Secretary, Department of Family and Community Services v Franks

[2002] FCA 575

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Family & Community Services v Franks
[2002] FCA 575

SOCIAL SECURITY - Pensions - disability support pension - respondent charged with indictable offence - found unfit to stand trial - remanded to psychiatric hospital - entitlement to disability support pension while institutionalised - effect on entitlement to pension of person undergoing a course of rehabilitation while in psychiatric confinement.

Mental Health Act 1974 (Qld)
Social Security Act 1947 (Cth)
Social Security Act 1991 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Mental Health Act 2000 (Qld)

Garden v Secretary, Department of Family and Community Services [2001] FCA 827 Appl
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 Appl
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Appl
Blunn v Cleaver (1993) 47 FCR 111 Cited
Blunn v Bulsey (1994) 53 FCR 572 Appl

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v CYRIL FRANKS
Q202 OF 2001

COOPER J
BRISBANE
8 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q202 OF 2001

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT
AND:	CYRIL FRANKS RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	8 MAY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal given on 24 August 2001 to affirm the decision of the Social Security Appeals Tribunal be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q202 OF 2001

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES APPLICANT
AND:	CYRIL FRANKS RESPONDENT

JUDGE:	COOPER J
DATE:	8 MAY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1. The applicant is the Secretary of the Department of Family and Community Services.  The respondent is detained in the Baillie Henderson Hospital.  The hospital is a psychiatric hospital operated by the State of Queensland.

2. The respondent was charged with an indictable office and remanded in custody.  At that time he was the recipient of a Disability Support Pension.  The criminal proceedings led to a reference to the Mental Health Tribunal (“the MHT”), a body established under the then Mental Health Act 1974 (Qld) (“the MH Act”). The reference involved, for the consideration and determination of the MHT, whether the respondent was, at the time the alleged offence was committed, suffering from unsoundness of mind (s 33(1)((a)), and, if not, whether he was fit for trial (s 33(1)(c)).

3. On 12 April 2000, the respondent was found by the MHT not to be fit for trial. The MHT ordered that he be detained as a restricted patient under Part 4 of the MH Act at the Baillie Henderson Hospital.

4. On 13 April 2000, the respondent’s Disability Support Pension was suspended by Centrelink, citing as the reason s 1158 of the Social Security Act 1991 (Cth) (“the Act”). Section 1158 provides :

   “1158(1)        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.”

5. The term “psychiatric confinement” is defined in s 23(8) of the Act, as follows :

   “23(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.”

6. Section 23(9) of the definitions provides as follows :

   “23(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 as psychiatric confinement.”

7. The respondent sought review of the decision to suspend the payment of the benefit.  The decision was affirmed by an authorised Review Officer on 3 November 2000.  The respondent appealed to the Social Security Appeal Tribunal (“the SSAT”) on 2 February 2001.  The SSAT set aside the decision under review and substituted it with a decision that, subject to the respondent having met other qualification requirements, he remained entitled to receive a Disability Support Pension “while living in the Baillie Henderson Hospital”.  The applicant appealed the decision of the SSAT to the Administrative Appeals Tribunal (“the AAT”).

8. The AAT on 24 August 2001, affirmed the decision of the SSAT. The applicant, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) appealed to this Court.

9. The question of law raised by the applicant in its application is said to involve the proper construction of s 23(9) of the Act and whether on the facts as found, the AAT correctly applied s 23(9) to those facts.

   THE DECISION OF THE AAT

10. The AAT made the following findings of fact :

    “8.      The respondent was apparently remanded in custody at the Arthur Gorrie Correctional Centre until 12 April 2000 when the Mental Health Tribunal found that the respondent was suffering unsoundness of mind and was not fit to plead at his trial.

    9.        The respondent was then transferred to the Baillie Henderson Hospital as a restricted patient and he remains so.  It seems that the criminal proceedings in relation to the respondent have been deferred indefinitely and will remain so while the respondent remains unfit to stand trial.
    ...

    12.      He is at the Baillie Henderson hospital formally for the purpose of psychiatric assessment but he has also participated in a rehabilitation program.  The program includes a wide range of rehabilitation activities suited to the respondent and designed to assist his long term prospects.  Improvements have been noted in short and long term memory function and organisational ability (T18).  There is also a diagnosis of alcohol abuse and low grade chronic Major Depression outside the alcohol abuse (T18).

