Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to 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.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the Social Services Legislation Amendment Bill 2015 and in doing so express the Greens' strong opposition to this bill. It seeks to punish those whom a court has already found not guilty on the grounds of mental illness, and in doing so it flies in the face of hundreds of years of jurisprudence. This is mean and it is cruel—for saving, in budget terms, a measly amount of money. It seems to me more that the government seeks to punish and demonise people who have a mental illness who are in psychiatric confinement. That is the only reason I can think of for them pursuing this bill, given the overwhelming evidence-based opposition—I will say that again: evidence-based opposition—from everybody who made a submission, other than, as Senator Moore pointed out, the department. It makes a completely arbitrary distinction about those who can access federal income support and equates psychiatric care with prison. This is a dangerous road we are going down—effectively criminalising people with mental illness and setting aside decades of mental health reform.

We are now fortunate in this country, where we recognise that mental illness is a very significant issue. We have ads on television and we have community awareness raising programs. And here we go with this bill, saying 'It is okay to punish people who are in psychiatric care.' In doing so, it fails to recognise the important role that access to income support payments plays in ensuring that people can transition from care to community. In attacking this group of people by means of this poor budgetary measure, the government will worsen the mental health outcomes of people who are caught up by this measure, rather than providing necessary support. Expert evidence—I say again, 'evidence'—to the Senate inquiry outlined that an income is vital in enabling people to access the basic necessities of life and to engage in rehabilitation, recovery and return to community living. We know that access to accommodation is essential. It is also profoundly important for a person's sense of dignity, autonomy, sense of control and decision making. Again, there is plenty of evidence that shows that is an essential part of people getting well and being empowered.

This will achieve relatively small savings for the government but will have a significant impact on the lives of those who are affected by it. As was pointed out in the committee inquiry, it is critical to understand that:

Those found not guilty on the grounds of mental illness have, since medieval times in English law (whose traditions Australia has long followed on this point) been regarded as 'not morally blameworthy' because of the illness from which they suffer, and no conviction is entered against them. They are detained for the purpose of therapy and treatment, not because they are guilty, but because they are unwell and need to be detained until they can be safely managed in the community.

Often the indefinite incarceration of an individual who has been charged with a crime but considered incapable of facing a court comes after a difficult life journey to that point, marked by a lack of personal support and poverty. For many individuals, for many years, there was simply no next step, no way forward after being placed in a secure mental institution. This, in and of itself, represented a serious failure of our justice system where individuals who had no mental capacity to understand the seriousness of their behaviour were simply locked up.

A number of advocates have done incredible work to reverse this situation, by bringing it to the attention of state and federal parliaments and building a coalition that fights for the rights of those who are indefinitely detained without a conviction. They have spent years fighting for these people. This is a step backwards. The Australian Greens acknowledge the tireless work of these under-resourced advocates and thank them for providing detailed submissions to the committee inquiry into this bill. Their work has resulted in the creation of many more options being available for those charged, but never convicted, of a crime due to cognitive impairment. This has in turn created a range of new challenges for state and federal governments in funding appropriate rehabilitation services. It seems that state governments are slowly rising to the challenge. Take, for example the Western Australian government's creation of disability justice centres. Disappointingly, the federal government's response appears to be to try and devolve all its caring responsibility to the states by denying its obligations under the Social Security Act.

The evidence provided to the Senate committee inquiry has thoroughly demonstrated that through this bill the federal government is abandoning its responsibilities to a relatively small group of people who are already marginalised and clearly in need of government and community assistance. It is also worth noting that this legislation will have a disproportionate impact on Aboriginal and Torres Strait Islander peoples. The Aboriginal

Disability Justice Campaign estimates that a third of those detained under the various state mental health laws are Aboriginal and Torres Strait Islander people. This legislation will affect those most vulnerable and disadvantaged and it is likely that those most disadvantaged have not had access to mental health services. For these individuals, and many others in psychiatric facilities who have been charged with a serious crime but who have not been convicted on mental illness grounds, the relatively small Centrelink payment is a critical form of financial support.

It is a federal responsibility to provide basic living costs to those not convicted of a crime. This bill represents an attempt by the government to equate psychiatric treatment with prison, and to transfer the responsibility for providing accommodation and basic living costs to state governments. But in order to be convicted and confined in a prison at the expense of the state government, an individual needs to be legally responsible. This is clearly not the case here. The government is trying to imply that people who are in psychiatric care are the same as those in prison. It is simply not the case. The New South Wales Mental Health Review Tribunal set this out very clearly during the inquiry by saying:

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. 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.

Given that psychiatric care is clearly not akin to prison and that there is a clear distinction between being convicted and being detained for therapy, the Australian Greens do not believe that there is any evidence whatsoever as to a legal basis for the withdrawal of federal assistance to individuals detained in psychiatric care. It is also completely inappropriate to justify this bill as a punitive measure intended to punish the individual by withdrawing their rights because they have been charged with a 'serious enough' crime. This takes on a new level of significance when we consider cases such as that of Mr Noble in Western Australia, who was recently released from 10 years in involuntary psychiatric care after it was established there was no evidence of his having committed the serious offence of which he was accused.

The bill requires staff both in the care facility and at Centrelink to be able to make a judgement as to whether the conditions of someone's involuntary detainment in a care facility are enough like a criminal conviction to justify the withdrawal of federal support. It is inevitable that a number of people will be assessed incorrectly given the jurisdictional inconsistencies in defining a serious crime across the country. This assessment cannot be considered in any way equivalent to a ruling of a court with its built-in safeguards, burdens of proof and clear rights of appeal.

The evidence supplied to the committee suggests that the department is aware of these natural justice failures. The department officials told the Senate inquiry that they did not mean for the measure to be punitive, but in practice it clearly will be and, intended or not, the unfair, punitive nature of this bill is a key reason why it should not be supported by the Senate.

The Senate inquiry also thoroughly demonstrated that Centrelink payments are a key part of the exit pathway for an individual who has been in a psychiatric institution. The WA Association for Mental Health told the inquiry that transition will generally begin with one or two nights a fortnight in a non-institutional setting and gradually build up to a point where the individual is spending the majority of their time in the community. These transitions can be incredibly slow. For example, it is often the case in WA that an individual can spend years on a leave of absence order for fewer than six nights. Yet under this bill the individual can have access to Centrelink payments only after spending six nights of the fortnight in the community. There is no reason, other than administrative complexity, why payments cannot be pro rata based on the time spent in the community. It is clear that the government prefers an arrangement that is administratively straight forward rather than one that is fair and rather than looking at supporting and caring for an individual.

Being able to pay for accommodation and other basic needs is a critical component of transitioning out of care. Many individuals on a leave of absence order have no personal support people able to fund or contribute to the purchase of daily necessities and have extensive barriers to employment. The bill's explanatory memorandum notes that these needs can be funded by state government agencies. However, we do not consider this appropriate as no state government agency had previously considered this its role nor is it a mandated requirement if a person's access to social security is removed by this bill.

For some individuals detained in my home state of WA without access to income support we understand that in recent years the Disability Services Commission has attempted to break the deadlock by funding the purchase of daily necessities on their release until that person is able to access income support. However, this was not the case in the past and is not guaranteed for the future. It is not a mandated requirement. It is not a legislative requirement. The federal government cannot rely on that to justify this bill. This highlights the paradox of this situation where neither state nor federal governments will accept a legal responsibility to support individuals in transitioning from a psychiatric institution. The Australian Greens believe it would be far better for payments to continue and for a different way of sharing the costs of basic living between state and federal governments to be established.

For all the reasons outlined above, this bill should not be passed by the Senate. This is not in the spirit of the Social Security Act of this country. Nor does it reflect Australia's commitment to those living with disability as a signatory to the UN Convention on the Rights of Persons with Disabilities. Having a basic living allowance—that is, a social security payment—that is attached to an individual rather than a facility or service provider also ensures that the individual or their guardian is able to exercise choice and control, albeit within the confines of limited options. They need this sense of control and they need to be able to decide where and how they receive their rehabilitation or care. As I said earlier, it is an essential part of their rehabilitation. This means that their slow reintegration into the community is not reliant on first jumping through hoops to secure funding. A broader range of options become available if basic living costs are automatically covered by social security arrangements.

The parliament recently reaffirmed its commitment to these principles of individual control, including for those experiencing cognitive impairment or mental health problems, by creating a transformative National Disability Insurance Scheme. The very essence of that scheme is about choice and control for people with disabilities. This bill is going in the opposite direction. It takes away any ability to exercise choice and control by punishing the people caught up under this bill. This bill completely fails those with mental illness and cognitive impairment.

The Australian Greens recognise that those affected by this bill have a very difficult treatment and rehabilitation journey ahead of them. It is the community's responsibility to care for them and not to abandon them. This bill fails completely in this regard. It seeks to punish people who have not been convicted of a crime and contravenes hundreds of years of jurisprudence. It does not reflect the intention of either the Social Security Act or the UN declaration on the rights of people with disabilities and will result in significant additional barriers to reintegrating those who have been in care back into the community. It is also likely to result in further financial strain on state mental health budgets and will limit the resources available to provide appropriate care to those who are most in need.

This is an insidious and harsh measure that will save a relatively small amount of money but will have a dramatic impact on the lives of people with disability and mental illness. It clearly undermines recovery orientated mental health policy. I can only think that the government seeks to demonise people who are caught up under this measure. The government should abandon this counterproductive measure and look towards the viable budget savings in many areas that I and my colleagues have outlined in this place on many occasions.

It is a cruel, harsh measure. It will be a bad reflection on decision makers if this bill passes, because, as the evidence highlights, it will have negative impacts on those most affected. It overturns centuries of jurisprudence. The key tenet of our justice system is that somebody can understand the charges being brought against them. These people have not been charged with a crime. It should not be up to care facilities and others to determine what a serious crime is. We should be helping people to recover and to reintegrate into our community, not punishing them. We will be opposing this measure and urge the Senate to vote against and oppose this measure so we can focus on helping those with mental illness, those who are in psychiatric care, so that we are able to offer the best supports for people to reintegrate into our community, to exercise choice and control and to find accommodation. Not having resources, not being confident that you have got resources, as you leave psychiatric care means that you will not be able to find secure accommodation, once again undermining your ability to leave and slowly reintegrate into the community. The evidence to the committee on this measure was overwhelming: it is bad legislation and should be rejected.

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

I rise to speak in support of the Social Services Legislation Amendment Bill 2015. Senator Siewert was just saying that these people were not charged with a serious crime. I do not know whether that is the situation but, on the issues of psychiatric confinement raised in the Senate inquiry, the department said:

The proposed amendment to the social security law will only capture those persons who have been charged with a serious offence.

So, yes, they will have been charged with a serious offence, in contrast to what Senator Siewert just said. The amendments define a 'serious offence' as a murder or attempted murder—

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Well, they won't have been found guilty.

John Williams (NSW, National Party) Share this | Link to 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.

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

I rise to speak on the Social Services Legislation Amendment Bill 2015. Senator Williams's contribution here today seems to be a bit like, 'Lock 'em up and throw away the key.' That is the contribution we have just heard here today. What we have heard is that it does not matter whether these people have been found guilty or not. He has decided—the government has decided—that they are guilty and they do not deserve to have the entitlements that are available for every other Australian that needs to access our social security system.

This legislation, as you have heard, seeks to cease the social security payments to people who are in psychiatric confinement because they have been charged with a serious offence, notwithstanding the many, many problems that were uncovered during the inquiry into this bill, where the department had no answers or very little information as to what they meant about 'reintegration' and about what would constitute a serious offence. It was obvious from the very beginning that there had been little consultation about this piece of legislation. It was obvious from the very beginning that this piece of legislation was designed as a money saver for the government. It was not about good policy. It was not about achieving the best you could for forensic patients. It was not about whether the system that was currently in place was working. It was all about savings. One of the witnesses that came and gave evidence essentially said it was quite obvious that this piece of legislation had been put together by someone with absolutely no knowledge in this field whatsoever. So we had a bean counter come along and say, 'Okay, we can save some millions of dollars here by just taking away this payment that was designed to help with the rehabilitation of forensic patients and also to help with the reintegration of those patients into society.'

These people are undergoing psychiatric confinement because they were having their fitness to stand trial assessed, have been found unfit to stand trial or have been found not guilty of the charge because of their mental impairment. These are people who experience very serious mental health issues like schizophrenia or bipolar disorder, or who have intellectual disabilities or an acquired brain injury. These are some of the most vulnerable in our society, and the government is seeking to have these people in psychiatric confinement treated in the same way as a person in jail who has been convicted of their crime.

But in doing so the government has failed to recognise the difference between those convicted of a criminal offence and those who were not convicted due to mental illness or intellectual disability. We heard that with Senator Williams's contribution here today. It does not matter whether they have been convicted or not; the government has decided that they are guilty. As the chair of the National Mental Health Commission, Professor Allan Fels, explained in his submission to the inquiry of the Senate Community Affairs Committee into this bill:

Persons found unfit to stand trial or who have not been convicted due to a mental impairment have been found not legally (or morally) culpable of the offences with which they were charged. This vital distinction, which has a long history in English and Australian law, is not acknowledged in this bill.

That was one of the issues that Senator Siewert raised in her contribution. So here we have a piece of legislation striking out a very important tenet of Australian law.

In his second reading speech, Minister Morrison said that the proposal in this bill 'represents a return to the original policy intention for people in these circumstances'. We also heard Senator Williams say it in his contribution. But it is not correct. We heard from witnesses about the government's argument that, prior to the 2002 decision of the Federal Court, many people in psychiatric confinement because of criminal offences did not receive social security payments. However, that argument has been refuted by a number of organisations that have been active in this area for decades. In fact, since 1986, the legislation has provided that a person undergoing psychiatric confinement who is undertaking a course of rehabilitation can receive income support payments. In their submission to the Senate inquiry into the bill, the Victorian Institute of Forensic Mental Health, a provider of adult forensic mental health services in Victoria, stated:

… 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.

So the real policy intention behind this bill is clear. The bill is not about returning to some previous policy on the provision of social security to forensic patients. Rather, it is about saving money for the Commonwealth government.

