Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Hansard source

Labor does not support the Social Services Legislation Amendment Bill 2015 in its current form. As all senators would be aware, this bill was referred to the Senate Community Affairs Committee for consideration. There was a hearing, and most of the arguments were worked through at that hearing, which is indeed the strength of the committee process. We received submissions from state and territory governments, statutory and advisory bodies, peak and representative groups, service providers, clinicians and patients. The one thing that all these groups had in common was that they opposed this piece of legislation. The only group that put forward any arguments in favour of the legislation was the department, and I imagine that will be something the government is very pleased about.

In regard to the issues, we believe there are real concerns, in the way this legislation was brought forward, about the definition in the legislation of 'serious offence'; about the financial impact of the bill and, also, the number of people it will impact on; about the impact on delivery of clinical services and on reintegration of people who have been already defined as some of the most vulnerable in our community; and about the definition of the period of reintegration.

One of the most important elements was for us, as senators, to understand through this process is exactly who the people are who would be impacted on by this bill. A number of pieces of evidence to the committee talked about the kinds of people who would face changes from this legislation. I think the New South Wales Mental Health Review Tribunal pointed out in a very strong way who these people are:

Forensic patients are amongst the most challenged and vulnerable persons in our society. They are not criminals and should not in any way be regarded or treated as such. They have never been the subject of a formal criminal conviction. This is because the law has for centuries accorded them a very different status.

Those found unfit for trial have been so found because, due to their particular condition (usually a mental illness or an intellectual disability) it is not possible for them to receive a fair trial [through the justice system]. Some persons who have been found unfit for trial may, in truth, be innocent, but are incapable of presenting to the court why this may be so.

These are the people about whom we are talking.

The government states that the bill 'represents a return to the original policy intention for people in these circumstances'. However, a number of submitters actually refuted this particular premise. The Victorian Institute of Forensic Mental Science stated that:

… forensic patients have remained eligible for social security payments throughout the various legislative changes, with the exception of a fifteen month period in 1985/6. However, the 1986 amendments applied retrospectively, so in effect forensic patients had full entitlement to social security payments up until 1985 after which time the payment of social security was limited to forensic patients who were undertaking a course of rehabilitation.

In its submission the Queensland government also rebutted the assertion that the measure in the bill represented a return to the original policy. They said, and this was actually talked about in Queensland at the time:

… Queensland’s experience is that for at least the last 12 years, and (anecdotally) since the Blunn v Bulsey decision in 1994, forensic patients have received benefits while they are detained in psychiatric institutions under mental health legislation. It has not been Queensland’s experience that payments have routinely or regularly been ceased for patients upon the making of a forensic order or when an involuntary patient is charged with an offence.

Also, one of the things that is specifically pointed out in this legislation is a definition of what is a 'serious offence' as opposed to what is not. A number of submissions received by the committee raised concerns about the distinction between serious and non-serious offences, which is a question the department was not able to answer to our satisfaction. The concerns related to both the appropriateness of making the distinction between the legal status of all forensic patients and the appropriateness of the range of offences that could be captured by definition, as proposed in the bill.

The National Mental Health Commission actually put forward the case that no clear rationale is given for why a person charged with certain offences, but not convicted for them, should be taken to be in psychiatric confinement rather than undertaking a course of rehabilitation, while others charged with offences that do not classify as serious are still taken to be undertaking a course of rehabilitation. The point being made is that for people who have been defined as having a serious offence, as pointed out in this bill, would not be able to receive payment while taking up rehabilitation, whilst people who are defined as having been committed because of a non-serious offence will. So the issue is not whether or not it is serious. It is about the rehabilitation process.

We believe the issue should be that people who have been determined not to be fit for trial should be treated the same way. A core aspect of our argument is that, should they be undertaking a rehabilitation process, which is essential to their wellbeing, and in fact making them able to reintegrate into society, they should be treated in the most sensitive and forensically proven way, based on evidence. We believe that by withdrawing social security payments this actually creates an added barrier, an added restriction, to that which they are already facing.

Some submitters were also concerned that the definition was too broad, including acts that posed risk of injury or property offences that endangered a person. In very telling evidence by Mrs Alison Xamon, President of the Western Australian Association for Mental Health, she highlighted this really important concern by saying:

… damage to property and the sort of scenario where people lash out in periods of great distress under psychosis unfortunately do occur, and yet there is no intent behind it. These are not people who are intrinsically dangerous in the sense that they are morally culpable; these are people who are in the grip of being seriously unwell. That is the sort of scenario that is very likely to occur, and I think that there are going to be a number of people who will be captured as a result.

The definition of serious is based on potential to do harm and potential of illness. A core element of the reason why we are not supporting this process is the strong accent on there being no real intent behind it. They could not be morally culpable; they were acting under psychosis.

We heard a range of evidence about the kinds of people who could be caught up in this. I take the point that was raised in some evidence that as we discover new types of conditions that are diagnosed—and I point out most particularly the issue of foetal alcohol spectrum disorder, FASD, where we know that there are strong limitations on people being able to make clear definitions of right and wrong and an inability to filter action—it would be a tragedy if people who have such a diagnosis, who are being in a way treated and working through a process, were suddenly deprived of social security payments which could help their rehabilitation and reintegration into the community, which is the ultimate point. The ultimate point is that people are able to have effective treatment and effective protection and to work through the issues with the kinds of medical and psychiatric support they need, with the intent of becoming well and able to come back into society. This legislation, by removing social security entitlement, automatically places them in the same grouping as people who have a legal conviction and, again, also puts up another range of barriers that could prevent these people from having the support they need.

