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Social security recipients have a right to the presumption of innocence

Speeches in Parliament
Penny Wright 10 Aug 2015

Senator WRIGHT (South Australia) (11:10): I rise to speak in relation to the Social Services Legislation Amendment Bill 2015, yet one more piece of harsh, punitive and mean-spirited legislation proposed by this government, which will once again unduly hurt some of the most disadvantaged people in Australia. It is a short bill, with big consequences for a particularly vulnerable section of our community. It is also a bill that crosses over two of the portfolio areas I hold on behalf of the Australian Greens, those of mental health and legal affairs. This bill will affect people who are undergoing psychiatric confinement because they have been charged with a serious offence but have been found not guilty because of mental incapacity or because they have been found unfit to plead to the charge. As a result of this bill, relevant social security payments will no longer be payable to the person while the person is undergoing that psychiatric confinement.

There are serious concerns flowing from this. First of all, by stopping people's Centrelink payments when they have not actually been found guilty of any crime, this bill undermines the presumption of innocence by punishing people have not been convicted of an offence. Further, by stopping Centrelink payments to people in psychiatric confinement, this bill also risks putting already vulnerable people-because many of the people, statistically, who suffer from severe mental illness and end up in these sorts of situations are already some of the most impoverished, marginalised and isolated people in Australia-in a dire financial situation, where they may well lose their only source of income. Of course then no income can lead to loss of housing or accommodation while in psychiatric confinement and so homelessness when they are released.

These issues have been explored in some detail by the Senate Community Affairs Legislation Committee, and I certainly know of the work that my colleague Senator Siewert has done on that committee in relation to that inquiry. One of the submissions to that inquiry by the community affairs committee was made by the South Australian Public Advocate, a man whom I know and for whom I have great respect, Dr John Brayley, who has vast experience and expertise in dealing with these issues. Dr Brayley shares the concerns of many others in the sector that the bill may operate to punish people who have not yet been convicted of a criminal offence and jeopardise their chances of successful reintegration into the community following psychiatric treatment. If, as a community, we want anything in terms of our own self-interest, surely it would be successful reintegration of people in this situation, leaving aside any inherent compassion or understanding for the people who are in these circumstances.

Dr Brayley has noted that there is an important distinction to be made between a person who is undergoing psychiatric confinement because they are unfit to stand trial, or who has been found not guilty of the charge because of the person's mental impairment, and an individual who is in jail. In the latter case, a person has either been convicted of an offence or is on remand, which is not comparable to someone who is undergoing psychiatric confinement because they have been charged at least with a serious offence. An individual who has been convicted has received a trial and had the ability for their case to be heard at least. While removing Centrelink benefits from an individual who has been remanded in custody is also problematic, in my view, because they have not yet had a trial, they will at least in the future have that opportunity. In comparison, someone who is found unfit to stand trial or not guilty by virtue of mental incapacity has not had the case tested against them at all. They have not been considered guilty by the courts.

It is not just Dr Brayley who has concerns about this bill, of course; other legal, mental health and disability experts have lined up around Australia to condemn this mean-spirited and ill-conceived legislation, which will also be counterproductive if we are looking at the national interest. If we consider the very likely loss of accommodation that would stem from the loss of income while someone is in confinement or detention for a period of time, that is one issue, of course; there is also the risk that this will lead to longer periods of detention anyway.

Mr Peter McGee of the Intellectual Disability Rights Service has pointed out that withdrawing payment from patients may lead to indefinite detention for people-for instance, with intellectual disabilities-because courts will be unlikely to release them into the community without stable housing. He is quoted as saying:

Access to disability support pensions allows people to plan a way out of detention and back into the community.
Removing that access, obviously, makes that plan much less viable and that would be something that would have to be in the minds of those who are determining what the outcome of someone's detention will be.

Other senior mental health experts say that these charges risk forcing people into homelessness and hunger. As reported in a thorough INDAILY article in South Australia by journalist Bension Siebert on 24 March 2015, when these concerns were first being advanced, Dr Paul First, the deputy chair of the Royal Australian and New Zealand College of Psychiatrists, is quoted as saying:

Forensic patients are the patients who have been found not guilty of an offence-they require these funds for their lives after they are released from hospital.
Dr First went on to say:

What you would see effectively is people going to court, getting released and having no savings, no money, no things for their home that they require, no fridge, no microwave, none of the things that we need to live a normal life in the community.
He said:

These people ... from an ethical point of view, should be entitled to their disability support pension.
I am alarmed to note that there will be significant effects on state governments' capacities to provide the rehabilitation and care that these vulnerable people need. For instance, I know the South Australian government have said that this will cost South Australian taxpayers about $1 million per year in additional expenses because much of a person's social security benefits go towards an accommodation charge for state-run mental health institutions. Of course, this is at a time when billions have been pulled out of state health systems by the federal government in previous budget decisions. South Australia Health have said that these changes will impact on the quality of care for the majority of the state's forensic patients and increase the burden on the South Australian health system.