In his submission to the inquiry, Professor Dan Howard, NSW Mental Health Review Tribunal wrote:

I fear that the real motivation behind the proposed bill is to shift, as far as possible, the cost of supporting forensic patients from the Commonwealth to the States and it is in reality doing so by misconceiving the status, and the needs of forensic patients in psychiatric detention.

This is something we should be very familiar with by now. It seems to be the Abbott government's modus operandi: save money by shifting costs onto vulnerable people and their families, and onto the states. In his submission, Professor Howard pretty much summed it all up when he wrote:

The proposal, if passed, would have a seriously detrimental impact upon the wellbeing and therapeutic progress of this group of forensic patients, who are one of the most vulnerable (and most poorly understood) groups in our society. I can only assume that the proposal, however well-intentioned in pursuit of budget savings, has been put forward by persons who have little, if any, understanding of how the forensic mental health system in Australia works.

I think anyone looking at this legislation would absolutely agree that whoever put this legislation forward, whoever came up with this policy suggestion, has very little understanding of how the forensic mental health system works in Australia.

The Senate Community Affairs Legislation Committee inquiry into the bill heard significant evidence about the costs incurred by forensic patients and the importance of meeting those costs as part of a patient's rehabilitation. The assistance that this government is seeking to deny forensic patients is used to fund additional rehabilitation costs to meet everyday costs and to support patients' families. This income support enables forensic patients to participate in a range of daily activities to promote recovery, rehabilitation and community participation. Patients use the support to meet basic expenses—to pay for transport, pay bills and buy clothes. Patients use the support to take part in external therapeutic and education programs. Patients use the support that they receive to assist in maintaining relationships with their family and friends and to maintain contact with their children.

The submission from the Queensland government outlined some of the costs that forensic patients would be expected to self-fund while they are confined to a facility:

These include payment for telephone calls, course costs and study materials for a range of skills training and study options. Consumers commonly incur other costs through participation in a range of other community activities. The cost of public transport and the purchase and maintenance of a mobile phone (which may be required to access unescorted day leave) are met by patients.

The submission from the Queensland government went on to say:

The absence of a source of income for forensic patients would preclude engagement in community activities.

Being unable to meet the costs of these items and activities will seriously jeopardise forensic patients' ability to engage in activities necessary for their rehabilitation, and it will severely hinder their ability to access leave. I think any fair-minded member of the community would understand that, if you take away the payments and their financial supports, it leads, obviously, to the fact they will have to limit the activities that they participate in in terms of their rehabilitation.

Essentially, this piece of legislation will change the rehabilitation program for forensic patients, because they will not be able to support and pay for the number of activities that their doctors believe that they need to participate in. They will not be able to maintain that vital contact with the outside community—be it through their family or friends—because they will not have access to funds to support that. That is what this piece of legislation is doing. Just by the government seeking to save some money, they are severely impeding the rehabilitation of some of the most vulnerable patients that we have in the mental health system. Ultimately, this bill will hinder the patients' recovery and ultimately it will delay their release, which obviously will incur extra costs which now will be passed on solely to the states.

Not only does this bill risk long-term institutionalisation of people with mental illness and intellectual disability but it also, as a consequence, will increase the cost of care and the rehabilitation of these people. The government, obviously, does not have any concern about the increase of costs and has no concern about the fact that the rehabilitation of these patients will be impeded and most likely will delay their release. There has been no concern about that at all.

Certainly, there were not any answers from the department when questions were posed as to the ramifications of this bill. The department had no answers. In fact, it is probably one of the worst contributions from a department. I hate to say that, but they could not answer very basic questions. They either did not consult to a degree where they could answer those questions, or they were still in the process of consulting, which is really pretty poor form when we are talking about a very vulnerable group of patients in Australian society. It is very poor form by the government, who have decided to proceed with this bill. And, of course, they really did not consult the sector either. I think they announced this measure in the MYEFO, and that was pretty much the first the sector had heard about it.

Those opposite have argued—and I listened to Senator Williams's contribution—that these people are not vulnerable people, that they are not people who should be supported by the Commonwealth, that they have committed serious offences and that they should be provided for by the states and territories. That is the argument that we have heard from those opposite, and essentially that is the reason they are doing it: it is easy for them. It is easy to stereotype and demonise forensic patients, and that is what we are hearing. That is the argument from the government. This is an easy target, and that is why they are doing it. They are saving money. They have chosen what they believe to be an easy target. These are a group of people they believe they can easily stereotype and demonise.

Those opposite will highlight at length that this bill will only apply to those who have been charged with serious offences, but this is a completely arbitrary and ill-advised distinction. As I mentioned earlier, forensic patients are those who either have been found unfit to stand trial or have been found not guilty of the charge because of their mental impairment. Under the law, there is currently no distinction. As Mr Matthew Lawrence, Principal Lawyer, Welfare Rights Centre, National Welfare Rights Network, stated in his evidence to the committee:

In [the National Welfare Rights Network's] view, there is no acceptable justification for this distinction. All persons in psychiatric confinement have been found not culpable by the criminal justice system, and it is unacceptable for social security law to distinguish between them in this way.

Not only is the government's distinction between 'serious' and 'non-serious' offences irrational but it is also misleading because the definition of 'serious offence' as set out in the bill is very broad.

As I said before, those opposite will seek to demonise this group by describing them as murderers and rapists. The reality of the situation will be much broader. The definition of 'serious offence' in the bill extends to acts that pose 'risk' of injury or property offences that endanger a person. Any mental health expert or clinician will tell you that property damage and similar acts are an unfortunate reality when people in a psychotic state are distressed and lash out. People do not intend this to happen—they may not even know it has happened—and under the law these people are not culpable. The people are not necessarily inherently dangerous. What they are is unwell. They are vulnerable. They need support and rehabilitation. They do not need to be abandoned or punished. But this is exactly what those opposite are proposing to do.

In explaining what would constitute a 'serious offence' under the definition in the bill, Mrs Alison Xamon, President of the Western Australian Association for Mental Health, provided the committee with an example of a man living with schizophrenia whom she had assisted:

He had been living successfully in the community for a long time, but unfortunately he went through a period of decline. The neighbours were alarmed that he seemed to be not coping so they called the police to see if the police would intervene and take him to a mental health facility, as per the Mental Health Act. He was undergoing a very severe psychosis at the time. He actually struck a police officer because he thought he was being attacked. He did not even recognise them as police. He was subsequently charged with assault of a public officer. Now that is a serious offence that would be captured under these provisions.

Those opposite would understand this—or at least know this—if they had consulted anyone before they announced this measure in the MYEFO. They might better understand the impact this bill would have on service provision if they had spoken to psychiatric institutions or the state and territory governments. They might better understand the impact this bill would have on the rehabilitation of forensic patients if they had spoken to mental health advocacy organisations or clinicians. They might have some understanding of how this bill will impact on people's lives if they had spoken to the carers and families of forensic patients. But unfortunately they did not. They did not speak to anyone. This is an unfortunate bill that has been put forward for money saving, without any care as to the ramifications of the measure. (Time expired)

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak in relation to the Social Services Legislation Amendment Bill 2015, yet one more piece of harsh, punitive and mean-spirited legislation proposed by this government, which will once again unduly hurt some of the most disadvantaged people in Australia. It is a short bill, with big consequences for a particularly vulnerable section of our community. It is also a bill that crosses over two of the portfolio areas I hold on behalf of the Australian Greens, those of mental health and legal affairs. This bill will affect people who are undergoing psychiatric confinement because they have been charged with a serious offence but have been found not guilty because of mental incapacity or because they have been found unfit to plead to the charge. As a result of this bill, relevant social security payments will no longer be payable to the person while the person is undergoing that psychiatric confinement.

There are serious concerns flowing from this. First of all, by stopping people's Centrelink payments when they have not actually been found guilty of any crime, this bill undermines the presumption of innocence by punishing people have not been convicted of an offence. Further, by stopping Centrelink payments to people in psychiatric confinement, this bill also risks putting already vulnerable people—because many of the people, statistically, who suffer from severe mental illness and end up in these sorts of situations are already some of the most impoverished, marginalised and isolated people in Australia—in a dire financial situation, where they may well lose their only source of income. Of course then no income can lead to loss of housing or accommodation while in psychiatric confinement and so homelessness when they are released.

These issues have been explored in some detail by the Senate Community Affairs Legislation Committee, and I certainly know of the work that my colleague Senator Siewert has done on that committee in relation to that inquiry. One of the submissions to that inquiry by the community affairs committee was made by the South Australian Public Advocate, a man whom I know and for whom I have great respect, Dr John Brayley, who has vast experience and expertise in dealing with these issues. Dr Brayley shares the concerns of many others in the sector that the bill may operate to punish people who have not yet been convicted of a criminal offence and jeopardise their chances of successful reintegration into the community following psychiatric treatment. If, as a community, we want anything in terms of our own self-interest, surely it would be successful reintegration of people in this situation, leaving aside any inherent compassion or understanding for the people who are in these circumstances.

Dr Brayley has noted that there is an important distinction to be made between a person who is undergoing psychiatric confinement because they are unfit to stand trial, or who has been found not guilty of the charge because of the person's mental impairment, and an individual who is in jail. In the latter case, a person has either been convicted of an offence or is on remand, which is not comparable to someone who is undergoing psychiatric confinement because they have been charged at least with a serious offence. An individual who has been convicted has received a trial and had the ability for their case to be heard at least. While removing Centrelink benefits from an individual who has been remanded in custody is also problematic, in my view, because they have not yet had a trial, they will at least in the future have that opportunity. In comparison, someone who is found unfit to stand trial or not guilty by virtue of mental incapacity has not had the case tested against them at all. They have not been considered guilty by the courts.

It is not just Dr Brayley who has concerns about this bill, of course; other legal, mental health and disability experts have lined up around Australia to condemn this mean-spirited and ill-conceived legislation, which will also be counterproductive if we are looking at the national interest. If we consider the very likely loss of accommodation that would stem from the loss of income while someone is in confinement or detention for a period of time, that is one issue, of course; there is also the risk that this will lead to longer periods of detention anyway.

Mr Peter McGee of the Intellectual Disability Rights Service has pointed out that withdrawing payment from patients may lead to indefinite detention for people—for instance, with intellectual disabilities—because courts will be unlikely to release them into the community without stable housing. He is quoted as saying:

Access to disability support pensions allows people to plan a way out of detention and back into the community.

Removing that access, obviously, makes that plan much less viable and that would be something that would have to be in the minds of those who are determining what the outcome of someone's detention will be.

Other senior mental health experts say that these charges risk forcing people into homelessness and hunger. As reported in a thorough INDAILY article in South Australia by journalist Bension Siebert on 24 March 2015, when these concerns were first being advanced, Dr Paul First, the deputy chair of the Royal Australian and New Zealand College of Psychiatrists, is quoted as saying:

Forensic patients are the patients who have been found not guilty of an offence—they require these funds for their lives after they are released from hospital.

Dr First went on to say:

What you would see effectively is people going to court, getting released and having no savings, no money, no things for their home that they require, no fridge, no microwave, none of the things that we need to live a normal life in the community.

He said:

These people … from an ethical point of view, should be entitled to their disability support pension.

I am alarmed to note that there will be significant effects on state governments' capacities to provide the rehabilitation and care that these vulnerable people need. For instance, I know the South Australian government have said that this will cost South Australian taxpayers about $1 million per year in additional expenses because much of a person's social security benefits go towards an accommodation charge for state-run mental health institutions. Of course, this is at a time when billions have been pulled out of state health systems by the federal government in previous budget decisions. South Australia Health have said that these changes will impact on the quality of care for the majority of the state's forensic patients and increase the burden on the South Australian health system.

It is also important to note that this bill seeks to sidestep a sensible and far-sighted Federal Court ruling that found that most people confined in a psychiatric institution may be considered to be participating in a course of rehabilitation and therefore attract social security payments. This case created a fairer precedent and now the government is seeking to tear that down.

The situation we have here is that this bill is yet another example of the government's counterproductive and cruel strategy to look for meagre savings in areas that hit the poorest and the most vulnerable members of our community the hardest—those least able to speak up for themselves. It also carries with it a taint of punitive action that is a hallmark of much of the legislation that this Abbott federal government have been bringing in over a period of time. Some of it, I think, stems from sheer ignorance, and I will come back to that in a minute, and the suggestion that somehow people who have been charged with serious crimes should be differentiated from those who have not.

Yet, at the base of this is the principle that someone has been found unfit to plead by virtue of mental illness or someone has been found not guilty by virtue of mental incapacity. That is the principle that we should be looking at here. It is the degree of responsibility that can be attributed to the actions of a person who has not been able to rationally make a decision about the actions that they are carrying out. It is not the degree of the crime; it is not the degree to which the community might be upset by the offence with which they have been charged; it is the fact that under our legal system we have had an ability to say that some people cannot take responsibility and cannot be held responsible for their actions where it is shown that they have not had the mental capacity to form an intention to carry out those actions. So there is a misguided aspect to it. As well as that, I think it is true, and other people have named it here today, that this is another example of a government that has a punitive approach: the theory that if you use a bigger stick and you punish people harder, they will somehow do what you want them to do. It goes against all the evidence.

I would like to share with the Senate and anyone who might be listening to this speech some insights that I gained from being a deputy president of the guardianship board in South Australia over a period of about 13 years. During that time, it was my job to go into psychiatric institutions, including the main forensic psychiatric institution in Adelaide—James Nash House—and conduct legal hearings in relation to appeals against detention by some of those people who were patients in those institutions. As a result of that quite amazing and unique experience, I came to understand the absolute tragedy that mental illness and mental incapacity is for people.

Mental illness is an illness like any other illness, like diabetes or asthma; it is not selective in who it targets. It is not selective in those whose lives it affects. No-one asks to experience mental ill health. There is no shame or degree of it being deserved in some way or merited. It hits some people; it does not hit others. It does not hit the lucky. I have seen time and time again people whose lives have been devastated by the onset of mental illness that they neither deserved nor asked for.

