Garden v Secretary, Department of Family and Community Services [2001] FCA 827

FEDERAL COURT OF AUSTRALIA

Garden v Secretary, Department of Family and Community Services [2001] FCA 827 SOCIAL SECURITY – pension – eligibility – whether applicant in gaol – hospital security order made following conviction – applicant transferred from psychiatric facility to prison and back to psychiatric facility – whether second period of detention in psychiatric facility in connection with applicant's conviction for an offence – whether connection between mental state and crime for which convicted required – whether more than temporal coincidence between detention and conviction required WORDS & PHRASES – "in gaol", "in connection with"

Social Security Act 1991 (Cth) ss 23(5), 23(8), 23(9), 98(1), 1158 Sentencing Act 1991 (Vic) s 93 Mental Health Act 1986 (Vic) ss 16(2), 16(4), 44, 45

Blunn v Bulsey (1994) 53 FCR 572, disapproved NEVILLE GARDEN v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES V 458 of 2000 GRAY J 2 JULY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 458 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: NEVILLE GARDEN

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 2 JULY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT the appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 458 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: NEVILLE GARDEN

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: GRAY J

DATE: 2 JULY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant has appealed to this Court from a decision of the Administrative Appeals Tribunal ("the AAT"). By s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), the appeal is limited to an appeal on a question of law. The issue is whether, whilst in an institution known as Thomas Embling Hospital, the applicant was "in gaol" as that term is used in certain provisions of the Social Security Act 1991 (Cth) ("the Social Security Act"). The facts, which I set out in summary form, are taken from the reasons for decision of the AAT, published on 30 May 2000. 2 Section 98(1) of the Social Security Act provides relevantly as follows: "Even though a person is qualified for disability support pension, the pension may not be payable to the person because: