Social Services Legislation Amendment Bill 2015

I want to start by saying that I think one of the most unfortunate tendencies of some on the other side of this chamber—some, not all—is the propensity or the reflective instinct to question the motives and intentions of people on this side of the chamber.

I personally think all of us come to this place with good intentions. I believe all 226 elected members of parliament, including the 76 in this chamber, have come to this place to try and make this country a better place, to try and provide for all Australians and to do so in a way consistent with their own philosophies and values. We will often disagree, and rightly so, on those values, the philosophies and the ways and means of achieving those objectives. I think it would be a better starting place if we actually all accepted that we do want to make this country a better place and we do have good intentions.

The effects of our policies might not accord with those intentions. The wisdom of what we want to do may be incorrect, and it is right and proper for people to try and point that out; however, a number of speakers on this bill have not sought to question the impact or the effects of the bill but have actually sought to question the intention behind it: that there is some notion that we are doing this not because we think it is a good and a proper policy but because we are just simply mean-spirited individuals.

Senator Wright, who has now left the chamber, I think I am a good person. I try and do good in my life. I am sure I am not always successful at that but I try; and I believe Senator Wright is a good person as well. I think all of us here are genuinely good people. The reason this bill is being put in place is not in any sense a vindictive or, in the words of Senator Wright, mean-spirited policy; it is simply an adjustment to the way we pay social security at the moment. There have always been provisions in the Social Security Act to restrict payments to those in confinement. Indeed, I am informed that since 1908 there have been provisions in social security law that restrict payments to persons undergoing psychiatric confinement.

Currently, the Social Security Act 1991 restricts certain social security payments from being made to persons who are in gaol or psychiatric confinement following being charged with any offence. There have been similar measures in social security law since at least 1947. This is simply an adjustment to provisions that already exist in our law that have persisted through governments of various colours and changes, and we have a very specific instance here of payments being made to individuals that are in confinement.

I accept at the outset that people could disagree on these adjustments but, again, I make the point that these are not being made in a mean-spirited way. They will in fact affect 350 people currently in Australia and, if they are put in place, around 50 people per year, depending of course on convictions, will be affected going forward. It is not an enormous number of Australians but of course, for those individuals affected, it is not an insignificant issue.

The bill would save around $30 million over the forward estimates—again, not a substantial amount of money in the context of a close to $1.5 billion budget over the forward estimates. Again, we are making this change not because of the money, the savings or some vindictive notion; it is an adjustment to properly reflect who and, particularly, which level of government should be responsible for the rehabilitation of individuals in confinement.

I will go to that. These 350 individuals who are currently in confinement for serious offences are the responsibility of the state governments. They have been confined because they have been convicted of an offence and in this case are also mentally incapacitated, so they are in some kind of psychiatric confinement. They are the responsibility of the state governments, not the federal government. Indeed, that goes for other prisoners in confinement not in psychiatric institutions: they are the responsibility and in the care of our state governments, and that has always been the case.

The Department of Social Services provided evidence to the committee that inquired into this bill. The department—and this was in regard to social security payments generally—said:

These payments should not be made where a person is confined under state and territory law and their basic needs, such as food and accommodation, are being met by the state and territory, as is currently the case for those imprisoned. Corrections health and residential mental health services are a state and territory responsibility.

It is very important to focus on that point. Why do we provide disability support pensions, which are often the ones in question in this case, to individuals in our community? We provide those pensions to give them the resources to look after themselves and particularly to fund their food and accommodation costs. There are a few things that you need in life. You need food; you need accommodation; you need clothing; you need your basic healthcare and education needs looked after. A few of those things are not looked after by state governments through the provision of public services, particularly food, accommodation and clothing, so we provide a disability support pension or, in other instances, other forms of pensions to help people provide for those services. That is why we provide the payment. It is set—I do not have the number it is set at, but it is in the hundreds of dollars a fortnight—to help people provide for those costs. That goes to individuals who largely, of course, are not in confinement and have to meet their food, accommodation and other costs.