I would ask people to think about increasing the awareness and understanding that we have about mental ill health in Australia, something that many of us have been striving to increase—I think there is a lot of rhetoric about awareness and understanding now—and to cast their minds back to the very impressive film called A Beautiful Mind, which featured the Nobel prize-winning mathematician John Nash who experienced severe schizophrenia during the course of his life. If you have not seen the film, I would really encourage you to, because it gives an amazing insight in a dramatic way into the life of someone who lives with a difficult illness like schizophrenia. Those of you who have seen it will remember that over a period of time it became clear that John Nash was experiencing incredible degrees of paranoia and psychosis. He was misunderstanding things. He was delusional about enemies that he had.

One of the effects of someone who is living with an illness like that is that they then act in ways that are rational, given the strong belief structure that they have. Unfortunately, that belief structure is informed by the illness that they have. It is not actually reality but, for the person who is living that experience, it is absolutely a reality and the way they behave, given that reality, is totally logical.

This kind of situation can often result in people committing offences that are then subject to our criminal justice system. As I said, traditionally, the law has understood that someone who is acting under the influence of a mental illness cannot be held responsible for their actions in the way that someone who is acting in a rational way can be held responsible. That is why in some cases confinement or psychiatric detention and treatment are absolutely required. But it is also why, when that person leaves hospital—hopefully, having been assisted, helped, treated and rehabilitated—we need to set up every condition possible to make sure that they can then be reintegrated into the community, start to fulfil their potential and live a participating life.

We must remember that those in psychiatric confinement, following criminal charges, have rights. They are patients, not prisoners. They are human beings. They are affected by circumstances they did not ask for and do not deserve. We all have a shared interest in ensuring that they have the best possible chance of successful rehabilitation before release.

We know that stable accommodation is one of the most important determinants of someone being able to recover from mental ill health and mental illness. We also know that unstable accommodation—or homelessness—is one of the most important social determinants of people having poor mental health. Why would we agree to a system that will deprive people of the income support they need to be able to set them up with the best possible chance of success when they finish their period of confinement and return to the community? I am very proud to say that the Australian Greens will not be supporting this legislation.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

I want to start by saying that I think one of the most unfortunate tendencies of some on the other side of this chamber—some, not all—is the propensity or the reflective instinct to question the motives and intentions of people on this side of the chamber.

I personally think all of us come to this place with good intentions. I believe all 226 elected members of parliament, including the 76 in this chamber, have come to this place to try and make this country a better place, to try and provide for all Australians and to do so in a way consistent with their own philosophies and values. We will often disagree, and rightly so, on those values, the philosophies and the ways and means of achieving those objectives. I think it would be a better starting place if we actually all accepted that we do want to make this country a better place and we do have good intentions.

The effects of our policies might not accord with those intentions. The wisdom of what we want to do may be incorrect, and it is right and proper for people to try and point that out; however, a number of speakers on this bill have not sought to question the impact or the effects of the bill but have actually sought to question the intention behind it: that there is some notion that we are doing this not because we think it is a good and a proper policy but because we are just simply mean-spirited individuals.

Senator Wright, who has now left the chamber, I think I am a good person. I try and do good in my life. I am sure I am not always successful at that but I try; and I believe Senator Wright is a good person as well. I think all of us here are genuinely good people. The reason this bill is being put in place is not in any sense a vindictive or, in the words of Senator Wright, mean-spirited policy; it is simply an adjustment to the way we pay social security at the moment. There have always been provisions in the Social Security Act to restrict payments to those in confinement. Indeed, I am informed that since 1908 there have been provisions in social security law that restrict payments to persons undergoing psychiatric confinement.

Currently, the Social Security Act 1991 restricts certain social security payments from being made to persons who are in gaol or psychiatric confinement following being charged with any offence. There have been similar measures in social security law since at least 1947. This is simply an adjustment to provisions that already exist in our law that have persisted through governments of various colours and changes, and we have a very specific instance here of payments being made to individuals that are in confinement.

I accept at the outset that people could disagree on these adjustments but, again, I make the point that these are not being made in a mean-spirited way. They will in fact affect 350 people currently in Australia and, if they are put in place, around 50 people per year, depending of course on convictions, will be affected going forward. It is not an enormous number of Australians but of course, for those individuals affected, it is not an insignificant issue.

The bill would save around $30 million over the forward estimates—again, not a substantial amount of money in the context of a close to $1.5 billion budget over the forward estimates. Again, we are making this change not because of the money, the savings or some vindictive notion; it is an adjustment to properly reflect who and, particularly, which level of government should be responsible for the rehabilitation of individuals in confinement.

I will go to that. These 350 individuals who are currently in confinement for serious offences are the responsibility of the state governments. They have been confined because they have been convicted of an offence and in this case are also mentally incapacitated, so they are in some kind of psychiatric confinement. They are the responsibility of the state governments, not the federal government. Indeed, that goes for other prisoners in confinement not in psychiatric institutions: they are the responsibility and in the care of our state governments, and that has always been the case.

The Department of Social Services provided evidence to the committee that inquired into this bill. The department—and this was in regard to social security payments generally—said:

These payments should not be made where a person is confined under state and territory law and their basic needs, such as food and accommodation, are being met by the state and territory, as is currently the case for those imprisoned. Corrections health and residential mental health services are a state and territory responsibility.

It is very important to focus on that point. Why do we provide disability support pensions, which are often the ones in question in this case, to individuals in our community? We provide those pensions to give them the resources to look after themselves and particularly to fund their food and accommodation costs. There are a few things that you need in life. You need food; you need accommodation; you need clothing; you need your basic healthcare and education needs looked after. A few of those things are not looked after by state governments through the provision of public services, particularly food, accommodation and clothing, so we provide a disability support pension or, in other instances, other forms of pensions to help people provide for those services. That is why we provide the payment. It is set—I do not have the number it is set at, but it is in the hundreds of dollars a fortnight—to help people provide for those costs. That goes to individuals who largely, of course, are not in confinement and have to meet their food, accommodation and other costs.

People who are in confinement—incarcerated or in a psychiatric institution—clearly, often do not have to pay for their food, accommodation and clothing costs. Indeed, the practice is that those services and goods are provided by the state governments. A state government will provide someone who is in psychiatric confinement with their food. They will usually provide them with standard issue clothing and, of course, by definition, they provide them with their accommodation. So these people do not have those extra costs that an individual outside confinement would have in our community.

The question then has to be asked: why is it fair to provide a certain level of payment to somebody in our community who, yes, may have a mental health disability or any kind of disability that prevents them providing for themselves? They have to meet all of their essential and non-discretionary costs from that payment. Why is it fair then to provide that payment to someone else who is in confinement with perhaps exactly the same disability but who has their needs and care taken care of by the state? Why do they get exactly the same payment as another person who has much higher non-discretionary costs than the person in confinement? That is an anomaly. It is a clear anomaly. We can disagree over how we might want to rectify that anomaly, but it is a difference. It is a clear and definable difference between two people, both with disabilities. One is in confinement, in this case for committing a serious offence, and another clearly has not. But that person who has committed a serious offence is actually advantaged relative to the person who has not, because they have a bunch of costs looked after for them, and then we give them the same payment on top.

In fact, often they do not receive that same payment on top, as evidenced in evidence provided to the Senate committee. It would be clearly unfair to provide them all of that payment on top. They do not often receive that. In evidence to the Senate committee, which I think was chaired by you, Mr Acting Deputy President Seselja—it was the Senate Community Affairs Legislation Committee so, yes, it certainly was chaired by you—inquiring into this bill, the committee found that in many instances state governments are actually charging people in confinement for their food, accommodation and other costs.

I do not disagree with state governments doing that, because, as I said earlier, the alternative would be to provide somebody in confinement with many more resources than someone not in confinement, and that would clearly be unfair. To rectify that, the various state governments do often charge individuals in confinement—I suppose the term would be 'dock their pensions'—to cover these costs for the goods and services they provide them. In the case of Victoria, in the past they have charged people in a mental health facility around 75 to 80 per cent of their disability support pensions. I also note here on page 12 of the committee report:

The committee notes that in jurisdictions where a person was paying 85% of their Disability Support Pension to the mental health institution … that person would be left with a maximum of $63.45 per week …

As I said, I am not arguing against the practice of state governments. Also, the Queensland government reported that, after their deductions, mental health consumers have around $42 per week.

One consequence of this bill clearly will be that those individuals in confinement will not have access in Queensland—in my state—to that $42 per week. The question then is: who should provide that? I do not disagree that people in confinement deserve some allowances to cover certain incidental expenses; indeed, my understanding is that that is often the practice with people in confinement in state jurisdictions. People in non-psychiatric confinement, incarceration, are often provided a small allowance to help pay for various incidental costs. There are often shops and those things. They can use that money in those facilities. That is, of course, provided by state governments. They provide inmates with those allowances, and they set those allowances according to the needs of inmates in the particular correctional facility for the goods and services and the prices charged in that facility. They are in the best situation to judge what that potential allowance should be.

So what we are arguing about here is not whether or not someone deserves a potential allowance; it is whether it should be funded through a disability support pension—which is a largely blunt way and not a particularly fair way, at least to start off with, of doing it—or whether it should be the responsibility of the state government to provide for the people under their care. This is a judgement call. As I said, this is not about whether we are intentioned in a certain evil or malicious way; it is a judgement call about which level of government should be providing that level of support. It seems to me that, on balance, it is very clear that the state and territory governments are in the best position to do that. The state and territory governments are in the best position to judge what the particular needs of their inmates are. We are not talking about a huge amount of money. It is something like $40 a week for 350 people. The state and territory governments are in a much better position, as the carers and the people responsible for these people, to make a judgement on this.

I did note that, in the various contributions from other senators, they reported that various state governments had made submissions to the committee inquiry and other forums saying that they were very concerned about the impact on the welfare of people in psychiatric confinement if this assistance were taken away. They have within their remit to provide for people. If the state governments in question are that concerned about the welfare of people under their care they have the resources and the power to provide something like $42 a week for 350 people. I note that various state governments are in budget difficulties, but $42 or something in that order for 350 people surely is not beyond the resources of a state government that apparently says it cares. If the state government does care for the welfare of these people, it can do an assessment of what is needed for those particular people and provide those payments. It would be a much simpler and more rational approach than the current approach, where we provide people in confinement with a large sum of money and then the state governments have to make various deductions from that for their nondiscretionary expenses.

I will move to a couple of other detailed issues in this bill that have arisen. I should say from the outset that the bill does make some provision to provide Commonwealth assistance to people in confinement in a psychiatric institution. Specifically, it makes the exception that any pension would continue to be provided where a person is going through a period of reintegration. That integration will be defined as the number of nights that person would spend outside of the mental health institution. So, as someone is transitioning from a mental health institution to the general community, the Commonwealth government will restart the pension payments, which seems fair and reasonable.

Apparently, the Department of Social Security consulted with state governments about whether that reintroduction should be done on a transitional basis—that is, that a certain percentage of the pension is increased as they integrate more into the community—or whether it should be either on or off. Apparently the feedback from state and territory governments was that it would be best to make a straight definition, that once a certain number of nights is hit the full payment will be reintegrated. Again, that is clearly a matter of judgement. This is of course something that reasonable people can disagree on but it is something that, in this position, in this parliament, we have to make judgement calls on. That provision will also come into effect in the situation where a person is in a mental health institution for a reason not related to the offence that they were convicted for. If they are there because they simply cannot function in the community generally, the pension from the Commonwealth will be reactivated and continue.

During the inquiry, issues were raised about the definition of a serious offence. This bill will only affect those who have committed a serious offence, and they have been defined as including murder, manslaughter, rape or attempted rape as well as other violent offences that are punishable by imprisonment for life or for a period of at least seven years. Again, a judgement call has had to be made here. I do not think it would be fair to restrict payments to all people confined in a mental health facility for the reason of a conviction, particularly those who are convicted of offences with a term of imprisonment of less than seven years.

That goes back to the point about integration. If they are imprisoned for a period of fewer than seven years, clearly a process of integration or rehabilitation needs to start almost immediately, because it is not that long before they will have served their sentence, particularly given parole periods and those things. So there is very little value and, indeed, very little saving of money, in restricting payments to people imprisoned for a period of fewer than seven years. So, again, a judgement call has been made. Again, reasonable people can disagree on whether that period is too much or too little. I certainly believe that we should not make it blanket across all people in an institution and that, therefore, we have to specify a cut-off point. Certainly people who have committed those sorts of violent offences and who have those periods of imprisonment need to be properly cared for by the state governments and do not deserve to continue to receive Commonwealth government payments.

The final thing I want to address is the emotional and overwrought commentary being made here on this bill. Senator Brown said earlier that these people do not deserve to be punished. That is a very simplistic way of looking at this. These people have committed serious offences, including murder and rape. Of course, in this instance, these offences have been committed under periods of mental incapacitation. It is a very tricky issue, but do they not deserve to be punished at all? Do they deserve to just continue on with their lives as before?

Senator Carol Brown interjecting—

Clearly they are not, Senator Brown, because through you, Chair, we do incarcerate them. We have laws that incarcerate people who commit—

Senator Carol Brown interjecting—

Yes, they are confined for a mandatory period, so clearly decisions are made at state government level that there is some penalty to be paid. Again, this is a very difficult area, but it is not helped when individual senators decide to question the bona fides and intentions of individual senators, as has happened in this debate. It is particularly unhelpful because these are very complex issues that require considered judgement by all governments. Various state and federal governments have had to make these judgements over the entirety of our Federation, and this is another judgement being made by this government. It is a reasonable and moderate adjustment to our system that should be supported. (Time expired)

Katy Gallagher (ACT, Australian Labor Party) Share this | Link to this | Hansard source

I welcome the opportunity to speak on the Social Services Legislation Amendment Bill 2015 this morning. This bill should be opposed in line with the additional comments that have been provided to the Senate Community Affairs Legislation Committee's report on the Social Services Legislation Amendment Bill 2015.

One can only imagine how the origins of this bill arose. We know there is a process that all governments go through in terms of identifying savings, going through an ERC process, ultimately getting it ticked off and then finding their way into drafting legislation that comes before this chamber. This bill reeks of a government without any understanding of mental illness. But perhaps that is too generous. Maybe the government do understand and the decision that was taken around this bill and the savings it incorporates is just another example where the government identify a vulnerable group, then go out and seek to demonise that group and attach savings to it at the same time.

