Bills Digest no. 108 2014–15
PDF version [641KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Don Arthur, Social Policy Section
Jonathan Mills, Law and Bills Digest Section
26 May 2015
Contents
The
Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Position of major interest groups
Financial implications
Key issues and provisions
Concluding comments
Date introduced: 25
March 2015
House: House of
Representatives
Portfolio: Social
Services
Commencement: 1 July
2015.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
In some circumstances a person suffering from mental
impairment can be held in psychiatric confinement after being charged with an
offence even though they have not been convicted. This can happen when they are
found unfit to stand trial because of mental impairment or are found not guilty
because of mental impairment. People in this group are referred to as forensic patients.
Currently forensic patients are able to receive income
support payments such as Disability Support Pension (DSP) if they are
undertaking a course of rehabilitation. It appears that most are undertaking a
course of rehabilitation and may be using their income support payments to pay hospital
or accommodation fees related to their confinement. The Government has argued
that this raises the issue of cost shifting from states and territories to the
Commonwealth.
The Social Security Act 1991 (the Act) states that people
in psychiatric confinement because they have been charged with an offence cannot
receive income support payments such as DSP. However, if they are undertaking a
course of rehabilitation they are taken to be not in psychiatric confinement
for the purpose of the Act and can receive income support payments.
Before 2002, the Department of Social Security (and then
Centrelink) interpreted ‘course of rehabilitation’ narrowly when they administered
the Act. However in a 2002 case, the Federal Court upheld a broader
interpretation of ‘course of rehabilitation’ and Centrelink responded by
incorporating the broader interpretation into its guidelines.
As a result of the change in the interpretation of ‘course
of rehabilitation’ a larger number of forensic patients are now able to receive
income support payments. The Government argues that the current situation does
not reflect the original policy intent. The Social Services Legislation Amendment
Bill 2015 (the Bill) amends the Act so that people who are undergoing
psychiatric confinement because they have been charged with a serious offence
cannot receive social security payments except during a period when they are
being integrated back into the community. The current arrangements will
continue to apply for those undergoing psychiatric confinement because they
have been charged with a non-serious offense. It is not clear why the
Government has adopted this approach rather than attempting to legislate a
narrower definition for ‘course of rehabilitation.’ Neither the Explanatory Memorandum
nor the Minister’s second reading speech give a rationale for the distinction
between serious and non-serious offences.
The Parliamentary Joint Committee on Human Rights has raised
concerns about the Bill and the inadequacy of the Government’s explanation of
the measures in the Bill. The right to social security is protected by Article
9 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR). The Committee drew attention to the principle in international human
rights law which requires a ‘backward step’ to be given particular attention. Measures
that involve a retrograde step with respect to this human right need
particularly careful justification, which the Committee considers has not been
provided. The Committee has therefore sought additional information from the
Minister.
The Government argues that this is a return to the original
policy intention and expects the Bill to produce savings of $29.5 million over
the forward estimates.
Interest groups have raised a number of concerns with the
Bill. These include a concern that the distinction between serious and
non-serious offences is not relevant for decisions about eligibility for income
support; that loss of access to income support payments would hinder patient
recovery and reintegration into the community; that it discriminates against
people because they have a mental illness or other impairment; and that it
unfairly treats these patients in the same way as people who have been
convicted of a crime.
The purpose of the Social Services Legislation Amendment
Bill 2015 (the Bill) is to amend the Social Security Act 1991 (the Act) so
that people who are undergoing psychiatric confinement because they have been
charged with a serious offence cannot receive social security payments except
during a period when they are being integrated back into the community.[1]
The Bill contains one schedule consisting of items that introduce
new subsections 23(9A) to (9F) and other consequential amendments
to the Act.
In some circumstances a person suffering from mental
impairment can be held in psychiatric confinement after being charged with an
offence even though they have not been convicted. This can happen when they are
found unfit to stand trial because of mental impairment or are found not guilty
because of mental impairment. People in this group are referred to as forensic
patients.
