Social Services Legislation Amendment Bill 2015 - 10 August 2015


Senator SESELJA: (Australian Capital Territory) (13:20): I rise to speak in support of the Social Services Legislation Amendment Bill 2015. This bill returns the payment of social security to the pre-2002 position where payments were withheld from certain people who are in psychiatric confinement because they have been charged with a serious offence. However, this measure has been updated so that only those charged with a serious offence are covered by this bill. People who have been charged with a non-serious offence will not have their payments withheld.

This government believes that it is important to have a well-targeted social security service. We understand that sometimes people fall on tough times and need a hand to get through. We also understand that some people, for many reasons such as health concerns, are legitimately unable to work and also need a hand to get through. It is appropriate in these circumstances that the government provides a safety net and that is exactly what we are doing and will continue to do. But we also understand, and indeed there is a reasonable community expectation, that those who are receiving such payments also have responsibilities to the community. For those who are able to work we reasonably expect that they will try to find work so that the time they are receiving welfare payments is kept to a minimum, and so they can become self-sufficient and make a contribution to our community and our economy. In these circumstances we also expect that people will have respect for the law and will uphold their responsibilities as citizens. In that context, it is already the law that people convicted of a criminal offence who are serving prison sentences are not eligible for social security payments. This is because food, accommodation and other essentials are provided by the state or territory government by which they are being detained and funding of their treatment and rehabilitation is also covered by the state or territory.

This bill is not, as I said, a new measure. It reflects the approach to social security that has been in the law since 1947 whereby, if you are charged with a serious offence, you are not eligible for social security payments. In this instance, this will apply to those who are in psychiatric confinement because they have been charged with a serious offence. The amendments contained in this bill represent a return to the original policy intent for people who have been charged with a serious offence—so that a person cannot access social security payments while in psychiatric confinement as a result of criminal charges. At present, most people confined in a psychiatric institution may be considered to be participating in a course of rehabilitation and therefore attract social security payments, based on a 2002 Federal Court decision.    Prior to this case, many people in psychiatric confinement because of criminal charges could not receive social security payments.

This change will affect only a small number of people charged with the most serious of offenses such as rape, murder and other violent crimes.    It is estimated that this measure will affect approximately 350 people on implementation and 50 people each year following.    This measure represents a return to the original policy intent for people in these circumstances.    This measure is not intended to punish people or negatively impact on their rehabilitation.

The government understands that social security payments are vital to help people transition back to the community and that is why there are provisions in the bill that provide 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 the person'.

I note that in the Community Affairs Legislation Committee, which I chair, in the process of reviewing and consulting on this legislation, there were some concerns raised about the definition of 'serious offence'. I recognise both the concern showed by some of those giving evidence to the committee as well as by those in the Labor Party who took part in the inquiry. As noted in the committee report, the definition of who this bill affects focuses on serious offences:

The proposed amendment to social security law will only capture those persons who have been charged with a serious offence. The amendments define a serious offence as murder or attempted murder, manslaughter, rape or attempted rape as well as other violent offences that are punishable by imprisonment for life or for a period (or maximum period) of at least seven years.

Some of the submissions expressed concerned that the distinction between serious and non-serious offences was not necessarily appropriate in the context of dealing with mental illness. I understand that point of view and much of the time in the committee was spent on this issue, so I think it is important to spend some time on this issue in this place and to deal with some of the misconceptions about this bill.

In the first instance, I note the intent of providing a distinction between serious and non-serious offences is to actually protect the payments of social security to those people not charged with a serious crime. As noted by the Department of Social Services in their evidence to the committee:

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 was concerned that these individuals not be affected by this measure.

At present, the Social Security Act 1991 restricts payments to a person in psychiatric confinement as a result of being charged with an offence. This legislation in fact expands eligibility so that those charged with non-serious offences are expressly captured by this measure and can remain eligible for payments. The evidence given to the committee also made the important point that the distinction between serious and non-serious offences is not meant to be punitive. Rather, it is intended to reflect that, where people are charged with a serious offence, the duration of detention without needing to pay for reintegration programs was likely to be a long period. As the department further stated:

People who are alleged to have committed serious crimes that do harm or are likely to harm others and who have been incarcerated by the state would usually be confined for a significant period due to the degree and length of time it takes for these patients to be ready to commence integration into the community.

