Franks v Secretary, Department of Family & Community Services

· Mr Franks was remanded in custody at the Arthur Gorrie Correctional Centre until 12 April 2000, when the QMHT found that he "was suffering unsoundness of mind and was not fit to plead at his trial".

· Mr Franks was transferred to the Baillie Henderson Hospital as a restricted patient and remains there.

· Baillie Henderson Hospital is a psychiatric hospital but is not a place which is declared to be a prison under the Corrective Services (Establishment of Prisons) Regulation 1992 (Qld).

· Mr Franks is afflicted with Korsakoff's Syndrome. He is of below average intelligence. He has had a limited education and has poor literacy and numeracy skills.

· Mr Franks is at Baillie Henderson Hospital "formally for the purpose of psychiatric assessment but he has also participated in a rehabilitation program".

· Mr Franks has participated in "a rehabilitation program" which "includes a wide range of rehabilitation activities suited to [him] and designed to assist his long term prospects".

· Mr Franks attends "rehabilitation activities (art classes) on the hospital campus escorted by a nurse".

· Mr Franks is involved in rehabilitative gardening activities.

· The rehabilitation activities are being provided for an uncertain period of time pending further order of the QMHT.

4 The details of the statutory scheme established by the Mental Health Act under which the QMHT determined that Mr Franks was unfit to plead and under which the question of his fitness to plead will be subject to periodic reviews are set out in pars [16] to [25] of the learned primary judge's reasons. It is unnecessary, for the purposes of this appeal, to refer further to these provisions of the Mental Health Act. It is sufficient to note that Mr Franks, at all relevant times, continued to be detained as a restricted patient under that Act in Baillie Henderson Hospital.

LEGISLATIVE CONTEXT 5 Section 1158 the Social Security Act 1991 (Cth), in the form in force at all relevant times, provides:

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

1158 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:

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

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

6 As to Note 2 to s 1158, s 23(8) of the Social Security Act 1991 provides that:

Subject to subsection (9), psychiatric confinement in relation to a person includes confinement in:

(b) any other place where persons with psychiatric disabilities are, from time to time, confined.

The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be psychiatric confinement.

8 It is unfortunate that the matter proceeded in the AAT and before the learned primary judge on the basis of a provision which had been repealed. That circumstance, however, has no material bearing on the proper construction of the version of s 1158 which was in force at all relevant times. We will therefore refer in these reasons to the old s 1158(1)(a), as if it had not been repealed. The repealed version of s 1158 is as follows:

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

1158(1) A social security pension (other than pension PP (single)) is not payable to a person on a pension payday if:

(ii) undergoing psychiatric confinement because the person has been charged with committing an offence; and

(b) that payday is not the first pension payday and not the last pension payday in the period of imprisonment or confinement.

Note 1: If someone else is receiving a payment that depends on the person in gaol receiving one of these payments, that other person's payment is not payable during the period identified in this section.

Note 3: for psychiatric confinement see subsections 23(8) and (9).

THE REASONING OF THE AAT 9 The AAT referred to s 34 the Mental Health Act. It observed that it provided a "procedure upon finding that a person is unfit for trial". It stated that the purpose of the ensuing detention is for the person "to receive appropriate treatment and rehabilitation", which would lead to the QMHT "eventually determining fitness for trial after treatment and rehabilitation". As appears from the learned primary judge's review of the legislation, that is not an accurate summary of the relevant provisions of the Mental Health Act. 10 The issue raised in the appeal by the Secretary to the AAT was whether Mr Franks could rely on s 23(9) the Social Security Act 1991; if so, he would be deemed not to be in "psychiatric confinement" within s 1158 and so not barred by that section from any entitlement he might otherwise have to payment of the disability support pension he had been receiving up to 13 April 2000. As the AAT observed in par [16], "that depends upon a finding that the respondent is undertaking a course of rehabilitation". At par [17], the AAT said:

The undisputed fact of rehabilitation being a component of [Mr Franks'] treatment at the hospital is not determinative of whether the respondent was undertaking a course of rehabilitation.

Section 23(9) clearly differentiates between confinement in a psychiatric institution per se and confinement in a psychiatric institution to undertake a course of rehabilitation.

12 At par [24] of its reasons for decision, the AAT said that:

The question is whether there is a distinction to be drawn between a course of rehabilitation of indefinite duration as contemplated by section 34 [the Mental Health Act] and a course of rehabilitation of a finite duration eg 12 months.

Provided the confinement and the undertaking of the course of rehabilitation are contemporaneous the sub-section will operate to exclude the person from the operation of sub-section 23(8) unless it can be said that rehabilitation which is determined on a flexible basis such as day to day or week to week is not a course of rehabilitation. I so not think that is an appropriate interpretation of the words. Rehabilitation of persons with psychiatric disabilities could not, in my view, be laid out as a week by week program as might be appropriate for a person with physical disabilities. It cannot be the intention of beneficial legislation to provide for the exclusion from the operation of section 1158 on a basis that would have little regard to the real life circumstances likely to occur from day to day. As Senior Member Handley said in Re Pardo (at 394) the restoration of a person's potential will vary from person to person. It must be added that this is even more so in relation to psychiatric illness.

