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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SERVICES LEGISLATION AMENDMENT BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Hon Scott Morrison MP)
SOCIAL SERVICES LEGISLATION AMENDMENT BILL 2015
OUTLINE
This Bill provides that a person who is undergoing psychiatric confinement because
they have been charged with a serious offence will be taken to be in psychiatric
confinement for the purpose of the social security law, irrespective of whether the
person is undertaking a course of rehabilitation. One of the effects of this is that
relevant social security payments will not be payable to the person while the person
is undergoing that psychiatric confinement.
The measure is due to be implemented from 1 July 2015, as announced in the
2014-15 Mid-Year Economic and Fiscal Outlook.
Currently, a 2002 Federal Court decision means 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. Prior to this case, many
people in psychiatric confinement because of criminal charges could not receive
social security payments. The amendments represent a return to the original policy
intent for people who have been charged with a serious offence - so that a person
cannot access social security payments while in psychiatric confinement as a result
of criminal charges.
While 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.
A serious offence for the purposes of this measure focuses on violent offences such
as murder, attempted murder, manslaughter, rape, attempted rape and certain other
offences involving loss of or serious risk to life, wellbeing or safety.
The measure will also provide for circumstances in which a person is not taken to be
undergoing psychiatric confinement (meaning that a social security payment will be
payable) during a period that is `a period of integration back into the community for
the person'.
Financial impact statement
This Bill is expected to produce savings of $29.5 million over the forward estimates.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
SOCIAL SERVICES LEGISLATION AMENDMENT BILL 2015
NOTES ON CLAUSES
Clause 1 sets out how the new Act is to be cited - that is, as the Social Services
Legislation Amendment Act 2015.
Clause 2 provides for the new Act to commence on 1 July 2015.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
1
Schedule 1 - Amendments
Summary
This Schedule provides that a person who is undergoing psychiatric confinement
because they have been charged with a serious offence will be taken to be in
psychiatric confinement for the purpose of the social security law, irrespective of
whether the person is undertaking a course of rehabilitation. One of the effects of
this is that relevant social security payments will not be payable to the person while
the person is undergoing that psychiatric confinement.
Background
The Social Security Act 1991 (Social Security Act) currently provides that certain
social security payments are not payable to a person who is undergoing psychiatric
confinement because the person has been charged with an offence. However,
the confinement of a person in a psychiatric institution during a period in which the
person is taken to be undertaking a course of rehabilitation is not taken to be
psychiatric confinement.
In Franks v Secretary, Department of Family and Community Services [2002]
FCAFC 436, the Full Federal Court held that a `course of rehabilitation' was to be
interpreted broadly for the purpose of the definition of psychiatric confinement.
The effect of the decision in Franks is that the vast majority of people who are in a
psychiatric institution would be undertaking a course of rehabilitation and, as a
consequence, a social security payment would continue to be payable to the person
(provided all the other qualification and payability requirements are satisfied).
This Schedule provides that a person who is undergoing psychiatric confinement
because they have been charged with a serious offence will be taken to be in
psychiatric confinement for the purpose of the social security law, irrespective of
whether the person is undertaking a course of rehabilitation. One of the effects of
this is that relevant social security payments will not be payable to the person while
the person is undergoing that psychiatric confinement.
A serious offence will include the offences of murder or attempted murder,
manslaughter, rape or attempted rape, as well as other violent offences that that are
punishable by imprisonment for life or for a period (or maximum period) of at least
seven years.
This Schedule will also provide for circumstances in which a person is not taken to
be undergoing psychiatric confinement (meaning that a social security payment will
be payable) during a period that is `a period of integration back into the community
for the person'.
This measure will commence on 1 July 2015.
2
Schedule 1 - Amendments
Explanation of the changes
Amendments to the Social Security Act
Items 1, 2, 4, 7, 8 and 9 are technical amendments that are consequential to the
amendments made by item 6 to insert new subsections 23(9A), (9B), (9C), (9D), (9E)
and (9F).
These items amend subsections and notes that refer to subsections 23(8) and (9).
Subsections 23(8) and (9) provide for when a person is in psychiatric confinement.
New subsections 23(9A), (9B), (9C), (9D), (9E) and (9F) will also be relevant for
determining whether a person is undergoing psychiatric confinement.
Item 3 inserts a definition of serious offence into subsection 23(1) of the Social
Security Act. A serious offence will have the meaning given by new
subsections 23(9E) and (9F) (inserted by item 6 of this Schedule).
Item 5 provides that current subsection 23(9) is subject to new subsection 23(9A)
(inserted by item 6 of this Schedule).
Currently, subsection 23(9) provides that the confinement of a person in a psychiatric
institution during a period when the person is undertaking a course of rehabilitation is
taken not to be psychiatric confinement. New subsection 23(9A) provides for
circumstances in which subsection 23(9) does not apply.
