Australian Greens' Dissenting Report
The Australian Greens will not support this Bill, as it makes an
arbitrary distinction about who should access federal support. It will achieve
relatively small savings for the Government but will have a significant impact
on the lives of those who are affected by it.
It seeks to punish those who a court has already found 'not guilty on
the grounds of mental illness' and in doing so, flies in the face of
hundreds of years of jurisprudence. The NSW Mental Health Review Tribunal
stated 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.
Furthermore, 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 were
indefinitely detained without a conviction.
The Australian Greens acknowledge the tireless work of these
under-resourced advocates and thank them for providing detailed submissions to
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. But
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 Australian Greens agree with the arguments put forward by many of
the submitters that:
These persons have a very difficult treatment and
rehabilitation journey ahead of them and society needs to support them in this
The evidence provided to the committee has demonstrated that through
this Bill the Federal Government is abandoning its responsibilities to a small
group of people who are already marginalised and clearly in need of government
The need for greater attention on indefinite incarceration
Governments are really only beginning to come to grips with the
challenges presented by cognitive impairment but this is an issue that is
likely to become more and more pressing because of the rising number of
children born with Foetal Alcohol Syndrome Disorder (FASD).
There is growing evidence of the link between Foetal Alcohol Syndrome
Disorder and socially unacceptable behaviour that sometimes results in harm to
others, if not addressed through a rehabilitative program and ongoing care. But
accessing care and support is often not straight forward. The reality of those
born with FASD is often marked by an inadequate personal support network,
poverty and unstable accommodation.
For these individuals, and many others in psychiatric facilities who
have been charged with a serious crime, but who are not convicted on mental
illness grounds, the relatively small Centrelink payment is a critical form
of financial support.
Inappropriate to draw a distinction between serious and non-serious offence
Advocates for the relatively small group of individuals who will be
affected by this legislation do tireless work to secure support for their
clients. However, mental health funding is inadequate. Removing access to this
basic payment puts their clients further at the mercy of over-stretched state
mental health budgets. There are a number of mental health services who will
run out of funding soon, because of the cuts at both a state and federal level.
This will put pressure on all services but particularly on those who serve
people on the edges of society.
The Government has clearly seen how removing access to Social Security
payments will affect those who are detained by non-serious charges, because by
excluding them from this legislation, they acknowledge that there is a clear
risk that those who are charged with non-serious crimes may become further
removed from the community if their payments are stopped while they are in care
and they cannot continue to pay their rent or mortgage.
But there has been no clear justification provided to the committee as
to why the Department has drawn a distinction based on the nature of the crime.
Federal responsibility to provide basic living costs to those not convicted
of a crime
Despite the attempts by the Department to equate psychiatric confinement
with prison, there has not been sufficient evidence provided to the committee
that there is a precedent for transferring the responsibility for accommodation
and basic living costs from federal to state governments when someone is in a
state-run care facility.
A psychiatric facility is more akin to a nursing home, as it is a place where
care is provided on an ongoing basis. The Federal Government accepts a clear
responsibility to continue to provide for the basic costs of an individual
living in a residential aged care facility. Young people living with a
disability retain access to their disability pensions when they enter a
residential care facility; regardless as to whether that facility is state
operated or run privately. The Federal Government provides for basic living
costs, which are paid to the individual who then (in many instances) transfers
a percentage of this payment to the care facility. This occurs regardless of
whether someone is undertaking a program of rehabilitation or receiving ongoing
care without expectation of being able to leave the facility in the future.
These arrangements exist because the Federal Government has a clear
responsibility, expressed through our Social Security Act, to pay the basic
living costs of those who lack the means to pay themselves. This burden of
responsibility is only shifted when someone has been convicted of a crime and
transferred to a state penal facility.
The submissions make it extremely clear that the people affected by this
Bill have not be convicted of a crime.
In order to be convicted, an individual needs to be legally responsible.
This is clearly not the case here. The NSW Mental Health Review Tribunal sets
this out very clearly in their submission:
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.
The Aboriginal Disability Justice Campaign further summarise the serious
ethical and legal violations that this Bill would enact:
The removal of social security payments amounts to a
punishment of persons who have not been found guilty, in the same manner as if
they had been found guilty and runs contrary to traditional legal principles.