I am satisfied that the respondent was not undergoing psychiatric confinement, as defined, during the relevant time, so that section 1158(1) of the Act does not operate to deny payment of the pension.

THE PROCEEDING BEFORE THE LEARNED PRIMARY JUDGE 14 That Mr Franks has engaged in rehabilitation activities while in psychiatric confinement is common ground. The issue raised for determination by all five of the decision-makers who have had to consider this matter prior to the case coming before this Court was whether those activities amounted to a "course of rehabilitation" within s 23(9) the Social Security Act 1991. The first two decision-makers determined this issue adversely to Mr Franks, while the next two, the SSAT and the AAT, determined it in his favour. The learned primary judge found it unnecessary to deal with this question: he decided the case in favour of the Secretary on a point not raised in the proceedings before the AAT or by the parties in the proceedings before him. But whether the rehabilitation activities in which Mr Franks engaged amounts to a "course of rehabilitation" within s 23(9) is now raised for decision a sixth time, by the Secretary's notice of contention in this appeal. As appears from what follows, the AAT's decision in this case does not provide the occasion for the definitive curial exposition sought by the Secretary of just what is encompassed by the expression "a course of rehabilitation" in s 23(9) of the 1991 Act, an Act said to be drafted in "plain English" to "make it more accessible to persons without legal training": see Blunn v Cleaver (1993) 47 FCR 111 at 127. 15 The learned primary judge raised for consideration by the parties whether, as a matter of construction of s 1158(1)(a)(ii) the Social Security Act 1991, s 23(9) had no relevant operation where a person was undergoing psychiatric confinement because the person had been charged with an offence, for so long as confinement for that reason remained operative. His Honour ultimately held that s 1158(1)(a)(ii) should be so construed, that Mr Franks was therefore not entitled to a disability support pension while confined as a restricted patient and that it was unnecessary to consider whether the AAT incorrectly applied s 23(9) of the Act, the error of law identified in the Secretary's notice of appeal against the AAT's decision. The Secretary's primary argument on appeal is that the learned primary judge was correct in allowing the Secretary's appeal from the AAT for the reasons he gave. 16 The learned primary judge considered that the AAT, in focusing on whether the activities in which Mr Franks had engaged amounted to a "course of rehabilitation" within s 23(9), had asked itself the wrong question. He said, at par [27]:

To limit the issue for consideration to the proper construction of s 23(9) and the application of that section to the facts as found, involves, in my view, two errors of approach which are wont to mislead.

17 According to his Honour, that approach involved firstly, the error of treating s 23(9) as governing the case, ie, as having a substantive operation: it was, he said, no more than a definition clause and could have no operation other than as an aid to construing the term "psychiatric confinement" in the context of s 1158(1)(a)(ii) of the repealed provision of the Social Security Act 1991. Secondly, he said that the AAT's approach infringed the requirement that individual words or phrases in a definition are not to be given meaning and effect divorced from the context in which the definition is to be applied. He concluded that, if s 23(9) were treated only as a definition provision, ie, as an aid to construing s 1158(1)(a)(ii), that section operated to deny Mr Franks his pension even if he was undertaking "a course of rehabilitation" within s 23(9) while in psychiatric confinement at the Baillie Henderson Hospital. His Honour explained how he reached this conclusion in the following passage:

31. For present purposes, the context is s 1158(1)(a)(ii) of the Act, and the sentence under consideration is:

"... the person is ... undergoing psychiatric confinement because the person has been charged with committing an offence;"

32. The "psychiatric confinement" under consideration in the section is confinement because the person has been charged with committing an offence. It is confinement which includes confinement in the psychiatric section of a hospital or any other place where persons with psychiatric disabilities are from time to time confined: s 23(8). For the purposes of s 1158(1)(a)(ii) of the Act, it is not confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation: (s 23(9)),if there is not also the operative reason that the confinement is because the person has been charged with committing an offence.

33. The question to be asked is "For what operative reason was the person undergoing psychiatric confinement?" If the answer is, or includes the reason, "because the person has been charged with committing an offence", s 1158(1)(a)(ii) will be satisfied. If the answer does not include a reason because the person has been charged with committing an offence, s 1158(1)(a)(ii) will not be satisfied and the section will have no operation upon the payment of any pension to the person confined during the period when the person is undertaking a course of rehabilitation.

18 His Honour derived support for his construction of the sub-section in pars [31] to [33] of his reasons from a review of the legislative history of ss 1158(1), 23(8) and (9). That is set out at pars [35] to [40] of his Honour's reasons. It will be necessary to return to this history. He also relied on the decision of Einfeld J in Blunn v Bulsey (1994) 53 FCR 572. After discussing this case and the decision of Gray J in Garden v Secretary, Department of Family and Community Services (2001) 33 AAR 280, his Honour concluded:

55. There is, in my view, no statutory intention that a person who is in psychiatric confinement because he or she has been charged with committing an offence and is thereby deprived of the right to a pension, may render s 1158(1)(a)(ii) inoperative merely by undergoing a course of rehabilitation. To read such an intention into s 23(9) is to give the definitional section a substantive effect which is not the function of such a section. Further, such an interpretation is to treat differently for the purposes of s 1158(1)(a), persons who are in gaol, from those who are in psychiatric confinement; this was not the legislative intent. Rather, the history of the legislation indicates that the legislative intent was to put both categories of persons on the same footing for the purposes of s 1158(1) of the Act. Section 23(9) was to remind or warn those reading the section of the need to properly characterise the reason for the psychiatric confinement by asking whether or not the existence of a pending charge was or was not the reason for the confinement.

