Jenny McAllister (NSW, Australian Labor Party) Share 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.