Jenny Macklin (Jagajaga, Australian Labor Party, Shadow Minister for Families and Payments) Share this | Link to this | Hansard source

I am speaking today on the Social Services Legislation Amendment Bill 2015. This bill will take income support payments away from people in psychiatric confinement who are charged with a serious offence and who are undergoing a course of rehabilitation. Since 1986, legislation has provided that a person undergoing psychiatric confinement who is undertaking a course of rehabilitation can receive income support payments. They are people who have been found to be suffering very serious mental health issues like schizophrenia; bipolar disorder; intellectual disabilities; acquired brain injuries from a car, sporting accident or a stroke; and other conditions that impair mental functioning.

The people impacted by this measure will have been charged with serious offences, which is why any change to the arrangements for people in psychiatric confinement needs to be properly considered. Any change should be based on extensive consultation and debated sensitively. Unfortunately, the government has not consulted on the changes in this bill prior to its announcement. The government did not speak to the patients who may be impacted by these measures, to their families or to their carers. They did not speak to the mental health advocacy organisations or to state and territory governments. They did not speak to the psychiatric institutions that provide the care.

Little has changed since the announcement. No genuine effort has been made to communicate this decision to make sure that those impacted by the measure are aware of the change and can prepare accordingly. The government has left mental health services to communicate with patients, families and carers. This is just not good enough. A proper process of consultation is needed for such a complex, sensitive and serious matter.

Today's consideration of the bill pre-empts the findings of a Senate inquiry. A public hearing as part of that inquiry was held only last week. There have been 26 written submissions to the inquiry, and not one of these submissions is in support for this bill. Minister Morrison's own department's submission provides no justification for the bill, no evidence to suggest that these measures will assist in the rehabilitation of people in psychiatric confinement.

The Victorian government has written expressing their opposition and concern about the bill. The Queensland government provided a submission opposing this bill. The Queensland Office of the Public Advocate opposes the bill. The New South Wales Mental Health Review Tribunal opposes the bill.

Given the seriousness of the measure and given the government's lack of consultation on the bill, Labor wants to see the Senate inquiry properly consider this measure and its potential impacts before determining a way forward and any amendments that may be needed.

On the face of it, this bill is another attempt to pass costs on to the states and to the most vulnerable. In last year's budget, the government announced a cut of $80 billion to school and hospital funding for state and territory governments. We understand that patients in psychiatric confinement use their income support payments to pay for their clothing, toiletries and other personal items. The removal of all income support for these patients will leave this very vulnerable group with no means to meet basic living needs not provided by a psychiatric institution.

In some cases, patients may use their income support payment to contribute to other costs of their care and accommodation. In Queensland, for example, a fee of $40 per day is applied to patients in psychiatric confinement. The fee helps the Queensland government meet the costs of a patient's accommodation and care. This fee also helps the patient learn budgeting skills as part of their rehabilitation. The Queensland government estimates around $850 will be lost per patient per fortnight. Queensland estimates an increased cost of $150,000 a week in meeting this payment for patients who may lose income support payments as a result of this bill. This is yet another example of how the bill shifts the cost burden of care to patients' families and carers, and state and territory governments. It is yet another example of cost shifting by this government.

Submissions to the Senate inquiry suggest the bill will undermine the rehabilitation efforts of people in psychiatric confinement. The discharge process is often very gradual. Training, employment and other community links are put in place whilst a patient is in psychiatric confinement to help ensure a successful transition at the time of discharge. Access to income support is crucial to establishing these links. Patients self-fund their external rehabilitation activities, transport to attend these activities and any supplies required to carry them out. Patients fund these activities from their income support payments. The cost of accessing general health care and purchasing medications in the community is met by the patient, with concessions from their health care card. Access to income support is also essential for patients to secure and maintain the community accommodation they need in order to be granted leave and eventually be discharged.

The proposals in the bill suggest income support payments will not be made available to a patient charged with a serious offence until they have been granted three nights per week of overnight leave. In Victoria, that is the maximum amount of leave that is able to be granted by a psychiatric institution. The rehabilitation and leave system relies on gradual progress to make sure that recovery and risk are safely managed for the person and the community, increasing the amount of leave granted as it is safe and appropriate to do so. Without income, patients will not be able to access the accommodation necessary to commence overnight leave as part of their rehabilitation program. The Chair of the National Mental Health Commission, Professor Allan Fels, sums up these issues in the commission's submission to the Senate inquiry. He says:

Once again, this is why further and comprehensive consultation on this measure is so important.

This bill will see people in psychiatric confinement charged with a serious crime treated the same way as a person in jail who has been charged with or convicted of an offence. It is right that social security payments may not be paid to a person detained in prison. However, there is a significant difference between people in psychiatric confinement charged with an offence who, because of a mental impairment, are not found criminally responsible for their actions and people in prison who are responsible for their actions.

There needs to be further consideration of and consultation on this bill. Labor will look very closely at the recommendations of the Senate inquiry and the submissions that have been made. We call on the government to consult in detail with the people who will be affected by this bill, advocates representing people with mental illness, families and carers, and state and territory governments before this measure proceeds any further.

Melissa Price (Durack, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Social Services Legislation Amendment Bill 2015. I am pleased to participate in this debate. In essence, the proposed measures will cease social security payments to people who have been charged with a serious offence, are confined to a psychiatric institution due to mental impairment and have not yet been convicted or have been deemed not fit to stand trial. For these members of the community to receive payment from the government is not a valuable use of taxpayers' money.

The amendments define a serious offence as murder, attempted murder, manslaughter, rape or attempted rape and other violent offences that are punishable by imprisonment for life or for a period of at least seven years. I can find no reason or justification to explain why these people should receive social service payments. I am not uncaring, but this is welfare. Such taxpayer funded payments are intended to cover the costs of living. These particular individuals are already being cared for by the government in psychiatric institutions while they await trial or because they are unfit for trial. I say unequivocally that I do not believe these payments are right and should be continued.

I think there is value in reflecting on the background of this issue. Between 1986 and 2002, people who were charged with a serious offence were determined to be ineligible for social service payments while they were in psychiatric confinement. This was as a consequence of their criminal charges. However, in 2002, a Federal Court decision determined that most people confined to a psychiatric institution would be undertaking some form of rehabilitation. It is because of the fact that they were enrolled in a rehabilitation course that they then became eligible for social security payments. In general terms that will continue to stand.

I wish to be clear about the measures we are talking about here today. They will only impact a small number of people in such circumstances and only those who have been charged with the most serious offences such as rape, murder and various other violent crimes. It is noteworthy that, at the same time, it is expected that the bill will produce a savings of over $30 million over the forward estimates. This is money that I believe can be better spent on those Australians who need it rather than on those charged—and I do underline the word 'charged'—with serious and violent crimes and who are also already being cared for by the government. It is my view that the funding has been unwisely given in the past, albeit as a consequence of a court decision, to these allegedly violent criminals and that we should cease social security payments to this group as soon as possible. As a society and as a government, we should not be providing social security payments to people charged with violent and serious offences and confined to a psychiatric institution at the grace of the government.

The amendments contained in this bill simply represent a return to the original or pre-2002 policy intent for people who have been charged with a serious offence. The intent was and is straightforward that a person cannot access social security payments while in psychiatric confinement as a result of criminal charges. It is worth bearing in mind that people who are imprisoned and in psychiatric confinement are provided with accommodation, food and all their other essentials by the state or territory. After being charged with an offence, a person becomes the responsibility of the state or territory government. It is then the responsible entity for taking care of the individual's needs, including funding their treatment and rehabilitation. I understand that some state and territory governments are currently using people's income support to help fund their confinement. For example, the Queensland government takes up to 85 per cent of a person's pension while they are in psychiatric confinement. The Victorian forensic confinement centres can charge up to 85 per cent of a person's income support payment. However, people confined in prison who have been convicted of a criminal offence or who are on remand are not eligible for social security payments. The measures in this bill will even out the playing field, as they rightly should. But let's keep in mind this legislation is not intended to punish people or negatively impact their rehabilitation, especially as the people we are referring to have only been charged—and, once again, I underline that word—with an offence; they have not been convicted. It is estimated that these measures will affect approximately 350 people on implementation and 50 people per year thereafter—a small number, which, as I said, will save the government $30 million over the forward estimates.

However, people do need social security payments to help them transition back into the community, which, of course, is only fair and reasonable and which is why there are provisions in the bill for social security payments to be payable to a person who is not taken to be undergoing psychiatric confinement. This means that a social security payment will be payable during a period of integration back into the community. There is no argument with me on that point.

Before closing, I think it is important to repeat that this measure takes effect as a consequence of serious crime only. A social security payment will continue to be payable where a person is undergoing psychiatric confinement because they have been charged with a non-serious offence, as long as they are undertaking a course of rehabilitation; or where a person is undergoing psychiatric confinement for reasons unrelated to an offence. This measure will only apply to people who have been charged with a serious offence that is punishable by imprisonment for life or for a period of at least seven years and who are held in psychiatric confinement due to their inability to plead or who have been found not guilty by reason of mental impairment. It is worth noting that there are provisions for social security payments to be made if these individuals are undertaking a course of rehabilitation. I commend this bill to the House.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

The Social Services Legislation Amendment Bill 2015 before us today is not quite as simple as has been portrayed. This legislation seeks to amend the Social Security Act 1991 to cease social security payments to people who are in psychiatric confinement because they have been charged with a serious offence. The reason they are there is that they have been found unfit to stand trial and so have been found not guilty of the charge because of their mental impairment. The new arrangements in this legislation will take place from July 2015. Currently, social security payments may not be paid to people in prison. However, payments are still paid to people who are in psychiatric confinement as a result of their being charged with a serious criminal offence and who are undertaking a course of rehabilitation.