Mental impairment is a broad category that covers
psychiatric impairment due to mental disorders such as schizophrenia and
bipolar disorder as well as intellectual disability, acquired brain injury and
other conditions that impair mental functioning.[2]
Forensic patients are usually released from custody through
a staged process. For example, before the court considers discharging them into
the community, forensic patients from Victoria’s Thomas Embling Hospital
generally undertake an 18 to 24 month program of graduated supported leave.[3]
Currently people in psychiatric confinement because they
have been charged with an offence can receive payments such as Disability
Support Pension (DSP) if they are undertaking a course of rehabilitation. A
2014 report in The Daily Telegraph referred to this as a ‘loophole’.[4]
Under section 1158 of the Act:
An instalment of a social security pension, a social security
benefit, a parenting payment, a carer allowance, a mobility allowance or a
pensioner education supplement is not payable to a person in respect of a day
on which the person is:
(a) in gaol; or
(b) undergoing psychiatric confinement because the person has
been charged with an offence.
Psychiatric confinement is defined by subsection 23(8) of
the Act to include ‘confinement in a psychiatric section of a hospital, and any
other place where persons with psychiatric disabilities are, from time to time,
confined.’ However, subsection 23(9) states: ‘The confinement of a person in a
psychiatric institution during a period when the person is undertaking a course
of rehabilitation is not to be taken to be psychiatric confinement.’ The Social
Security Act 1947 contained a similar subsection that referred to people
‘undertaking a course of rehabilitation.’[5]
This was introduced in a 1986 amendment. Neither the 1947 Act nor the current
Act made a distinction between serious and non-serious offences.
In administering the Act the Department of Social Security
(and then Centrelink) interpreted ‘course of rehabilitation’ narrowly. However in
a series of cases where income support recipients challenged this
interpretation in the Administrative Appeals Tribunal (AAT) a broader
interpretation has been developed. In a 2002 case, the Federal Court upheld a
broad interpretation. Centrelink responded by incorporating the broader
interpretation into its guidelines.
Recent media coverage — the Toki
case
This issue attracted little public attention until recently.
In March 2014 The Daily Telegraph’s Geoff Chambers reported that
convicted murderer Martin Toki had applied for and received a DSP while being
held at Long Bay prison hospital.[6]
Centrelink had cancelled his payment after discovering that he was serving a 22
year sentence for murdering his de facto wife in 2001. The case attracted media
attention when Toki unsuccessfully appealed the decision in the Administrative
Appeals Tribunal (AAT), but was not required to repay the money as the AAT
characterised the payments as an administrative error by Centrelink.[7]
AAT senior member Jill Toohey found that Toki was not
eligible for DSP. According to the Social Security Act 1991, a person
who is in gaol cannot receive DSP (or other pension or social security
benefits). However, she acknowledged that some people being held as ‘forensic
patients’ could receive payments such as DSP.
According to The Daily Telegraph, Human Services
Minister Marise Payne asked ‘the department to investigate this urgently with a
view to determining if there are further cases of similar payments that require
immediate review’.[8]
While Toki was ineligible for DSP because he was serving a
sentence after being convicted of an offence, the case drew attention to the
fact that some people charged with serious offences could legitimately receive
income support payments while they were held in psychiatric confinement. Their
eligibility would in part depend on whether they were undertaking a course of
rehabilitation.
The Government’s rationale for the
measure
The Bill implements a savings measure announced in the
Government’s 2014–15 Mid-Year Economic and Fiscal Outlook (MYEFO):
The Government will achieve savings of $29.5 million over
four years from 2014–15 by ceasing payment of social security benefits to
people who are incarcerated or confined in a psychiatric institution under
state or territory law due to serious criminal charges because they were
considered unfit to stand trial or were not convicted due to mental impairment.
This will ensure the same social security treatment of people in the criminal
justice system whether they reside in a psychiatric or penal institution.[9]
Officers of the Department of Social Services (DSS) explained
a rationale for the measure in response to questions in Senate Estimates
hearings. According to Cath Halbert, manager of the Payments Policy Group:
Currently under the Social Security Act, you cannot be paid
income support payments if you are in jail because you have been charged and
convicted; or if you are in jail because you have been charged and you are on
remand; or if you have been charged and you are in psychiatric confinement but
either have been unable to plead because you are unfit to plead or you have had
a conviction but it has not been recorded by dint of mental impairment. So that
is established policy in the Social Security Act now.
