Nickolas Varvaris (Barton, Liberal Party) Share this | Hansard source

I thank the House for the opportunity to speak on this bill today. The Social Services Legislation Amendment Bill 2015 makes changes to the way welfare is provided after an individual is psychiatrically confined after being charged with a serious criminal offence. The Social Security Act of 1991 stipulates that certain social security payments are not payable to a person who is undergoing psychiatric confinement after being charged with an offence. Only those who have been rehabilitated or undertaken a course of rehabilitation will have their benefits paid. If the person is in psychiatric confinement for the purposes of rehabilitation, then the person is seen to be rehabilitating rather than being confined. If the person is undertaking rehabilitation, then under the Social Security Act social payments will not cease.

However, because the full Federal Court previously held that a course of rehabilitation was to be interpreted broadly as a definition of psychiatric confinement, then it meant that as long as one could prove that rehabilitation had commenced—this would have been easily done under the broad case law definition—payment would continue regardless of how long the person was institutionalised. Under the same Social Security Act an individual incarcerated in prison is ineligible for social security benefits of any kind. One could argue though that imprisonment was designed for the purposes of both punishment and rehabilitation.

Changes under today's bill will see social security benefits affected from 1 July of this year regardless of whether a person is undergoing rehabilitation or not. This means that social security payments in the form of pensions, benefits, parenting payment, carer allowance, mobility allowance or pensioner education supplement will cease to be provided for those in psychiatric confinement, just like it is denied to those in prison.

The purpose of today's bill seeks to streamline the social security arrangements pertaining to those who are psychiatrically confined with those imprisoned. In effect, the changes under the social security legislation will mean that there would be no monetary incentive to plead mentally unfit or insane. Broadly, the bill will also clarify what it means under the new schedule of 'psychiatric confinement', who determines the period of integration, and the repercussions of being charged with a serious offence for those in a psychiatric institution, as opposed to just an offence. There are key differences in the term psychiatrically confined and imprisoned or lawfully detained. The former is reserved for those who may have committed a crime but are mentally impaired or awaiting for confirmation of mental fitness to stand trial. They have no conviction recorded. The latter refers to those who are guilty with a conviction recorded and not on parole.

The amendments in today's bill represent a return to the original policy intended for people charged with a serious offence so that people cannot access payments whilst in psychiatric confinement. This condition currently exists for those held in jail but not for those in a psychiatric institution undertaking a course of rehabilitation. The coalition would like to see the provision restored so that neither those incarcerated nor those psychiatrically confined can receive social welfare payments. We believe this is fair, given that states which administer the correctional facilities and services provide food, shelter and clothing to such people. As per the legislation, those who are freed or complete their course on integration back into the community will have their payments resumed.

Just to clarify, the bill before us today contains a provision in which social security will be paid depending on the circumstances of the individual. The moment psychiatric confinement ceases, social security will resume as long as the individual does not go into jail. Likewise, if an individual is in a period of integration back into the community, then social security will be paid to the person as it is not considered psychiatric confinement. Furthermore, amendments in today's bill will allow the minister to decide when the period of integration begins, in accordance with legislative instrument made by the minister.

I want to take this opportunity to clarify that, when a person is undergoing psychiatric confinement as a result of criminal charges, the relevant state or territory automatically takes care of their needs, compatible with human rights, with regard to food, shelter, funding of treatment and rehabilitation. This is imbedded into our legal and justice system. As such, further taxpayer funding during their period of incarceration is unnecessary. If the person held in confinement has a partner, that partner should notify Centrelink of the changes in circumstances and payments will be adjusted accordingly.

Should the person be released from psychiatric confinement, then their welfare will resume once the person enters into a course of rehabilitation. The period of confinement should not automatically result in an accumulation of welfare benefits given the individual has their needs provided by the state. Asking the taxpayer to pay for benefits during psychiatric confinement makes no sense, just as the taxpayer does not provide for social welfare for those in jail. I am aware that there are arguments stating the two forms of incarceration should not be treated the same. I agree that there is a difference between being found to be not guilty due to mental impairment or unfit to stand trial due to mental impairment, compared to a guilty verdict based on intent. However, it does not diminish the end result and impact of the crime. Similarly, both end results mean the person is held in one form of institution, either as a forensic patient or as an inmate, which means the state looks after their rights to food, shelter, treatment and rehabilitation. Both are entitled to resumption of social security payments upon completion of their incarceration.

The bill today also allows for a clause by which a person is no longer considered to be in psychiatric confinement during a period of integration back into the community. The period of integration will be decided in accordance with a legislative instrument determined by the minister. Since the course of rehabilitation entails various forms of leave from the psychiatric institution prior to unconditional release, the person would naturally require funds to assist with the transition of living independently and provide autonomy. The legislative instrument will also help determine the full amount of benefits the individual is entitled to, even if the person spends X amount of days in the institution and the rest outside of it.

Limiting the payment of social benefits to the person in a psychiatric confinement would not be detrimental to their rehabilitation efforts because, even under a slow transitional period of a few hours or days outside of the institution, practising living skills or undertaking training courses still renders the individual to be under the control the state. As I mentioned previously, any person deemed to be the state's responsibility has their human rights and recovery efforts met by the state. I want to reiterate that there is no explicit obligation to provide social security benefits in the form of payments or cash other than perhaps a misguided notion of equality. People in psychiatric confinement are receiving benefits, just not those in monetary form. Individuals in psychiatric confinement have their food, clothing and housing all provided by the state or territory psychiatric institution and therefore have their basic needs provided for, which falls under human rights obligations. When such benefits are being provided, the need for social security in the form of cash payment is unwarranted.

I want to just rehash a few points I mentioned earlier. Specifically, this bill pertains to the psychiatric confinement of those who have committed a serious offence. The definition of 'serious offence' also includes offence against the law of the Commonwealth or a state or territory punishable by imprisonment for life or for a period or a maximum period of at least seven years, involving murder, rape, attempted murder, manslaughter, serious injury or risk of injury to a person or serious damage to property endangering the safety of a person. In essence, the Social Services Legislation Amendment Bill ensures consistent and equal treatment of people in jail and in psychiatric institutions. As I have said previously, today's bill will streamline the social security arrangements pertaining to those who are psychiatrically confined with those imprisoned. It also allows for the minister to determine the period of integration back into society and thus allow appropriate social security payments to resume during this time.

Finally, limiting the payment of social benefits to the person in a psychiatric confinement is not detrimental to their rehabilitation efforts since practising living skills or undertaking training courses would be under the responsibility of the state. There is no obligation for social security payments to be made in forms of monetary payments when requirements are being provided for by the state. In light of this, I recommend this bill to the House.

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