Toben and Department of Family and Community Services

[2001] AATA 131

DECISION AND REASONS FOR DECISION [2001] AATA 131

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/165

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      GERALD TOBEN  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Miss WJF Purcell (Senior Member)        

Date21 February 2001

PlaceAdelaide

Decision      The Tribunal affirms the decision under review.         
  (Signed)
  W J F PURCELL

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension – whether pension was payable during period of imprisonment in Germany – extra-territorial operation of the Social Security Act - whether pension was properly suspended

Social Security Act, 1991 ss 23(5), 98, 146, 1158, 1213A
Re Gilbert and Secretary, Department of Social Security (1987) 13 ALD 518

REASONS FOR DECISION

21 February 2001              Miss WJF Purcell (Senior Member)        

1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 17 April 2000, which affirmed the decision of an Authorised Review Officer of 21 March 2000, that Disability Support Pension was not payable to the applicant during the period 8 April 1999 to 11 November 1999, whilst he was in prison in Germany.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). The applicant appeared on his own behalf. Ms Odgers, Departmental Advocate, represented the respondent (the Department).

3. The applicant, who is 56 years of age, has been in receipt of Disability Support Pension since February 1996. In February 1999, he advised Centrelink's Norwood office that he was travelling overseas. In a letter dated 10 February 1999, he was informed that he would receive pension at the basic rate, excluding pharmaceutical allowance and rent assistance where applicable, for a maximum period of twelve months while he remained outside Australia. This decision was in accordance with section 1213A of the Social Security Act 1991 (the Act) which provides :

   "1213A Portability of disability support pension

   General

   1213A(1)Subject to subsections (2) and (3), a person's right to continue to be paid disability support pension is not affected by the person's leaving Australia.

   Pensions granted on or after 12 November 1991 to persons not severely disabled

   1213A(2)        If:

   (a)a person is receiving a disability support pension granted on or after 12 November 1991; and

   (b)       the person leaves Australia on or after that day; and
   (c)       the Secretary decides that the person is not severely disabled when leaving; and

   (d)the person continues to be absent from Australia for a period of 12 months;

   the person ceases to be qualified for disability support pension on the day after the 12 month period ends.
   Pensions granted on or after 12 November 1991 to persons severely disabled

   1213A(3)        If:

   (a)a person is receiving a disability support pension granted on or after 12 November 1991; and

   (b)       the person leaves Australia on or after that day; and
   (c)       the person is severely disabled when leaving; and

   (d)the Secretary decides that the person has ceased to be severely disabled; and

   (e)the person continues to be absent from Australia for a period of 12 months after the decision;

   the person ceases to be qualified for disability support pension on the day after the 12 month period ends."

4. On 7 July 1999, an article published in The Advertiser newspaper indicated that a person of the same name as the applicant had been imprisoned in Germany since April 1999.  On the same day a delegate decided to suspend payment of pension pending further enquiry as to the applicant's possible incarceration.  The delegate made this decision pursuant to section 146 of the Act which provides:-

   "Cancellation or suspension determination
   If the Secretary is satisfied that disability support pension is being, or has been, paid to a person to whom it is not, or was not payable under this Act, the Secretary is to determine that the pension is to be cancelled or suspended."

5. On 14 September 1999, the Australian Embassy in Berlin forwarded correspondence to the Department from the applicant.  His letter, dated 30 July 1999, advised that he had been imprisoned in Mannheim Prison since 8 April 1999. The delegate confirmed the suspension of the applicant's pension payment on 15 September 1999, on the basis that pension was not payable in accordance with s 98 (1) of the Act which, as far as is relevant for the purposes of this review, provides:

   "98  Disability support pension not payable in some circumstances

   98(1) 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);
   …"

"In gaol" is defined in s 23(5) of the Act as follows:

"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."

Section 1158 of the Act provides:

"1158   Some social security pensions not payable during period in gaol or in psychiatric confinement following criminal charge

An instalment of a social security pension, a social security benefit, a parenting payment or a pensioner education supplement is not payable to a person in respect of a day on which the person is:

(a)      in gaol; or

(b)undergoing psychiatric confinement because the person has been charged with an offence.

Note 1: For in gaol see subsection 23(5).

Note 2: For psychiatric confinement see subsections 23(8) and (9)."

1. On 11 November 1999 the applicant was released from prison, and on 15 November 1999 he requested review of the delegate's decision.  On 16 November 1999, the Department restored his payments of pension.  The applicant returned to Australia on 15 December 1999.  On 6 January 2000 the delegate reviewed his earlier decision, and decided that the decision to suspend payment of pension was correct.  The applicant applied for review, and an Authorised Review Officer affirmed the decision on 21 March 2000.  The Social Security Appeals Tribunal affirmed the decision on 17 April 2000, and the applicant has applied to this Tribunal for review of that decision.