56. In my opinion, the AAT erred in the question it posed for itself. It should have asked the question whether Mr Franks was undergoing psychiatric confinement because he had been charged with committing an offence. …

57. If the answer to the question was that Mr Franks was undergoing psychiatric confinement because he had been charged with committing an offence, the fact that Mr Franks may have received treatment by undertaking a course of rehabilitation during the period of his psychiatric confinement will not change the reason for, or character of, his psychiatric confinement. For so long as Mr Franks remained in detention as unfit for trial upon a pending charge, he remained in detention subject to the provisions of the MH Act dealing with persons unfit for trial. For this reason he was undergoing psychiatric confinement because he was a person charged with committing an offence. He remained, or remains, detained for that reason until his detention for the purposes of Part 4 of the MH Act, was, or is, resolved in accordance with that Act. Until that occurs he is, or was, subject to the operation of s 1158(1)(a)(ii) of the Act.

19 We do not think the learned primary judge was correct in construing s 1158(1)(a)(ii), read with s 23(9), as he did. If a person is in psychiatric confinement and it is no part of the reasons for his confinement that he has been charged with committing an offence, s 1158(1)(a)(ii) is, by its own terms, inapplicable to the person and does not bar his entitlement to a pension. If the Legislature intended that s 1158(1)(a)(ii) was to bar a psychiatrically confined person's entitlement to a pension unless the existence of the criminal charge was entirely irrelevant to the reason for the confinement, it would have achieved that by declaring that s 23(9) had no application to s 1158(1)(a)(ii). It did the opposite: by Note 3 to the section, it expressly applied s 23(9) to s 1158(1)(a)(ii). As the words in emphasis in pars [32] and [33] of his Honour's reasons show, he was of the view that it is not enough for a person undergoing psychiatric confinement to avoid the bar to pension entitlement to show that, though he has been charged with committing an offence, that played no part in the reasons for his confinement. In his Honour's opinion, such a person could still not escape the bar to pension entitlement unless, while he was in psychiatric confinement wholly unconnected with his having committed an offence, he surmounted an additional hurdle and established that he was also undertaking "a course of rehabilitation" within the meaning of s 23(9). It appears that his Honour, in truth, gave substantive, as opposed to mere definitional, effect to s 23(9). 20 His Honour referred to authority that the function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition are found in the substantive part of a statute under consideration, they are to be understood in the defined sense and that definition clauses are no more than aids to construction of the statute and do not operate in any other way. That statement of general principle does not detract from the principle that "[t]he fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole": Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320. Whether s 23(9) be characterised as a definition clause (as the learned primary judge did) or whether it be characterised as an exception to the bar in s 1158(1)(a)(ii) (as it readily can be), the legislative intention is, in our opinion, clear. The bar in s 1158(1)(a)(ii) against the payment of a pension to a person undergoing psychiatric confinement because the person has been charged with an offence is not to apply during a period when that person is undertaking a course of rehabilitation. 21 Section 23(9) should not be characterised as a definition clause. Section 23(9) is contained in "Part 1.2 - Definitions" of the Social Security Act 1991. But that lengthy part contains many provisions which are not definition clauses. For example, s 3A is a conferral of power on the Secretary in certain circumstances; s 4(3) is a statutory direction to the Secretary as to the criteria he is to apply in determining whether a person comes within one arm of the definition of the phrase "member of a couple"; s 19C(10) imposes a statutory duty on the Secretary when he applies the formula for assessing one of the integers to be taken into account in calculating a particular benefit entitlement provided for by the Act. Section 23(9) is not worded as a typical definition clause (as it would be if it said: 'The expression "psychiatric confinement" does not include the confinement of a person etc …'). Instead, it is worded as a direction to those administering the Act when they are applying the provisions of the Act that operate by reference to "psychiatric confinement", that they must not treat a person confined in a psychiatric institution as being in "psychiatric confinement" during a period when that person is undertaking a course of rehabilitation. The relationship between s 23(9) and s 1158(1)(a)(ii) is not that between a definition clause and a substantive provision; it is more accurately described by adapting the language Kitto J used of certain provisions of the Trade Marks Act 1955 - 1966 (Cth) in Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 52: s 23(9) is not a mere definition of the expression "psychiatric confinement"; what s 23(9) does is notionally to alter a fact, and to require that the general provisions of the Social Security Act 1991 shall be applied accordingly. 22 If s 23(9) can be described, as the learned primary judge did in par [55] of his reasons, as a warning to those reading s 1158(1)(a)(ii), it is a warning about what the reader must do when he has to apply s 1158(1)(a)(ii) to a person who is undertaking a course of rehabilitation while in psychiatric confinement. Contrary to what the learned primary judge stated, s 23(9) says nothing at all about anything else; in particular, it does not direct the reader's attention to the need to examine the reasons for the person being confined to the psychiatric institution before he commenced to undertake the course of rehabilitation, by reference to which circumstance alone, s 23(9) operates. 23 We have referred to the learned primary judge's reliance on the legislative history of the relevant provisions. It is important to set out that history in a little more detail than his Honour did. As he observed, it commences with s 52 the Social Security Act 1947 (Cth). This empowered the Director-General of Social Security to suspend a pension or forfeit an instalment of a pension if the pensioner was imprisoned following upon his or her conviction for an offence. Section 52 was repealed and a new s 135THA inserted into the Social Security Actby Act No 78 of 1984. It provided:

Payment of pension, benefit, &c., during term of imprisonment

(a) a person would, but for this sub-section, be entitled to be paid-

(b) the person is imprisoned in connection with his or her conviction for an offence; and

(c) 2 or more pension pay days occur after the first day of the period of the imprisonment of the person and before the last day of that period,

that entitlement ceases immediately after the earliest of those pension pay days and revives immediately before the last of those pension pay days.

(a) entitlement to a pension or benefit has ceased by virtue of sub-section (2); and

(b) the spouse of the person or child is dependent on the person,

the Director-General may authorize the payment of the whole or any part of an instalment of that pension or benefit which, but for that sub-section, would have been payable to the person, to the spouse of the person or child, as the case may be, or to some other person approved by the Director-General for the benefit of that spouse or child.

(a) a person would, but for this sub-section, be entitled to be paid a benefit under Part VII; and

(b) the person is imprisoned in connection with his or her conviction for an offence,

that benefit is not payable to that person in respect of the period during which the person is imprisoned.

(a) a person would be eligible to be paid an allowance under Part VIIA but for the imprisonment of the person in connection with his or her conviction for an offence;

(b) while undergoing a term of imprisonment, or within such period after the person ceases to be imprisoned as the Director-General, in special circumstances, approves, the person lodges a claim for a pension under Part III or IV; and

the Director-General may, notwithstanding anything contained in section 39 or 68, determine that the pension may be paid from a date before the date on which the claim for the pension was lodged but not before the date on which the person was imprisoned but, if the Director-General determines that pension may be paid from a date before the person ceases to be imprisoned, sub-sections (2) and (3) apply in relation to the person as if the person had been entitled to be paid a pension immediately before the person was imprisoned.

(6) In this section, a reference to a person being imprisoned shall be read as including a reference to that person being lawfully detained in a place other than a prison and a reference to a term of imprisonment shall be construed accordingly.

24 Sub-section (6) extended the operation of sub-ss (2), (4) and (5), but only from convicted persons held in prison to convicted persons lawfully detained in a place other than a prison: a person like Mr Franks, who was charged with an offence, found unfit to plead and then compulsorily detained before trial in a psychiatric hospital, was entitled under this 1984 provision to be paid any social security benefit for which he qualified, notwithstanding such compulsory detention. Further, as sub-s (5) shows, imprisonment was not in 1984 a universal bar to the payment of certain social security pensions. 25 By Act No 95 of 1985, s 135THA the Social Security Act was amended as follows:

Payment of pension, benefit, &c., during term of imprisonment, &c.

116. Section 135THA of the Principal Act is amended -

(a) by omitting paragraph (2)(b) and substituting the following paragraph:

(i) imprisoned in connection with his or her conviction for an offence; or

(ii) confined in a psychiatric institution, whether by order of a court or otherwise, in consequence of having been charged with the commission of an offence; and";

(b) by inserting in paragraph (2)(c) "or confinement" after "imprisonment";

(c) by omitting paragraph (4)(b) and substituting the following paragraph:

(i) imprisoned in connection with his or her conviction for an offence; or

(ii) confined in a psychiatric institution, whether by order of a court or otherwise, in consequence of having been charged with the commission of an offence,";

(d) by inserting in sub-section (4) "or confined" after "imprisoned" (last occurring);

(e) by omitting paragraph (5)(a) and substituting the following paragraph:

"(a) a person would be eligible to be paid an allowance under Part VIIA but for-

(i) the imprisonment of the person in connection with his or her conviction for an offence; or

(ii) the confinement of the person in a psychiatric institution, whether by order of a court or otherwise, in consequence of having been charged with the commission of an offence;";

(f) by inserting in paragraph (5)(b) "or confinement" after "imprisonment";

(g) by inserting in sub-section(5) "or confined" after "imprisoned" (wherever occurring); and

(h) by adding at the end the following sub-section:

"(7) In this section, a reference to a psychiatric institution shall be read as including a reference to a psychiatric section of a hospital and to any other place where persons with psychiatric disorders are, from time to time, confined.".

26 In his Second Reading Speech on the relevant Bill on 15 May 1985, the Minister said in respect of the changes effected by the 1985 amendments:

Fourthly, the Bill precludes payments of pensions and benefits to mentally ill persons who are confined without being convicted of an offence. The Act will treat such persons in the same way as a person who is imprisoned in connection with his or her conviction for an offence.

