Editors --- "Member of a couple: partner in gaol; discretion to treat as not a member of a couple" [2012] SocSecRpr 28; (2012) 14(3) Social Security Reporter, Article 9

• TSANGARIS and SECRETARY TO THE DEEWR
• Background
• The issue
• Discussion
• Formal decision

---

Member of a couple: partner in gaol; discretion to treat as not a member of a couple

TSANGARIS and SECRETARY TO THE DEEWR

Federal Court of Australia

Decided: 6th July 2012 by Lander J

Background

Tsangaris was in a de facto relationship with Cross and they had three children. On 10 December 2010, Cross was incarcerated until at least June 2013. On 13 December 2010, Centrelink advised Tsangaris to claim parenting payment (partnered). She was paid at the maximum ‘partner in gaol’ rate which is higher than the maximum partnered rate but lower than the maximum single rate. On 30 March 2012 Tsangaris sought review and the authorised review officer confirmed that her rate was parenting payment (partner in gaol). On 9 December 2011, the Social Security Appeals Tribunal (SSAT) affirmed the decision under review and on 30 March 2012 the Administrative Appeals Tribunal (AAT) affirmed the decision of the SSAT. Tsangaris then appealed to the Federal Court.

The issue

The sole issue before the Court was whether the Secretary was entitled in the circumstances to make a determination under s.24 (2) of the Social Security Act 1991 (the Act) that Tsangaris not be treated as a member of a de facto couple. Section 24(2) provides:

Where:

(a) a partner has a relationship with another person, whether of the same sex or a different sex (the partner); and

(b) the person is not legally married to the partner; and

(c) the relationship between the person and the partner is a de facto relationship; and

(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

Discussion

At the AAT both parties put their cases regarding the application of s.24(2). Tsangaris argued that the very fact that her partner was in gaol meant that the Secretary was bound to exercise the discretion in s.24(2). The Secretary argued that the Act made provision at s.1068 precisely for the family circumstances which Tsangaris encountered. The Act provided for a parenting payment (partner in gaol) rate of $347.80 per fortnight which was higher than the ordinary parenting payment (partnered) rate of $290.10 per fortnight.

The Secretary’s argument was accepted by the AAT which reasoned that the legislature had made express provision for someone in Tsangaris’ position and therefore it was not open for Tsangaris to claim to have a special reason which would activate the discretion available under s.24(2). The AAT said ‘that it is not open to exercise the s.24(2) discretion when the family situation answers the statutory description of ‘partnered (partner in gaol)’. In doing so, the AAT took a contrary view to that expressed in Secretary, Department of Social Security and Porter [1997] AATA 137 (Porter’s case).

The Court, however, did not accept either Tsangaris’ or the Secretary’s argument at the AAT. The Court also rejected Tsangaris’ proposition that the AAT must follow the precedent set in Porter’s case and allow the exercise of the s. 24(2) discretion in her case. The reason was that a Deputy President of the AAT was not bound to follow a decision of a member of the AAT and that the AAT was not obliged to follow a system of precedent because it was not a Court. However, the Court found that the AAT should have followed Porter’s case not because of precedent but because it was right.

The Court considered whether the provision in s.1068 regarding payment for a person whose partner was in gaol necessarily precluded the application of s.24 (2). The decision in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 was canvassed. In that case the High Court considered whether the Minister’s power to cancel a visa under s.501 (2) of the Migration Act 1958 was restricted because of the Minister’s power to order deportation under that Act. The issue here turned upon whether ‘the subject matter of the power is in law substantially the same’. Deportation and cancellation of a visa were found to be different exercises of power under the Migration Act. The Court then considered whether the application of s.24(2) and s.1068 to Tsangaris’s circumstances were two different exercises of power. The Court concluded that the fact that s.1068 gave greater benefits to three classes of partnered persons did not mean that the persons in those classes were excluded from the benefit of s.24 of the Act. Section 1068 does not provide a power which is inconsistent with s.24. For thatreason s.1068 is not incompatible with s.24.

Section 24 applies to all persons who are members of a couple. However, to qualify a person must establish a special reason in the particular case. The mere fact that a person has a partner in gaol is not sufficient to warrant the application of s.24 or there would be no point to treating them as a member of a couple under s.1068.

The Court found that the AAT had erred in its construction of the statute. The Court found that s.24(2) could apply to a member of a de facto couple whose partner was in gaol but not merely because the partner was in gaol.

Formal decision

The Court quashed the decision of the AAT made on 30 March 2012 and remitted the matter back to the AAT for further consideration under the law. [M. O’H.]

Court:

Federal Court of Australia