In his address Senator Canavan argued that this is simply an adjustment and he kept using the term 'adjustment': 'It's just a straightforward adjustment.' But each of the 350 people whom this bill will affect—and the 50 people it will affect every year for year after year after that, and their families and carers—would see the impact of this bill as much more than simply an adjustment. If 'adjustment' means the entire removal of income support, then I agree it is an adjustment. But let's not try to dress this up by using language that seeks to misrepresent what this bill actually does for a very, very vulnerable group in our community.

Last year ACOSS released a report around members of the community experiencing poverty. When you look at that report you will see that it found that under half of people on disability support pensions were living in poverty, one quarter of Australians receiving carers payment were living in poverty and 15 per cent of those receiving the age pension were living in poverty. Again, the vulnerability of the group is well understood when they are living in the community but, when they are living in a forensic mental health unit, that vulnerability remains with them.

I have read the Senate committee report on this legislation and it identifies some of the concerns that have been raised by other members today, particularly this notion of defining serious and non-serious offences as part of mental health policy. As anyone who has worked in mental health policy and planning and delivery of services knows, as it relates to forensic services, it is unusual to provide a distinction between a serious and a non-serious offence. I think the general understanding of people living with mental illness and committing those sorts of offences is that they are not deemed to be morally culpable, or indeed responsible, for their crimes. They often have no intention to commit those crimes and definitely—as found by a court—have limited, if any, understanding of the impact of those crimes. Again, to determine someone's income or lack of income—that is, to provide some income or none at all—based on the activity that led them to their sentence or the term they are to serve in a forensic mental health unit really flies in the face of modern understanding of mental health service delivery and the policy that is put in place around that.

When we look at the issues of cost shifting, which again probably rank No. 2 in terms of (1) saving money and (2) the ability to cost shift through this bill, the arguments are identified in the Senate report and in the additional comments provided by Labor members. It is important to understand that, while members from the government talking on this bill today are arguing that it is a relatively minor amount of money, essentially the debate in this chamber today is: who is going to pay that money? The federal government seeks to save $29½ million over the forward estimates, but there is an acknowledgement that those costs do not disappear. They do not vanish. The costs of providing accommodation, other services and reasonable living expenses for these individuals are still incurred; they are just not incurred by the federal government anymore. This bill, in a sense, really does sum up some of the major problems there have been over the last 10 to 15 years with how governments work together to deliver a seamless mental health services system for the people who need it in this country. They are the people who have a mental illness, who live with a mental illness and the families and carers who support them.

Too often we have seen completely disjointed decision making happening between state and territory and federal governments where, in most cases, the federal government will take a decision. They might announce it to the newspapers or they could just slip it in the MYEFO, as they did in this instance, and not tell anyone. The decision is taken, it is out there and then state and territory governments invariably are on the back foot, looking at what the impact is, what it means to them and where they will find the money. It has happened time and time again.

I recall opening a newspaper one morning, when we used to open the newspapers and before we swiped them, to see a decision by the Prime Minister of the time, John Howard, about putting $2.9 billion into the mental health system. It was a big announcement which was welcomed by many. They were additional resources to fund a range of services by going around state and territory governments which were delivering a lot of those services. So it was quite different from the times we live in now. I think everyone worked around that example because it meant there was more money going in and the impacts are much more severe when it is money going out.

The National Partnership Agreement on Preventive Health had money going into quite a number of early intervention mental health programs. That was gone in the first budget—I think $368 million. Then there was the $50 billion cut to hospitals. That funding does go to support acute mental health units across the country. So state and territory governments were already reeling with those kinds of cuts and then on top of that here comes another one. I image the policy makers, the advisers, the people sitting in the minister's office all thought, 'This is one we can get through. These are only 350 people who do not have a voice.' They do not have a voice because they have a chronic and serious mental health illness and they are residing in a forensic mental health unit. So they are hardly the most vocal group. You are not going to get them campaigning in the streets to retain their income support. So, 'Here we have this particularly vulnerable group. Are they being rehabilitated? Probably not, so let's take away their income.' It could slip through pretty easily. That is why it is announced in the MYEFO and not through the budget process. At the end of the day, someone is going to have to pick up the tab and it will not be the federal government. That, I think, says in a nutshell how the mental health system, at a government level, is working at the moment—that is, an announcement is made, money is removed and the other funding partner, the one which has to deal with people when they have nowhere to live or need to be integrated back into the community, they can deal with all of this because we are not the government which has responsibility.

I disagree with that. I think the federal government, the national government, does have a responsibility not only through the social security system but also as the national government of this country to care for people in this most vulnerable of groups. We know they are going to be young men who perhaps are going through their first psychotic episode with terrible consequences, we know it is going to be disproportionately Aboriginal and Torres Strait Islander people and we know it is going to be people with drug and alcohol addictions. That is the group for whom, if this bill is passed today, we will be turning off the tap. There will be no income support for them while they undertake rehabilitation. As to the government where they reside, 'Good luck with that.' And the governments where these individuals reside will have to pay, not only while people live in the forensic units or the secure mental health units but also while people are transitioning, once they are rehabilitated, into the community.

I wonder whether a social impact analysis or any other cost-benefit analysis was done for this bill because the cost of accommodating a forensic mental health patient—they are patients; they are not criminals—can exceed $1 million a year per person. So when you crunch through the numbers and have a look at them, I wonder how much money the bill will save and who it saves the money from.

This bill flies in the face of current thinking on mental health policy and planning. I note the references in the department's advice to the committee that, 'This was one of the original intentions but it was never intended for the 1986 amendment to work this way and we are making it very clear for those who have committed less serious offences,' as defined by this bill, 'to have their income protected.' So it is a good thing we are doing today by specifically including this group who are deemed to have committed not serious offences. When you look at mental health policy and planning, what actually works—read any policy document from any government, probably including the federal government's own mental health policy guidelines—is early intervention, mental health expertise in determining the policy, diversion, support programs, restorative justice, supporting people and investing in frontline workers to provide key services to people. Those are the strategies which help people with their rehabilitation, with their recovery and with their reintegration into the community.

This is also about observing people's rights. I know it is very easy to demonise this group. Many of them, in their psychotic state, have engaged in terrible crimes that hurt people. The court has a way of dealing with that but it is easy to demonise them. It is harder to paint a picture that creates understanding, care and compassion for this most vulnerable group, but that is what works in mental health planning and policy. These are the key ingredients in building up a mental health system that is going to work.

Concerning consultations with governments—and I concede again that this has been raised by submitters and I touched on it before—it is very difficult for state and territory governments to always be on the back foot when these announcements are made and where the consultation starts from the point that the decision has been made. So, 'Here is our decision and now we are going to open up discussions around it.'

I have been a part of many COAGs and many ministerial councils where that is the beginning of the discussion: 'This is what the federal government has decided. Now all of you tell us how best we implement this, because it is a bit tricky and we have not actually thought it through.' And that goes to the department's willingness to engage with what 'reintegration' means. Clearly, they have no idea on how to run that side of the implementation of this bill. They would need the state and territory governments to work with them to identify the individuals and also to make sure that, presumably, those individuals can start or recommence income support when they are released from their mental health units.

I note that the ACT government provided a submission to the bill, along with other governments and the quite eminent tribunal from New South Wales—people with experience in delivering services and understanding people with a mental illness. I do not believe there was one of them that supported the bill in all of the submissions provided. The ACT government itself sent a letter that I would probably have signed off on as well if I were in the role that I had been in, overseeing the mental health system. The ACT government raised concerns and believed that it would unfairly discriminate against and disadvantage people with a disability and people who have not been found guilty of an offence. The ACT government's concern centres on individuals suffering an immediate disadvantage associated with being deprived both of their liberty and a source of income during their confinement period.

It goes on to talk about the imposition of financial hardship upon individuals and how that will transfer those residual support costs to the states and territories. I think the submission from Queensland talk about having to find an additional $2 million , and South Australia talks about having to find an additional $1 million.

This bill fails in being able to argue around any of the public policy arguments for the rationale for this bill. I do not think that any government members have attempted to argue the public policy imperative. It is a bill designed to save $29 million, it is a bill designed to cost shift and it is a bill designed to take money away from a group that have no voice. They do not have a voice because they are the most vulnerable members of our community.

The bill is trying to diminish the impact it will have. Sure, if this bill is passed it will not stop people at the watercooler like other discussions have over the winter recess; it will not stop them. But that is exactly why the debate on this bill should be extensive, so that everyone voting on this bill today understands that for those people who have no voice in the mental health service system, and who are about to lose any income support—and I think the original intention was to have that commence on 1 July 2015—there are people who believe that this bill is unfair; that it is mean and that it is a sign of a government that is prepared to attack the most vulnerable in order to elicit modest savings. While it will make Senator Cormann's budget look a little better over the out years, the costs will still be incurred. And they will be incurred by cash-strapped state and territory governments, which are already dealing with the larger cuts that are coming from the Commonwealth in relation to health services.

This bill should not be supported today. There needs to be a lot more work done. I think there needs to be a lot more discussion around the definitions of 'serious' and 'nonserious' offences and their role in mental health policy and decisions. If this is going to be the first step into governments and parliaments forming judgements which have already been well understood around people who have little or no understanding of their behaviour—that we are now putting them into two different groups—there needs to be a clear plan in place as to how these costs will be met. And for people leaving under their reintegration into the community and how that is managed, there should be agreement reached through the Commonwealth, states and territories—before it is announced, ideally. But, now that it has been announced, how will that actually be worked through?

If you do not agree with any of those arguments: if you have the slightest interest in mental health policy and how we treat people with a mental illness in this country, then question what role this is going to have in encouraging rehabilitation for people experiencing severe and chronic mental illness across the community. I do not think that it is going to advance in one way the rehabilitation needs of this most vulnerable group. It is going to have the opposite effect, and the bill should not be supported today.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

I too rise to speak on the Social Services Legislation Amendment Bill 2015.

There has been a lot of discussion around the implications for people with mental illness, and I understand that, because it is a serious issue that our community needs to address. But there are also some issues of principle that at a macro level our federation is starting to try to come to grips with in an intelligent and considered manner, with the federation white paper looking at who pays for what and where accountability should lie. To a large extent, this debate falls into that category: how do we shape our federation and the interaction between federal authorities and state authorities when it comes to payments and support for people, whether they be people who are inside or outside a mental health institution, a prison system or, in fact, any other part of our society. My comments today are going to be largely around the factual nature of the bill, but also the principles that underpin it.

Firstly, the principle that applies here is that we are talking about social security payments. Social security payments, such as the disability support pension, are intended as a safety net for people who are in need—whether somebody is unemployed, cannot work because of disability or for some other reason. This is a payment from the federal government that is intended to provide for their basic needs so that they can provide for things—food, accommodation et cetera. These payments are not, according to the department, to be made where a person is confined under state or territory law and where their basic needs, such as food and accommodation, are being met by the state or territory.

That is currently the case, for example, for someone in prison. If you were receiving social benefits and you ended up in prison, then, because the state is providing for those basic needs for you, you would cease to receive those payments from the Commonwealth, which are social security payments. If it is through Corrections or Health or residential mental health services—being state and territory responsibility—they are the ones responsible for paying those costs.

So the government understands that those supports are there for people who are incarcerated or receiving care. But we also understand that, when people are looking to transition back into the community, they need support beyond just the basics. That is why the government has made provision in this legislation for circumstances where a person is not taken to be undergoing psychiatric confinement. A person will receive their social security payment during a period of integration back into the community as well. We recognise there will be a period of crossover where they may spend some time, or even the majority of time, in the institution, but they are going through a period of reintegration and they need support beyond that which the state or territory government is responsible for while they are in that institution.

So the government is trying to apply a broad principle relating to: who is responsible for looking after the individual during their period of confinement; who is then responsible for looking after the individual or for supporting that transition back into the community? This is an important element for somebody who is suffering with a mental health condition, so that they can receive the support they need, from community and from professionals. It is important that they have the means at their disposal to assist that transition.

At a principle level, this bill seeks to better align responsibilities between the federal government and state and territory governments—specifically:

6 After subsection 23(9)

Insert:

(9A) Subsection (9) does not apply in relation to a person whose confinement in a psychiatric institution is because the person has been charged with a serious offence.

It goes on to define serious offences, which I will come to later.

(9B) The confinement of a person in a psychiatric institution, because the person has been charged with a serious offence, during a period that is a period of integration back into the community for the person is not to be taken to be psychiatric confinement.

So, again, we have that clear delineation between a period where the person is confined and the responsibility for support is with the state government, and not the purpose of the social welfare payment; and the period of transition. Those are two very clear sections which address the principles we are talking about.

Further, in terms of refining the group this will apply to, section 9E goes to the definition of a serious offence. A serious offence consists of three subelements:

(a) murder or attempted murder; or

(b) manslaughter; or

(c) rape or attempted rape.

9F goes on to clarify:

(9F) An offence is also a serious offence if:

(a) it is an offence against a law of the Commonwealth, or a State or Territory, punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and

(b) the particular conduct constituting the offence involves:

  (i) loss of a person’s life or serious risk of loss of a person’s life; or

  (ii) serious personal injury or serious risk of serious personal injury; or

  (iii) serious damage to property in circumstances endangering the safety of a person.

So we have defined a fairly small group in the Australian population that this applies to, and that gives lie to comments from those opposite that this is all about cost-saving. It is a small group and it is not a large cost; so it is an issue of principle that is being applied here, as opposed to any mean-handed cost-saving measure as the sole purpose. Importantly, the statement of compatibility with human rights states in conclusion:

… the legislative instrument did not give rise to human rights concerns because people in psychiatric confinement receive 'benefits in kind' in lieu of a social security payment by having their basic needs provided for by the relevant state or territory government. Additionally, the partners and children of people in psychiatric confinement are adequately provided for under existing social security arrangements.

So again it comes back to this principle of providing care to the people who need care through the appropriate mechanism.

In this case, the person who is confined is receiving that care via the state or territory government; but, for other dependants—family and children—the federal government still provides support through social welfare. That is the purpose of social welfare; to provide for those people who have no other means of providing for their care. This is consistent with the intent of the bill, which is to apply this principle of making sure that the appropriate responsibility in payments is met.