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 there is sufficient evidence to
demonstrate a legal basis for the withdrawal of federal assistance to
individuals detained in psychiatric care
For the reasons outlined above 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'
It is a serious violation of the principles of natural justice to apply
a punishment for a crime that has not being considered by a court. This takes a
new level of significance when we consider cases such as that of Marlon Noble,
who was recently released from 10 years in involuntary psychiatric care after
it was established that was no evidence of his having committed of the serious
offence he was accused of.
The Department acknowledged during the inquiry that it will require
significant education of staff in both 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 is 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 offense across the
country. This assessment cannot be considered in any way equivalent to a ruling
by a court, with its built in safeguards, burdens of proof and clear rights of
The evidence supplied to the committee suggests that the Department is
aware of these natural justice issues and does not mean for the measure to be
punitive, although in practice it clearly will be.
The Australian Greens believe that this punitive effect, intended or not, is
sufficient grounds to oppose the Bill.
Inappropriate to deny support because of duration of stay in psychiatric
The Department's evidence to the committee stated that the use of a
serious offense criteria is not intended to be punitive but rather as a proxy
measurement for the length of time that an individual will be in care.
With this, the Department has also presumed a need for different accommodation
and care arrangements compared to someone charged with a 'non-serious' offence.
Even if this is the case, it does not justify the withdrawal of support
from the Federal Government. There is clearly a range of other ways to resolve
the challenges of providing long-term care that don't involve removing an
individual from the social security safety net. It is the view of the
Australian Greens that the Government has a clear responsibility to meet the
basic living costs of those living with a disability who have no personal
means, whether that is defined as cognitive impairment or as a mental health
disorder. Ensuring their access to Social Security safety net is the best way
for the Federal Government to meet this responsibility.
Consequences of withdrawing Federal support
If the measures in this Bill do pass, submitters have demonstrated that
there will be a very negative affect on their ability to meet the basic living
costs for those affected. For example, the NSW Government states that:
As at 31 March 2015, approximately 154 forensic patients
under the care of Justice Health and Forensic Mental Health Network across the
high-secure Forensic Hospital and three medium-secure units at Bloomfield,
Morisset and Cumberland hospitals would become ineligible to receive social
security payments, one hundred of whom are located in the Forensic Hospital.
For the majority of forensic patients, social security
benefits are the sole source of income and each would lose approximately $981
per fortnight. The Commonwealth Government has a role to play in the funding of
mental health care in Australia as well as the continued provision of social
supports, including social security payments, to the community's most
While the primary objections of NSW in relation to this Bill
relate to the impact on forensic patients, particularly their rights and their
recovery, it is noted that the proposed legislative change would likely result
in an estimated revenue loss to NSW of $3.2 million per annum as patients would
no longer have the financial capacity to contribute to the cost of their care.
Choice and control – a federal responsibility
Even if the Department could demonstrate that withdrawing support to
these individuals would not have serious consequences because State and
Territory Governments had committed to fully replacing it, this is not in the
spirit of the Social Security Act. 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 as highlighted
by the Submission from the Human Rights Commission.
Having a basic living allowance (i.e. 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) over where and how they receive
their rehabilitation or care. This means that 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 affirmed 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 Australian Greens believe that this Bill should be
considered using the same principles.
Period of reintegration
The need for flexible support that is attached to an individual is clear
when considering the likely exit pathway for an individual who has been in a
The Mental Health Commission of New South Wales describe in their
submission how that transition will 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.
WAAMH highlights how slow the community transitions can be, stating:
... it is often the case in Western Australia that an
individual can spend years on a Leave of Absence order of less than six nights.
Yet, the proposition outlined by the Department in the Explanatory
Memorandum would only trigger access to Centrelink payments after spending six
nights of the fortnight in the community.
While it is clear that the Department has spent a lot of time trying to
develop a formula, it is clear that it still leans towards what is
administratively straight forward to administer rather than what is fair. There
is no reason, other than the administrative complexity, as to why payments
cannot be pro-rata based on the time spent in the community.