However, there is an exception for psychiatric confinement,
that if you are undergoing a course of rehabilitation you are considered not to
be in psychiatric confinement. I can go into that a little. In 2003 [sic] a
Federal Court case significantly broadened the definition of ‘course of
rehabilitation’ such that almost anybody who had been charged and who was in
psychiatric confinement could be paid income support payments. That was not the
original intention of the measure. In this case I guess the government has
decided to reinstate the original intention of the measure for people who have
been charged with serious crimes.[10]
Social Services Minister Scott Morrison reiterated this
rationale in his second reading speech where he referred to the Federal Court
case and stated: ‘This essentially represents a return to the original policy
intention for people in these circumstances—that a person cannot access social
security payments while in psychiatric confinement as a result of criminal
charges.’[11]
The original policy intent
The policy originates with a 1985 amendment to the Social
Security Act 1947. Prior to the amendment there was a general rule that a
person could not receive an income support payment if they were imprisoned in
connection with their conviction for an offence. The amendment extended that
rule to people who were confined in a psychiatric institution after having been
charged with an offence.[12]
The following year the bar on payments to people in
psychiatric confinement was modified by another amendment that added a new
subsection. According to the Explanatory Memorandum for that Bill, the new
subsection:
... would modify the effect of the bar on payment of an income
support payment under the Principal Act to a person confined in a psychiatric
institution after being charged with an offence. The new provision would not
apply the bar to such a person who was undertaking a course of rehabilitation.
The modification would also apply retrospectively, so that persons adversely
affected by the current bar could be restored to their previous position.[13]
This exception to the bar on payment of income support was
carried over into subsection 23(9) of the Social Security Act 1991 (a
rewrite of the 1947 Act). According to the subsection:
The confinement of a person in a psychiatric institution
during a period when the person is undertaking a course of rehabilitation is not
to be taken to be psychiatric confinement.[14]
In 1999 the AAT considered the meaning of ‘course of
rehabilitation’ in Re Fairbrother.[15]
In making his decision, Deputy President Blow noted that neither the Explanatory
Memorandum nor the second reading speech were of any use in determining the
meaning. However he concluded that ‘Parliament had in mind a formal course of
rehabilitation with a finite duration, a structure, a beginning and an end’.[16]
In two later cases the AAT rejected Deputy President
Blow’s interpretation of ‘course of rehabilitation.’ In Re Pardo Senior
Member John Handley rejected the claim that a course of rehabilitation must
have a finite duration. Instead he found a period in which a person undertakes
a course of rehabilitation ‘will of course involve a structure and a beginning
and an end but all of which may be flexible and may need to be reviewed from
time to time.’[17]
In Re Franks, Senior Member Keith Beddoe applied this reasoning when he
found that Cyril Franks was undertaking a course of rehabilitation and was
entitled to DSP.[18]
Franks had been receiving DSP when he was charged with an
indictable offence and found unfit to plead. He was transferred to a
psychiatric hospital with criminal proceedings against him deferred while he
remained unfit to stand trial. After Centrelink suspended his payment he
successfully appealed to the Social Security Appeals Tribunal (SSAT). The
Secretary of the Department of Family and Community Services then appealed to
the AAT arguing that Franks was not undertaking a course of rehabilitation.
The Department then took the issue to the Federal Court where
Justice Richard Cooper set aside the SSAT’s decision without reaching a view
about the meaning of ‘course of rehabilitation’.[19]
Franks responded by appealing the decision in the Federal Court. This appeal was
successful.
In this appeal the Court returned again to the issue of
how to interpret ‘course of rehabilitation’ finding that, depending on the
circumstances of the case, ‘a
planned series of activities that may include medical and other treatments
directed towards improving the person’s physical, mental and/or social
functioning’ could be a ‘course of rehabilitation’.[20]
Senate Community Affairs Legislation
Committee
The Bill has been referred to the Senate
Community Affairs Legislation Committee for
inquiry and report by 15 June 2015. Details of the inquiry are at the inquiry
webpage.[21]
Parliamentary Joint Committee on
Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[22]
In its Twenty-second Report of the 44th Parliament
the Human Rights Committee found the statement of compatibility inadequate and requested
the Minister to provide further information regarding the justification for the
measures in the Bill, which otherwise might be seen to have contravened the
right to social security protected by Article 9 of the International Covenant
on Economic, Social and Cultural Rights (ICESCR).[23]
The Committee explained that this right ‘recognises the importance of adequate
social benefits in reducing the effects of poverty and plays an important role
in realising many other economic, social and cultural rights, particularly the
right to an adequate standard of living and the right to health.’ The Committee
also observes that ‘[u]nder Article 2(1) of ICESCR, Australia has certain
obligations in relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.[24]
In the light of these requirements that Committee found that
the Minister has not provided sufficient information to justify the provisions
in the Bill, which limit the right to social security, and in particular the
Committee has asked for further information regarding:
- whether the proposed changes are aimed at achieving a legitimate
objective;
- whether there is a rational connection between the limitation and
that objective; and
- whether the limitation is a reasonable and proportionate measure
for the achievement of that objective.[25]
Submissions from interest groups were critical of the Bill,
arguing that it should not proceed in its current form. Interest groups
expressed a number of common concerns. These are outlined below.