2. The applicant submits that the Act has been made law by the Federal Government of Australia, to be enforced within the borders of the Commonwealth of Australia and its territories; it cannot be extended to other countries. To treat the Act as extending to other countries violates the Australian Constitution, International Law, and some of Australia's International Agreements with other countries, and would violate the sovereignty of other countries. It violates also the applicant's rights as an Australian citizen, as laid down in the Constitution and the United Nations Human Rights Charter. There is no mutual agreement between Australia and Germany which regulates Social Security payments to their citizens while they are imprisoned in the other country.

3. The applicant maintains that he did not break any Australian or International Law.  He was arrested because of his idealistic attitude, and the law under which he was incarcerated in Germany violates the German Constitution, the United Nations Charter of Human Rights, and the Helsinki Agreement on Civil and Human Rights.  The German Government applied German law to him, and it is trying to extend German law to cover the Internet.  He maintains further, that the alleged offence of placing material on the Adelaide Institute's Web Site, material which the Germans regarded as "defaming the memory of the dead," is not an offence in Australia.  He was unlawfully imprisoned, and should not be regarded, therefore, as "in gaol" for the purposes of the Act.

4. The applicant submits also, that he should not be discriminated against by the Department, by the suspension of pension payments, his only income.  He maintains that he will continue to make use of his guaranteed constitutional rights, by using his freedom of speech and freedom of historical research, and by placing the results of his work on the Internet in Australia.

5. The Department argues that any presumption against extra territorial operation of the Act is rebutted by the existence of such provisions as s 1213A of the Act, which allows for the payment of pension whilst the recipient is overseas. There is a necessary inference to be drawn, that those provisions of the Act which cover qualification and payability, should continue to have effect when payment is occurring overseas. Given the purpose of the provisions preventing payment whilst in prison, and given that a person is able to continue to be paid pension whilst overseas, it is the Department's submission that it matters not whether the imprisonment is overseas.

6. The Department argues also that whilst in prison, the person is receiving food and sustenance and the need for income support is negated.  It relies on ReGilbert and Secretary, Department of Social Security (1987) 13 ALD 518. There is no compelling reason why a person imprisoned overseas would be in need of further income support by means of continuing payment of pension. Indeed, to decide otherwise would be to place the person imprisoned overseas at an unfair advantage over his counterpart imprisoned in Australia.

7. The Department argues finally, that in relation to the applicant's assertion that he was wrongfully imprisoned, there is no scope under the Act to continue to pay a pensioner who is in gaol, even if that person is wrongfully imprisoned.  This is consistent with the rationale underlining the preclusion, namely that the person is not in need of income support.  The question of wrongful incarceration is for another forum.  The Social Security system should not be used as a source of compensation for any wrongful imprisonment which may have taken place.

8. It is clearly the intention of the legislation that a person's right to continue to be paid Disability Support Pension is not affected by the person leaving Australia.  It follows, necessarily, in my view, that the person, whilst absent from Australia, must continue to qualify for pension.  Section 98 of the Act provides that although a person is qualified for Disability Support Pension, the pension may not be payable in certain circumstances.  Section 98(1)(e) of the Act provides that pension is not payable to a person who is in gaol.  As the Tribunal said in the matter of Gilbert at page 523 in relation to the equivalent provision (s135THA) in the Social Security Act 1947:

   "…The Act is designed to support those in need.  The intention of the section is surely to exclude from a benefit under the Act persons who are receiving food and sustenance while in a prison.  It seems to us that this application is designed to defeat the manifest purposes of Parliament in enacting the amending legislation. …"

9. The definition of "in gaol" in s23(5) of the Act, includes not only a person convicted of an offence, but a person "undergoing a period of custody pending trial". It is not in dispute that the applicant was in custody pending trial for an offence.  The trial took place on 9 October 1999.  The applicant was convicted, and on 10 October 1999, he was sentenced to a term of 10 months imprisonment, 3 months of which was suspended upon his release on bail.  The legislation does not specify that a person be "in gaol" in Australia.  I do not consider it a question of attempted enforcement of Australian Law in another country, as submitted by the applicant.  It is a question, simply, of eligibility for continuing payment of pension.  Pension is not payable if the person is in gaol and in my view, it matters not whether the incarceration occurs in Australia, or in some other country where the applicant is travelling.  The person's needs are met by the incarcerating authority wherever the imprisonment occurs.

10. In relation to the applicant's submission that his imprisonment was unlawful, and he should not be regarded, therefore, as "in gaol" for the purposes of the Act, I do not consider the legality of the applicant's imprisonment relevant to the question of suspension of pension payment.  Whether his imprisonment was lawful or unlawful, the fact remains that he was "in gaol" and his needs were met by the gaol authorities.  He was not in need of support from the Social Security system, and in accordance with the legislation, pension was not payable during the period the applicant was in gaol in Germany.

11. For these reasons the Tribunal affirms the decision under review.

    I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  15/12/00
    Date of Decision  21/2/01
    Counsel for the Applicant        In person
    Solicitor for the Applicant         -
    Counsel for the Respondent    Ms Odgers
    Solicitor for the Respondent    Centrelink