John Williams (NSW, National Party) Share this | Hansard source

This is what we are talking about, Senator Siewert. We are talking about people being charged and found not guilty because of their mental state. This is what we are talking about. The amendments define a serious offence as murder or attempted murder, manslaughter, rape or attempted rape, and other violent offences that are punishable by imprisonment for life or for a maximum period of at least seven years. The department said:

It is estimated that this measure will affect approximately 350 people on implementation and 50 people each year afterwards.

So I agree with Senator Siewert that it does not affect a lot of people: about 350 people now and about 50 people each year afterwards.

On the human rights issue, the department says:

The Bill is compatible with human rights because people in psychiatric confinement receive 'benefits in kind' in lieu of a social security payment. Their basic needs are provided by the relevant State or Territory government through the hospital or psychiatric facility. The current arrangements for social security payments adequately provide for partners and children of people in psychiatric confinement.

This is very important in this whole debate. I do not think anyone in this chamber—and I do not think anyone in Australia—would think that someone whose mental state puts them in serious need of help has not got to have a room, to have a roof over their head, to have a bed, to be fed and to be clothed. Those things are essential for life, and they are provided by the states. The department says:

Article 28.1 of the Convention on the Rights of Persons with Disabilities provides for … the right of persons with disabilities to an 'adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions'.

It also says:

Individuals affected (and their families) will have their rights to an adequate standard of living, and to adequate health … and rehabilitative care services fulfilled.

The department also said in its submission:

The Bill provides for circumstances in which a person is not taken to be undergoing psychiatric confinement (meaning that a social security payment will be payable) during a period that is ‘a period of integration back into the community for the person’. This will ensure that the person's right to an adequate standard of living are provided for the period that a person is re-establishing themselves in the community. What constitutes a period of integration will be defined in a legislative instrument. The instrument may provide, for example, that a period of integration is where the person is spending six nights or more in a fortnight outside of the psychiatric institution.

Let me just summarise this. This measure will cease social security payments to certain people who are in psychiatric confinement because they have been charged with a serious offence. Yes, they may not have been found guilty. The jury has said, 'Look, they're in a serious state of mental illness', and hence they have been exonerated as far as the guilt goes. But they were charged and found not guilty because of that mental state. Of course that would have been the reason. The amendments define a serious offence as murder, attempted murder, manslaughter, rape or other offences punishable by imprisonment for life or for a period of at least seven years. There are provisions for social security payments to be made if these people are undertaking a course of rehabilitation. That is most important. If they are looking to improve their mental state, to get back on the right track, there are provisions for social security payments to be made if those people are undertaking a course of rehabilitation.

The present arrangements under which most people confined in 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. Prior to this case, many people in psychiatric confinement because of criminal charges could not receive social security payments. Prior to the Federal Court decision of 2002, many of these people could not receive social security payments. Then the Federal Court made a ruling. Guess what: we are simply wanting to bring it back to how it was before that Federal Court decision. The amendments contained in this bill represent a return to the original policy intent for people who have been charged with a serious offence, so that a person cannot access social security payments while in psychiatric confinement as a result of criminal charges.

People in jail and in psychiatric confinement are provided with accommodation, food and other essentials by the state or territory. After being charged with an offence a person becomes the responsibility of the state or territory government, which is then responsible for taking care of their needs, including funding their treatment and rehabilitation. Some state and territory governments are currently using people's income support to help fund their confinement. For example the Queensland government takes 67 to 80 per cent of a person's pension while they are in psychiatric confinement. You can understand why Queensland said what they did in this inquiry: Queensland is broke. The Queensland government probably has $84 billion of debt now, and it is going up. They have a population of more than 4½ million people. They are in huge debt. So they will get what they can out of this place just to try to keep their books a bit in order. We know which direction their books are heading in now. So it is no surprise that the Queensland government opposes this. They want to keep the money going into their coffers.

As the Senate Community Affairs Legislation Committee inquiry into the bill heard, most Victorian forensic confinement centres charge up to 85 per cent of a person's income support payment. This is common practice across the country. People who are confined in prison because they have been convicted of a criminal offence and are on remand are not eligible for social security payments. Under current social security law, those same provisions apply to people who are in psychiatric confinement because they have been charged with a criminal offence but are unfit to plead or have been found not guilty due to mental impairment. This is the point. No-one is saying, 'No, they didn't commit the offence' if some bloke who is mentally unstable rapes a young woman. He may be let off by the court in the sense of not being found guilty, but the offence was committed.

This change will only impact a small number of people charged with the most serious of offences, such as rape, murder and other violent crimes. The measure represents a return to the original policy intent for people in these circumstances—as I said, back to 2002 prior to the Federal Court ruling. This measure is not intended to punish people or negatively impact on their rehabilitation. The government understands that social security payments are vital to help people transition back into the community. That is why there are provisions in this bill that provide for circumstances in which a person is not taken to be undergoing psychiatric confinement, meaning that a social security payment will be payable during a person's period of integration back into the community. The measure applies while they are in the institution. When they are looking to rehabilitate, to get back on track, then the payments are available to them. Further demonstrating that this measure applies only to serious crimes, 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—I have already mentioned some of the serious offences—as long as they are undertaking a course of rehabilitation, or where a person is undergoing psychiatric confinement for reasons unrelated to the commission of 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 maximum period of at least seven years and are held in psychiatric confinement due to their inability to plead or where they have been found not guilty by reason of mental health.

The reason, as I said, why some of the states oppose this amendment is that they want the money. I find it unacceptable if, for example, a young woman is walking home from work—she has done a full day's work—and some horrid person attacks and rapes her. He is in a bad state of mental health. Then he is sent off to a psychiatric institution to be confined there, yet the young woman who was the victim pays taxes to give him social security payments. I think that is unacceptable.

We are talking about 350 people here in the case of this amendment and about 50 a year from then on. Tragically, these things do happen in our lives. I wish we lived in a perfect world, but we do not. This is a situation where of course it is a saving to the federal budget. It is up to the states to look after these people when they are in these institutions, as they do. We spend enormous and growing amounts of money on social security each year. I am very concerned about where this budget is leading us at the federal level to get that under control in the years ahead, when we have to look after our pensioners, our sick and those who cannot get a job and are genuinely looking for work. If the budget is not in order then in 20, 30 or 40 years time these things will be removed from this country, and that would be a tragedy. It is up to us to get the budget in order now. This is a small budget saving, but I do not think it is unfair at all in the circumstances I have explained in this presentation to you, Mr Acting Deputy President. I think it is a fair situation of simply going back to 2002, before the Federal Court made its ruling, and I see nothing wrong with that, and the department supports it.