Qur Town FM Pty Ltd v Australian Broadcasting Tribunal

QUEENSLAND DISTRICT REGISTRY ) No. G 190 of 1993 GENERAL DIVISION ) Between: ANTHONY ___ STUART ___BLUNN, SECRETARY, ___DEPARTMENT ___OF SOCTAL SECURITY Applicant

Note: Settlement and entry of orders are dealt with in the accordance with Order 36 of the Federal Court Rules.

EINFELD J SYDNEY (heard in Brisbane) 11 NOVEMBER 1994

Between: ANTHONY __ STUART __ BLUNN, SECRETARY, ___ DEPARTMENT _ OF SOCTAL SECURITY Applicant And: ROBERT WILLIAM BULSEY

On 9 October 1992 the first respondent Robert William Bulsey applied for a sickness benefit. It was refused on 26 November 1992, and the refusal was upheld by the Social Security Appeals Tribunal (SSAT) on 25 March 1993. An application to the Administrative Appeals Tribunal (the Tribunal) on 4 May 1993 resulted in a decision by the second respondents in favour of Mr Bulsey on 27 October 1993. This application seeks a review of that decision under section 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Preempting that the orders made by the Tribunal might not be considered a "decision" capable of review under section 44, alternative but similar relief has been

sought under section 39B of the Judiciary Act 1903.

Mr Bulsey is an Aborigine who grew up on Palm Island. On 20 October 1977, when aged 30 and serving a prison sentence for robbery with violence for which he was gaoled in 1975, he was sentenced by the Supreme Court of Queensland to life imprisonment for a murder committed in prison. Whilst in prison, he was paid $15 for each seven days of work, and a further $8 a week whether he worked or not. At some time during his imprisonment he was observed to develop a mental illness, later diagnosed as a type of paranoid schizophrenia. Accordingly, on 28 September 1992, he was removed from Townsville Correctional Centre to the John Oxley Memorial Hospital where he remains pursuant to section 43 of the Mental Health Services Act 1974 (Qld) (the Queensland Act)

(1) A person serving a sentence of imprisonment or detention for a period pursuant to the order of

@ court ... may be removed from a prison and admitted to a hospital for treatment for mental illness.

Every such admission shall be based on an application made by an authorized person through the Comptroller-General of Prisons in accordance with this section.

For the purposes of this section an authorized person is a superintendent of a prison or such other person as is prescribed to be an authorized person for the purposes of this section.

(2) The application shall be founded on the written recommendation of a medical practitioner who shall be a Government medical officer or a psychiatrist, which recommendation shall set out the reasons that, in the opinion of its maker, the prisoner should be admitted to a hospital for treatment.

-3- This section appears in Part IV of the Queensland Act headed

PATIENTS CONCERNED IN CRIMINAL AND LIKE PROCEEDINGS.

As Mr Bulsey was no longer regarded as a prisoner under and subject to the Corrective Services Act 1988 (Qld) after his transfer to hospital, he has not received the money to which he would have been entitled if in prison. Nor has he received any social security payments, the situation which forms the central issue in this case. I am advised that he is as a consequence currently completely without assets or income. In a ward in which most patients evidently receive some form of social security, this has withdrawn from him even the most rudimentary quality and enjoyment of life, and constitutes a severe impediment to his rehabilitation. It prevents him from contacting his family by telephone, making small purchases, enjoying day trips organised by the hospital, and otherwise engaging in the full range of activities in the hospital's rehabilitation program. The inhumanity of this situation must be an unintended consequence of the operations of the relevant legislative enactments and should not have been allowed to occur. Surely some ex gratia arrangements, even of a temporary nature or from a non-governmental source, could have been instituted to avoid such cruelty to an Australian citizen in difficulty. The voluminous report of the Royal Commission into Aboriginal Deaths in Custody stands as a testament to what can cccur if unfeeling and inflexible administration is applied to stressful human

problems. It would be interesting to know to what extent the

-4- relevant Ministers have been advised of the gaps perceived by the

The question of Mr Bulsey's prima facie entitlement to either a sickness benefit or some other form of social security entitlement was not ventilated before me, and the Tribunal itself expressed no opinion on the issue. The issue for this case is the threshold question of whether he is ineligible at law for any

such benefit by reason of his status as a convicted person.

