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Community Affairs Legislation Committee - 21/05/2015 - Social Services Legislation Amendment Bill 2015

BANKS, Ms Robin, Chair, Australian Council of Human Rights Authorities

BUTT, Mr Matthew Lawrence, Principal Lawyer, Welfare Rights Centre, National Welfare Rights Network

FRENCH, Mr Phillip, Director, Australian Centre for Disability Law; and People With Disability Australia

MEERS, Ms Amelia, Executive Officer, National Welfare Rights Network

Evidence was taken via teleconference—

CHAIR: Could you confirm that the infrastructure on parliamentary privilege and the protection of witnesses and evidence has been provided to you.

Ms Meers : Yes it has.

CHAIR: The committee has a submission from the National Welfare Rights Network. I invite each of you to make a brief opening statement and then we will go to questions.

Mr Butt : By way of opening, I will make a few brief points. The passage of this bill will affect the entitlements of an extremely vulnerable population to income support, usually disability support pension, and it does so in an unfair and discriminatory way. The passage of this bill would result in the following situation from 1 July: a person in psychiatric confinement charged with a serious offence is ineligible for the disability support pension unless in a period of reintegration. A person in psychiatric confinement due to being charged with a non-serious offence remains eligible for the disability support pension, provided they are undertaking a course of rehabilitation. The bill would apply to persons currently in detention as well as those detained in the future.

The major objection to this scheme is that it creates an unjustifiable distinction between persons charged with serious and non-serious offences and it singles out persons charged with a serious offence for loss of entitlements. In our view, there is no acceptable justification for this distinction. All persons in psychiatric confinement have been found not culpable by the criminal justice system, and it is unacceptable for social security law to distinguish between them in this way.

I would also highlight other problems in the bill which have been outlined in the network's written submission, particularly the way that the bill treats persons in psychiatric confinement worse than people who have been convicted of an offence and do not have a psychiatric disability. If you have been convicted of an offence and do not have a psychiatric disability but are sentenced to periodic detention, you are paid for the days that you are not in detention. This bill would mean that someone in psychiatric confinement for only part of a fortnight is nevertheless not paid for the whole of that fortnight. In the absence of a reasonable justification for that, that is quite simply disability discrimination.

Other issues have been covered in the written submission. I thank you for the opportunity to speak to that submission just now.

CHAIR: Thank you. Do we have Ms Banks with us now?

Ms Banks : Yes.

CHAIR: Could you confirm that you have received information on parliamentary privilege and the protection of witnesses and evidence?

Ms Banks : Yes, I have.

CHAIR: Thank you. Who is going to make a statement next?

Mr French : I am happy to. I represent the Australian Centre for Disability Law and People with Disability Australia. Both organisations are strongly opposed to the bill. Our objections are based firstly on the basis that people who are subject to the bill are not people who have been convicted of any offence at law. They are unconvicted persons and therefore innocent. As a practical matter, it is not possible to say whether or not the individuals concerned are guilty of an offence. They have been dealt with under a state law or territory law which concludes that it is perfectly possible that they are in fact innocent entirely of any crime, in the sense that they have not done anything. It is not fair that they be treated as if they had definitely committed the offences that they are charged with. If state law cannot conclude that, then social security law certainly cannot. Social security law should not be used as some kind of supplement to state and territory criminal laws.

Secondly, the bill is based on an entire misconception—in fact a disgraceful misconception—of what occurs when someone is diverted from the criminal justice system when they are unfit to plead or are found not guilty on the basis of mental illness or cognitive impairment. By definition, every one of those individuals is involved in a program of rehabilitation. The income support that they receive from Centrelink is essential to support that rehabilitation program and their eventual reintegration into the community—for example, for the establishment of secure housing upon release from prison, whether conditionally or absolutely, or to engage in therapeutic programs, which might involve activities within community, including education, allied health and other programs. The income they receive is essential to the support of their participation in that rehabilitation program.

One of the factors that will be considered—in fact, the principal factor that will be considered—in determining whether they are eligible for conditional release or absolute release is the degree to which they have participated successfully in rehabilitation, and the degree to which they have, for example, secure accommodation to support their release. If this bill is enacted into law there will be no capacity for those individuals to participate in the rehabilitation or secure housing which would support their release. So they will end up staying in prison or in secure psychiatric facilities for even longer than they would otherwise.