It is also important to note that this bill seeks to sidestep a sensible and far-sighted Federal Court ruling that found that most people confined in a psychiatric institution may be considered to be participating in a course of rehabilitation and therefore attract social security payments. This case created a fairer precedent and now the government is seeking to tear that down.

The situation we have here is that this bill is yet another example of the government's counterproductive and cruel strategy to look for meagre savings in areas that hit the poorest and the most vulnerable members of our community the hardest-those least able to speak up for themselves. It also carries with it a taint of punitive action that is a hallmark of much of the legislation that this Abbott federal government have been bringing in over a period of time. Some of it, I think, stems from sheer ignorance, and I will come back to that in a minute, and the suggestion that somehow people who have been charged with serious crimes should be differentiated from those who have not.

Yet, at the base of this is the principle that someone has been found unfit to plead by virtue of mental illness or someone has been found not guilty by virtue of mental incapacity. That is the principle that we should be looking at here. It is the degree of responsibility that can be attributed to the actions of a person who has not been able to rationally make a decision about the actions that they are carrying out. It is not the degree of the crime; it is not the degree to which the community might be upset by the offence with which they have been charged; it is the fact that under our legal system we have had an ability to say that some people cannot take responsibility and cannot be held responsible for their actions where it is shown that they have not had the mental capacity to form an intention to carry out those actions. So there is a misguided aspect to it. As well as that, I think it is true, and other people have named it here today, that this is another example of a government that has a punitive approach: the theory that if you use a bigger stick and you punish people harder, they will somehow do what you want them to do. It goes against all the evidence.

I would like to share with the Senate and anyone who might be listening to this speech some insights that I gained from being a deputy president of the guardianship board in South Australia over a period of about 13 years. During that time, it was my job to go into psychiatric institutions, including the main forensic psychiatric institution in Adelaide-James Nash House-and conduct legal hearings in relation to appeals against detention by some of those people who were patients in those institutions. As a result of that quite amazing and unique experience, I came to understand the absolute tragedy that mental illness and mental incapacity is for people.

Mental illness is an illness like any other illness, like diabetes or asthma; it is not selective in who it targets. It is not selective in those whose lives it affects. No-one asks to experience mental ill health. There is no shame or degree of it being deserved in some way or merited. It hits some people; it does not hit others. It does not hit the lucky. I have seen time and time again people whose lives have been devastated by the onset of mental illness that they neither deserved nor asked for.

I would ask people to think about increasing the awareness and understanding that we have about mental ill health in Australia, something that many of us have been striving to increase-I think there is a lot of rhetoric about awareness and understanding now-and to cast their minds back to the very impressive film called A Beautiful Mind, which featured the Nobel prize-winning mathematician John Nash who experienced severe schizophrenia during the course of his life. If you have not seen the film, I would really encourage you to, because it gives an amazing insight in a dramatic way into the life of someone who lives with a difficult illness like schizophrenia. Those of you who have seen it will remember that over a period of time it became clear that John Nash was experiencing incredible degrees of paranoia and psychosis. He was misunderstanding things. He was delusional about enemies that he had.

One of the effects of someone who is living with an illness like that is that they then act in ways that are rational, given the strong belief structure that they have. Unfortunately, that belief structure is informed by the illness that they have. It is not actually reality but, for the person who is living that experience, it is absolutely a reality and the way they behave, given that reality, is totally logical.

This kind of situation can often result in people committing offences that are then subject to our criminal justice system. As I said, traditionally, the law has understood that someone who is acting under the influence of a mental illness cannot be held responsible for their actions in the way that someone who is acting in a rational way can be held responsible. That is why in some cases confinement or psychiatric detention and treatment are absolutely required. But it is also why, when that person leaves hospital-hopefully, having been assisted, helped, treated and rehabilitated-we need to set up every condition possible to make sure that they can then be reintegrated into the community, start to fulfil their potential and live a participating life.

We must remember that those in psychiatric confinement, following criminal charges, have rights. They are patients, not prisoners. They are human beings. They are affected by circumstances they did not ask for and do not deserve. We all have a shared interest in ensuring that they have the best possible chance of successful rehabilitation before release.

We know that stable accommodation is one of the most important determinants of someone being able to recover from mental ill health and mental illness. We also know that unstable accommodation-or homelessness-is one of the most important social determinants of people having poor mental health. Why would we agree to a system that will deprive people of the income support they need to be able to set them up with the best possible chance of success when they finish their period of confinement and return to the community? I am very proud to say that the Australian Greens will not be supporting this legislation.


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