Original policy intent
The Victorian Institute of Forensic Mental Health challenges
the idea that policymakers intended to exclude most forensic patients from
income support payments before 2002:
... 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. This remains the position to date.[26]
Forensic patients should not be
treated in the same way as those convicted of a crime
According to the National Mental Health Commission: ‘The Bill
fails to recognise the significant difference in legal status between those
convicted of a criminal offence, and those who are not convicted due to mental
illness or intellectual disability.’[27]
Many submissions made the same point and noted that the
purpose of psychiatric confinement is care, rehabilitation and the protection
of the community rather than punishment and deterrence.[28]
In its submission, the Victorian Government noted its concern:
... that the Bill discriminates against people who have been
found by a court to have no criminal responsibility for their offending
behaviour because of mental impairment. It is a well established sentencing
principle that persons who are not morally culpable for their offending
behaviour should not be punished.[29]
The Bill discriminates against
people with a mental impairment
Along with a number of other submissions, Mental Health
Australia’s submission argued that: ‘The Bill should not proceed in its current
state, as it further entrenches systemic discrimination against people with a
mental illness.’[30]
The National Mental Health Commission argued that in one
respect, the Bill treats forensic patients less favourably than people
convicted of an offence:
Under proposed subsection 23(9D), the Bill proposes to remove
a person’s access to social security payments even during periods of leave
outside the psychiatric institution, if this is not taken to be a period of
integration back into the community. No such provisions exist for people found
guilty of an offence who are on periodic detention – they instead receive
social security payments for any days outside detention. The Commission is
concerned that this provision, in its present form, appears to discriminate against
persons with a mental illness or intellectual disability.[31]
The distinction between serious and
non-serious crimes is not relevant
A number of submissions argued that the distinction between
serious and non-serious crimes is not relevant to eligibility for income
support. According to the National Mental Health Commission:
The nature of the offence with which a person was charged –
but not convicted – should not define whether they are taken to be in
psychiatric confinement or undertaking a course of rehabilitation, nor should
it be relevant to whether they have access to social security payments.[32]
The South Australian Public Advocate argues that
distinguishing between people charged with serious crimes and those charged
with non-serious crimes undermines the Government’s argument that state and
territory governments should be responsible for the cost of supporting forensic
patients.[33]
Impact on rehabilitation and
reintegration
Many submissions argued that the proposed measure would have
a negative impact on rehabilitation and reintegration.