    13.      Ms Kearney said in her evidence that the respondent is confined to his ward because of the order under the Mental Health Act.  He does have restricted leave conditions following review by the Patient Review Tribunal.  From March 2001 he has been allowed escorted town leave.  He is also allowed some attendance at sporting facilities and can also attend rehabilitation activities (art classes) on the hospital campus escorted by a nurse.  He conducts gardening activity leading to him selling the produce and also produces ginger beer for sale.  These activities are essentially rehabilitative in character and are designed to give him access to money he has earned.

    14.      The period of detention at the hospital is uncertain.  The respondent’s progress is monitored each three months by the Patient Review Tribunal and it will be a matter for that Tribunal as to when he is ready to be released from the hospital.  It follows that the rehabilitation activities are being provided for an uncertain period because they will continue while the respondent remains at the hospital pursuant to the order of the Mental Health Tribunal.”

11. The AAT defined the issue before it as :

    “21.     Section 23(9) clearly differentiates between confinement in a psychiatric institute per se and confinement in a psychiatric institution to undertake a course of rehabilitation.  The sub-section will only operate in the latter circumstance.

    22. Section 34 of the Mental Health Act 1974 (Qld) sets out the procedure upon a finding that a person is unfit for trial. The person is detained as a restricted patient in hospital with a clear inference that the person is to receive appropriate treatment and rehabilitation with a view to the Patient’s Review Tribunal and the Mental Health Tribunal eventually determining fitness for trial after treatment and rehabilitation. That is, in my view, a clear intention of the legislation to be drawn from a fair reading of section 34.

    23.      The difficulty with this case is not to determine whether the respondent was undergoing rehabilitation while detained under section 34.  Clearly he was - that is made clear by the evidence of Ms Kearney, the Social Worker.

    24.      The question is whether there is a distinction to be drawn between a course of rehabilitation of indefinite duration as contemplated by section 34 and a course of rehabilitation of a finite duration eg 12 months.”

12. After referring to other AAT decisions, the AAT set out its reasoning as follows :

    “27.     I am in basic agreement with Senior Member Handley.  In my view the words ‘during a period’ are to be construed so as to require a temporal connection from time to time between the confinement in a psychiatric institution and the undertaking of a course of rehabilitation.

    28. Provided the confinement and the undertaking of the course of rehabilitation are contemporaneous the sub-section will operate to exclude the person from the operation of sub-section 23(8) unless it can be said that rehabilitation which is determined on a flexible basis such as day to day or week to week is not a course of rehabilitation. I so [sic] not think that is an appropriate interpretation of the words. Rehabilitation of persons with psychiatric disabilities could not, in my view, be laid out as a week by week program as might be appropriate for a person with physical disabilities. It cannot be the intention of beneficial legislation to provide for the exclusion from the operation of section 1158 on a basis that would have little regard to the real life circumstances likely to occur from day to day. As Senior Member Handley said in Re Pardo (at 394) the restoration of a person’s potential will vary from person to person. It must be added that this is even more so in relation to psychiatric illness.

    29. I am satisfied that the respondent was not undergoing psychiatric confinement, as defined, during the relevant time, so that section 1158(1) of the Act does not operate to deny payment of the pension.”

    THE SUBMISSIONS IN THIS COURT

13. The applicant submits that :

    (a)there is a distinction between “rehabilitation” per se and a “course of rehabilitation” and that the former does not fall within s 23(9) of the Act;

    (b)the AAT failed to draw the distinction and wrongly concluded that “rehabilitation” per se fell within s 23(9) of the Act;

    (c)a “course of rehabilitation” must have a structure and progress through stages to reach a goal at which stage the course is complete ie although flexible in approach and application, the course has a finite duration;

    (d)detention under the then the MH Act is for a specific statutory purpose which does not of itself involve rehabilitation or a course of rehabilitation.

14. The respondent submits that :

    (a)the AAT did make the requisite distinction between “rehabilitation” per se and a course of rehabilitation;

    (b)notwithstanding the provisions of s 34 of the MH Act, the AAT found in fact that the respondent was undertaking rehabilitation activities and that those activities were sufficiently structured to constitute a course of rehabilitation as explained by Senior Member Handley in Re Pardo (2000) 32 AAR 381 at 394, to which the AAT referred in its reasons for decision.