27 The bars contained in s 135THA as originally enacted in 1984 against the payment of pensions to convicted persons imprisoned or lawfully detained in a place other than a prison were extended by the 1985 amendments to persons not convicted for any offence but who were confined, in consequence of having been "charged with the commission of an offence", in a psychiatric institution. By reason of the 1985 amendments, persons compulsorily confined to a psychiatric institution after having been found by a court or other authority unfit to plead to an offence with which they were charged and persons acquitted of offences on the ground of insanity under provisions such as s 647 the Criminal Code Act 1899 (Qld) became disentitled to a pension (unless within s 135THA(5)). 28 If legislative activity had stopped with these 1985 amendments, his Honour would have been correct in saying in par [55] of his reasons that: "the history of the legislation indicates that the legislative intent was to put both categories of persons [those who are in gaol and those who are in psychiatric confinement] on the same footing for the purposes of s 1158(1) of the Act", ie, by barring both categories of person from pension entitlements. 29 But in 1986, s 135THA of the 1947 Act was further amended by the Social Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986 (Cth) (Act No 106 of 1986) as follows:

51. Section 135THA of the Principal Act is amended-

(a) by omitting from sub-section (7) "disorders" and substituting "disabilities"; and

(b) by adding at the end of the following sub-sections:

"(8) A reference in this section to a person who is imprisoned in connection with his or her conviction for an offence includes a reference to a person who is being held in custody pending trial or sentencing for an offence.

"(9) This section does not apply, and shall be deemed never to have applied, to a person who is confined in a psychiatric institution during any period during which the person is or was undertaking a course of rehabilitation.".

30 Of this amendment, the learned primary judge said:

42. The introduction of s 135THA(9) in 1986 had both a prospective and retrospective operation. It was intended to make clear that, for the purposes of s 135THA, there was a distinction between a person undergoing psychiatric confinement because the person had been charged with committing an offence, and, a person undergoing psychiatric confinement because the person was undertaking a course of rehabilitation where the existence of the charge was irrelevant to the reason for which the person was confined.

43. The distinction between the two situations is that the reasons for confinement are different. Where the operative reason for the confinement was, and remained, in consequence of the person having been charged with an office, s 135THA(2) applied and the pension or benefit was lost during the period of confinement for that reason. Where, for example, a person became mentally ill after being charged with an offence and as a matter of medical judgment required psychiatric confinement to undertake a course of rehabilitation as part of his or her medical treatment, confinement in a psychiatric institution for that reason and purpose was not caught by the operation of s 135THA of the 1947 Act, the existence of the criminal charge was totally irrelevant to the reason for confinement.

31 If s 135THA(9) is read in the context of the whole section, there is, in our opinion, no justification for placing the gloss on the wording of sub-s (9) in the passage in par [42] of the learned primary judge's reasons which has been emphasised above or for reading the sub-section as intended to identify the distinction his Honour refers to in these two paragraphs of his reasons. Section 135THA(9) required some persons to be treated differently from how they would have been dealt with under s 135THA for the reason that, while in psychiatric confinement, they were undertaking a course of rehabilitation. 32 Sub-section (9) states that "This section does not apply …"; it does not say that "Sub-sections (2)(b)(ii) and (4)(b)(ii) of this section do not apply …". These introductory words to sub-s (9) show that it provides relief from all the bars in the section against pension entitlement. Sub-section (9) is not a definition clause: it is itself a substantive enactment that in terms limits the operation of the other substantive provisions in the section. It applies directly to each of the enacting provisions in sub-ss (2)(b) and (4)(b) and not only indirectly, as a qualification to s 23(8), a provision that applies only to sub-ss (2)(b)(ii), (4)(b)(ii) and (5)(a)(ii). If a person was barred from a pension by s 135THA(2)(b)(i) or (4)(b)(i) because he was convicted and imprisoned or if a person was so barred by s 135THA(2)(b)(ii) or (4)(b)(ii) because, though not convicted, he was psychiatrically confined in consequence of having been charged, s 135THA(9) lifted that bar while the convict, including a convict who became mentally ill only after his conviction, or while the psychiatric detainee was undertaking a course of rehabilitation in a psychiatric institution. 33 It is unfortunate that the Explanatory Memorandum accompanying the Bill relating to this 1986 amendment was not drawn to the attention of the learned primary judge; it contradicts his Honour's identification in par [42] of his reasons of the legislative intention embodied in that amendment. The relevant passage in the Explanatory Memorandum states:

New sub-section 135THA(9) would modify the effect of the bar on payment of an income support payment under the Principal Act to a person confined in a psychiatric institution after being charged with an offence. The new provision would not apply the bar to such a person who was undertaking a course of rehabilitation. The modification would also apply retrospectively, so that persons adversely affected by the current bar could be restored to their previous position.