For those reasons we say that this bill is a disgrace. It is entirely misconceived and it ought not be proceeded with.

CHAIR: Ms Banks, would you like to make an opening statement?

Ms Banks : Thank you. I am speaking on behalf of the Australian Human Rights Commission and the South Australian, Victorian, Queensland, Northern Territory, Western Australian and Tasmanian human rights authorities as members of the Australian Council of Human Rights Authorities. As a council we oppose the bill in its current form because of the effect it will have on forensic patients who are charged with a serious offence. Those people charged with an offence who, because of mental or intellectual impairment, are detained while being assessed for fitness to plead or having been found to be unfit to stand trial or guilty of an offence because of their mental impairment, will be seriously disadvantaged and discriminated against by this bill.

The purpose of confinement of these people is treatment and rehabilitation; it is not punishment, and it is critical that that be understood by the Senate in considering the bill in its current form. We are concerned that the measures proposed in the bill have the effect of being punitive. They do not give adequate regards to the rights of forensic patients who are in psychiatric confinement. And there are serious questions to be answered about the impact that removing financial support will have on the care and rehabilitation of forensic patients. These are not issues that have been adequately addressed in the explanatory memoranda.

Australia has ratified the Convention on the Rights of Persons with Disabilities, and under that convention Australia has an obligation to ensure that persons with disability enjoy all their human rights without discrimination of any kind on the basis of disability. It is also required that Australia take into account the protection and promotion of the human rights of persons with disabilities in all policies and programs, and refrain from engaging in any act or practice that is inconsistent with the convention.

Forensic patients are people with disability for the purposes of the convention. They are not able to participate in the criminal justice system on an equal basis with others because of that mental or intellectual impairment. And they, like all other people with disability, have human rights under the convention—most relevantly, the rights of persons with disabilities to access justice on an equal basis with others; the rights of persons with disability who are deprived of their liberty to guarantees in accordance with international human rights law on an equal basis with others, including the right to be presumed innocent until proven guilty; the right to the enjoyment of the highest attainable standard of physical and mental health, including access to health services needed specifically because of their disabilities; the right to rehabilitation; and, finally, the right to an adequate standard of living for themselves and their families; and their right to social protection, including social security, without discrimination on the basis of disability.

The bill proposes to treat some forensic patients as if they have been convicted of an offence, and that is not the case. They are in a fundamentally different situation to persons found to have committed an offence by our courts. The purpose of their confinement is not punishment; it is the treatment and rehabilitation of those people and the protection of the individual and the community. The statement of compatibility with human rights on this bill does not acknowledge this important distinction. Psychiatric confinement is, by its nature, imposed on persons with psycho-social disabilities or who are undergoing assessment for psycho-social disability.

People who do not have mental or intellectual impairment are generally not detained if they not proven guilty of an offence.

Of particular concern is the effective removal of financial support on the capacity of forensic patients to go through rehabilitation and to access the quality of care and services they need. It is likely to very seriously impair their ability to transition out of psychiatric confinement and to access the necessary resources to rebuild their lives in the community. Unlike other prisoners, psychiatric patients are also more likely to be excluded from any form of income-earning activities while in detention, and it is unclear at this stage how the bill will not only affect those patients but also their families and dependants.

It is absolutely critical to understand that forensic patients are likely to go through a gradual recovery and progression towards reintegration and rehabilitation, and they need to have access to the resources to develop their physical, mental, social and vocational abilities, in accordance with article 26 of the convention. It is the view of the Council of Human Rights Authorities that the mechanisms in the bill are insufficiently clear in terms of questions like the term 'period of integration' that is found in proposed subsection 23(9C) and others. We recommend three things. The first is that the criteria used to determine eligibility for disability support pension for people in psychiatric confinement are similar to or the same as the eligibility criteria for people in the community. The second recommendation is that the bill not proceed unless the government provides evidence that the removal of the disability support pension and associated benefits from people with psychiatric disabilities in confinement will not negatively impact on their rehabilitation. The third is that it not proceed unless and until the government provides specific details of how a period of integration back into the community, for the purposes of proposed subsection 23(9B), will be defined and there has been a further opportunity for community comment and input on the proposed approach. Thank you.