15. The Court itself raised for consideration by the parties whether, as a matter of construction of s 1158(1) of the Act, s 23(9) had no relevant operation when a person was undergoing psychiatric confinement because the person had been charged with an offence, for so long as confinement for that reason remained operative. The applicant submits that the decision in Garden v Secretary, Department of Family and Community Services [2001] FCA 827; 33 AAR 280, was against such a proposition.

    CONCLUSION

16. It is convenient to begin with the statutory scheme in Queensland for the detention of persons charged with an indictable offence, where the MHT determined that the person was not fit to plead, as it existed prior to the Mental Health Act 2000 (Qld) (“the 2000 MH Act”) coming into operation in February 2002.

17. Section 34 of the MH Act provided :

    “34(1) If, pursuant to section 33 the Mental Health Tribunal finds that a person is not fit for trial -

    (a)it shall order that the person be detained as a restricted patient under this part in a security patients’ hospital or in some other hospital;

    (b)a Patient Review Tribunal shall review the mental condition of the person in relation to the person’s fitness for trial at least once in every 3 months for a period of 12 months commencing on the day on which the Mental Health Tribunal made its order for the person’s detention;

    (c)at the termination of the period of 12 months a Patient Review Tribunal shall determine the likelihood of the person being fit for trial within a reasonable time.

    (1A)     The order of the Mental Health Tribunal made under subsection (1) is lawful authority to all persons concerned to detain the person to whom the order relates in accordance with the order.”

18. Patient Review Tribunals were established under s 14 of the MH Act.

19. If a Patient Review Tribunal (“PRT”) determined that the person detained was unlikely to be fit for trial within a reasonable time, it was to report that determination to the Attorney-General: s 34(3). The report of the PRT together with a recommendation of the Attorney-General was then provided to the Governor in Council which could order that the proceedings be discontinued forthwith or a decision deferred for not more than two periods of six months: s 34(3). Where the Governor in Council deferred its decision, a PRT was required within the period of deferral to provide a further report: s 34(4).

20. Where the Governor in Council had ordered that the proceedings be discontinued, the person was liable to be detained as a restricted patient under Part 4 of the MH Act: s 35(2). If the Governor in Council had not determined the question of the continuance or discontinuance of the proceedings against the person within three years after the date upon which the MHT had found the person unfit for trial, the proceedings were deemed to be discontinued and the person was liable for detention as a restricted patient under Part 4 of the MH Act: s 35(3).

21. Where in consequence of the discontinuance of proceedings the person became liable to be detained as a restricted patient under Part 4, the provisions of s 36 came into operation. That section provided :

    “36.     Except where it is otherwise provided in this part, where a patient is liable to be detained as a restricted patient under this part -

    (a)the patient’s liability to be detained shall be reviewed by a tribunal as if the patient had been admitted to hospital pursuant to part 3, division 2; and

    (b)the patient shall not be released, including on leave of absence, unless a tribunal has found that the patient can be released having regard to the interests of the patient’s own welfare and the protection of other persons;  and

    (c)the patient shall not be transferred from one hospital to another unless a tribunal, by writing under the hand of its chairperson, or the director, by signed writing, so orders.”

22. Part 3 Div 2 of the MH Act related to regulated admissions of patients to a hospital other than a security hospital for treatment of mental illness: s 18(1), s 19. Patients so admitted were detained for certain statutory periods as provided in s 21 of the MH Act. They were discharged under an order for discharge from liability to detention under s 48(1) of the MH Act. There were restrictions on the making of such orders: s 49, s 50.

23. Patients held in detention pursuant to Part 3 Div 2 of the MH Act were regularly reviewed by a PRT and patients could apply to a PRT for release from detention. The powers of a PRT were contained in s 15(6) which provided :

    “(6)     Where an application has been made pursuant to this Act to a tribunal by or in respect of a patient who is liable to be detained under part 3, division 2, the tribunal -

    (a)if it is satisfied that the patient is not suffering from mental illness of a nature or to a degree that warrants the patent’s detention in a hospital and does not need to be detained in the interests of the patient’s own welfare or with a view to the protection of other persons - may order the director to discharge the patient;  or

    (b)if it is satisfied that transfer or absence on leave of the patient would be in the interests of the patient and would not be detrimental to other persons - may order the director to make appropriate arrangements for the transfer or leave of absence of the patient as the tribunal may specify;  or

    (c)if it is satisfied as to any other matter that appears to it to be relevant to the application - may make such recommendations to the director if it thinks fit;  or

    (d)may refuse the application.”