This bill seeks to have people who are in psychiatric confinement and who have been charged with a serious crime treated in the same way as a person in jail who has been convicted of a crime. There are many in the community who would say people who have committed an offence such as murder, attempted murder, manslaughter, rape or attempted rape should not receive any benefits. However, the difference between a person in psychiatric confinement and a person in jail is that, in the former case, that person has been found unfit because of their mental illness. The important issue here is that these people are undertaking rehabilitation. These people, we hope, can be rehabilitated to the extent that, one day, they may be able to be charged or to re-enter our society. It is imperative that they undertake this rehabilitation. But rehabilitation comes with some associated costs. It involves working with people who are in psychiatric facilities to try and connect them to community—and that entails going out into the community in a way that somebody in a prison does not.

The government is probably rushing this legislation through a bit quickly. They did not consult adequately with stakeholders before this bill was introduced into the House. The bill is currently being looked at by a Senate committee. I would like to see the report from the Senate committee. In addition, I do not think the government has looked at the issue of people who are in confinement in a psychiatric institution. It is not like jail. It can be compared to a hospital setting. People there are required to buy their own toothpaste, their own toiletries and their own clothes; unlike prisoners, they are not provided with clothes. They need to attend to many of their own personal needs. As previous speakers have mentioned, some states levy an accommodation charge. This will have an impact on the states because it will shift costs of about $50 million to the states.

This is one of those pieces of legislation that could get popular support. The question that we as members of parliament need to ask is: are there going to be any perverse implications from the introduction of this bill? Is our society going to be in a worse position because of this legislation, or in a better position? It will save money. It will remove the disability support pension from people with severe psychiatric illness. It could lead to a situation that will exacerbate their condition and, in effect, stop them from ever re-entering our society—or, if they do, they will not have gone through a rehabilitation program that is as strong as it currently is. I urge the government to wait until they get the report from the Senate committee and then talk a bit more with the stakeholders, the people who are in this space. After they have done that, they should think very carefully about this legislation.

Karen McNamara (Dobell, Liberal Party) Share this | Link to this | Hansard source

I rise to support the Social Services Legislation Amendment Bill 2015. The Intergenerational report demonstrates how Australia's population will change over time and highlights the need to create jobs, growth and opportunity to improve our living standards in the future. Importantly, the government recognises that we must be able to pay for our future. As part of this, we are obliged to ensure that the government lives within our means and delivers a welfare system that assists those who are genuinely in need.

Currently, we are living beyond our means. It is alarming when we hear that eight out of 10 taxpayers are footing the welfare bill. Put simply: the government is spending over $100 million more per day than it receives and is borrowing to meet the shortfall. The government is totally committed to repairing the budget. This is why we are undertaking a comprehensive review of our social security system and identifying fair measures to ensure that we are best targeting government spending for those in need who require support. This is why legislation such as this is essential in ensuring we have a sustainable budget and a social welfare system that has the means and capacity to assist the most vulnerable in our community.

This bill provides that a person who is undergoing psychiatric confinement as a result of being charged with a serious offence will be deemed to be in psychiatric confinement for the purpose of social security law. This will be applied irrespective of whether the person is undertaking a course of rehabilitation. This measure will be implemented from 1 July 2015 and will ensure that social security payments will not be payable to an individual while they are undergoing psychiatric confinement. These changes will contribute to the government's budget repair job and will save approximately $29.6 million over the forward estimates. It is estimated that this proposed measure will affect approximately 350 people upon implementation and 50 people each year thereafter.

The government has introduced this legislation in response to the 2002 Federal Court decision in Franks and Secretary, Department of Family and Community Services, where it was held that people who are confined in a psychiatric institution would be considered to be undertaking a course of rehabilitation and therefore eligible to receive social security payments. Prior to this decision many people in psychiatric confinement as a result of serious criminal charges could not receive social security payments. Passage of this bill will deliver a return to the original policy intent whereby those undertaking psychiatric confinement as a result of being charged with a serious offence will be denied social security payments.