The reason for his ineligibility for social security is said to be section 1160 of the Social Security Act 1991 (the Act), which

A social security benefit is not payable to a person in respect of a period during which the person is:

(a) in gaol; or (b) undergoing psychiatric confinement because

the person has been charged with committing an offence.

It was not suggested that paragraph (b) applied, on the basis that clearly Mr Bulsey's hospitalisation has no. causal relationship with the charges for which he was convicted. The principal dispute in this application concerned the operation of

paragraph (a), which is read together with section 23(5):

For the purposes of this Act, a person is in gaol if the person:

(a) is imprisoned in connection with the person's conviction for an offence; or

(b) is being lawfully detained in a place other than a prison, in connection with the person's conviction for an offence; or

(c) is undergoing a period of custody pending trial or sentencing for an offence.

Clearly (c) is not relevant. The parties have agreed that (a) does not apply on the ground that, when read together with (b), it must be understood to require incarceration in a prison. It is unnecessary to express an opinion on this matter, since it would add nothing to the requirements of (b) in the circumstances of this case. The issue therefore is whether Mr Bulsey is detained in connection with his conviction for an offence. If so, he is a prisoner for the purposes of federal social security

legislation but not of state corrective services legislation.

The Tribunal set aside the decision of the SSAT and substituted

(1) since 28 September, 1992 the applicant has not been a person who is in gaol; and

(2) since 28 September, 1992, the applicant has not been prevented from receiving a social security benefit by virtue of the operation

of section 1160 of the Social Security Act 1991; and

-~6- It was the nature of this order that prompted the applicant to

seek alternative relief under section 39B of the Judiciary Act.

In Director-General of Social Services v Chaney [1980] 47 FLR 80 a Full Court of this Court decided by majority that the Court did

not have jurisdiction to review an interim order of the President of the Tribunal concerning the jurisdiction of the Tribunal, and another order that, pending the final hearing before the Tribunal, the relevant pension continue to be paid. When a member of this Court, Justice Deane, with whom Justice Fisher substantially concurred, expressed his opinion that section 44 of the AAT Act did not authorise appeals from interim orders of the Tribunal before any final written reasons or decision had been published. His Honour expressed concern that proceedings in the Tribunal could otherwise be disrupted and made more expensive if every possible point of appeal were allowed to be

The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s. 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s. 43 of the Act. The qualifications referred to are an appeal pursuant to s. 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the fribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given.

• 7 - The respondent did not present an argument that an application under section 44 was inappropriate and it is in any event unnecessary for me to finally resolve the jurisdictional issue in this case, since I have determined to dismiss the case on its merits. If I had been required to decide the issue I would have determined that this decision was reviewable under section 44, as it falls clearly within the second qualification mentioned by Justice Deane. It was a final decision in the sense that the Tribunal returned the matter to the Department to consider whether any benefit should be paid. Although it formally adjourned consideration to allow further argument on that point if it became necessary, in substance it decided the central issue in the case, published full reasons for so doing, and made its

The parties were agreed that the phrase "in connection with" in section 23(5) of the Act has been interpreted very widely, and the Tribunal quoted several cases to that effect: Perrett v

Commissioner for Superannuation [1991] 23 ALD 257, Commissioner

for Superannuation v Benham [1989] 86 ALR 239, Our Town FM Pty

Ltd v Australian Broadcasting Tribunal [1987] 77 ALR 577, le} and s =

anor [1990] 94 ALR 220. In Burswood a Full Court of this Court said at 223:

The words "in connection with" are words of wide import; and the meaning to be attributed to them

depends on their context and the purpose of the statute in which they appear...