24. Prior to the discontinuance of the criminal proceedings against a person due to unfitness for trial, the person was and remained a person detained as a restricted patient under Part 4 of the MH Act in a security patient’s hospital or in some other hospital: s 34(1). The detention of such a person did not become detention, as if a regulated patient for medical treatment for mental illness, until discontinuance of the criminal proceedings: s 35(3).

25. Whilst detained as a restricted patient in a security patient’s hospital, a person was detained because the person has been charged with an indictable criminal offence and was held to determine whether the person, within the period provided for in the MH Act, became fit for trial. The detention in a security patient’s hospital, as a person charged with a criminal offence, did not end until the proceedings were discontinued.

26. The MH Act was repealed and replaced by the 2000 MH Act and orders and determinations of the MHT under the MH Act are preserved and given effect to as if made under the new Act: s 580.

27. To limit the issue for consideration to the proper construction of s 23(9) and the application of that section to the facts as found, involves, in my view, two errors of approach which are want to mislead.

28. Section 23(9) is part of a definition of the term “psychiatric confinement”. As such, it should not be treated as a substantive provision. The function of a definition clause in a statute was considered in Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628. The majority (Barwick CJ, McTiernan and Taylor JJ) said (at 635) :

    “... The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include.  Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way.  As was said by Sutherland (Statutes and Statutory Construction, 2nd ed, vol 2, p 687),

    ‘Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves.’ ”

29. The work of s 23(8) and (9) is therefore to be considered in the context of s 1158(1)(a)(ii) and wherever else the term “psychiatric confinement” is used in the substantive provisions of the Act. To limit a consideration of the meaning and operation of s 23(9) to the context in which it appears in the definition, is in error.

30. Further, individual words or phrases in the definition are not to be given meaning and effect divorced from the context in which the definition is to be applied.  As was said in the joint judgment of the High Court in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396 - 397 :

    “... The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. ...”

    The Court went on to quote with approval the statement of Lord Hoffman in R v Brown [1996] 1 AC 543 at 561 :

    “The fallacy in the Crown’s argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence. ... This is not the way language works.  The unit of communication by means of language is the sentence and not the parts of which it is composed.  The significance of individual words is affected by other words and the syntax of the whole.”

1. For present purposes, the context is s 1158(1)(a)(ii) of the Act, and the sentence under consideration is :

   “... the person is ... undergoing psychiatric confinement because the person has been charged with committing an offence;”

2. The “psychiatric confinement” under consideration in the section is confinement because the person has been charged with committing an offence. It is confinement which includes confinement in the psychiatric section of a hospital or any other place where persons with psychiatric disabilities are from time to time confined: s 23(8). For the purposes of s 1158(1)(a)(ii) of the Act, it is not confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation: (s 23(9)), if there is not also the operative reason that the confinement is because the person has been charged with committing an offence.

3. The question to be asked is “For what operative reason was the person undergoing psychiatric confinement?” If the answer is, or includes the reason, “because the person has been charged with committing an offence”, s 1158(1)(a)(ii) will be satisfied. If the answer does not include a reason because the person has been charged with committing an offence, s 1158(1)(a)(ii) will not be satisfied and the section will have no operation upon the payment of any pension to the person confined during the period when the person is undertaking a course of rehabilitation.

4. Such a construction is consistent with the legislative history of s 1158(1) and s 23(8) and (9) of the Act.

5. The history commences with the Social Security Act 1947 (Cth) (“the 1947 Act”). Section 52 of the 1947 Act empowered the Director General of Social Security to suspend a pension or forfeit an instalment of a pension if the pensioner was imprisoned following upon his or her conviction for an offence.

6. In 1984, s 52 of the Act was repealed and a new s 135THA was introduced. That section also dealt with the suspension of a benefit where the pensioner was imprisoned or detained in connection with his or her conviction for an offence.

7. In 1985, s 135THA was amended to include confinement to a psychiatric institution in consequence of having been charged with the commission of an offence.

