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

This matter concerned an application for review of a decision by the Secretary, Department of Social Services, regarding Mr Toki's eligibility for a Disability Support Pension. Mr Toki had been convicted of murder in 2000 and sentenced to a term of imprisonment due to expire in 2025. While incarcerated, he was admitted to a psychiatric institution due to his forensic patient status. He applied for the Disability Support Pension in September 2019. The Administrative Appeals Tribunal was required to determine whether Mr Toki was considered to be "in gaol" for the purposes of the *Social Security Act 1991* (Cth) during the relevant period for his pension application, and if so, whether the application for review should be dismissed for having no reasonable prospect of success.

The primary legal issue was the interpretation of the phrase "in gaol" as defined in section 23(5) of the *Social Security Act 1991* (Cth). This definition requires a person to be lawfully detained, either in prison or elsewhere, while under sentence for a conviction of an offence, and not on release on parole or licence. Mr Toki argued that his confinement in a psychiatric hospital, resulting from a finding of not guilty by reason of mental illness and a time-limited order, was not sufficiently connected to his original sentence to be considered "in gaol" under the Act. The Tribunal also considered its power under section 42B of the *Administrative Appeals Tribunal Act 1975* (Cth) to dismiss an application that has no reasonable prospect of success.

The Tribunal reasoned that Mr Toki was lawfully detained at the Forensic Hospital during the relevant period, remained under sentence for his murder conviction until 2025, and was not on parole or licence. It found no requirement in the legislation for a causal connection between the place of detention and the original offence, relying on the principle that a person serving a sentence is considered "in gaol" regardless of whether they are in a prison or another place of detention. This interpretation was supported by existing case law, which held that the temporal coincidence between detention and the continuation of a sentence is of primary importance. Consequently, the Tribunal concluded that Mr Toki was "in gaol" for the purposes of the Act and that his application for review had no reasonable prospect of success.

Accordingly, the Tribunal dismissed Mr Toki's application for review of the decision made by the Tribunal in the Social Security and Child Support Division on 27 July 2020, pursuant to section 42B of the *Administrative Appeals Tribunal Act 1975* (Cth).