Reference to particular reported cases is of little assistance in determining the meaning of the words "in connection with" because they take their meaning from the particular statute in which they appear.

On the other hand, although clearly not requiring a causal relationship, the words 'in connection with' in the context of section 23(5) require some real relevance of the conviction to the detention. There must be more than just a temporal coincidence. The requirement is not satisfied merely by the fact that Mr Bulsey also happens to be serving a prison sentence, or that the conviction has some impact on the details of his detention. There was not even the vaguest suggestion of a link between Mr Bulsey''s mental condition and either of the crimes for which he was imprisoned. The possibility of a connection appears

The Department argued that the Act evinces an intention that no person serving a term of imprisonment should receive social security benefits. However, the statute could easily, but does not, provide specifically to that effect. Rather it provides that the particular detention must be connected with the offence. Although there might be reasons for depriving convicted prisoners of social security benefits regardless of the form of their imprisonment, there must also be serious policy reasons for

putting mentally ill inmates of hospitals on a financial footing

-9- that allows them an equal opportunity of rehabilitation and recovery, notwithstanding that some might be serving sentences of imprisonment. As will become evident, it is my opinion that sections 23(5) and 1160 of the Act strike a balance between these

The Department pressed the fact that section 43 of the Queensland Act involves patients retaining some connection with their convictions. It was said that this connection, maintained in part by the fact that the patient continues to serve a sentence whilst in the hospital, means that the detention in the hospital is in connection with the conviction. However, the relevant inquiry is not whether the conviction of the person so confined continues, but whether the detention in the hospital is itself connected with the conviction, that is, whether there is some firm relationship or connection between the conviction and the hospitalisation, as would clearly be the case, for example, if

the sentencing judge had recommended psychiatric counselling or

treatment after sentence. THE BASIS FOR TRANSFER TO THE HOSPITAL

Although section 43 of the Queensland Act applies to people serving a sentence of imprisonment, other sections make provision for members of the general public in similar terms. Section 18 provides for the admission of a person on application of a

(a) that he is suffering from mental illness of a nature or to a degree that warrants his detention in a hospital; and

(b) that he ought to be so detained in the interests

of his own welfare or with a view to the protection of other persons.

The opinions of the relevant people in respect of Mr Bulsey were in similar terms. For example, the report of the psychiatrist required by section 43(2), cited by the Tribunal, stated that Mr

is suffering from mental illness of a nature or to a degree that warrants the detention of the patient in hospital for treatment, and the patient ought to be so detained in the interests of his own welfare or with a view to the protection of others.

The form filled out by the General Manager of the Townsville Correctional Centre, who signed the application under section 43,

(e) the patient ought to be detained in hospital in the interests of his own welfare or with 4a view to the protection of other persons.

No connection with Mr Bulsey's conviction was mentioned in either of these reports; they merely stated that he is serving a term of imprisonment, and therefore comes under section 43. In other words, the conviction was not a criterion of admission to the hospital which was dependant entirely on his mental state while in prison. In fact there was no evidence before the Tribunal of

a connection between the mental illness and the conviction.

Nor is his status as a convict relevant to his continued detention in the hospital. The general provisions in the Queensland Act relating to the discharge of patients (Part V) are expressed not to apply to patients held under Part IV of the Act, that is, PATIENTS CONCERNED IN CRIMINAL AND LIKE PROCEEDINGS. For provisions relating to release of patients detained under

section 43, it is necessary to return to that section:

(6) <A person admitted to a hospital pursuant to this section and in respect of whom a psychiatrist has certified that in his opinion the person needs to be detained in a hospital on account of mental illness shall, unless a psychiatrist nominated by the Director sooner certifies that he does not need to be detained any longer on account of mental illness, continue to be detained in the hospital to which he was admitted or in such other hospital as the Director from time to time directs in writing for the balance of the period in respect of which the court ordered him to be imprisoned or detained less any remissions which he would have been granted had his detention continued to be in a prison, and thereupon the provisions of subsection (7) apply in respect of him.