8. Section 135THA, after amendment by the Social Security and Repatriation Legislation Amendment Act 1985 (Cth), so far as presently relevant, provided :

   “(2)     Where -

   (a)a person would, but for this sub-section, be entitled to be paid -

   (i)a pension under Part III or IV;  or

   (ii)a benefit under Part IVAAA;

   (b)the person is -

   (i)imprisoned in connection with his or her conviction for an offence;  or

   (ii)confined in a psychiatric institution, whether by order of a court or otherwise, in consequence of having been charged with the commission of an offence;  and

   (c)2 or more pension pay days occur after the first pay day of the period of the imprisonment of the person and before the last day of that period,

   that entitlement ceases immediately after the earliest of those pension pay days and revives immediately before the last of those pension pay days.
   ...

   (7)      In this section, a reference to a psychiatric institution shall be read as including a reference to a psychiatric section of a hospital and to any other place where persons with psychiatric disorders are, from time to time, confined.”

9. In his Second Reading Speech on 15 May 1985, Minister Howe said in respect of the proposed changes :

   “Fourthly, the Bill precludes payments of pensions and benefits to mentally ill persons who are confined without being convicted of an offence.  The Act will treat such persons in the same way as a person who is imprisoned in connection [with] his or her conviction for an offence.”

10. In 1986, s 135THA was further amended by the Social Security and Veterans’ Affairs (Miscellaneous Amendments) Act 1986 (Cth). Section 135THA(7) was amended to delete the word “disorders” and to insert in lieu thereof the word “disabilities”. There was also inserted new sub-sections 135THA(8) and (9), which provided :

    “(8)     A reference in this section to a person who is imprisoned in connection with his or her conviction for an offence includes a reference to a person who is being held in custody pending trial or sentencing for an offence.

    (9)      This section does not apply, and shall be deemed never to have applied, to a person who is confined in a psychiatric institution during any period during which the person is or was undertaking a course of rehabilitation.”

11. Until 1986, the statutory policy underlying s 135THA of the 1947 Act was clear.  It was that persons in gaol following conviction for a criminal offence, or persons confined in a psychiatric institution in consequence of having been charged with a criminal offence, although not convicted of the offence, were supplied with the essentials of sustenance and shelter as inmates of such institutions.  Therefore, they had no need for a pension or benefit under the 1947 Act to which they would otherwise have been entitled.  The pension or benefit in consequence was suspended during the period of such imprisonment or such confinement and revived at the end of that period when the need for support again arose:  s 135THA(2)(c) of the 1947 Act.  Treatment of a person for a mental disability while the person was confined in a psychiatric institution, in consequence of the person being charged with an offence, did not change the basis of the confinement which remained throughout confinement for the purpose specified in s 135THA of the 1947 Act.

12. The introduction of s 135THA(9) in 1986 had both a prospective and retrospective operation.  It was intended to make clear that, for the purposes of s 135THA, there was a distinction between a person undergoing psychiatric confinement because the person had been charged with committing an offence, and, a person undergoing psychiatric confinement because the person was undertaking a course of rehabilitation where the existence of the charge was irrelevant to the reason for which the person was confined. 

13. The distinction between the two situations is that the reasons for confinement are different.  Where the operative reason for the confinement was, and remained, in consequence of the person having been charged with an office, s 135THA(2) applied and the pension or benefit was lost during the period of confinement for that reason.  Where, for example, a person became mentally ill after being charged with an offence and as a matter of medical judgment required psychiatric confinement to undertake a course of rehabilitation as part of his or her medical treatment, confinement in a psychiatric institution for that reason and purpose was not caught by the operation of s 135THA of the 1947 Act, the existence of the criminal charge was totally irrelevant to the reason for confinement.

14. The Act, when it was introduced in 1991, did not intend to do other than re-state the 1947 Act in plain English in order to make its provisions more accessible to persons without legal training:  Blunn v Cleaver (1993) 47 FCR 111 at 127. The replacement of s 135THA of the 1947 Act with ss 1158(1), 23(5), 23(8) and (9) in the Act did not involve any change in the underlying policy position.

15. There are two decisions of single judges of this Court dealing with the cessation of benefit payments during a period of incarceration.  Although the decisions appear to be in conflict, on analysis they both apply the same test, although in the outcome reach different conclusions.  That followed, in my view, from the analysis which each of their Honours made as to the legal basis upon which the person was detained.