34 The Memorandum identifies the intent of the sub-section as being to lift the bar to payment of a pension to a person confined in a psychiatric institution "after" being charged with an offence who was undertaking a course of rehabilitation. The Memorandum is not consistent with his Honour's identification of the legislative intent of the sub-section as being to draw the distinction he refers to in par [42] of his reasons. Nor is it consistent with a legislative intention that the bar to a pension in s 1158(1)(a)(ii) - and in (1)(a)(i) also - is not to be capable of being rendered inoperative merely by the person undergoing a course of rehabilitation, as his Honour stated in par [55] of his reasons. 35 The Memorandum does not use the language of s 135THA(2)(b)(ii) and (4)(b)(ii), provisions which refer to persons confined in a psychiatric institution "in consequence of" having been charged with the commission of an offence. Instead, the Memorandum says that the new sub-s (9) would modify the effect of the bar on payment of a pension to a person confined in a psychiatric institution "after being charged with an offence". The Memorandum appears to be stating concisely but with precision the effect of this sub-section on both persons charged, convicted and, at any time thereafter, moved from prison to psychiatric confinement and on persons charged, never convicted, but held in psychiatric confinement: both classes of person were relieved from the bars against pension entitlement in s 135THA(2)(b) and (4)(b) while undertaking a course of rehabilitation. The Memorandum confirms that the ordinary meaning of the words in s 135THA(9) which is set out above is the intended meaning. The legislative intent of sub-s (9) was to place both persons imprisoned and persons charged and psychiatrically confined without conviction on the same footing, but not, as the learned primary judge indicated, by barring both categories of person from a pension: the legislative intent was to the opposite effect in that it relieved both categories of person from that bar during the period such a person was confined in a psychiatric institution and was undertaking a course of rehabilitation. 36 The learned primary judge said that the intention of the Social Security Act 1991 was to restate the 1947 Act in plain English. This may be so as a general rule. But, by the 1991 Act, the Legislature changed direction so far as is presently relevant. From 1986 to 1991, the Legislature, by s 135THA as amended in 1986, treated persons convicted and imprisoned and persons charged, not convicted but psychiatrically confined on the same basis: neither class was entitled to a social security benefit unless they were both in psychiatric confinement and undergoing a course of rehabilitation. By s 1158 of the 1991 Act, however, the Legislature abandoned the bar against persons charged, not convicted but psychiatrically confined being paid social security benefits; instead, by s 1158(a), the Legislature imposed the bar only on persons "in gaol or undergoing psychiatric confinement because of a criminal conviction". However, by s 4 of and Schedule 2 to the Social Security (Rewrite) Amendment Act 1991 ("the Rewrite Act 1991"), s 1158 was amended to revert to a modified version of the position applying from 1986 to 1991: by this amendment, the bar against entitlement was once again extended to persons charged, not convicted but psychiatrically detained in consequence of having been charged. This to-ing and fro-ing was apparently regarded as involving a "minor technical refinement to the Principal Act [ie, the Social Security Act 1991] to make sure that it correctly reflects current social security legislation and policy": see cl 4 of the Explanatory Memorandum to the Rewrite Act 1991. 37 Whatever the general intent of the Social Security Act 1991, s 23(9) of the current Act has a significantly different operation from its precursor, s 135THA(9) of the 1947 Act. Section 135THA(9) lifted all the bars imposed by that section against pension entitlement on both persons convicted and imprisoned and on persons not convicted, but held in psychiatric detention, while such persons were undertaking a course of rehabilitation in psychiatric confinement. Section 23(9) of the current Act, however, only lifts the bar on pension entitlement imposed by s 1158(1)(a)(ii) (and now s 1158(b)) on persons undergoing criminal psychiatric confinement: unlike s 135THA(9), which in express terms affected the operation of the whole of s 135THA, s 23(9) can only affect the operation of s 1158(b), which alone refers to "psychiatric confinement". The extrinsic parliamentary material does not identify the reason for this change made by the Rewrite Act 1991 to the position established in 1986. 