If the psychiatrist nominated by the Director certifies that the person detained does not need to be detained any longer on account of mental illness the person detained shall be forthwith returned to such prison as the Comptroller- General of Prisons directs.

(7) At the expiration of his period of imprisonment or detention a person admitted to a hospital pursuant to this section, not being one in respect of whom a psychiatrist nominated by the Director has certified as referred to in subsection (6), shall not by reason of such expiration be, or be entitled to be, discharged but on and from the day of such expiration he shall be deemed --

(4) to have been admitted to the hospital where he then is as if an application had been made pursuant to Division II of Part III and as if the authority for his detention had been renewed for a period of 12 months following such expiration; and

(b) to be a restricted patient and shall be treated as provided by section 50.

(8) AS soon as is practicable within the period commencing 14 days before the expiration of his

period of imprisonment or detention and terminating seven days after such expiration the psychiatrist in charge of the treatment of a patient admitted to a hospital pursuant to this section shall review the case and recommend to the Director whether --

(b) the patient ought to be so detained as a restricted patient in the interests of his own welfare or with a view to the protection of other persons;

and make such other recommendation as he thinks fit to the Director.

The section then provides for what is called the Patient Review Tribunal to make a decision as to whether the patient should be released, kept as a security patient, or transferred to another hospital. The criterion in each case is the state of health of

Although it was not specifically raised by the Department, I have given consideration to a contrary approach based on the concept

that Mr Bulsey is only being detained (as opposed to merely being

-13- treated) in the hospital because of his conviction. However, the psychiatrist's certification, unchallenged in the evidence before the Tribunal, that detention is necessary for Mr Bulsey's welfare and the protection of others. gainsays such a conclusion. The psychiatrist's certification means that Mr Bulsey satisfied the criteria under section 18 for the detention of members of the public indistinguishably from the criteria applicable to convicted persons. When combined with the fact that he would also appear to have satisfied the requirement in section 50 for classification as a security patient, this fact establishes that it was the illness, not the conviction, which justified the detention. Moreover, any decision to release Mr Bulsey from detention in the mental hospital would have nothing to do with his status as a convict. Regardless of whether he is eventually released under subsection (6) or (8) of section 43, the only significant factor will be his mental health. His conviction has therefore played no part in either his initial transfer to, or

Mr Bulsey is serving a term of imprisonment following a conviction for murder. He was removed from prison to hospital for treatment for mental illness, unconnected with the conviction, pursuant to section 43 of the Queensland Act. As he has a life sentence, it is most likely that if he is ever released from the hospital, it will be under section 43(6) and

he will be returned to prison. The fact that he was serving a

• 14 - prison sentence at the time of his removal means that he was admitted to and will be released from hospital under a different legislative provision to members of the general public with similar mental illnesses. However, like all other patients detained in the hospital, he is there because of conclusions drawn about his mental state and need for treatment. He will stay there until it is determined under section 43(6) that he no longer needs to remain, a decision that will be solely based on his mental condition, irrespective of his status as a convict. If he still has time to serve, he will be returned to prison. Otherwise he will be released. The fact that his sentence comes to an end does not of itself affect the period he will spend in the hospital. In fact his present mandatory life sentence underscores that his detention in the hospital, however long it

lasts, is completely separate to his prison sentence.

I therefore dismiss with costs the applications under both the

Counsel & solicitor for the J. Logan instructed by applicant R. Melville of the Australian Government Solicitor

Counsel & solicitor for the A. Innes instructed by first respondent C. Mullins of the Welfare

Solicitor for the second J. Bishop of the Australian respondents Government Solicitor Date of Hearing 8 August 1994