16. In Blunn v Bulsey (1994) 53 FCR 572 (Einfeld J) the respondent had been convicted of murder in 1977 and was serving a life sentence at the Townsville Correctional Centre in Queensland. At some time during his imprisonment, the respondent developed a mental illness. He was removed to a psychiatric hospital pursuant to s 43(6) of the MH Act. Einfeld J found that the respondent, after transfer to the hospital, was not regarded as a prisoner under and subject to the Corrective Services Act 1988 (Qld). The issue was, whether the respondent was “in gaol” for the purposes of the Act when detained in the psychiatric hospital. This involved a consideration of s 23(5) of the Act. That section provided :

    “23(5) 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.”

17. Clauses (a) and (c) had no relevant application and his Honour considered the operation of paragraph (b) of the definition.  He said (at 576) :

    “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.”

18. Einfeld J, after consideration of s 43 of the Act, concluded that for the purposes of the Act, neither the fact of the respondent’s conviction, nor his status as a convict was relevant to his placement in a psychiatric hospital nor his continued detention there. The sole criteria applicable to his detention at the psychiatric hospital was the respondent’s mental illness, his Honour found. His Honour concluded (at 578 - 579) :

    “Mr Bulsey is serving a term of imprisonment following a conviction for murder.  He was removed from prison to hospital for treatment for mental illness, unconnected with the conviction, pursuant to s 43 of the Queensland Act.  As he has a life sentence, it is most likely that if he is ever released from the hospital, it will be under s 43(6) and he will be returned to prison.  The fact that he was serving a prison sentence at the time of his removal means that he was admitted to and will be released from hospital under a different legislative provision to members of the general public with similar mental illnesses.  However, like all other patients detained in the hospital, he is there because of conclusions drawn about his mental state and need for treatment.  He will stay there until it is determined under s 43(6) that he no longer needs to remain, a decision that will be solely based on his mental condition, irrespective of his status as a convict.  If he still has time to serve, he will be returned to prison.  Otherwise he will be released.  The fact that his sentence comes to an end does not of itself affect the period he will spend in the hospital.  In fact his present mandatory life sentence underscores that his detention in the hospital, however long it lasts, is completely separate to his prison sentence.”

19. In my view, it is demonstrably clear that Einfeld J asked the question “Why was the person detained at the psychiatric hospital?”  He concluded that it was solely because of his mental state and that it was not because the person was “being lawfully detained in a place other than a prison, in connection with the person’s conviction for an offence”.

20. In Garden v Secretary, Department of Family and Community Services [2001] FCA 827; 33 AAR 280, Gray J had for consideration ss 1158(1), 23(5), 23(8) and 23(9) of the Act. The applicant in the proceedings was convicted for murder and attempted murder in 1995. He was sentenced pursuant to s 93(1)(e) of the Sentencing Act 1991 (Vic) to be admitted to and detained in a psychiatric in-patient service for a period of eighteen years and nine months. He was moved between psychiatric institutions and gaols and ultimately was placed in the Thomas Embling Hospital, a psychiatric hospital. His application for a disability pension was refused. He argued that :

    (a)he 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 hospital for treatment;  or

    (b)he was confined in the mental institution because he had been charged with committing an offence (s 1158(1)(a)(ii));  and

    (c)because he was undertaking a course of rehabilitation, the exception in s 23(9) had the effect of enabling him to receive a social security pension, if otherwise entitled to it.

21. Gray J held that “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”: paragraph [21] p 286 - 287. I agree, and this is the same test as Einfeld J stated and applied in Blunn v Busley at 576.  Einfeld J did not, as Gray J states in his reasons, characterise the question posed by the section as a question of the connection between the mental condition of the person concerned and a crime for which that person had been imprisoned.  Einfeld J merely concluded that because Busley was lawfully detained in a psychiatric hospital solely on account of his mental illness, that circumstance excluded his detention in hospital being in connection with his conviction for an offence for which he had been serving a sentence of imprisonment at the time at which he was transferred to, and thereafter detained in, a psychiatric hospital.  In coming to his conclusion, he had particular regard to the operation of the applicable Queensland statutes.

