Social Services Legislation Amendment Bill 2015 Bills

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)


(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.