According to the National Mental Health Commission, ‘The
practical effect of removing access to social security payments would be
detrimental to rehabilitation and recovery for people with a mental illness ...”[34]
Professor Dan Howard SC, President of the NSW Mental
Health Review Tribunal argues that, if passed, the proposal will ‘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.’ He notes that NSW has over 400
forensic patients (the largest number of any Australian jurisdiction) and that
the majority have been charged with offences that would fall within the Bill’s definition
of ‘serious offence.’[35]
A submission by the Victorian Government argues that the
Bill will limit the effectiveness of a highly successful model of
rehabilitation that involves a gradual release into the community.[36]
Explaining how income support helps people move from confinement back into the
community, one Victorian patient said: ‘In order to be discharged we need to
have housing, many of us rent houses prior to discharge and would not be able
to fund renting a home without the pension.’[37]
Need for consultation with states and territories
In some cases when forensic patients have been receiving
income support, state and territory government institutions have taken a share
of the payment as a fee. Matthew Butt of the Welfare Rights Network has raised
concerns that suddenly removing a source of funding may affect the quality of
care available to those in psychiatric confinement. He argues that there needs
to be more consultation with experts and state and territory governments.[38]
The National Mental Health Commission has raised similar concerns. The
Commission acknowledges:
... that there may be worthwhile policy and budgetary questions
to explore about the adequacy of current funding arrangements, in which
rehabilitation is subsidised by those undertaking a course of rehabilitation
(using Commonwealth social security payments) rather than States or
Territories. However, moving to alter the situation rapidly (as per the Bill)
could result in significant funding shortfalls that would impact on a person’s
rehabilitation and place greater financial burden on the individual’s family
and support people. Practical discussions between the Commonwealth and the
States and Territories should be undertaken before such provisions are put into
effect.[39]
The Government expects the Bill to produce savings of
$29.5 million over the forward estimates.[40]
Meaning of ‘course of
rehabilitation’
According to departmental officers (see background above),
the Federal Court interpreted ‘course of rehabilitation’ in a broader way than
the drafters intended.[41]
The Bill does not attempt to impose a narrower interpretation and allows the Federal
Court’s interpretation to stand, instead creating specific provisions that will
preclude those charged with a ‘serious offence’.
The term ‘course of rehabilitation’ appears currently in section
23(9) of the Act, which states: ‘The confinement of a person in a psychiatric
institution during a period when the person is undertaking a course of
rehabilitation is not to be taken to be psychiatric confinement.’[42]
The Bill proposes the insertion of an exception to this ‘course of
rehabilitation’ provision in the case of serious offenders, rather than more
generally narrowing the meaning of ‘course of rehabilitation’.
Introduction of a distinction
between serious and non-serious offences
The Bill introduces a distinction between serious and
non-serious offences. New subsection 23(9A), at item 6 of the
Bill, states that subsection 23(9) does not apply to a person whose confinement
in a psychiatric institution is because they have been charged with a serious
offence.
The Bill provides a definition of ‘serious offence’ in two new
subsections: 23(9E) and 23(9F).
The distinction between serious and non-serious offences
appears to be a new addition to the Act not directly related to the original
policy intent.
Meaning of Serious Offence
New subsection 23(9E) provides that an offence is a
serious offence if it is murder or attempted murder, manslaughter or rape or
attempted rape.
New subsection 23(9F) further provides that an
offence is also a serious offence if it is an offence against the law of the
Commonwealth or a state or territory, punishable by imprisonment for life or
for a period, or maximum period, of at least seven years, and if the conduct
constituting the offence involves:
- loss
of life or serious risk of loss of life
- serious
personal injury or serious risk of serious personal injury or
- serious
damage to property in circumstances endangering the safety of a person.
The additional offences which would be included by proposed
subsection 23(9F) have been criticised as being too broad and for possibly including
property damage offences in which the offender was the only person injured or
at risk, or in instances of arson where there may have been no awareness of any
danger to other people.[43]
By way of comparison, the term ‘serious offence’ is used in many
other pieces of legislation. The term is defined differently in many instances
and is adapted according to the circumstances.
For example, under the Proceeds of Crime Act 2002
(Cth),[44]
a ‘serious offence’ is defined as an offence which is punishable by three years
or more imprisonment and various other offences defined in section 338.
Generally the offence in question must be a financial crime under the Criminal
Code Act 1995 or involve a financial benefit or loss of at least
$10,000.
Under the Criminal Code Act 1995, a serious offence is
variously defined as one which, for example, attracts a penalty of at least 12
months, two years or five years imprisonment.[45]
Under the Migration Act 1958, a ‘serious Australian
offence’ means an offence against a law in force in Australia, where the
offence is punishable by imprisonment for life or not less than three years,
and involves violence against a person; is a serious drug offence; involves
serious damage to property; or is one of certain offences relating to
immigration detention.[46]
Finally, the Telecommunications (Interception and
Access) Act 1979 defines serious offences as offences involving murder,
kidnapping, terrorism and other higher level offences under the Criminal
Code, as well as offences punishable by imprisonment
for life or at least seven years and which
involve harm or risk of harm to a person, or arson, trafficking, fraud or
corruption.[47]
The definitions proposed in subsection 23(9E) and paragraph
23(9F)(a) may thus be considered to fall within the higher range of seriousness
of offences covered by the term elsewhere. However, as noted by National Welfare
Rights Network, the phrasing of subparagraphs 23((F)(b)(i) to (iii) expands the
scope of the term to include offences in which the endangerment or harm to a
person may be ancillary to the offender’s behaviour. [48]
This broadening of scope is mitigated by the requirement in paragraph 23(9F)(a)
that such offences be punishable by imprisonment for life or a maximum term of
at least seven years.
