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

This matter concerned an appeal by Ms Tonkin against a decision by the Secretary of the Department of Social Services regarding the suspension of her Disability Support Pension. Ms Tonkin had travelled to New Zealand in March 2019 and remained there for an extended period, during which her portability period for receiving her pension was in question. The dispute centred on whether the Secretary had erred in not extending this portability period, despite Ms Tonkin's stated reasons for remaining overseas, including the serious illness of her parents and later, the impact of COVID-19 travel restrictions. The case was heard by R Bellamy SM.

The primary legal issue before the court was whether the Secretary had correctly exercised their discretion under section 1218C of the Social Security Act 1991 (Cth) to extend Ms Tonkin's portability period. This required determining if the circumstances of her parents' medical conditions, the COVID-19 pandemic, or her own ill health constituted valid grounds for an extension beyond the standard period. Specifically, the court had to consider whether the medical reports provided by Ms Tonkin sufficiently demonstrated an acute family crisis or other qualifying event that prevented her return to Australia within the prescribed timeframe.

The Senior Member found that while Ms Tonkin's father was critically ill, the initial medical certificate provided to Centrelink was deemed insufficient to establish an acute family crisis requiring her departure at short notice. Although Ms Tonkin's mother's condition also deteriorated, the Senior Member was not satisfied, based on the limited evidence, that the discretion to extend portability was enlivened solely on the basis of her mother's ill health or hospitalisation, as it was not clear that new events relevant to her health occurred after Ms Tonkin's most recent arrival in New Zealand. However, the Senior Member accepted that the COVID-19 pandemic, and specifically the requirement for international arrivals to undergo hotel quarantine, combined with Ms Tonkin's pre-existing anxiety, could have prevented her return to Australia. The respondent conceded that the COVID-19 pandemic was a "natural disaster" as contemplated by the Act, and the widespread disruption began after Ms Tonkin's departure. Therefore, the court found that the discretion to extend the portability period under section 1218C of the Act could have been enlivened by the combination of Ms Tonkin's anxiety and the hotel quarantine requirements.