There has been some concern raised that the removal of pension is triggered by a mental health order, but it is clear from the department's submission that the removal of payments is not triggered by the mental health order itself but whether the cause of the mental health order was a criminal charge for a serious offence. There has been consultation with the states and with Centrelink about the mechanisms for this. There are actually a fairly small number of institutions around Australia where these provisions would apply. The department has made clear in its submissions, or highlighted in the committee examination of this matter, that there are appropriate measures in place to use the trigger of the charge as opposed to the mental health order. The department also explained that providing a distinction between serious and non-serious offences was to protect the continued payments of social security for people who had not been charged with a serious crime. It is more likely that those who have not been charged with a serious crime could be entering that transition period sooner when we have already seen that there are provisions made for people to receive payments to assist with that transition. The department highlights:

The distinction between serious and non-serious crimes protects those people with disability who are charged with less serious offences and yet are confined. It is acknowledged that, in rare cases, certain individuals who have been accused of lesser offences may be confined for extended periods because there are not suitable services to support them in the community.

The government recognised that that is an unusual case, as opposed to the more serious offences where it is expected that people will be confined for a much longer period.

The Social Security Act 1991 currently restricts payments to a person in psychiatric confinement as a result of being charged with an offence. But this bill amends the law to expand the eligibility of payments to people in psychiatric confinement who have not committed a serious offence. That means we are actually providing more access to people who are likely to be entering that transition period sooner so that they get that support.

The part about cost shifting that has come up is important to consider in that, at present, people who are in-patients in that kind of a scenario are often charged up to 85 per cent of their Commonwealth payments by the state and territory mental health institution. We saw that a number of organisations presenting to the inquiry highlighted that they took payments from the people who were in detention.

We even had one case that I outlined where the Victorian Institute of Forensic Mental Health, Forensicare, charged fees during 2012-13, so people who had been there for more than 30 days were asked to pay between 75 and 80 per cent of their pension. That was challenged by a patient and Forensicare had to actually cease those fees because of litigation. Part of the settlement was that they ceased those fees. What we see there is that there is some contention, even within the courts, in terms of whether or not the federal government payments should actually be going to the institutions paying for the care.

Clearly, the responsibility for the payment of that care rests with the state institutions. In fact, the submission from the Queensland government Department of Health outlines that not only do they provide that care for the daily requirements, accommodation and food but also they provide an 'indigent allowance payment of approximately $42 per week to mental health consumers who have no access to social security benefits.' So we see there that already state governments have recognised that there is an obligation on them to provide that support to people who are in those facilities, rather than relying completely on federal government support.

This bill is about the principle of saying who is responsible for payments. It is very clear that social welfare payments from the federal government are for providing support for people who have no other means of receiving that support. It is clear that state and territory governments have the responsibility of providing for those daily living needs of people who are under their care. And this bill provides certainty that, for people who are in there long term, we go back to the original intent of the legislation, which was in place before the 2002 court decision which changed the rules. And it goes back to say that those people who are there long term will be provided for by the provisions of the state or territory government when they are at the point where they are looking to reintegrate with community or, if they are likely to be there for a shorter term, as in for a less serious offence, the federal government will continue to make those payments so that it optimises the reintegration outcomes for people who are going to come back into community.

This is not about penalising people, this is not purely about cost savings; this is about an attempt to make sure that in our Federation the relationship between the states and the federal government has a consistency and a continuity in the way that we support people, and that we make sure that we do not have overlaps between levels of government. I commend this bill to the house.

Jenny McAllister (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in opposition to the Social Services Legislation Amendment Bill 2015. I think people understand that this bill will prevent people who have been charged with a serious crime from accessing a social security payment for their period of psychiatric confinement.

My concern is that this bill has nothing to do with good or fair public policy outcomes. My concern is that, contrary to the assurances of those opposite me, the bill is simply an attempt to find a quick and easy budget saving without regard to the potentially serious impact that these changes would have on the people who are confined to psychiatric treatment and without regard for the principles of law that have been in place for many centuries and that govern the treatment of the mentally ill in criminal cases. The bill removes access to social security payments for individuals with serious mental health conditions who have been charged with a serious crime and who are subsequently subjected to a period of psychiatric confinement. I have a range of concerns about this bill. I am concerned about the impacts that the measure will have on the rehabilitation outcomes of the affected individuals, I am concerned about the clear attempt to shift the ongoing costs from the Commonwealth to the states and territories and I am concerned that that has been undertaken without adequate consultation with the states and territories, who will ultimately bear the costs associated with these measures. I am even more concerned about the lack of consultation with affected people, with their families or with the system that supports their rehabilitation.

But as I said at the outset, what concerns me most is the attempt to liken people with a mental illness and no criminal conviction to people who have been convicted of a crime. I think it is important to start with the principles that underpin the law in relation to these matters. To be very clear, the forensic patients affected by this bill have not been found guilty of an offence. They are patients that have been found unfit to stand trial or have been found not guilty on the basis of mental impairment. To the extent that they are detained, the reason they are in psychiatric detention is not to punish them; it is not intended to be punitive; it is intended to be rehabilitation. And yet Senator Canavan, in his contribution, acknowledged that this is indeed a punitive measure. And in his remarks—setting aside centuries of jurisprudence—he asked, 'Do they not deserve to be punished? Is there not some penalty to be paid?' Well this is completely at odds with the history of our laws.

At common law, a person who is unfit to stand trial cannot be tried. The justification for this rule has been stated in various ways including as to be used to avoid inaccurate verdicts by potentially forcing the defendant to be answerable for his or her actions when he or she is incapable of doing so, and the risk is that that will lead to an inaccurate verdict. It is possibly also to maintain the moral dignity of the trial process. Requiring that a defendant is fit to stand trial recognises the importance of maintaining the moral dignity of the trial process, ensuring that the defendant is able to form a link between the alleged crime and trial or punishment and be accountable to his or her actions. It is also to avoid unfairness. It would be unfair or inhumane to subject someone to the trial process who is unfit. That is how the Australian Law Reform Commission described it when they considered these issues last year.

The Victorian Supreme Court has set out six factors that are relevant to the test of whether someone is able to stand trial. The individual must have an understanding of the nature of the charges, an understanding of the nature of court proceedings, an ability to challenge jurors, the ability to understand the evidence, the ability to decide what defence to offer and the ability to explain his or her version of the facts to the counsel and the court. This is not an easy standard to establish. Rarely are people granted or considered unfit to stand trial. But when they are, it is because these rigorous requirements cannot be met and to proceed with the trial would be to risk some of the things that I outlined earlier.

These people who were found to be unfit in this way do not deserve to be punished. They are not people who are considered guilty in our system. In fact, our system recognises that forensic patients cannot bear responsibility for criminal acts, and yet this bill seeks to do exactly that—to punish people who have not been found guilty of any criminal offence. Even more bizarrely, it does so by arbitrarily distinguishing between two classes of people experiencing psychiatric confinement in relation to criminal offences. It says that there are some whose offences are so serious that they will be punished in this way by the withdrawal of their benefits and there are some who are not. This simply does not make sense. It is not logical and it is not consistent with the principles of law that we are considering in relation to this bill.

At a more practical level, I am concerned about the impact that these measures will have on the ability of these patients to pursue rehabilitation. Arguably for these categories of persons more than any other kind, it is in the community's interest that these people seek rehabilitation, that they undertake rehabilitation and that they move themselves towards a situation where they can exist within the community safely for themselves and for the rest of us. Many of the submissions to the Senate committee inquiry have outlined the likely detrimental effect that these changes will have on the rehabilitation and reintegration outcomes that are currently being pursued within the mental health system.

Patients are using these payments to assist with the cost of their care. Now the government and the government members have asserted that the costs associated with this period are met by the state and territory governments while providing this rehabilitation. However, as you can see if you peruse the submissions to the Senate inquiry, many patients in these facilities routinely access their social security payments to contribute to the costs of their rehabilitation.

I have here a letter that was prepared from a group of patients within the Bunya Unit at the Cumberland Hospital in Parramatta in the state of New South Wales. They say:

We are allowed to spend our money on essential items and activities. One of the main things is clothing. All of us come from correctional centres where we are provided with jail-issue clothes. Once in the hospital centre, we have to acquire our own clothing. We would never be able to do this without our allowances. We also have to buy our own toiletries: soap, toothpaste, shampoo, razors, feminine hygiene products, hairbrushes. How would we do this without our pensions? Is the government going to require these underfunded facilities to manage … as well as to start providing us with clothing and toiletries?

Additionally, our therapeutic treatment is geared towards rehabilitation and re-integration back in to the community. For this purpose we are given various levels of leave where we are supposed to regain social and day-to-day skills. This involves community contact and activities. We are encouraged to learn how to budget our money and shop, clothe and cook for ourselves. Our spending money goes towards public transport, food and leisure activities such as films and very modest lunch/dinner outings.

All of us are required to participate in vocational training. Many do TAFE and tertiary study. For this we spend our allowances on fees, books, stationery and other study expenses. Without our allowances we would not be able to pay for our courses.

It is true that we were charged with serious offences but we have been found by the criminal justice system to require therapy and treatment rather than punishment. It is only through rehabilitation that we can overcome the illness that caused our previous dysfunctional behaviour in the first place as well as preventing it from recurring.

It is difficult to read those words and listen to the sincere desire from these patients to recover and not be moved. In that context it is difficult to understand why a measure such as this is being prepared in such a hasty way with so little engagement with the individuals concerned or the institutions currently responsible for their care.

There are provisions, I understand, in the legislation to allow for some payments to be made for individuals who have reached a certain level of integration within the community. However, there is very little detail about the actual way that these provisions will work. The bill, as I understand it, provides that the definition of when a payment might resume is to be made by legislative instrument by the minister, and there is some suggestion that the threshold for this question would be at the point when the patient is spending six days away from the care facility in which they are presently incarcerated. This does not recognise the gradual way that patients under these circumstances are reintroduced back into the community.

The process at present is that individuals might be granted a short period of leave, a short opportunity to visit the community and to participate. And over time, as they demonstrate an ability to integrate themselves, as their condition improves and as their skills improve, they will be granted increasingly longer periods to be absent from the facility. However, to do that requires some measure of independent resources. It is true that the costs of housing in many cases will not be borne by the patient while they are in the facility. But, for a patient who is progressing well and—it has been determined—is allowed to be away from the facility for, say, three days at a time, the question then obviously arises: where will that person sleep? How will that person purchase food for themselves? These costs are not trivial, and there is presently no mechanism contemplated for them to be met.

I have heard those opposite say that this, in the ordinary business of the federation, is something that simply ought to be picked up by the states and territories. It strikes me that if that were the case then perhaps some serious consultation with the states and territories might have been in order. When we see what the states and territories have to say about this, they do not support these provisions. It is for the very good reason that, at the moment, states and territories are already coping with an extraordinary impact to their budgets caused by the decisions of this government, particularly in relation to health and education.

Senator Canavan said that state governments are in the best position to judge what resources might be necessary for these patients, and that may well be true, but it is a disingenuous assessment of the capacity of states to actually meet the requirements of these patients even if they do so assess them. State governments of all persuasions are pleading with this government to take a reality check on what is possible in terms of their existing revenue streams and to recognise the reality that our Constitution places most of the revenue-raising functions with the Commonwealth government.

We do not need to look just to the Labor premiers and to the Labor states to find this plea. Just look to the Treasurer of New South Wales. What did Gladys Berejiklian say recently? She said that the changes to health and education were 'not sustainable' and she went on to say:

… we will be fighting for the people of NSW to ensure this state gets its fair share both now, and into the future …

When we have complaints like this, when we understand that the current level of funding and the projected level of funding are insufficient to meet the current health demands of states and territories, then it does not seem reasonable to blithely assert that the additional costs caused by the measures provided in this bill should simply be picked up by the states and by the territories without any real consideration being given to additional resources to meet these costs.

As I said earlier, these things have real impacts on the people concerned. They have impacts on the individuals who are presently confined and in the potential for them to move from their current situation back into a position where they are able to contribute to the community. Recall that these are not people who have been convicted of any criminal offence. These are people who have been found to be so unwell that they are unable to be held accountable for their actions within the criminal justice system. This will have impacts on our community, on the families of these patients and also more generally on the community's confidence that the system that is in place to support people in this situation is functioning well and is able to deliver on the promise that it ought to make to all of us, which is that where people are mentally ill the resources will be provided to rehabilitate them and to help them to return to health.

As I said at the outset, my overarching concern is that this bill contravenes longstanding principles in relation to criminal justice and the way that we deal with the mentally ill. The distinctions in this bill which provide that someone who has not been found guilty of any criminal offence will nonetheless be subjected to a financial penalty—have the financial resources of government withdrawn from them—cause me great concern. They are an unhappy precedent. They represent a precedent we should all be deeply concerned about. I do not support this bill. I encourage others in the chamber to oppose this bill. It is my hope that, if people want to have a sensible conversation about the responsibilities of federation, that might be done in genuine consultation with the states, not through arbitrary measures such as these.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I rise to briefly contribute on the Social Services Legislation Amendment Bill 2015. In Australia we have legislation which allows people in psychiatric confinement to receive income support payments after they have been charged with a serious offence. These Australians with severe mental health illnesses receive this payment because they have not been convicted of any crime and, as Australian citizens, like all of us they have the right to a presumption of innocence until proven guilty and therefore the same access to income support payments that other Australians with mental health illnesses have. As the Parliamentary Library study on this legislation states:

This can happen when they are found unfit to stand trial because of mental impairment or are found not guilty because of mental impairment. People in this group are referred to as forensic patients.

Essentially this government legislation before the parliament today allows the government to cut the disability support pension to psychiatric or forensic patients who have been accused of serious and sometimes horrendous crimes. It is very easy to take a populist position and vote for legislation which takes a hard line against people who are alleged to have committed terrible crimes and who have serious mental illnesses. The harder position is to oppose this legislation on the basis that it undermines basic civil rights and the chance of a quicker recovery for people who are very sick with mental illness.