The criticisms regarding the possible inclusion of an
offence such as arson, or other damage in in circumstances in which no other
person was put at risk, should also be considered in light of the seriousness
with which Australian jurisdictions consider such offences.[49]
Overall, however, arguments about the appropriate boundaries
for ‘serious’ and ‘non-serious’ offences would seem to miss the key criticism
of the Bill, which focuses on the principle that the offender in all these
cases has not been found guilty of any criminal offence due to their
psychiatric condition. Thus distinctions between serious and non-serious
offences are immaterial, since none of the offenders can be regarded as
‘morally culpable’, however serious the offence. The offences were performed by
a person who has been found incapable of bearing guilt on the grounds of their
psychiatric condition and they do not, therefore, possess the requisite degree
of moral culpability, however much the charge itself may reflect a distinction
between serious and non-serious offences.
Period of integration back into the
community
The Bill allows a person confined in a psychiatric
institution because they have been charged with a serious offence to receive
income support payments during ‘a period of integration back into the
community.’ It does this in new subsections 23(9B) and 23(9C) which provide
that a period of integration back into the community is not taken to be
psychiatric confinement.
The Bill does not define ‘a period of integration back into
the community’ but provides for the Minister to determine whether a period is a
period of integration into the community through a legislative instrument. The
Department of Social Services has been consulting with state governments about
how they integrate people back into the community.[50]
The previously discussed need to justify any ‘backward step’ in relation to the
right to social security will be made more difficult in the case of
arrangements to be made by legislative instrument, which would preclude
consideration of the precise arrangements by the Human Rights Committee.
The Explanatory Memorandum notes that ‘(i)t is appropriate
for a period of integration back into the community to be worked out in
accordance with a legislative instrument to enable the relevant factors to be
set out with the necessary detail and to allow for modification of the period
over time’.[51]
However, the National Welfare Rights Network has noted that this definition affects
basic income support qualifications and believes that, as a result, the main
criteria for such periods should be set out in legislation.[52]
Responsibilities of the states/territories
and the Commonwealth
One of the effects of the 2002 Federal Court decision in Franks
v Secretary, Department of Family and Community Services was to shift responsibility
for supporting certain people in psychiatric confinement away from state and territory
governments towards the Commonwealth. When people in psychiatric confinement
receive income support payments, state and territory governments may be able to
capture some of this income by charging accommodation fees.[53]
A consequence of this Bill may therefore be that state and territory
governments experience some reduction in the income derived from payments which
would no longer be provided to persons undergoing psychiatric confinement
because they have been charged with a serious offence.
In his second reading speech for the Bill, Minister Morrison
stated: ‘it is the relevant state or territory government that is responsible
for taking care of a person's needs while in psychiatric confinement, including
funding their treatment and rehabilitation.’ However he also acknowledged that
‘a social security payment will continue to be payable to a person who is
undergoing psychiatric confinement because the person has been charged with an
offence that is not a serious offence, if a person is undertaking a course of
rehabilitation’.[54]
While the Bill pushes responsibility for support back
towards state and territory governments, it does not directly enforce the
principle that the care of people in psychiatric confinement is a state and territory
responsibility.
Allowing people in psychiatric confinement to receive income
support payments after they have been charged with a serious offence is a
politically sensitive issue. On a number of occasions the issue has attracted
critical media attention.
In 2002 The Age’s Padraic Murphy reported:
Some of Victoria's most dangerous individuals are building
financial nest eggs worth up to $50,000 from fortnightly disability pensions
being paid to them in the state's highest security hospital for the criminally
insane.
... A spokesman for the federal Health and Community Services
Minister, Amanda Vanstone, said there were about 400 forensic psychiatric
patients receiving pension benefits nationwide.
He said the minister was considering a review of the
legislation.