22. Gray J concluded that Garden was sentenced under s 93(1)(e) of the Sentencing Act 1991 (Vic), which enabled a sentencing judge to order that the prisoner serve his or her sentence as a detained person in an approved mental health service. It followed that confinement in accordance with that sentence was within s 23(5)(b) because Garden was “being lawfully detained in a place other than a prison in connection with [Garden’s] conviction for an offence”. His Honour concluded that a mere temporal coincidence between the detention and a continuation of the sentence is sufficient to satisfy s 23(5)(b) because it is the sentence of imprisonment which the person continues to serve which makes the detention at a place other than the prison lawful. His Honour said (at [24] - [25]) :

    “[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.”

23. The opinion expressed by his Honour may well be correct where there is no other operative lawful basis for the detention. What Einfeld J held was that the mere coincidence of conviction and sentence as one factor, and detention in a place other than a prison as another factor, was insufficient without more to make out the requirements of s 23(5)(b) of the Act. Where the detention for its lawfulness relies upon the carrying into effect of the sentence imposed upon conviction for the offence, that is a sufficient connection as Einfeld J acknowledged in his reasons. But, where the lawfulness of the detention in a psychiatric hospital depends upon a set of circumstances relevantly unconnected with the conviction for an offence, and, is sourced in a different head of power to detain, the test in s 23(5)(b) will ordinarily not be made out; Blunn v Bulsey stands as an example of such a case.

24. In respect of s 1158(1), Gray J said ([26] - [27] at 287 - 288) :

    “[26]  It is also necessary to have regard to the second limb of s 1158(a) [sic].  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. ...

    [27]    ... 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.”

25. There is, in my view, no statutory intention that a person who is in psychiatric confinement because he or she has been charged with committing an offence and is thereby deprived of the right to a pension, may render s 1158(1)(a)(ii) inoperative merely by undergoing a course of rehabilitation. To read such an intention into s 23(9) is to give the definitional section a substantive effect which is not the function of such a section. Further, such an interpretation is to treat differently for the purposes of s 1158(1)(a), persons who are in gaol, from those who are in psychiatric confinement; this was not the legislative intent. Rather, the history of the legislation indicates that the legislative intent was to put both categories of persons on the same footing for the purposes of s 1158(1) of the Act. Section 23(9) was to remind or warn those reading the section of the need to properly characterise the reason for the psychiatric confinement by asking whether or not the existence of a pending charge was or was not the reason for the confinement.

26. In my opinion, the AAT erred in the question it posed for itself. It should have asked the question whether Mr Franks was undergoing psychiatric confinement because he had been charged with committing an offence. In the context of the MH Act, that involved the question of whether he was detained or remained detained because he was unfit for trial on the charges brought against him of committing an indictable offence, or, whether he was detained and remained detained in the Baillie Henderson Hospital for some other reason. The statement of the AAT in paragraph 9 of its reasons that the criminal proceedings have been deferred indefinitely and will remain so while the respondent remains unfit to stand trial, indicates that a close consideration of the operation of s 35(2) and (3) of the MH Act did not occur before the AAT.

1. If the answer to the question was that Mr Franks was undergoing psychiatric confinement because he had been charged with committing an offence, the fact that Mr Franks may have received treatment by undertaking a course of rehabilitation during the period of his psychiatric confinement will not change the reason for, or character of, his psychiatric confinement. For so long as Mr Franks remained in detention as unfit for trial upon a pending charge, he remained in detention subject to the provisions of the MH Act dealing with persons unfit for trial. For this reason he was undergoing psychiatric confinement because he was a person charged with committing an offence. He remained, or remains, detained for that reason until his detention for the purposes of Part 4 of the MH Act, was, or is, resolved in accordance with that Act. Until that occurs he is, or was, subject to the operation of s 1158(1)(a)(ii) of the Act.

2. The decision of the AAT given on 24 August 2001 to affirm the decision of the SSAT is for the above reasons vitiated for error of law and will be set aside.  The matter will be remitted for reconsideration according to law.

3. Although the application succeeds, it does so on a basis different from that advanced by the applicant here and in the AAT.  In those circumstances the justice of the situation is met on the issue of costs if each party bears its own costs and I make no order for costs.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             8 May 2002

Counsel for the Applicant:	Mr G O’Sullivan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Ms CC Heyworth-Smith
Solicitor for the Respondent:	Welfare Rights Centre
Date of Hearing:	19 March 2002
Date of Judgment:	8 May 2002