I am going to take the hard road on this issue and vote against this government legislation. In this debate, I think the government has forgotten that the people affected by this legislation have already been assessed by the courts and found to be mentally very ill. It seems that the government is trying to undermine the courts' rulings and punish these people. There is a bigger principle than just saving government funding and punishing bad people. It is about the government respecting our courts, due process and natural justice. As a politician, I know it is very difficult to be on the side of a debate which calls for a protection of natural justice for people accused of brutal and horrible crimes. But we must always remember that these people are in a special category: our courts and best medical experts say the accused criminals have severe mental health injuries and sicknesses and therefore are not in control of their own actions.

Unfortunately, with our ice epidemic these sorts of crimes committed by people who are mentally damaged will only become more common. I expect that to escalate very quickly—like it already has over the past few years—as the harmful effects of highly addictive, very dangerous, cheap, easily accessed drugs are felt on our sons, our daughters and our grandchildren. This mental health crisis will continue and grow unless both federal and state governments take very strong measures to prevent mental health injuries in our young people.

One of the provisions that the JLN wants all political parties to consider is national legislation which makes detox for children who are drug addicted mandatory. My research to date in preparing a private member's bill shows that mandatory detox is available in every state of Australia, with New South Wales enforcing it only for as long as the withdrawal period and Tasmania having the capability to enforce it for six months if a medical professional recommends it. However, this is only used as a last resort, and it should be used as a first resort. Mental health legislation provides for people to be treated under an involuntary order but distinguishes addiction from mental illnesses.

There is no specific legislation for compulsory treatment for minors. The JLN will fix that glaring problem. Usually the law says the parent or guardian can make decisions on their behalf, but Australian legislation and common-law principles are increasingly recognising the developing competency of adolescents to make decisions with regard to their own medical treatment. Sweden has had a program in place since 1982 where forced drug treatment was provided for six months to users who were a threat to themselves and others, with the hope that, following the six months, the person would be in the right frame of mind to continue their treatment voluntarily.

Australian parents deserve the right, if their children are addicted to lethal and harmful drugs like ice, to involuntarily detox them. Australian parents deserve the right to speak to their children, not the drug, when they are trying to put them back on the straight and narrow. I have to say that down there in Tasmania we have a massive ice problem. I am a senator of Australia and I have a 21-year-old son that has a problem with ice, and yet even with my title I have no control over my son. I cannot involuntarily detox my own son. I am not talking to my son anymore; I am now talking to a drug. And I can tell you I am not the only parent out there; there are thousands of us.

So, in addressing this Social Services Legislation Amendment Bill 2015, I would ask senators to think more broadly about the issue of mental health and how injuries and harm are caused in individuals. I ask you to do that because the way that ice is affecting these kids is phenomenal and it is a very, very bad result. These kids will have three or four choices in their lives. They will either end up on a slab, end up in a mental institution or end up killing somebody else because of their actions because they do not have control of the drug. This is where this society is heading, and we are sitting here and we are not doing anything about it. When we realise that this ice is a major problem in our society, it will be all too late.

Media reports indicate that the Social Services Legislation Amendment Bill will reap $29.5 million in savings for the federal government over four years. This, of course, means that if this bill is passed, that $29.5 million cost will be shifted back onto the states. The federal government has already taken $80 billion in health and education funding from our state governments—and I sure as hell know that Tasmania cannot afford that—and the federal government continues to place a greater health burden onto the states. Tasmania's heath system is in a terrible crisis. They are some of the reasons I refuse to support this government bill.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I thank Senator Lambie for the comments she has made with regard to methamphetamine and the personal message she has conveyed to the chamber. Of course, we are all deeply concerned. There is no community in Australia that is protected or immune from this absolute scourge.

In rising to support the Social Services Legislation Amendment Bill 2015, I do want to place a few facts before the chamber and put this back into some perspective. Since 1908, for 107 years, there have been provisions in social security law to cease payments for people undergoing psychiatric confinement. The Social Security Act 1991 provides if a person is in psychiatric confinement and has been charged with an offence, they are to be treated the same as a person in jail. There have been other provisions similar to that section 1158(b) in social security law since 1947, going back some 70 years. In fact, in 1966 a new section was added to the legislation so that the bar to payment of an income support payment would not apply to a person undergoing psychiatric confinement who is undertaking a course of rehabilitation.

The previous speaker quite correctly made the observation that people who find themselves in psychiatric confinement do so because a competent court has determined that they are not competent to stand trial as a result of a psychiatric or other related impairment. But we know that had that person been competent to stand trial and had they been found guilty in a court of law of the crimes of the seriousness to which I will refer in a moment, in all probability they would be incarcerated in the criminal justice system, which in the main is a state or territory based system, and in that case their needs would be met by the state of the territory.

The only difference in this circumstance, despite the protests of others during this debate today in the chamber, is that the people about whom we speak have been determined to not be able to stand trial. Therefore, the decision of the court is that they are confined in a psychiatric institution because of the seriousness of the nature of the crime for which they have been charged. Therefore, there is absolutely no difference at all. If they were competent and were found guilty, they would be dealt with in a prison and their needs would be met by the state. In the case of which we speak now and up to 2002, I will remind you exactly of the circumstance of people confined in a psychiatric institution for which the state or territory had responsibility. This particular bill places that responsibility correctly back onto the state or territory.

What happened in 2002? In 2002, a decision of the Federal Court, Franks v Secretary to the Department of Family and Community Services, found that a course of rehabilitation could now include a broad spectrum of treatments. Prior to 2002, most people undergoing psychiatric confinement could not receive social security benefits. What was the impact of the 2002 judgement? It said that if somebody is actually able to participate in some form of treatment for their condition then the matter should be changed. But in this legislation we are not dealing with the sort of people for whom there may be some consideration of a course of rehabilitation. This brings me to the next point: who is it that we are speaking about in this circumstance?

We are speaking about a limited number of very, very serious crimes: those who have been charged with serious offences defined in the amendments as murder or attempted murder, manslaughter, rape or attempted rape and other violent offences that are punishable by imprisonment for life or for a period of a maximum of at least seven years. Therefore, we are not dealing with people who, in the course of events, as per the judgement in Franks in 2002, would have been in all likelihood eligible for some course of rehabilitation. We are speaking about a very limited number of people. We are speaking about people who, should they have been competent to go before a judge and/or a jury and had they been found guilty of the charges that I just read out, would in all likelihood end up in jail where their needs would be met by the state or territory—those needs being the normal human functional needs of protection, of housing, of clothing, of food and of incidentals. I remind you again that prior to 2002, before we had the Federal Court judgement, which was around issues associated with rehabilitation, that is exactly what happened. It is to that that this legislation intends to return.

There are provisions in the legislation that should a person, because of an improvement in their psychological or psychiatric condition, be able to be released for periods of time by way of a transition back into the community that they can be released for a number of nights—and I think, if my memory serves me correctly, it is up to six nights in a fortnight—that indeed there would be provision of funding under the legislation. They would—as Senator McAllister indicated a few moments ago—in that circumstance where, if they were able to be released into the community for limited periods of time, have costs associated with public or other transport. They may have costs associated, for example, with a different form of clothing. They may be able to go into a cafe and buy a coffee, so, yes, the legislation does provide for that circumstance should there be a transition for such a person going back into the wider community.

But, contrary to what Senator McAllister said in this place a few moments ago, when Senator McAllister was referring to needs such as toiletries, toothpaste and other needs that they might have, these are met by the relevant state and/or territory instrumentality which has responsibility for the care of these people. Should this legislation pass—in other words, should we return to pre-2002 for these people charged with serious offences such as murder or attempted murder, manslaughter, rape or a crime attracting a seven-year or related penalty—it is no different then to the protection of people in jail.

I refer again to the judgement—and the 2002 judgement was based around a course of rehabilitation—and we are not talking about the prospect of a possibility of a course of rehabilitation in the circumstance, so why would the states and territories be so anxious for this legislation to not pass? As has been indicated, Queensland is only one example where 67 to 85 per cent of the social security payment to the individual is removed by the state system and absorbed by the state. So, in that circumstance, the best they would be getting would be 15 per cent of the social security payment that is now due to them. Not all jurisdictions take that much, but it is a very, very good indicator that in that situation the state does recognise it has an obligation to house, feed, clothe, maintain and look after those people.

So there is that recognition and acknowledgment, and of course this is what this legislation allows: that we return to a circumstance that had its origins 107 years ago that has been amended over time and, obviously, takes account of the needs of a person. It has been then said: what about the families of these people who may in fact be dependent on such a person? You will of course understand—and those who may be interested in this debate should be affirmed and reassured—that the current arrangements for social security payments to partners and to children are adequate to meet their needs and provide appropriate safeguards. So, if such a person is in jail or such a person is in a psychiatric institution, this community looks after those who may otherwise have been dependent on them. While a recipient's partner is imprisoned or in psychiatric confinement, because the partner has been charged with committing an evidence, the recipient can indeed be paid a higher partnered rate of social security payment—a higher payment, not no payment—and, where a recipient was a carer for a child or another person and that caring responsibility has passed onto another person, that other person is able to claim the income support in respect of the child or the other person for whom they were caring subject to all the standard eligibility criteria. This of course may include the parenting payment, payment of the family tax benefit, the carer payment and the carer allowance.

This is entirely reasonable legislation. It places back to the states and territories the responsibility which they of course had previously and still should have. In fact, if a competent court finds that somebody who has been charged with one of those heinous crimes is competent to stand trial and is found guilty in a court of law, automatically that payment will be required to be made by the state, because the person will be in jail.

So therefore let us understand very, very clearly that 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 that person—and there will be provisions made during that transition phase.

Let me summarise with the numbers of people likely to be affected around the nation: evidence to the committee that investigated this question was that there would be some 350 people in institutions around Australia currently and that it would affect, from the time the legislation is passed, about one person in Australia each week—about 50 people a year. Remember, again, these people's needs will be fully met in the institution in which they are held. Had they been competent to be tried in a court of law and found guilty, they would of course be being dealt with by the criminal justice system. Their dependent partner and/or children at home are still well catered for. Of course, should they find themselves in a circumstance in which they can transition back to the community, this legislation picks up that protection for them—and that is of critical importance.

This is an emotional issue. I listened very carefully to Senator Siewert in her contribution, knowing her deep interest in these areas, but I say to Senator Siewert—as I would also say to Senator Brown, whose contribution I had the opportunity to listen to, and to Senator McAllister particularly—that this legislation does not in any way adversely impact on the person who finds themselves now confined in a psychiatric institution. They are still looked after; they are still fed, housed and protected, and their needs are met. This is simply a case of reflecting on the 2002 Federal Court case which was directed to the question of a person undertaking a course of rehabilitation, and it has been extended and expanded over that 13-year period to a situation which was never the original intent of the legislation. I urge my colleagues in the Senate that this legislation should be passed.

Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source

I rise to speak in opposition to the Social Services Legislation Amendment Bill 2015, along with all of us here in the opposition in the Senate, because of three factors. The first of those factors is that this bill will clearly have a detrimental effect on the rehabilitation and recovery of people with serious mental illness in psychiatric care. The second reason is the lack of consultation: it will leave patients, their families and carers, and facilities for the psychotic, unprepared for this change. Thirdly, it is fundamentally discriminatory to people who have been determined to be suffering from a serious mental illness.

We know that this bill will take income support payments away from people in psychiatric confinement who have been charged with a serious offence and who are undergoing a course of rehabilitation. Yes, it is that rehabilitation that is, in effect, of gravest concern here for their ongoing recovery path, but more so is the fact that the bill is addressing the psychiatric confinement of people charged with a serious crime, treating them in the same way as a person who is in jail, convicted of an offence, of a serious crime. That should not be the case. It is right that social security payments may not be paid to a person in prison, but we are not talking here about people in prison. We are talking about people who have been charged with a serious offence. There is indeed a significant difference between people in psychiatric confinement who have been charged with an offence and who because of mental impairment are found not criminally responsible for their actions and people in prison who are responsible for their actions.

For some of these reasons, Labor will not be supporting this bill. I want to thank for their contributions particularly Senator McAllister, Senator Moore and Senator Siewert, who I know have had a lot of interest in and perhaps have participated in the inquiry into this bill. I have had some regard to the Labor senators' dissenting report. There are clearly a lot of issues in this bill from a technical and practical point of view, such as the definition of 'serious offence', the financial impact of the bill, the impact of clinical service delivery and reintegration, and the definition of 'a period of reintegration'. I notice from Labor's dissenting report the fact that there were an overwhelming number of submissions raising concerns about the distinction, for example, between serious and non-serious offences, which I understand the department was not able to satisfactorily address. I also understand that many participants raised concerns about the financial implications in this bill. In particular, submitters raised concerns about the possibility of increased costs for service provisions due to the impact on the forensic patients' rehabilitation.

Of course there are concerns, quite rightly, that have been expressed by various state governments as well because it is very much a cost-shifting mechanism. I cannot really understand, to be honest, the point of this bill coming before the Senate, other than to say it is about cost shifting. I think that is the only real rationale behind the government bringing this bill forward. I cannot find one other than that. Cost shifting to the states is of course being done by also cost shifting to the most vulnerable in our community.

I guess I am fairly cynical about the broader response through the media on this bill because there has been little of it. We are talking about some of the most vulnerable people in our community, but perhaps some may say that, because of that, some outlets simply do not care about this bill and the impact it will have on some of those most vulnerable individuals, their families and their carers, because I have seen little reporting about this.

I would hope that, as a compassionate society, as a humane society, we would stand up for the most vulnerable in our community and provide them with the protections that they need. One of the protections people with a mental illness need is rehabilitation. Rehabilitation is the fundamental thing when we talk about supporting those vulnerable individuals who are suffering from mental illness. In this country at the moment there are waiting lists all over the country for those needing to access rehabilitation. Taking income support payments away from people who are in desperate need of rehabilitation, who are subject to psychiatric confinement and who have been charged with a serious offence, is no way to treat those people. It is no way to treat people who are vulnerable in our community. But this is what we have come to expect from this government—attacks on the most vulnerable; attacks on those in our society who can least afford to pay. Yet those who can afford to pay get away scot-free and get away with not paying their fair share of tax and continue to grow their profits to the detriment of those who are most vulnerable in our community. So, of course, as you would expect, the Labor Party does not support a bill that does that.