"Successive governments have tried to tighten the rules
in this area, but have consistently met with resistance. It's another example
why the disability support pension needs to be looked at under welfare
reform," the spokesman said.[55]
On the other hand cutting the Disability Support Pension to
psychiatric patients can also be a sensitive issue, with headlines such as ‘[w]arnings
as welfare cut for mentally-ill’ provoking concern amongst other sections of
the community.[56]
The stated intent of the Bill is to return to the original
policy intent for people who have been charged with a serious offence, whereby
prior to the 2002 Federal Court decision, people who had been in psychiatric
confinement after being charged with criminal offences were not able to access
social security payments.
The Bill defines serious offence but has been criticised for
drawing an arbitrary distinction between serious and non-serious offences for
the purposes of restricting social security payments.
The Government has asserted that it is appropriate to
withhold payments in these circumstances because ‘(w)hile the person is
undergoing psychiatric confinement, the relevant state or territory government
is responsible for taking care of their needs, including funding their
treatment and rehabilitation.’[57]
Interest groups have argued that income support payments
help a vulnerable group of patients to rehabilitate while in detention and to
build up modest savings that help them reintegrate with the community on
release.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Social Security Act 1991,
accessed 25 May 2015.
[2]. Department
of Social Services (DSS), ‘3.1.4.10 situations
that constitute being in gaol or psychiatric confinement’, Guide to Social Security Law, DSS website, 20
March 2015, accessed 2 April 2015.
[3]. Forensicare,
The
public housing needs of offenders with a mental illness: submission to Family
and Community Development Committee, Inquiry into the Adequacy and Future
Directions of Public Housing in Victoria, Victorian Institute of
Forensic Mental Health, 2010, p. 4, accessed 30 March 2015.
[4]. G
Chambers, ‘Prisoner
Martin Toki was mistakenly paid a disability support pension while in Long Bay
jail’, The Daily Telegraph, 26 March 2014, accessed 30
March 2015.
[5]. Social Security Act 1947
(Cth), subsection 167(8), accessed 1 April 2015.
[6]. G
Chambers, ‘Prisoner
made a killing on pension’, The Daily Telegraph, 26 March
2014, p. 3, accessed 7 May 2015.
[7]. Toki
and Secretary, Department of Social Services [2014] AATA 144,
accessed 7 May 2015.
[8]. G
Chambers, ‘Prisoner
made a killing on pension’, op. cit.
[9]. Australian
Government, Budget
2014–15: mid-year economic and fiscal outlook, Commonwealth of
Australia, accessed 26 March 2015.
[10]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 26 February 2015, pp. 184–85, accessed 25 May 2015.
[11]. S
Morrison, ‘Second
reading speech: Social Services Legislation Amendment Bill 2015’, House of
Representatives, Debates, 25 March 2015, p. 3353, accessed 2 April
2015.
[12]. Explanatory
Memorandum, Social
Security and Repatriation Legislation Amendment Bill 1985, p. 7, accessed 2
April 2015.
[13]. Explanatory
Memorandum, Social
Security and Veterans' Affairs (Miscellaneous Amendments) Bill 1986, p. 59,
accessed 2 April 2015.
[14]. Social Security Act 1991,
accessed 25 May 2015.
[15]. Fairbrother;
Department of Family and Community Services [1999] AATA
580, accessed 2 April 2015.
[16]. Ibid.,
[21].
[17]. Pardo
and Department of Family and Community Services [2000] AATA
1105, accessed 2 April 2015.
[18]. Franks;
Department of Family and Community Services [2001] AATA
738, accessed 2 April 2015.
[19]. Secretary,
Department of Family and Community Services v Franks [2002] FCA 575,
accessed 2 April 2015.
[20]. Franks
v Secretary, Department of Family and Community Services [2002] FCAFC
436, accessed 2 April 2015.
[21]. Senate Standing Committee on Community Affairs,
Inquiry into the Social Services Legislation Amendment Bill 2015, The Senate, 2015, accessed 25 May 2015.
[22]. The
Statement of Compatibility with Human Rights can be found at page 1 of the
Explanatory Memorandum to the Bill: Explanatory Memorandum, Social
Services Legislation Amendment Bill 2015, accessed 26 May 2015.
[23]. Parliamentary
Joint Committee on Human Rights, Twenty-second
report of the 44th Parliament, The Senate, 13 May 2015, pp. 105–107,
accessed 16 May 2015.
