s7(1)(aab) because a Hospital Security Order could only be imposed if a conviction was recorded. Unfortunately the SSAT members did not allude to the words "Subject to Part 5" as those words commence s.s.7(1)(aab). It is obvious from the Order made by the Magistrate and by the certified extract (both documents being found within the T Documents) that all the provisions of s93 in so far as they apply to the applicant have been satisfied (excepting Sub-Section (d)). It is clear from this Section that a person may be found guilty and may be sentenced but not convicted. Because the applicant was not "convicted", he is not "in gaol" for the purposes of s23(5) of the Social Security Act.
Further to the above, s8 of the Sentencing Act gives a Magistrate a discretion as to whether or not to record a conviction. A similar – if not more limited – discretion exists under s7. The discretion available under both sections exists because s7 (1) uses the word "may" and s8(1) uses the words "whether or not".
If any further elaboration is necessary one need only refer to the Order of the Magistrate and the certified extract found at pages 15 and 38 respectively of the T Documents. Both documents have no recording of the applicant being convicted. Both documents record the penalty imposed – namely a Hospital Security Order – to have been made pursuant to s93(1)(e) of the Sentencing Act. It is not a requirement of that section that a person be "convicted" in order for a Hospital Security Order to be imposed. The Order made by the Magistrate was plainly within his power and the documents are conclusive proof of the Order made.
It follows therefore that I am satisfied that the members of SSAT were in error in deciding that the applicant was convicted "by implication" (refer paragraph 20 of SSAT reasons).
Additionally, I am satisfied that the SSAT made an error of law by not observing the Order made by the Magistrate. It is an error of law for an Administrative Tribunal to impugn a sentence made in criminal proceedings in a curial venue. (Refer Minister for Immigration and Ethnic Affairs v Daniele 1981 61 FLR 354; and Minister for Immigration and Ethnic Affairs v Gungor 1982 63 FLR 441). It also follows that it is an error of law for an Administrative Tribunal to impugn the sentence of a Magistrate by imposing a conviction that was not ordered by the Magistrate.
In Minister for Immigration and Multicultural Affairs v SRT 1999 91 FCR 234 a Full Federal Court said:
"it is improbable that the legislature intended that an Administrative Tribunal with wide investigatorial powers not bound by the rules of evidence and free to inform itself from any source should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of conviction are matters for the criminal law and its procedures".
Branson J in Minister for Immigration and Multicultural Affairs v Ali recently reviewed a number of decisions on these and similar issues (2000 FCA 1385). Her Honour discussed the principles of an Administrative Tribunal not being permitted "to relitigate on an issue determined by Criminal Court". She also reviewed a decision of the Full Federal Court in Saffron v Commissioner of Taxation 1991 30 FCR 578 and Ridley v Secretary Department of Social Security 1993 42 FCR 276.
Whilst the above decisions involve consideration of a challenge within administrative proceedings to the facts giving rise to a conviction and the conclusion that an Administrative Tribunal may consider the factual circumstances giving rise to the imposition of a conviction – it is impermissible to attack or go behind the conviction imposed. (Refer Gungor ibid and Saffron ibid).
In Saffron Lockhart J referred to Hunter v Chief Constable of West Midlands Police 1982 AC 529 where it was recorded:
"where a final decision has been made by a Criminal Court of competent jurisdiction it is a general rule of public policy that a civil action cannot be used to initiate a collateral attack on that decision; and if it does it is an abuse of the process of the Civil Court".
It therefore follows that the decision made by the Magistrate should stand unfettered by any imputation or implication as to the Orders made. The Magistrate did not impose a conviction. He was entitled not to impose a conviction as a matter of law. It would be wrong for this or any other Civil Tribunal or Court to interpret the decision by the Magistrate as if he had imposed a conviction. He did not and to do so would be a mischief. No less do these considerations apply in the context of the Social Security Act which must be interpreted beneficially. The effect of the decision made – subject to whether the applicant was undergoing a course of rehabilitation – has been to deny him a pension.
The remaining issue is whether the applicant is "undertaking a course of rehabilitation". This is important because s1158 of the Social Security Act provides that a Social Security Pension is not payable to a person if the person is in gaol or if the person is "undergoing psychiatric confinement because the person has been charged with an offence …." (s1158(a)(ii)). For the purposes of this analysis s23(9) of the Social Security Act provides that "if a person is consigned to a psychiatric institution during a period when the person is undertaking a course of rehabilitation it is not to be taken to be psychiatric confinement".
It follows therefore that if during the period of detention at the Thomas Embling Hospital Mr Pardo was "undertaking a course of rehabilitation" he "is not to be taken to be (in) psychiatric confinement".
The respondent submitted that a "course of rehabilitation" for a "period" means a "formal course of rehabilitation with a finite duration, a structure, a beginning and an end" (refer submission I). To this extent it was submitted that the applicant did not commence rehabilitation until 22 February 1999 when he entered Ward M5. It follows that the respondent contends that at all times prior to entry into Ward M5 the applicant was not engaged in a "course of rehabilitation".
