Christopher Back (WA, Liberal Party) Share 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.