People who are in confinement—incarcerated or in a psychiatric institution—clearly, often do not have to pay for their food, accommodation and clothing costs. Indeed, the practice is that those services and goods are provided by the state governments. A state government will provide someone who is in psychiatric confinement with their food. They will usually provide them with standard issue clothing and, of course, by definition, they provide them with their accommodation. So these people do not have those extra costs that an individual outside confinement would have in our community.

The question then has to be asked: why is it fair to provide a certain level of payment to somebody in our community who, yes, may have a mental health disability or any kind of disability that prevents them providing for themselves? They have to meet all of their essential and non-discretionary costs from that payment. Why is it fair then to provide that payment to someone else who is in confinement with perhaps exactly the same disability but who has their needs and care taken care of by the state? Why do they get exactly the same payment as another person who has much higher non-discretionary costs than the person in confinement? That is an anomaly. It is a clear anomaly. We can disagree over how we might want to rectify that anomaly, but it is a difference. It is a clear and definable difference between two people, both with disabilities. One is in confinement, in this case for committing a serious offence, and another clearly has not. But that person who has committed a serious offence is actually advantaged relative to the person who has not, because they have a bunch of costs looked after for them, and then we give them the same payment on top.

In fact, often they do not receive that same payment on top, as evidenced in evidence provided to the Senate committee. It would be clearly unfair to provide them all of that payment on top. They do not often receive that. In evidence to the Senate committee, which I think was chaired by you, Mr Acting Deputy President Seselja—it was the Senate Community Affairs Legislation Committee so, yes, it certainly was chaired by you—inquiring into this bill, the committee found that in many instances state governments are actually charging people in confinement for their food, accommodation and other costs.

I do not disagree with state governments doing that, because, as I said earlier, the alternative would be to provide somebody in confinement with many more resources than someone not in confinement, and that would clearly be unfair. To rectify that, the various state governments do often charge individuals in confinement—I suppose the term would be 'dock their pensions'—to cover these costs for the goods and services they provide them. In the case of Victoria, in the past they have charged people in a mental health facility around 75 to 80 per cent of their disability support pensions. I also note here on page 12 of the committee report:

The committee notes that in jurisdictions where a person was paying 85% of their Disability Support Pension to the mental health institution … that person would be left with a maximum of $63.45 per week …

As I said, I am not arguing against the practice of state governments. Also, the Queensland government reported that, after their deductions, mental health consumers have around $42 per week.

One consequence of this bill clearly will be that those individuals in confinement will not have access in Queensland—in my state—to that $42 per week. The question then is: who should provide that? I do not disagree that people in confinement deserve some allowances to cover certain incidental expenses; indeed, my understanding is that that is often the practice with people in confinement in state jurisdictions. People in non-psychiatric confinement, incarceration, are often provided a small allowance to help pay for various incidental costs. There are often shops and those things. They can use that money in those facilities. That is, of course, provided by state governments. They provide inmates with those allowances, and they set those allowances according to the needs of inmates in the particular correctional facility for the goods and services and the prices charged in that facility. They are in the best situation to judge what that potential allowance should be.

So what we are arguing about here is not whether or not someone deserves a potential allowance; it is whether it should be funded through a disability support pension—which is a largely blunt way and not a particularly fair way, at least to start off with, of doing it—or whether it should be the responsibility of the state government to provide for the people under their care. This is a judgement call. As I said, this is not about whether we are intentioned in a certain evil or malicious way; it is a judgement call about which level of government should be providing that level of support. It seems to me that, on balance, it is very clear that the state and territory governments are in the best position to do that. The state and territory governments are in the best position to judge what the particular needs of their inmates are. We are not talking about a huge amount of money. It is something like $40 a week for 350 people. The state and territory governments are in a much better position, as the carers and the people responsible for these people, to make a judgement on this.