CHAIR: Thank you very much. Senator Siewert?

Senator SIEWERT: I wanted to go first to the National Welfare Rights Network submission and the comments you made about this being worse than the circumstances for people that are convicted because, when they come out for periodic release, they actually get paid for the number of days that they are out. In any discussions that you have had with the government have you raised this? I suppose there are two parts: have you had any discussion with government about the bill, and then, if you have, did you raise this?

Ms Meers : Thanks for the question. No, we were not consulted about the bill.

Senator SIEWERT: There have been a couple of organisations that have been briefed by the government on the bill subsequent to the announcement in MYEFO. Have you had any briefings?

Ms Meers : Not directly. We have spoken with some of the organisations that were briefed by the department, but we were not.

Senator SIEWERT: Consultation by osmosis.

Ms Meers : Yes, that is right.

Senator SIEWERT: In terms of the difference from those who are convicted, do you think it might, in the longer term, encourage people to plead or to go through the criminal justice system?

Ms Meers : It is a bit hard for us to comment on that, to be honest, because we do not run criminal matters. Our expertise is really confined to the social security aspect, so I do not think we cannot speak to you that.

Senator SIEWERT: Okay. I will follow that up a bit later. You say in your submission:

We do not support the bill unless there has been proper consultation to ensure adequate funding and support for persons detained in psychiatric institutions.

Does that mean that if those things were to happen you would support the bill?

Mr Butt : No. The network's position is that the bill not be proceeded with regardless, because of the distinction based on serious and non-serious offences as well as the discriminatory provisions affecting periodic confinement. I guess the point of that submission was that it appeared to us from consulting our members and contact from other organisations that payment of disability support pension was an integral part of the financial and other support for persons in psychiatric confinement and it did not appear that there had been any planning about what would happen when those funds were withdrawn. At the very least, we were just concerned that services and arrangements might cease for those people; at the very least you would hope that if additional funding was needed it would be provided from another source.

Senator SIEWERT: So overall it should not proceed but if it did these things would need to be in place?

Mr Butt : Yes.

Senator SIEWERT: One of the submissions suggested that if the bill were to proceed that you should take up that provision that people are paid for the nights that they are in community. If the bill were to proceed would you support that sort of approach?

Mr Butt : At the very least removing that provision from the bill, and that work is done by section 23(9D), would mean like persons convicted under the ordinary criminal justice system, if they are not full time in detention, are paid their ordinary entitlements. I guess that would improve the bill in the sense that it would remove something that is plainly discriminatory but it would still leave the fundamental problem, which is unjustifiable distinction based on type of offence.

Senator SIEWERT: I go back, Ms Banks, to the three provisos you mentioned at the end of your comments. Again, I am presuming you are saying that the bill should not proceed but if it did these three essential criteria need to be met?

Ms Banks : Yes, that is correct.

Senator CAROL BROWN: I know, Robin, you spoke in your opening statement about compatibility with the Human Rights Committee. You have obviously read that statement?

Ms Banks : Yes.

Senator CAROL BROWN: Their conclusion was that the bill is compatible with human rights because the patients, the clients, receive benefits in kind in lieu of social security payments. Why are you saying it is not?

Ms Banks : The difficulty with the statement of compatibility is that it treats forensic patients as if they are the same as persons who are in jail having been found guilty of an offence. That is a fundamental misconception of the nature of being a forensic patient. The correct analysis is how are they treated compared to others who have disability in the community, and it is clear that they are being treated very differently from those people and that the bill does not consider how this change will impact on the capacity of those people to go through the range of appropriate rehabilitation programs to enable them to reintegrate. Mr French's opening statement on that was quite strongly on point. It is critically important to understand that people who are in forensic mental health situations will not be released generally until they can demonstrate that they have been rehabilitated, which is quite different from what happens to prisoners. Prisoners have a set term and they are released at the end of their term. For a number of reasons, the comparison is not the correct one to make. That is where I think the statement of compatibility falls short of what you would expect in terms of analysis of human rights compliance.

Senator CAROL BROWN: Was your organisation consulted at all?

Ms Banks : No, we were not.

Senator CAROL BROWN: When did you hear about this piece of legislation?