Since something like 1986 this legislation has provided that a person undergoing psychiatric confinement and undergoing a course of rehabilitation can receive this type of income support payment. That is an incredibly long time that has crossed both Labor and Liberal governments since 1986. So why is it now, under this Abbott government, that this bill has come before us to take that income support payment away? For the miniscule saving that this Commonwealth government will make, does it really think that it is in the best interests of our society, of those families and carers of those individuals in this particular category who are undergoing this rehabilitation, to take that income support payment away? For the life of me, I do not understand the rationale behind this government in doing this to some of the most vulnerable.

There is another thing I do not understand, and why I am so perplexed as to why we are debating this—and I really do encourage those crossbench senators to not support this bill, so it does not become law. If the government wants to get this through the parliament and make its pittance of savings in this way, why did it not consult with some of these families and carers? Why did it not consult more extensively with some of the service providers? Clearly there needs to be a lot more discussion and a lot more meaning behind what it is talking about in this legislation and this opaqueness around 'serious' and 'non-serious' offence. As Senator McAllister said, I just cannot see any good public policy outcome coming out of this piece of legislation.

There has been no consultation. This government did not speak to patients or, in fact, to anyone impacted by the outcomes of this legislation. It did not speak to families. It did not speak to carers. It did not speak to state or territory governments. It did not speak to psychiatric institutions that provide the care. This shows that there has been no genuine effort made by this government to communicate its decision and to ensure that those impacted by the measures in this bill are aware of the change and can then of course make some preparations accordingly. And we are talking about incredibly vulnerable people, people who rely very much on every cent of their income support payments and the rehabilitation connected to that. I think the government is really doing an incredible disservice to the mentally ill in our country and to their families and to their carers in the way it has gone about this. It is simply not good enough. Proper consultation and discussion is so needed for such a complex, sensitive and serious matter.

I understand the Senate inquiry was robust in the sense that there was a submission process. But not one of those submissions supported these changes in this bill. That in itself tells the government something. It tells the government that it is on the wrong end of the stick with this piece of legislation. There is no support in the community. We know the government did not consult, but thank goodness we do have in this part of our democracy the Senate committee process that does allow for a public inquiry and public hearings and that kind of level of consultation, which of course is a cross-party committee. But not one submission supported this bill. In fact, Minister Morrison's own department's submission provides no justification for this bill. There is no evidence that these measures will assist in the rehabilitation of people in psychiatric confinement and therefore there is no justification for supporting this bill.

Finally, out of the three issues that I raised at the beginning of my address as to why Labor would not support this bill, I want to go to the issue of rehabilitation, because this bill particularly undermines rehabilitation. Again, the submissions to the inquiry suggested that the bill very much undermines rehabilitation efforts of people in psychiatric confinement. The training, employment and other community links put in place whilst a patient is in psychiatric confinement to help ensure a successful transition at the time of discharge are incredibly important. Access to income support is absolutely crucial to establishing these links. Patients self-fund their external rehabilitation activities—their transport to attend activities and any supplies required to carry them out—from their income support payments. So you can see how, on the path to rehabilitation, those links to training, employment and ongoing rehabilitation can be broken if that income support payment is not there for them to get transport to attend their various activities. The cost of accessing general health care and purchasing medications in the community is also met by the patient, obviously with the concessions from their healthcare card. Access to income support is also essential for patients to secure and maintain their community accommodation and the things they need in order to be granted leave and, eventually, to be discharged.

Yet this proposed bill suggests income support payments will not be made available to a patient charged with a very serious offence until they have been granted three nights per week of overnight leave. I understand that, in Victoria, that is the maximum leave that is able to be granted by a psychiatric institution. Again, you can see how this lack of consulting with, say, a Victorian psychiatric institution or the Victorian government shows just how thought-bubbled this legislation is and how it does not work in the real world. And if it does not work in the real world it will lead to a breakdown in the rehabilitation path for that individual who is so in need of it. I think the chair of the Mental Health Commission, Professor Allan Fels, really summed up these issues in the commission's submission to the Senate inquiry:

The practical effect of removing access to social security payments would be detrimental to rehabilitation and recovery for people with a mental illness, especially without close consultation with the States and Territories.

On every yardstick this government is completely out of touch with community expectations, with the care and understanding of people confined for psychiatric treatment and with public policy outcomes, because there simply is not one good one in this piece of legislation. It will have detrimental effects on the rehabilitation and recovery of people with serious mental illness. These people should not be treated in the same way as those who have already been convicted and imprisoned. They have been charged and in this country, as I understand it, they are innocent until proven guilty.

The government has not consulted on this legislation. It is leaving patients, their families and their carers and psychotic facilities very underprepared about this change if it were to pass. It is my dear hope that it does not pass. Why? Because fundamentally, even though those points are enough in themselves, this legislation is discriminatory to people who have been determined as suffering from a serious mental illness. And what does it say about us as a country if we want to pass legislation in this place that discriminates against people with a mental illness? We already know that they are some of the most vulnerable people in our country that so many, unfortunately, have already forgotten about. We on this side of the chamber have not forgotten about them. We very much stand with them in the hope that they are led to a path of recovery and they will only be led to a path of recovery if the right supports are in place. One of those supports, which has been in place since 1986, is this income support payment. It is crucial to build those links for rehabilitation along the pathway to their rehabilitation. There is simply no need on earth for this cruel, demonising Abbott government to bring legislation in this place that does nothing more than discriminate against some of the most vulnerable people in our community.

Labor will not support this bill. I stand with my fellow Senate colleagues and thank them for their work in Labor's dissenting report into the inquiry. I also stand with those in our community who find themselves in this situation in their lives, in the hope that they do recover through the support of rehabilitation and, most importantly, through the ongoing support of their income support payment.

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in support of the Social Services Legislation Amendment Bill 2015. This bill returns the payment of social security to the pre-2002 position where payments were withheld from certain people who are in psychiatric confinement because they have been charged with a serious offence. However, this measure has been updated so that only those charged with a serious offence are covered by this bill. People who have been charged with a non-serious offence will not have their payments withheld.

This government believes that it is important to have a well-targeted social security service. We understand that sometimes people fall on tough times and need a hand to get through. We also understand that some people, for many reasons such as health concerns, are legitimately unable to work and also need a hand to get through. It is appropriate in these circumstances that the government provides a safety net and that is exactly what we are doing and will continue to do. But we also understand, and indeed there is a reasonable community expectation, that those who are receiving such payments also have responsibilities to the community. For those who are able to work we reasonably expect that they will try to find work so that the time they are receiving welfare payments is kept to a minimum, and so they can become self-sufficient and make a contribution to our community and our economy. In these circumstances we also expect that people will have respect for the law and will uphold their responsibilities as citizens. In that context, it is already the law that people convicted of a criminal offence who are serving prison sentences are not eligible for social security payments. This is because food, accommodation and other essentials are provided by the state or territory government by which they are being detained and funding of their treatment and rehabilitation is also covered by the state or territory.

This bill is not, as I said, a new measure. It reflects the approach to social security that has been in the law since 1947 whereby, if you are charged with a serious offence, you are not eligible for social security payments. In this instance, this will apply to those who are in psychiatric confinement because they have been charged with a serious offence. 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. At present, most people confined in a psychiatric institution may be considered to be participating in a course of rehabilitation and therefore attract social security payments, 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.

This change will affect only a small number of people charged with the most serious of offenses such as rape, murder and other violent crimes.    It is estimated that this measure will affect approximately 350 people on implementation and 50 people each year following.    This measure represents a return to the original policy intent for people in these circumstances.    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 to the community and that is why there are provisions in the 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 period that is 'a period of integration back into the community for the person'.

I note that in the Community Affairs Legislation Committee, which I chair, in the process of reviewing and consulting on this legislation, there were some concerns raised about the definition of 'serious offence'. I recognise both the concern showed by some of those giving evidence to the committee as well as by those in the Labor Party who took part in the inquiry. As noted in the committee report, the definition of who this bill affects focuses on serious offences:

The proposed amendment to social security law will only capture those persons who have been charged with a serious offence. The amendments define a serious offence as murder or attempted murder, manslaughter, rape or attempted rape as well as other violent offences that are punishable by imprisonment for life or for a period (or maximum period) of at least seven years.

Some of the submissions expressed concerned that the distinction between serious and non-serious offences was not necessarily appropriate in the context of dealing with mental illness. I understand that point of view and much of the time in the committee was spent on this issue, so I think it is important to spend some time on this issue in this place and to deal with some of the misconceptions about this bill.

In the first instance, I note the intent of providing a distinction between serious and non-serious offences is to actually protect the payments of social security to those people not charged with a serious crime. As noted by the Department of Social Services in their evidence to the committee:

The distinction between serious and non-serious crimes protects those people with disability who are charged with less serious offences and yet are confined. It is acknowledged that, in rare cases, certain individuals who have been accused of lesser offences may be confined for extended periods because there are not suitable services to support them in the community. The government was concerned that these individuals not be affected by this measure.

At present, the Social Security Act 1991 restricts payments to a person in psychiatric confinement as a result of being charged with an offence. This legislation in fact expands eligibility so that those charged with non-serious offences are expressly captured by this measure and can remain eligible for payments. The evidence given to the committee also made the important point that the distinction between serious and non-serious offences is not meant to be punitive. Rather, it is intended to reflect that, where people are charged with a serious offence, the duration of detention without needing to pay for reintegration programs was likely to be a long period. As the department further stated:

People who are alleged to have committed serious crimes that do harm or are likely to harm others and who have been incarcerated by the state would usually be confined for a significant period due to the degree and length of time it takes for these patients to be ready to commence integration into the community.

Some submitters further raised concerns that the definition of what constitutes a 'serious offence' is too broad and might capture incidents which do not impose harm on another person or property. However, it is clear in the legislation that acts which do not result in actual harm or are not a property crime that endangers a person do not meet the 'serious offence' test. There were also concerns about the fact that often mental health orders are indefinite and this could impact people in confinement given their payments would cease. Once again, though, there is an important clarification in the legislation which states the removal of payments is not triggered by a mental health order itself, rather it is whether the cause of the mental health order was a charge for a serious offence. In this context, the department has done a lot of work consulting with states and territories to look at what offences would be captured by this legislation and the committee was satisfied that this was done well.

More broadly, there were some concerns raised about the financial impact of the bill as payments are sometimes used by mental health patients to meet ongoing financial obligations such as those to family. In these circumstances, though, it is important to be accurate and specific about the intention of certain government payments and how they are targeted.

In this case, the purpose of social security payments is to provide income support to meet people's daily needs. Where that person is confined by virtue of a state order, it is reasonable that those needs should be met by the state or territory. The Statement of Compatibility with Human Rights outlines that family members, where eligible, are able to receive social security payments in their own right.

I also note that in evidence to the committee it was made clear that many patients used up to 85 per cent of their disability support pension simply to pay for their ongoing treatment. This is an important point because effectively as it was before 2002, state governments, which often run these institutions, would pay for the care of these people. Now we have the situation where the Commonwealth government pays people while they are confined and most of that money goes to the state or territory government running the institution.

Effectively, the pre-2002 situation was that states handled it and that post-2002 we see that in fact it is Commonwealth payments that are being used to subsidise the responsibilities of state and territory governments. This is not the purpose of social security payments, and it is entirely appropriate for the cost of treatment for people in confinement to be met by the states and territories responsible. It simply does not add up that Commonwealth payments to a person should end up going straight back to state and territory governments to fund treatments. Once again, it is important to remember the intent of these social security payments. We as the government have a responsibility to ensure payments are being targeted and used appropriately. This context is also relevant in further concerns raised by submitters, such as the concerns that patients may be able to pay for rehabilitation activities.

Understandably, income support is part of the process of reintegration and rehabilitation. However, these payments are for basic living expenses, and the states and territories are responsible for rehabilitation of those charged with offences. It is important to note, then, that the majority of submissions provided evidence around the impact that the removal of social security payments would have on the general population of forensic mental health patients. However, no submission provided any details specific to the cohort of patients who would be affected by this bill—people who have been charged with a serious offence that involved risk of, or actual, personal harm.

In conclusion, this legislation only applies to people charged with a serious offence. It is a small cohort, and it is important to remember in the debate of this bill that this is who we are talking about. I understand the concerns from the mental health advocates and other organisations who submitted to the committee that people dealing with genuine mental health issues may be disadvantaged. But it is important to remember that this legislation is not new, and that social security law has included an approach such as this since 1947.\

So, let's remember then the broader context here: people who commit serious offences and are imprisoned for a long period of time are not eligible for social security. This is appropriate and in line with community expectations that taxpayer support for people in need is targeted, responsible and goes to those who need it most and who take their responsibilities seriously. Social security payments are provided with the intention that they are for basic living expenses, such as food and accommodation. These expenses are covered by the state or territory responsible when someone is imprisoned or otherwise confined.

It was always the intention of the system that those in psychiatric confinement due to a serious offence would be ineligible. Their expenses are also being met by the state or territory. This legislation restores that intent to the system. Again, I emphasise in concluding that this only affects people who have committed a serious offence—murder or attempted murder, manslaughter, rape or attempted rape, as well as other violent offences that are punishable by imprisonment for life or for a period of at least seven years. People with genuine mental health issues who have not committed serious offences will not be affected.

This is reasonable and fair legislation. It reflects the intention of the original system and it reflects good responsible use of taxpayer money. We on this side support a substantial and well-targeted social services system. But we also respect the fact that the community expects us to target government payments appropriately. This legislation is a small step that helps us do the right thing by taxpayers, and I commend this bill to the Senate.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Mental Health) Share this | Link to this | Hansard source

I also rise to speak today on the Social Services Legislation Amendment Bill 2015.

As you would have heard, Mr Deputy President, this is a complex piece of legislation that has a number of elements that I encourage my colleagues, particularly my colleagues who sit on the crossbench, to examine closely. It is a piece of legislation that is easily conflated into who is right and who is wrong. Rather, we need to think about the implications of what this legislation may mean if it is passed through this chamber today.

The Social Services Legislation Amendment Bill seeks to amend the Social Services Act 1991, to cease social security payments to people who are being held in psychiatric confinement because they have been found not fit to stand trial because of their mental illness, or who are having their fitness to stand trial assessed or who have been found not guilty because of mental impairment. People in this group, as we have heard, are referred to as 'forensic patients'.