Mr Poulter said that the whole of the time spent at Thomas Embling within the 3 programs should be regarded as "course of rehabilitation". He said the "whole purpose" of the organisation and staff at the Thomas Embling was to plan courses of rehabilitation and "hopefully be successful".
The word "rehabilitation" is not defined in the Social Security Act.
In Re Oellering and Department of Health, Housing and Community Services 1992 16 AAR 198 Deputy President Forrest and Members McLean and Pascoe reviewed a decision made under s20 of the Disability Services Act 1986. That section speaks of the provision of a rehabilitation program for a person that "would result in a substantially increased capacity of the person" to either obtain or retain paid employment or live independently. The Tribunal also discussed dictionary meanings of the word "rehabilitation" where in one instance the word was said to mean "restoration of individual to his greatest potential whether physically, mentally, socially or vocationally".
So far as this Tribunal is concerned it often reviews decisions made under the Safety Rehabilitation and Compensation Act 1988. An emphasis within that Legislation is the rehabilitation of an injured worker yet there are few decisions on the meaning to be given to the word (or concept) of "rehabilitation". It is generally understood to refer to the restoration of the capacity of a person to return to the workforce and/or to earn an income. It follows from such a concept that an injured person would have his or her physical and/or intellectual potential restored so far as was reasonably possible.
The word (and concept) "rehabilitation" is often referred to in drug and alcohol counselling and is intended to refer to the restoration of a persons physical and intellectual capacity to cope without addiction to alcohol and drugs.
In the context of environmental and land management objectives, the word "rehabilitation" is sometimes used when an attempt is made to devise a program of restoring land whether by way of re-vegetation, or elimination of harmful practices. The intention is to return land to meet flora and fauna potential or to provide land suitable for farming operations or for social or recreational use.
So far as I can determine the concept of rehabilitation is the restoration of a person or property to its fullest potential. In the case of persons the restoration of potential extends to living and/or working or being socially engaged in the community to the fullest potential, unencumbered or unfettered by the causes which gave rise to the need for rehabilitation.
I was impressed by the evidence of Mr Poulter and the work that he and his colleagues undertake at the Thomas Embling Hospital. The extent and intensity of the training to which all persons are exposed satisfies me that there is an intention to "rehabilitate". No less may be said of Mr Pardo of whom Mr Poulter was impressed by the degree of his progress and willingness to participate in the programs. Indeed it was suggested that Mr Pardo progressed through the programs at a rate greater than others and every confidence was apparently expressed that Mr Pardo would exercise his fullest potential when he was eventually discharged.
There was some debate as to what was intended to be meant by the words "a period". Mr Perdon submitted that these words mean a course of rehabilitation with "a finite duration, a structure, a beginning and an end". These words coincidentally appear at paragraph 21 of a decision of Deputy President Blow (as he then was) in Secretary, Department of Family and Community Services and Fairbrother 1999 AATA 580. In that decision it was decided:
"I think the use of the word "period" in conjunction with the use of the term "course of rehabilitation" makes it clear that Parliament had in mind a formal course of rehabilitation with a finite duration, a structure, a beginning and an end".
With the greatest respect I am unable to agree with that interpretation. If the legislation intended the "course of the rehabilitation" to be confined to a finite period it would be open to the legislation to say so.
The concept of rehabilitation as discussed above is in my view incapable of definition as to duration. The restoration of a persons potential will vary from person to person, indeed it is likely to vary as between professional rehabilitation providers, the methods used and the skills exercised. It will vary also as to the capacity of a person to achieve potential and – in the context, for example, of injury – to recover. The words "a period" as used within s23(9) should be interpreted as meaning the duration of a period within which a person undertakes a course of rehabilitation. That period will of course involve a structure and a beginning and an end but all of which may be flexible and may need to be reviewed from time to time. Of course the program will begin and eventually one would assume that it would end. But to impose limitations on the "period" may interfere with the adequacy or the outcome of the rehabilitation.
In conclusion I am of the view that considerable weight should be given to the role undertaken by Mr Poulter and his colleagues as he described their role. He was clearly of the view that all of the programs undertaken at Thomas Embling are within the concept of "rehabilitation". All of the programs are structured and interdependent and the participants are individually assessed and may progress only to the next program after successful rehabilitation in each phase. That some persons take longer than others to move from one program to another highlights in my view the error if imposing a duration on the "period" of "rehabilitation" because to do so does not take account of individual needs or the variations between persons in their capacity to achieve their potential.
In all of the circumstances I am satisfied that Mr Pardo was "undertaking a course of rehabilitation" "during a period" being the period that he was detained at the Thomas Embling Hospital.
It follows therefore and for the reasons given earlier that Mr Pardo was not "in gaol" at all relevant times and he is not to be excluded from receipt of Disability Support Pension.
It follows therefore that the decision of the SSAT made on 12 October 1999 should be set aside and in substitution for it it is decided that at all relevant times Mr Pardo qualified for receipt of Disability Support Pension.
I certify that the Sixty One (62) preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
           Carolyn Irons
Date of Hearing  18 August 2000
Date of Decision
Counsel for the Applicant        Mr Ian Freckleton
Counsel for the Respondent    Mr David Perdon