Franks v Secretary, Department of Family & Community Services [2002] FCAFC 436

FEDERAL COURT OF AUSTRALIA

Franks v Secretary, Department of Family & Community Services [2002] FCAFC 436

SOCIAL WELFARE – suspension of disability support pension – appellant charged with an indictable offence but found unfit for trial and detained in psychiatric hospital – operation of s 23(9) the Social Security Act 1991 (Cth) in context of s 1158(b) – legislative intention behind and history of s 1158 considered – whether a substantive or definitional effect be given to s 23(9) – the bar in s 1158(b) against the payment of a pension to a person undergoing psychiatric confinement because the person has been charged with an offence does not apply during a period when that person is undertaking a course of rehabilitation ADMINISTRATIVE LAW – appeal from decision of the Administrative Appeals Tribunal – whether error of law – whether Tribunal distinguished between "rehabilitation" and a "course of rehabilitation" – whether reasonably open to Tribunal on the evidence to find that rehabilitation activities engaged in by appellant amounted to a "course of rehabilitation" – ordinary meaning given to the phrase "course of rehabilitation" WORDS AND PHRASES – "course of rehabilitation" – "psychiatric confinement" Administrative Appeals Tribunal Act 1975 (Cth) s 44 Disability Services Act 1986 (Cth) s 20 Mental Health Act 1974 (Qld) s 34 Social Security Act 1947 (Cth) (repealed) s 135THA Social Security Act 1991 (Cth) ss 23(5), 23(8), 23(9), 1158, 1160 Blunn v Cleaver (1993) 47 FCR 111 at 127 referred to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 applied Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 52 applied Blunn v Bulsey (1994) 53 FCR 572 distinguished Garden v Secretary, Department of Family and Community Services (2001) 33 AAR 280 at 288 approved Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288 followed Macquarie Dictionary, 3rd ed CYRIL FRANKS v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Q 86 OF 2002