I did note that, in the various contributions from other senators, they reported that various state governments had made submissions to the committee inquiry and other forums saying that they were very concerned about the impact on the welfare of people in psychiatric confinement if this assistance were taken away. They have within their remit to provide for people. If the state governments in question are that concerned about the welfare of people under their care they have the resources and the power to provide something like $42 a week for 350 people. I note that various state governments are in budget difficulties, but $42 or something in that order for 350 people surely is not beyond the resources of a state government that apparently says it cares. If the state government does care for the welfare of these people, it can do an assessment of what is needed for those particular people and provide those payments. It would be a much simpler and more rational approach than the current approach, where we provide people in confinement with a large sum of money and then the state governments have to make various deductions from that for their nondiscretionary expenses.

I will move to a couple of other detailed issues in this bill that have arisen. I should say from the outset that the bill does make some provision to provide Commonwealth assistance to people in confinement in a psychiatric institution. Specifically, it makes the exception that any pension would continue to be provided where a person is going through a period of reintegration. That integration will be defined as the number of nights that person would spend outside of the mental health institution. So, as someone is transitioning from a mental health institution to the general community, the Commonwealth government will restart the pension payments, which seems fair and reasonable.

Apparently, the Department of Social Security consulted with state governments about whether that reintroduction should be done on a transitional basis—that is, that a certain percentage of the pension is increased as they integrate more into the community—or whether it should be either on or off. Apparently the feedback from state and territory governments was that it would be best to make a straight definition, that once a certain number of nights is hit the full payment will be reintegrated. Again, that is clearly a matter of judgement. This is of course something that reasonable people can disagree on but it is something that, in this position, in this parliament, we have to make judgement calls on. That provision will also come into effect in the situation where a person is in a mental health institution for a reason not related to the offence that they were convicted for. If they are there because they simply cannot function in the community generally, the pension from the Commonwealth will be reactivated and continue.

During the inquiry, issues were raised about the definition of a serious offence. This bill will only affect those who have committed a serious offence, and they have been defined as including 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. Again, a judgement call has had to be made here. I do not think it would be fair to restrict payments to all people confined in a mental health facility for the reason of a conviction, particularly those who are convicted of offences with a term of imprisonment of less than seven years.

That goes back to the point about integration. If they are imprisoned for a period of fewer than seven years, clearly a process of integration or rehabilitation needs to start almost immediately, because it is not that long before they will have served their sentence, particularly given parole periods and those things. So there is very little value and, indeed, very little saving of money, in restricting payments to people imprisoned for a period of fewer than seven years. So, again, a judgement call has been made. Again, reasonable people can disagree on whether that period is too much or too little. I certainly believe that we should not make it blanket across all people in an institution and that, therefore, we have to specify a cut-off point. Certainly people who have committed those sorts of violent offences and who have those periods of imprisonment need to be properly cared for by the state governments and do not deserve to continue to receive Commonwealth government payments.

The final thing I want to address is the emotional and overwrought commentary being made here on this bill. Senator Brown said earlier that these people do not deserve to be punished. That is a very simplistic way of looking at this. These people have committed serious offences, including murder and rape. Of course, in this instance, these offences have been committed under periods of mental incapacitation. It is a very tricky issue, but do they not deserve to be punished at all? Do they deserve to just continue on with their lives as before?

Senator Carol Brown interjecting

Clearly they are not, Senator Brown, because through you, Chair, we do incarcerate them. We have laws that incarcerate people who commit—

Senator Carol Brown interjecting

Yes, they are confined for a mandatory period, so clearly decisions are made at state government level that there is some penalty to be paid. Again, this is a very difficult area, but it is not helped when individual senators decide to question the bona fides and intentions of individual senators, as has happened in this debate. It is particularly unhelpful because these are very complex issues that require considered judgement by all governments. Various state and federal governments have had to make these judgements over the entirety of our Federation, and this is another judgement being made by this government. It is a reasonable and moderate adjustment to our system that should be supported. 

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