Ms Banks : It came to our attention through a community advocacy group in Queensland, which raised it with the Queensland commissioner, who then raised it with us as an issue. We investigated the situation and were concerned as a group about the impact. There is a formal written submission coming from ACHRA, the Australian Council of Human Rights Authorities, which you should receive today. It came to us through other than formal consultation channels.

Senator CAROL BROWN: We have heard quite a lot of evidence today about the practical impact of this measure on forensic patients. Does anyone else have something to add in terms of the practical impact that it will have?

Mr French : I addressed that question in my opening statement. In terms of the discrimination argument, the appropriate comparator here is other people who are undergoing compulsory treatment and rehabilitation and those individuals who might be confined as civil patients, involuntary patients, in hospital. Their social security benefits are not withdrawn for the period that they are undergoing treatment and observation in hospital. These are, at law, innocent individuals who are diverted from the criminal justice system in order that they receive rehabilitation and treatment that will allow them to, in the end, be reintegrated into society. They are not people convicted of an offence.

Senator CAROL BROWN: In the submission we have in front of us you talked about the distinction between serious and non-serious offences and that the distinction is very arbitrary. Why do you think that this distinction has been made by the government?

Mr French : My concern is that whoever has developed this policy has a fundamental misunderstanding of the criminal law and of mental health law. The drafting of the bill does not reflect the realities of the law. The distinction that is made is an entirely artificial or a misconceived one. It cannot be operationalised according to its own terms.

Senator CAROL BROWN: Can you expand on that for me.

Mr French : If I could use New South Wales law as an example. Lesser offences are tried in the local courts and there is a diversionary mechanism established in the local courts under sections 32 and 33 of the Mental Health (Forensic Provisions) Act which allow for diversion in certain circumstances. Essentially, an election is made that someone not be treated according to law but be diverted from the criminal justice system and undergo a program of treatment pursuant to either of those sections. For a matter to be dealt with in a superior court—the District Court or the Supreme Court—they are, by their very nature, charges in relation to serious offences. So I do not understand what is meant when the bill talks about lesser offences or lesser charges. All of the charges dealt with in the superior courts are serious offences. I do not see how a social security official is able to make that distinction, because the distinction is made in the criminal law of the states and territories.

Senator SIEWERT: That is the point that the Aboriginal Disability Justice Campaign made—that different states and different jurisdictions have different processes but also understandings of what is serious and what is not.

Mr French : That is why I used the example of one state, because there is variation across jurisdictions. But that principle in general is correct for each jurisdiction—that lesser offences are dealt with in the local courts and more serious offences are dealt with in the superior courts, and they are by definition serious offences.

Senator CAROL BROWN: Yes. That is a question we will be asking the department.

Senator SIEWERT: That flows on to how that affects the operation of the law. I am not advocating this, but this is how I would understand it: anything that then goes through the superior court is then a serious offence.

Mr French : That would be my understanding of the implication of the bill—that, by definition, all of the people who have been dealt with by the superior court are being dealt with in relation to a serious offence. The fundamental issue is that the superior courts could not deal with them because of some kind of mental illness or cognitive impairment and therefore could not conclude at law that they were guilty of the offence. They are therefore innocent at law.

Senator SIEWERT: Okay. Sorry—I needed that extra step; now I understand what you are saying.

Senator CAROL BROWN: The Aboriginal Disability Justice Campaign, based on the information they have seen in the explanatory memorandum, put the proposition that different offences in different jurisdictions carry different sentences. Across jurisdictions there will be differences.

Mr French : Within jurisdictions, there will also be differences. Often the social circumstances of the individual dictate what charges are laid and whether an election is made to deal with the matter in a superior court or in the local court. This bill will have a very serious detrimental impact on people with multiple and aggravated disadvantages—for example, Aboriginal people—who do not have secure housing, who do not have strong family networks and who are living in remote communities where there is not access to treatment facilities which support diversion from a local court. Prosecuting authorities, whether they are police or a Director of Public Prosecutions, make an election to charge a more serious offence or to have the matter dealt with in a superior court because there is no diversionary framework available in the local court. This is what I mean about the bill being so misconceived. There is a fundamental failure to appreciate how the law works in this area.

Senator CAROL BROWN: Thank you.

CHAIR: Thank you to all of our witnesses for their time.