I was deeply impressed not just in the inquiry—because I have been fortunate enough to work with people over a number of years who are significantly effective advocates and professional supporters of people who have psychiatric illness and who are in some cases detained for long periods of time simply because society and our system just does not have an effective place for them to have the support they need. Through this inquiry and also through their general advocacy, these groups have worked extremely hard to bring forward the voices of people whose voices are not often heard. This legislation attacks the group who are and have been diagnosed as ill. That is the purpose for which their offences have been defined; they have not been judged through the justice system, because they have been found incapable of having that process relate to their circumstances.

In relation to the general process there was a lot of information brought forward by states and territories about the lack of effective consultation in the development of this legislation. As I have said, we had evidence from the Western Australian and Queensland governments in particular about the financial impact of such a change. Currently the process is that social security payments are made to people who are in psychiatric facilities and are receiving treatment as they work through rehabilitation and preparation for reintegration. The people from the state governments have said that this is a cost-shifting exercise.

The financial impost, which is now shared with the federal government, will be slated home exclusively to the state government. That is something that needed more effective consultation leading to a decision so that, most importantly, the people who would be impacted by the legislation would be protected as strongly as they could be and they would not suddenly be in the financial situation where their support was going to be in question in any way, which would affect their access to available services. The evidence was that this degree of effective consultation did not occur prior to the legislation being put forward and there had not been an assessment of the impact, including the financial impact on budgets, both at the state and the federal level.

That is important. We are reliant, in so many of our services delivery mechanisms, on effective consultation and negotiation throughout the COAG process. If we are going to make changes to legislation at the federal level which will have significant impact on state budgets, that should be openly discussed and negotiated before decisions are made. We rely on effective communication and negotiation in our Constitution across our Federation. We expect cooperation—which we must have—through a whole range of service delivery. Bringing forward one element of legislation in this way which did not have that consultation makes it harder to have the kinds of negotiations that we must have to ensure that people do receive the services they need. We consistently mention in this place the importance of an effective COAG process.

Most of the inquiries that we handle in the Community Affairs process involve shared responsibilities between states, territories and the federal government. That relies on an element of trust and open consultation. This bill has not met that test. In fact, it has put that form of consultation in the sensitive area of psychiatric services, and that is not a good precedent for the ongoing discussion that has to happen after this. No matter what happens with this bill, the discussions about how people are treated, the effect of processes and reintegration in community will continue. There will be costs involved with all of those processes and they will need to be effectively negotiated between the Commonwealth, states and territories. That means that that model must be strongly in place. We cannot always guarantee agreement—we know that—but we should be able to guarantee respect and open discussion about exactly what the cost are, what the background is and who is responsible.

In this particular piece of legislation, a significant element is left to a legislative instrument. Again, we did not have that legislative instrument in front of our committee when we were considering the impact of the process. The legislation works with the instrument to come up with the full package. We say it consistently: when we are looking at changes in legislation, it is important that we see the full range of legislation and regulation that will impact on the people who are reliant on the process.

Participants in the inquiry raised concerns about the definition of the period of reintegration. The bill allows for payment of social security payments while active integration back into the community is taking place. That is good, but we do not know what that defined time is. We do not know how it is going to work. We also do not know who is going to be responsible for making the communication work when someone is moving into that period. We were told by the department that this detail would be included in the legislative instrument, and that was also advised in the explanatory memorandum. The department told us that the definition in the explanatory memorandum was not settled and that further consultation would be undertaken. Not only do we question the term 'further', in terms of what I said earlier about the consultation that had gone on beforehand, but it means that we are looking at something that will come into place immediately should this parliament agree to it.

The original date was going to be July 2015, but that will be amended, of course. You will introduce a significant change to the way people who have currently been determined unfit for trial will receive payment, because this particular bill takes away their access to social security. It also says in the bill that, should these people be involved in a formal reintegration process, they will have access to social security payments, but we do not know how that is going to happen. We do not know who is going to be the advocate for that or the delegate for that.

Again, this was something that could well have been part of the information that was put before the Senate before we were in the place of having to make a decision. We believe that is not good enough, particularly in this case, when we are talking about removing an entitlement and then giving it back. This should have been able to be agreed before it came into this place for decision. It is an issue about not having regulations that augment legislation available at the time of decision. We believe that it is important that the consultations around what does define the period of reintegration must continue—of course they must. We also believe that this bill should have further consultation against the other elements that are in the process, not just the process of integration.

We oppose the bill because we think that it is not clear. We oppose the bill because we think that the impact on the people who are going to be subject to the loss of payment will be traumatic at a time when trauma is something that they do not need amidst the other processes that they are going through. We oppose the bill because there has not being effective consultation between the people who are going to be relied on to make payment. They will not know exactly what is going on and what kind of money is involved.

This bill will have an impact on a relatively small number of people. The financial savings are not great, and it is hard to see that there is any justification for this change except for a savings measure under this portfolio. We believe, as Labor senators, that the quantum of the saving is far outweighed by the impact on people who are already intensely vulnerable. As put forward by the people who gave evidence to our committee, it could also have a negative impact on their clinical treatment and put them in even more danger of not being able to regain their health and place in society.

There was a number of objections put forward by the people who came before our committee. Those objections seemed to be known to the department when they gave their evidence, but their responses did not meet our need to know why it was so important to make such a significant change to a process that had been working since the mid-eighties. We oppose the bill and we seek the support of the Senate to do so as well.