It is important to note that while an individual is undergoing psychiatric confinement the relevant state or territory government is responsible for taking care of their needs, including funding their treatment and rehabilitation. We are not stopping people in rehabilitation. This ensures that all individuals within psychiatric confinement are provided with a level of care. This bill refers to those who are charged with a serious offence. For the purpose of this legislation the measure will focus on violent offences such as murder, attempted murder, manslaughter, rape, attempted rape, and certain other offences involving loss of, or serious risk to, life, wellbeing or safety. This is an important element to highlight.

Social security payments will not be payable to a person who is undergoing psychiatric confinement because the person has been charged with a serious offence. It is also important to highlight that a person may be undergoing psychiatric confinement because they are having their fitness to stand trial assessed, have been found unfit to stand trial because of the person's mental impairment, or have been found not guilty of the charge because of a mental impairment. This legislation ensures that there must be a connection between a serious criminal charge and the psychiatric confinement before a person would be denied social welfare benefits.

It is important to note that a social security payment will continue to be payable to a person who is undergoing psychiatric confinement for reasons unrelated to the commission of a serious offence. This will allay concerns that this legislation will unfairly impact upon individuals suffering from mental illness. This is not the case; this legislation is addressing those who have betrayed the trust of the community and committed a serious offence. It is likely that a person who is found guilty of an offence, but who is remanded in a psychiatric institution following the guilty finding, would be taken to be in jail for the purpose of social security law. It is also important to note that that relevant social security payments are not currently payable to people in jail. This bill has no impact on arrangements for those who are currently incarcerated.

From time to time a person who has been charged with a serious offence may be granted leave from a psychiatric institution. If this leave is taken for the purpose of integration back into the community, the individual will be eligible to receive a social security payment for this time. However, a social security payment will not be payable if this leave is not related to integration back into the community. This is an important element to this legislation as often treatment in a psychiatric confinement can occur at a range of locations, including outside the institution.

These new arrangements will only apply to individuals who have been charged with a serious offence. For the purpose of this legislation a serious offence includes murder or attempted murder, manslaughter, and rape or attempted rape. Moreover, this legislation provides that an offence will be considered serious if it is against the law of the Commonwealth or a state or territory, punishable by imprisonment for life, or for a period or maximum period of at least seven years. Such crimes include those resulting in loss of life or serious risk of loss of life, serious personal injury or serious risk of serious personal injury, or serious damage to property and circumstances endangering the safety of a person. It is intended that this broad description of offences will capture crime where the conduct involves serious harm or risk of harm to an individual.

I conclude by confirming that these measures will only apply to individuals who have been charged with a serious offence. This is a fair measure that enhances the integrity of our social security system and it also contributes to the budget repair job. The Australian people expect this direction from their government. We must continue to deliver a fair social security system that supports our nation's most vulnerable. This legislation contributes to this objective. I commend the bill to the House.

Nickolas Varvaris (Barton, Liberal Party) Share this | Link to 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.

Scott Morrison (Cook, Liberal Party, Minister for Social Services) Share this | Link to this | Hansard source

I thank members for their contribution to the debate. The Social Services Legislation Amendment Bill 2015 will cease social security payments to certain people who are in psychiatric confinement because they have been charged with a serious offence, and in many cases the most serious offences you can imagine. As announced in the 2014-15 MYEFO, the measure will apply to people who have been charged with a serious offence and who, due to a mental impairment, are in psychiatric confinement. This includes people who have not been convicted or are considered not fit to stand trial. The original policy intention will essentially be restored for people in these circumstances, which is that a person cannot access social security payments while in psychiatric confinement as a result of criminal charges. The exclusion of those who have not been accused of a serious crime is a beneficial measure.

The present arrangements under which most people confined to a psychiatric institution may be considered to be participating in a course of rehabilitation and therefore attract social security payments are based on a 2002 Federal Court decision which broadened the definition of 'a course of rehabilitation' beyond the original intent. Social Security payments are provided as a safety net for those in need to help meet daily living needs in the community. The person's needs while in psychiatric confinement, including funding of their treatment and rehabilitation, are in fact the responsibility of the relevant state or territory government during that time.

This measure is to stop the cost-shifting from the state to the Commonwealth. The state charges up to 85 per cent of someone's income support payment to go to their accommodation and living costs. There is no reason why the Commonwealth has responsibility for an individual's needs at any time while they are in state care. There are measures in the bill to make sure that someone will be able to seek income support payments when their rehabilitation gets to a stage that they are getting integrated back into the community.

This measure will apply if the serious offence with which the person has been charged is a violent one. That includes murder, attempted murder, manslaughter, rape or attempted rape. In certain circumstances where people are integrated back into the community, social security payments may resume. The measure applies from 1 July 2015. I commend the bill to the House.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the bill be now read a second time.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.