[24]. Ibid.,
pp. 105–106.
[25]. Ibid.,
p. 107.
[26]. Victorian
Institute of Forensic Mental Health, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment Bill 2015, May 2015, p. v, accessed
25 May 2015.
[27]. National
Mental Health Commission, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment Bill 2015, 15 May 2015, p. 1,
accessed 25 May 2015.
[28]. Western
Australian Association for Mental Health,
Submission to Senate Community Affairs Legislation Committee, Inquiry
into the Social Services Legislation Amendment Bill 2015, 15 May 2015,
accessed 25 May 2015.
[29]. Victorian
Government,
Submission to Senate Community Affairs Legislation Committee, Inquiry
into the Social Services Legislation Amendment Bill 2015, 12 May 2015,
accessed 25 May 2015.
[30]. Mental
Health Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment Bill 2015, May 2015, p. 4, accessed
25 May 2015.
[31]. National
Mental Health Commission, op. cit., p. 3.
[32]. Ibid.,
p. 2.
[33]. South
Australian Public Advocate, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment Bill 2015, May 2015, pp. 9–10,
accessed 25 May 2015.
[34]. National
Mental Health Commission, op. cit., p. 1.
[35]. NSW
Mental Health Review Tribunal, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment Bill 2015, 22 April 2015, pp. 1–2,
accessed 25 May 2015.
[36]. Victorian
Government, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment Bill 2015, 12 May 2015, accessed 25
May 2015.
[37]. Forensicare
Patients, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment Bill 2015, 8 May 2015, p. 3, accessed
25 May 2015.
[38]. M
Butt, ‘Bill
to restrict income support payments to people in psychiatric confinement’,
WelfareWrites weblog, 26 March 2015, accessed 2 April 2015.
[39]. National
Mental Health Commission, op. cit., p. 2.
[40]. Explanatory
Memorandum, Social
Services Legislation Amendment Bill 2015, accessed 25 May 2015.
[41]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 26 February 2015, p. 185, accessed 26 May 2015.
[42]. Social Security Act 1991,
accessed 25 May 2015.
[43]. M
Butt, op. cit.
[44]. Proceeds of Crime Act
2002 (Cth), accessed 26 May 2015.
[45]. Criminal Code Act 1995
(Cth), sections 71.9, 117.1 and 473.1, accessed 26 May 2015.
[46]. Migration Act 1958,
section 5, accessed 26 May 2015.
[47]. Telecommunications
(Interception and Access) Act 1979, section 5D, accessed 26 May
2015.
[48]. National
Welfare Rights Network, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the
Social Services Legislation Amendment Bill 2015, 2015, p. 5, accessed 25
May 2015.
[49]. Australian
Institute of Criminology, ‘Summary
of arson legislation - indictable offences’, Australian
Institute of Criminology website, accessed 7 May 2015.
[50]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 26 February 2015, p. 130, accessed 2 April 2015.
[51]. Explanatory
Memorandum, Social
Services Legislation Amendment Bill 2015, op. cit., p. 5.
[52]. National
Welfare Rights Network, Submission
to Senate Community Affairs Legislation Committee, op. cit., p. 7.
[53]. While
it is not clear how common the practice of charging accommodation fees is, it
clearly takes place in some jurisdictions. For example, in a letter to Minister
Morrison, the South Australian Public Advocate John Brayley wrote:
As they are
long term patients Health Departments or Disability Providers can appropriately
charge for accommodation and expenses, as is the case for other long stay
patients in the health system. I understand in South Australia in the health
setting, this can correspond to a rent of up to 87.5% [of] the pension. As a
person then transitions into the community, they also use their own money to
budget for food and other expenses. (J Brayley, Letter to Scott Morrison,
Minister for Social Services, 11 May 2015, accessed 11 May 2015).
[54]. S
Morrison, op. cit.
[55]. P
Murphy, ‘Row
over benefits to criminally insane’, The Sunday Age,
14 April 2002, accessed 2 April 2015.
[56]. R
Yosufzai, ‘Warnings
as welfare cut for mentally-ill’, The Sydney
Morning Herald (online edition), 23 December 2014, accessed 25 May
2015.
[57]. Explanatory
Memorandum, Social Services Legislation Amendment Bill 2015, op. cit., p. 1.
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