Some submitters further raised concerns that the definition of what constitutes a 'serious offence' is too broad and might capture incidents which do not impose harm on another person or property. However, it is clear in the legislation that acts which do not result in actual harm or are not a property crime that endangers a person do not meet the 'serious offence' test. There were also concerns about the fact that often mental health orders are indefinite and this could impact people in confinement given their payments would cease. Once again, though, there is an important clarification in the legislation which states the removal of payments is not triggered by a mental health order itself, rather it is whether the cause of the mental health order was a charge for a serious offence. In this context, the department has done a lot of work consulting with states and territories to look at what offences would be captured by this legislation and the committee was satisfied that this was done well.

More broadly, there were some concerns raised about the financial impact of the bill as payments are sometimes used by mental health patients to meet ongoing financial obligations such as those to family. In these circumstances, though, it is important to be accurate and specific about the intention of certain government payments and how they are targeted.

In this case, the purpose of social security payments is to provide income support to meet people's daily needs. Where that person is confined by virtue of a state order, it is reasonable that those needs should be met by the state or territory. The Statement of Compatibility with Human Rights outlines that family members, where eligible, are able to receive social security payments in their own right.

I also note that in evidence to the committee it was made clear that many patients used up to 85 per cent of their disability support pension simply to pay for their ongoing treatment. This is an important point because effectively as it was before 2002, state governments, which often run these institutions, would pay for the care of these people. Now we have the situation where the Commonwealth government pays people while they are confined and most of that money goes to the state or territory government running the institution.

Effectively, the pre-2002 situation was that states handled it and that post-2002 we see that in fact it is Commonwealth payments that are being used to subsidise the responsibilities of state and territory governments. This is not the purpose of social security payments, and it is entirely appropriate for the cost of treatment for people in confinement to be met by the states and territories responsible. It simply does not add up that Commonwealth payments to a person should end up going straight back to state and territory governments to fund treatments. Once again, it is important to remember the intent of these social security payments. We as the government have a responsibility to ensure payments are being targeted and used appropriately. This context is also relevant in further concerns raised by submitters, such as the concerns that patients may be able to pay for rehabilitation activities.

Understandably, income support is part of the process of reintegration and rehabilitation. However, these payments are for basic living expenses, and the states and territories are responsible for rehabilitation of those charged with offences. It is important to note, then, that the majority of submissions provided evidence around the impact that the removal of social security payments would have on the general population of forensic mental health patients. However, no submission provided any details specific to the cohort of patients who would be affected by this bill—people who have been charged with a serious offence that involved risk of, or actual, personal harm.

In conclusion, this legislation only applies to people charged with a serious offence. It is a small cohort, and it is important to remember in the debate of this bill that this is who we are talking about. I understand the concerns from the mental health advocates and other organisations who submitted to the committee that people dealing with genuine mental health issues may be disadvantaged. But it is important to remember that this legislation is not new, and that social security law has included an approach such as this since 1947.\

So, let's remember then the broader context here: people who commit serious offences and are imprisoned for a long period of time are not eligible for social security. This is appropriate and in line with community expectations that taxpayer support for people in need is targeted, responsible and goes to those who need it most and who take their responsibilities seriously. Social security payments are provided with the intention that they are for basic living expenses, such as food and accommodation. These expenses are covered by the state or territory responsible when someone is imprisoned or otherwise confined.

It was always the intention of the system that those in psychiatric confinement due to a serious offence would be ineligible. Their expenses are also being met by the state or territory. This legislation restores that intent to the system. Again, I emphasise in concluding that this only affects people who have committed a serious offence—murder or attempted murder, manslaughter, rape or attempted rape, as well as other violent offences that are punishable by imprisonment for life or for a period of at least seven years. People with genuine mental health issues who have not committed serious offences will not be affected.

 

This is reasonable and fair legislation. It reflects the intention of the original system and it reflects good responsible use of taxpayer money. We on this side support a substantial and well-targeted social services system. But we also respect the fact that the community expects us to target government payments appropriately. This legislation is a small step that helps us do the right thing by taxpayers, and I commend this bill to the Senate.