Being able to pay for accommodation and other basic needs is a critical
component of transitioning out of care. Yet as WAAMH's submission highlights: '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 the right to social security is removed through this
Administrative barriers to re-entry into the community
The clarification that Centrelink would suspend rather than cancel
payments in the first two years reflects the Department's understanding of the
challenges that people transitioning from care will face in re-establishing
themselves in the community.
However, for those re-entering the community after a longer period of
time, there are also clear physical and administrative barriers to establishing
a relationship with Centrelink.
Without an advocate to work with Centrelink to ensure the correct paper
work is filled in and to demonstrate that an individual is close to being
released and will require payments to resume community living, it is impossible
to imagine how an individual who has been in psychiatric care for more than two
years would navigate these challenges. It is also not clear whether Centrelink
will grant access to payments without the individual first re-entering the
community for a period of time.
Yet without access to payments, they will not be able to exit care. The
WAAMH submission shows this through an explanation of the process that is
followed in WA when releasing someone on a custody order:
Under the CLMIA Act, release of people on custody orders is
by the Governor on the advice of the Attorney General and the MIARB. When
making a recommendation to the Attorney General for the release of a person on
a custody order, the MIARB must have regard to the factors outlined in the
CLMIA Act. These include issues pertaining to risk, the person’s need for
treatment and their likely compliance with conditions. The MIARB must also
consider 'the likelihood that, if released, the accused would be able to take
care of his or her day to day needs, obtain any appropriate treatment and
resist serious exploitation'.
The MIARB has no funds to provide individuals under the Act
with housing, support or daily living requirements. Thus, to enable release the
MIARB requires extensive government collaboration to develop a comprehensive
release plan with associated supports. For individuals detained in jail without
access to income support, we understand that in recent years the Disability
Services Commission has funded the purchase of daily necessities on their release,
until the person is able to access income support. This was not the case in
the past however, as no state government agency had previously considered this
its role nor is it a mandated requirement.
This highlights the paradox of this situation where neither state nor
federal government has a mandated responsibility to support individuals in
transitioning from a psychiatric institution. The Australian Greens believe it
would be better for payments to continue, and for a different way of sharing
the costs of basic living between state and federal governments to be
For all of the reasons outlined above, this bill should not proceed.
Amending the definition of serious offence
If the Bill is to proceed, the definition of serious offence should be
tightened up further. The WAAMH submission states that:
The inclusion of property offences in the Bill is
particularly problematic. As defined by the Bill, these would involve 'serious
damage to property in circumstances endangering the safety of a person'. This
may include offences where the only danger to a person was to the unwell
person, because the Bill refers to danger to any person not any other person.
It may also include offences where the person damaged property but was not
aware that anyone else was endangered by this. Such offences should not be
included in 'serious offences'.
The Australian Greens agree with the conclusion of WAAHM that 'property
offences be removed from the Bill, should the Bill proceed'.
Right of appeal
As discussed above, the assessment process that triggers a withdrawal of
federal support payments is not sufficiently robust. If this Bill is to
proceed, then appeal rights must be established.
Those appeal rights should not be simply administrative, but should also
allow for consideration of the evidence that led to a serious offence charge
being laid in the first place.
The appeal rights should be made available in Easy English and
information about how to ask for an appeal should be readily available to the
This Bill is flawed; 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 both the Social Security Act and the UN
Declaration on the Rights of People with Disabilities, and will result in
significant additional barriers to re-integrating 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 that will limit the resources available
to provide appropriate care to those who need it most.
If this Bill does pass, it should be amended to reduce the scope for the
inevitable failures of natural justice that will see individuals punished under
1.50 That the Bill not be passed.
1.51 That the Federal Government continues to work
with its state and territory counterparts to establish an alternative method of
sharing the costs of gradual reintegration into the community and reflects the
intention of both the Social Security Act and the UN Convention on the Rights
of Persons with Disabilities.
1.52 That if the Bill is to pass, the definition of
serious offence should be improved so as to clarify that it refers only to harm
to others (not self-harm) and references to property offences should be
1.53 That if the Bill is to pass, a robust appeal
right is established and access to that right is clearly explained in Easy
English documents, so as to ensure that a ruling on whether the charges
constitute a serious offence can be appealed, not merely on administrative
grounds but also on evidentiary ones.
Senator Rachel Siewert
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