Since 1986, legislation has provided that a person undergoing psychiatric confinement and 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 concerns. The people impacted by this measure will have been charged with very serious offences—very serious offences. That is why any change to arrangements for people in psychiatric confinement needs to be considered properly and any implications of these decisions assessed truly.

Wherever possible, forensic patients generally undergo a program of rehabilitation—by and large, most do—before they are released from custody. Not only does this help to reduce risk and increase adherence to treatment but it also serves to reduce further contact with the criminal justice system into the future. Currently, social security payments may be paid to forensic patients if they are undertaking a course of rehabilitation—and that is an important point in the legislation. This bill will change that for forensic patients who have been charged with a serious crime, effectively treating them in the same way as a person who has been found guilty and who is in jail. Payments, however, will continue to persons in psychiatric confinement as a result of being charged with so-called 'non-serious offences', again, if they are undergoing a course of rehabilitation.

The National Mental Health Commission made submissions to the Senate inquiry and said:

The nature of the offence with which a person was charged – but not convicted – should not define whether they are taken to be in psychiatric confinement or undertaking a course of rehabilitation, nor should it be relevant to whether they have access to social security payment.

The South Australian Public Advocate also argued to the inquiry that distinguishing between people charged with serious crimes and those charged with non-serious crimes undermines the government’s argument that state and territory governments should be responsible for the cost of supporting forensic patients. That is an important point to be made as well.

The bills digest makes a really important point, one that should be considered by the government and the crossbenchers. The bills digest quite neatly says:

Overall, however, arguments about the appropriate boundaries for ‘serious’ and ‘non-serious’ offences would seem to miss the key criticism of the Bill, which focuses on the principle that the offender in all these cases has not been found guilty of any criminal offence due to their psychiatric condition. Thus distinctions between serious and non-serious offences are immaterial, since none of the offenders can be regarded as ‘morally culpable’, however serious the offence. The offences were performed by a person who has been found incapable of bearing guilt on the grounds of their psychiatric condition and they do not, therefore, possess the requisite degree of moral culpability, however much the charge itself may reflect a distinction between serious and non-serious offences.

It is not totally clear why the government has adopted this approach, especially when they did not consult on the measure prior to announcing it. They have done little to communicate the decision to ensure that those impacted by the measure are aware of the change—particularly states and territories, who will have to change the arrangements if this passes. Rather, it has been left to mental health services to communicate with patients, families and carers.

As the shadow minister for mental health, over the past few months I have been contacted by many organisations in the mental health sector as well as consumer advocates because of their serious concern about the impact of this bill on some of the most vulnerable people in our communities. Whilst people to be impacted by this measure have been charged with very serious offences, they are also people who are suffering significant mental health issues and need to be supported properly in their rehabilitation.

Forensicare, the state funded provider of forensic mental health services in Victoria, wrote to me, along with many others, to raise their concerns about the impact of the legislation. They believe forensic patients should not be treated differently to other patients in mental health facilities, particularly since their illnesses are so severe they are unable to understand the impact of their behaviour. Forensicare argues that, regardless of their offence, forensic patients should have the same right to social security benefits because they equally need rehabilitation and services which support a return to the community.

As I said earlier, the bill is not supported by the independent National Mental Health Commission. In their submission to the Senate inquiry into the bill, the chair of the commission, Professor Allan Fels said that the legislation is discriminatory and reinforces the stigma of mental illness and the view that confinement comes before rehabilitation. Under the proposals in the bill no income is proposed to be available to a patient charged with a serious offence until the person has had three nights per week of overnight leave.

In the second reading speech the minister said:

… it is the relevant state or territory government that is responsible for taking care of a person's needs while in psychiatric confinement, including funding their treatment and rehabilitation.

There is a point of consistency here that we need to explore. Let's always remember: these people have not been found guilty; they are not in the prison system; they are still in the mental health system and they are not guilty.

Let's look at what happens when patients in state run hospitals, who have been deemed to be in need of residential aged care or community aged care, are unable to get that aged care. After a period of time, there is a payment that is required of that person—a patient in a hospital who should be in residential aged care. It is called the 'nursing home type contribution rate', and it is 85 per cent of that person's pension. So that person is in hospital—they are there because they cannot be anywhere else, just like the person who is in psychiatric confinement—and they pay a portion of their pension toward their accommodation and food, in the same way that happens for people in psychiatric confinement. DVA also is billed for some gold card holders who are in hospitals, but who should more appropriately be in residential aged care, for their accommodation and food.

If this bill passes, there will be implications in a number of areas. First of all, the costs for accommodation and incidentals which the Queensland government submission to the inquiry listed as: clothing; phone calls, including mobile phones that are needed when people have leave from confinement; court costs; costs of training that they are undertaking as part of their rehabilitation program; and public transport in particular. Those costs will now become the costs of a family.

For many of these people family support is not high; let's be frank. For many of these people, the capacity of their family to support them is also not high. So the opportunity for true rehabilitation, in the view of many of the advocates who have spoken to me, will be diminished to the point where it will not occur as well as it should, if at all.

The other point is the transition period for a person who has been charged with a so-called 'serious offence' to a 'nonserious offence'. In that time, people are able to leave the facility; they are being part of society. And that has to happen in a very managed and controlled way, so that there is safety for all people concerned. It has been put to me that, if there is no access to any funds to support that person's transition, the ability for success is not going to be high.

Without income, patients will not be able to access the accommodation necessary to commence overnight leave as part of a leave program, which Mental Health Australia has warned could leave people homeless. The ability of patients to obtain the accommodation they need in order to be granted leave and eventually be discharged from confinement to live in the community will be undermined. The rehabilitation and leave system relies on a gradual process to ensure that recovery and risk are safely managed for the person and for the community. Leave is granted in a graduated program where the amount of leave granted increases, as it is safe and appropriate to do so. Access to accommodation and increasing amounts of leave to reside in community-based accommodation is critical to eventual discharge.

Mental Health Australia is also critical of the government's plan to redirect savings of $29.5 million over four years to 'repair the budget' and, in its submission to the Senate inquiry, urges the government, should the bill be passed, to redirect the savings to mental health services for people in prison or transitioning back to the community. It will be interesting to see if that course of action is taken should this bill pass.

Advocacy groups have also warned of adverse impacts on levels of compliance with rehabilitation and treatment programs or on the integration of people later released back into the community. Without social security payments and related concessions, patients will have limited capacity to engage in external activities that assist in recovery, including education and training programs. The removal of all income support for patients who are not in a period of integration will leave this vulnerable group with no means to meet basic needs that are not provided by the psychiatric institution and which are necessary in order to commence or continue a period of integration.

As we have heard, this bill was opposed by all submitters to the Senate inquiry. The Queensland government, the Victorian government, the New South Wales government and the ACT government all oppose this bill, with their submissions outlining the significant impact this legislation will have on the recovery of individual patients.

This is a clumsy, misguided policy response. It will hurt more people than it will help. As we have heard, we are talking about 350 people who are very unwell and who have not been convicted of a crime. They have serious mental illness. They are required by the judicial process they have been through to stay in psychiatric confinement, often a hospital—and, yes, that is a better place for them than a prison. But in order for them to undertake a program of rehabilitation and to see a light at the end of what must be a very dark tunnel, the answer is not to take away their disability support pension. That is what this bill is doing. If this bill passes the potential for successful rehabilitation of this small number of Australians who have potentially committed, but have not been convicted of, serious crimes—and whom we would all want to recover—will be diminished.

The idea that we will save $29.5 million—nearly $30 million—over four years but potentially damage the lives of 350 people is a false equation. This is poor legislation. The motivation for it has not been made, and I urge particularly the crossbench not to support the legislation.

Nova Peris (NT, Australian Labor Party) Share this | Link to this | Hansard source

I also rise today to speak on the Social Services Legislation Amendment Bill 2015. The bill 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. As previous Labor speakers have said, we do not support the bill in its current form as it has unacceptable negative outcomes for those undergoing rehabilitation which do not assist them to get well and rejoin the community.

People in confinement are some of the most disadvantaged people in my constituency of the Northern Territory, and they do not deserve to be disadvantaged because of their illness. I see this amendment as mean-spirited and one which does not take into account the dignity of people who are sick. These people do not deserve to be treated as criminals. They must be recognised as people who are unwell, who are in need of medical help and who deserve to be treated with a bit of dignity. The reasons I do not support this bill are as follows.

Firstly, I do not support the criminalisation of mentally ill Territorians or mentally ill Australians. While I acknowledge that this amending legislation affects only those who have been found to have committed a serious offence, these people have also been found unfit to stand trial and so have not been found criminally responsible for that offence. As I said before, these people do not deserve to be treated like they are in prison. They deserve to get all the help they can to undergo the best rehab that they can get. That is the compassionate thing to do.

Hundreds of people in the Northern Territory, many of whom are Aboriginal, are already disenfranchised by the justice system. Many of these people suffer from serious mental impairments, such as foetal alcohol syndrome, impairments resulting from drug and alcohol abuse, and some effects of petrol sniffing. In the Northern Territory, the Country Liberal government have already criminalised alcohol addiction with their mandatory alcohol rehab program, which simply locks up alcoholics. Let us not follow their lead and criminalise other forms of mental or health impairment.

Rather than punish these people for their impairments, let us work to stop them from taking place in the first place. Let us educate the community and let us help the people in need of help. Alcohol and drug abuse, petrol sniffing and other forms of preventable impairment need ongoing funding and efforts put towards them. They are a scourge on communities in the Northern Territory.

In their recent submission to the Senate inquiry into health the Central Australian Aboriginal Congress recommended increased funding into the prevention of drug and alcohol abuse and petrol sniffing. These abuses do cause severe mental impairment, with foetal alcohol syndrome being one major issue. Many Territorians have mental impairments that have resulted from drug and alcohol abuse. Let us stop the problem before it occurs and not criminalise those who are suffering from those impairments. Let us educate our community on these effects.

Secondly, I take issue with this amending legislation because it would adversely affect the ability of sufferers of significant mental impairments to rehabilitate themselves. Many of these people are suffering from the illnesses because they were vulnerable and unable to support themselves in the first place. This amending legislation seeks to make them even more vulnerable.

Finally, I oppose this amendment because there has been little or no consultation in the community. None of the submissions presented to the inquiry supported this amendment and the government has not consulted properly with the community or the industry. Those in psychiatric confinement are under medical care. Surely those in medical care cannot be legislated on without proper research and consultation.

I do not see the point of this amendment. While I understand that these people have committed serious offences, these people have also been found to be unfit for trial in relation to these offences. They do not know right from wrong; they are often unaware of their surroundings or have little control of their own actions. I do not see the point of criminalising these people. They should not be treated like criminals. Rather we should spend our time and money trying to rehabilitate these people, and prevent others from falling into the same situation.

Some of the most vulnerable people in the Territory suffer, as I said previously, from severe mental impairment, and many of them live in unsafe environments and have suffered abuse and mistreatment. This is a problem we need to fix. We do not need to punish them by taking away their income support, taking away their dignity and making it harder for them to rehabilitate themselves.

I do not support this amendment. I do not support criminalising mental illness or addiction. I do not support adversely affecting sick people's rehabilitation. And most importantly, I do not support passing amendments without consulting the community.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I do not think there were any other colleagues who were seeking to make a contribution to the debate so I will sum up. As has been canvassed by colleagues, this bill will cease social security payments to certain people who are in psychiatric confinement because they have been charged with a serious offence. As announced in the 2014-15 Midyear Economic and Fiscal Outlook, the measure will apply to people who have been charged with a serious offence and who, due to mental impairment, are in psychiatric confinement. This includes, as has been canvassed by colleagues, people who have not been convicted or are considered not fit to stand trial.

People confined in prison because they have been convicted of a criminal offence or who are on remand are not eligible for social security payments. Under current social security law, those same provisions apply to people in psychiatric confinement because they have been charged with a criminal offence but who are unfit to plead or have been found not guilty due to mental impairment. There are provisions for social security payments to be made if these people are undertaking a course of rehabilitation. A Federal Court judgement in 2002 broadened the definition of rehabilitation well beyond the original intent. As a result, almost everyone in psychiatric confinement is paid. 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 in a psychiatric institution may be considered to be participating in a course of rehabilitation and therefore attract social security payments are based on 2002 Federal Court decision which, as I mentioned, broadened the definition of a course of rehabilitation beyond the original intent. Social security payments are, as you well know, Mr President, provided as a safety net for those in need to help meet daily living needs in the community.

Some state and territory governments are currently using people's income support to help fund their confinement. For example, the Queensland government takes 67 per cent to 85 per cent of a person's pension while they are in psychiatric confinement. A 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.

The measure proposed in this bill will apply if the serious offence with which the person has been charged is a violent one including murder, manslaughter, rape or attempted murder. This change will only impact a small number of people charged with the most serious of offences, as I say, such as rape, murder and other violent crimes. This measure is not intended to punish people or negatively impact on their rehabilitation. The Department of Social Services has consulted with state and territory governments, advocacy groups and other stakeholders to reduce the impact on people's rehabilitation and also to reduce the impact on their reintegration back into the community.

The government understands that social security payments are vital to help people transition back to the community. In certain circumstances where people are integrating back into community, social security payments might resume. The proposition here is that the measure will apply from 1 March 2016.

Just by way of background, a further highlight of the consultation that there has been on this bill was that the Senate Community Affairs Legislation Committee held a public hearing into the bill on 21 March 2015. I understand there were 35-plus submissions. My department also made a submission to the committee and appeared at the hearing. The committee report was tabled on 15 June 2015. This will not come as a surprise but the Senate committee report recommended that the legislation be passed. However, I do acknowledge dissenting reports of the Australian Greens and Labor senators.

I know question time is about to start but just in the remaining time, let me quote from the Department of Social Services opening statement to the committee, which said:

It is important to note at the outset that the Commonwealth income support payments are not paid to support mental health recovery or rehabilitation plans. They are provided to eligible people to meet their daily costs of living in the community.

This is an important point in addressing many of the viewpoints made to the committee.

Debate interrupted.