38 The learned primary judge found support for his construction of ss 1158(1)(a)(ii) and 23(9) in Blunn v Bulsey (1994) 53 FCR 572, a decision on the Social Security Act 1991 in the form it relevantly took from 1991 to 1999. Einfeld J there held that a prisoner who became mentally ill while serving his sentence and who was removed from prison to a hospital was not detained "in connection with" his conviction within the meaning of that phrase in s 23(5) as applicable to s 1160 as then in force. He was not therefore "in gaol" within s 1160(a) and s 23(5) and so was not barred from a social security "benefit". His Honour's ruling would have the same application to the bar in s 1158(1)(a)(i), as then in force, against the payment of a social security "pension" to a person in gaol. It is true, as the learned primary judge observed, that Einfeld J considered that the critical question was: "Why was the person detained at the psychiatric hospital?". But he asked that question solely to determine whether there was a sufficient nexus between the hospital detention and the person's conviction to enable the one to be said to be "in connection with" the other within the meaning of that phrase in s 23(5) as applied to s 1160(a) (and to s 1158(1)(a)(i)) as then in force. That Einfeld J asked this question in this particular context does not show that it is appropriate to ask the same question in order to determine whether the bar against payment of a pension to a person "undergoing psychiatric confinement because the person has been charged with committing an offence" in s 1158(1)(a)(ii) is lifted where that person is undertaking a course of rehabilitation. Section 23(9) had no application to persons within s 1160(a) or s 1158(1)(a)(i), ie, to persons in gaol, and Einfeld J did not have to consider its interaction with s 1160(b) or s 1158(1)(a)(ii) upon persons in psychiatric confinement. 39 The decision in Blunn v Bulsey does, however, highlight the significant change effected by the 1991 Act: under s 135THA, the position of both convicts and non-convicted psychiatric detainees was identical. Only if a person in either class was both in psychiatric confinement and undertaking a course of rehabilitation was the person entitled to a social security benefit. Einfeld J's decision, if correct, shows that the 1991 Act improved the position of convicts by lifting the bars in ss 1158, 1160, 1162 and 1162A on the payment of various kinds of social security benefit to persons in gaol once they were transferred to a psychiatric institution for reasons unconnected with their original conviction and imprisonment: such persons did not also have to be undergoing a course of rehabilitation to become entitled to a social security payment. A person charged but, instead of being convicted, held in psychiatric confinement, continued, however, to be barred from access to social security benefits unless he was also undertaking a course of rehabilitation while in such confinement. 40 The learned primary judge also referred to the decision of Gray J in Garden v Secretary, Department of Family and Community Services (2001) 33 AAR 280. Gray J considered s 23(5) had a different operation from that identified in Blunn v Bulsey, holding that: "the legislative intention [in s 23(5)(a) and (b)] is to cover the entire field of detention resulting from a conviction" (at 287). There, a person had been convicted of murder and an order made under the relevant State legislation that he be admitted to and detained in a psychiatric in-patient service for a long period. After a time, he was moved from the psychiatric institution in which he was initially detained to several prisons and then back to a psychiatric hospital. The issue for decision was whether, while in that hospital, he was "in gaol" within s 23(5) and s 1158(1)(a)(i) the Social Security Act 1991 and so disentitled to a disability support pension. (Though this decision was given in circumstances in which s 1158 in its current form applied, his Honour, at 281, cited the pre-1999 version of the section.) 41 The case was not concerned with the operation of s 1158(1)(a)(ii). At 288, his Honour rejected an argument that the legislative intention was that anyone undergoing a course of rehabilitation in respect of a mental illness should not be disentitled from claiming a pension by reason of serving a sentence of imprisonment. For the reasons given, that argument would have been a good one if the operative provision was s 135THA in the form it stood after the 1986 amendments. However, his Honour said:

The argument seemed to be that the intention was revealed in relation to those covered by s 1158(a)(i) by the use of the words "in connection with the person's conviction for an offence" in s 23(5)(a) and (b). As I have said, in my view, those words perform a different function altogether. They make it clear that the intention is to exclude the normal entitlement to social security pensions in respect of all convicted offenders for so long as they continue, in effect, to serve sentences of imprisonment, whether in prisons or by means of detention in other places. If the legislature had intended to preserve an entitlement to social security pensions for all those undergoing courses of rehabilitation for mental illness while serving sentences of imprisonment, it could have made express provision to this effect. It did so in plain terms in s 23(9) for those who would otherwise have been excluded from any entitlement by reason of undergoing psychiatric confinement because of having been charged with committing offences.

42 Gray J correctly identified the operation of s 1158(1)(a)(ii) in the passage in emphasis.

THE RESPONDENT'S NOTICE OF CONTENTION 43 By his notice of contention, the Secretary raised for determination the same two issues he relied on in the proceedings at first instance, but which the learned primary judge did not consider. The Secretary contended, firstly, that the AAT wrongly concluded that rehabilitation per se fell within s 23(9) and secondly, that it failed to recognise that a "course of rehabilitation" must have a structure and must progress through stages to reach a goal, at which stage the course is complete, ie, the course must have a finite duration, though that requirement could be "flexible in approach and application". The Secretary also contended, no doubt by way of challenge to the AAT's inaccurate description of the operation of s 34 the Mental Health Act referred to above, that the mere fact that detention under the Mental Health Act envisages periodic review of the detainee's fitness to plead does not, of itself, mean that the person is undergoing rehabilitation let alone a course of rehabilitation. Mr Franks, by his counsel, submitted that the AAT did distinguish between rehabilitation per se and a course of rehabilitation and that, notwithstanding its inappropriate references to s 34 the Mental Health Act, the AAT found in fact that Mr Franks was undertaking rehabilitation activities sufficiently structured to constitute a "course of rehabilitation" within s 23(9): the AAT therefore did not make any material error of law. 44 There is no substance in the first of the issues raised by the Secretary. It is plain, from the reasons of the AAT to which we have referred, that it was alert to the need to distinguish between "rehabilitation" per se and a "course of rehabilitation" in the context of s 23(9). See, eg, pars [17] and [24] of the AAT's reasons set out above. 45 As to the second issue, it can be seen that the Secretary is concerned to seek from this Court a ruling that the phrase "course of rehabilitation" in s 23(9), properly construed, is to be narrowly confined. We do not consider that there is any justification for reading the phrase, in the context of s 23(9) and s 1158(b), in this narrow way. 46 The expression "course of rehabilitation" is not defined in the Social Security Act 1991. The expression "rehabilitation program" is given by s 23(1) a special meaning in the Social Security Act 1991: it means "a rehabilitation program under Part III of the Disability Services Act 1986". By s 20 of that Act, the Secretary is empowered to approve the provision of a rehabilitation program for a person "in the target group", ie, a person in the 14 to 65 year age bracket with a disability attributable to an intellectual, psychiatric, sensory or physical impairment which results in the person having a substantially reduced capacity to engage in paid employment or to live independently. An approved "rehabilitation program" must be directed to substantially increasing the capacity of the person to engage in paid employment or to live independently. The expression "course of rehabilitation" in s 23(9), in its application to s 1158, is unlikely to be confined to an activity directed to increasing a person's capacity to engage in paid employment or to live independently. The concept of a "rehabilitation program" as defined in s 23(1) is of limited assistance in construing the phrase "course of rehabilitation" in s 23(9). 47 It was not suggested that the phrase "course of rehabilitation" in the context of s 23(9) as applied to s 1158(b), has a particular technical meaning or that experts involved in psychiatric care have a particular understanding of what is involved in something they describe as a course of rehabilitation. The phrase "course of rehabilitation" in s 23(9) must have its ordinary English meaning, though that meaning will be coloured by the context in which the phrase appears. Of the many meanings the word "course" is capable of conveying set out in the Macquarie Dictionary, 3rd ed, that of particular relevance in the context of s 23(9) and s 1158(b) is: "a systematised or prescribed series: a course of studies, lectures, medical treatments, etc". The Dictionary gives the following as one of the meanings capable of being conveyed by the word "rehabilitation": "Medicine the use of medical, social, educational or vocational measures or a combination of these to train or retrain someone who has a disability as a result of illness or injury". 48 There is nothing in the ordinary meaning of the phrase or in the context in which it appears in the Social Security Act 1991 to suggest that this expression is used in the Act to mean a rehabilitation program with a duration precisely, though provisionally, defined. Nor is there anything to suggest that the phrase in the Act is only satisfied by rehabilitation activities structured by reference to identified milestones towards achieving a precise goal. The boundaries of the activities capable in the circumstances of the particular case of constituting a "course of rehabilitation" within s 23(9) as applied to s 1158(b) are thus wide. 49 An appeal lies to this Court from the AAT only on an error of law. Where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words, that question is one of fact only, so long as it is reasonably open to hold that they do, ie, that different conclusions are reasonably open as to whether the facts of the particular case do or do not come within the particular statutory provision: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. 50 Provided it is open to the decision-maker on the evidence to conclude that the person in question is undertaking rehabilitation activities that are not merely engaged in by him on an ad hoc basis, but which form part of what can be said to be a planned series of activities that may include medical and other treatments directed towards improving the person's physical, mental and/or social functioning, then, depending on the circumstances of the particular case, it is open to the decision-maker to hold that such activities do constitute "a course of rehabilitation" for the purposes of s 23(9). 51 In its reasons, the AAT found, at par [12]:

He is at the Baillie Henderson hospital formally for the purpose of psychiatric assessment but he has also participated in a rehabilitation program. The program includes a wide range of rehabilitation activities suited to the respondent and designed to assist his long term prospects. Improvements have been noted in short and long term memory function and organisational ability.

52 So long as the AAT recognised, as it did, that merely to engage in rehabilitation activities did not mean that Mr Franks was undertaking a "course of rehabilitation" and, so long as it was entitled to find that the rehabilitation activities he engaged in could be said to be "a rehabilitation program … suited to the respondent and designed to assist his long-term prospects", it cannot be said that the AAT made any error of law in concluding that Mr Franks was not undergoing "psychiatric confinement" within s 1158(b) because he was undertaking a "course of rehabilitation" within s 23(9). 53 It was not suggested that there was no evidence before the AAT to support the finding it made in par [12] of its reasons. Nor was it suggested that this finding was erroneous in law because it was unreasonable in the Wednesbury sense. Given what we have said about the proper approach to construing the phrase "course of rehabilitation", the AAT did not, in arriving at its conclusion, ignore any relevant considerations. Having made this finding of fact and there being no basis for thinking it was tainted with any error of law, it follows, in our opinion, that the AAT's conclusion that Mr Franks was undertaking a "course of rehabilitation" for the purposes of s 23(9) as applied to s 1158(b) cannot be overturned in an appeal to this Court under s 44 the Administrative Appeals Tribunal Act. 54 The appeal will be allowed; the orders made by the learned primary judge will be set aside and the respondent's appeal under s 44 the Administrative Appeals Tribunal Actto this Court against the decision of the AAT of 24 August 2001 will be dismissed. That decision of the AAT will thus be of full force and effect as from 24 August 2001. There will be no order as to the costs of this appeal or of the proceedings before the learned primary judge: we were told that the parties had agreed that neither would seek costs, irrespective of the result. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Welfare Rights Centre

Solicitor for the Respondent: Australian Government Solicitor