Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share 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)