Rachel Siewert (WA, Australian Greens) Share 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.