Item 6 inserts new subsections 23(9A), (9B), (9C), (9D), (9E) and (9F).
New subsection 23(9A)
New subsection 23(9A) provides that subsection 23(9) does not apply in relation to a
person whose confinement in a psychiatric institution is because the person has
been charged with a serious offence. New subsections 23(9E) and (9F) provide the
meaning of a serious offence. The effect of new subsection 23(9A) is that a person
who is in a psychiatric institution because they have been charged with a serious
offence will be taken to be in psychiatric confinement, for the purpose of the social
security law, irrespective of whether the person is undertaking a course of
rehabilitation.
Section 1158 of the Social Security Act relevantly provides that an instalment of a
certain range of social security payments is not payable to a person in respect of a
day on which the person is undergoing psychiatric confinement because the person
has been charged with an offence. The social security payments mentioned in
section 1158 are social security pensions, social security benefits, parenting
payment, carer allowance, mobility allowance or pensioner education supplement.
The effect of new subsection 23(9A), together with current section 1158, will be that
a social security payment is not payable to a person who is undergoing psychiatric
confinement because the person has been charged with a serious offence. This will
be the case even if the person is taken to be undertaking a course of rehabilitation.
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Schedule 1 - Amendments
A person may be undergoing psychiatric confinement because they have been
charged with an offence if, for example, the person:
is having their fitness to stand trial assessed;
has been found unfit to stand trial because of the person's mental impairment;
or
has been found not guilty of the charge because of the person's mental
impairment.
There would need to be a connection between the charge and the psychiatric
confinement before a person would be taken to be undergoing psychiatric
confinement because the person has been charged with a serious offence. A social
security payment will continue to be payable to a person who is undergoing
psychiatric confinement for reasons unrelated to the commission of an offence.
A person would also not be taken to be undergoing psychiatric confinement because
the person has been charged with an offence if the person:
was found not guilty of the offence on the basis that they did not commit the
offence; and
remains in psychiatric confinement following the not guilty finding.
It is likely that a person who is found guilty of an offence but who is remanded in a
psychiatric institution following the guilty finding, would be taken to be in gaol for the
purpose of the social security law. Subsection 23(5) of the Social Security Act
currently provides that a person is in gaol for the purposes of the social security law
if the person is being lawfully detained (in prison or elsewhere) while under sentence
for conviction of an offence and not on release or licence. Relevant social security
payments are not currently payable to people in gaol. This Bill has no impact on
people who are in gaol.
New subsections 23(9B) and (9C)
New subsection 23(9B) provides that the confinement of a person in a psychiatric
institution because the person has been charged with a serious offence is taken not
to be psychiatric confinement during a period that is a period of integration back into
the community for the person.
New subsection 23(9C) provides that whether a period is a period of integration back
into the community is to be worked out in accordance with a legislative instrument
made by the Minister.
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Schedule 1 - Amendments
One of the effects of a person being taken not to be in psychiatric confinement
during a period that is a period of integration back into the community is that
section 1158 of the Social Security Act will not preclude the payment of a social
security payment during that period. As people in psychiatric confinement move
through their rehabilitation, it is usual for them to be granted various forms of leave
from the psychiatric institution before they are unconditionally released. After a point
in this period of integration, it will be necessary for a person to have access to funds
to assist the person with costs of living and to provide the person with autonomy as
they prepare for re-establishing themselves in the community.
It 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,
should this be appropriate. A legislative instrument made for the purpose of new
subsection 23(9C) may provide, for example, that a period of integration back into
the community for a person is where the person regularly spends six nights or more
in a fortnight outside of the psychiatric institution. The legislative instrument may
also provide that a person's day of integration back into the community is the first
day of the fortnight in which the person spends six nights or more outside of the
psychiatric institution. An effect of this would be that the person's social security
payment is payable for the full fortnight, even if the person spends some days in that
fortnight in the psychiatric institution.
New subsection 23(9D)
The effect of new subsection 23(9D) is that a person who has been charged with a
serious offence, will be deemed to be undergoing psychiatric confinement (meaning
that a social security payment will not be payable) on certain days, even if, on those
days, the person is not in a psychiatric institution.
A person who is undergoing psychiatric confinement because the person has been
charged with a serious offence may have periods of leave away from the psychiatric
institution. If any of those periods of leave is taken to be a period of integration back
into the community, the effect of new subsections 23(9B) and (9C) will be that the
person is taken not to be in psychiatric confinement (meaning that a social security
payment will be payable) for that period.
For any period of leave that is taken not to be a period of integration back into the
community, the effect of new subsection 23(9D) is that the person will be taken to be
undergoing psychiatric confinement (meaning that a social security payment will not
be payable) for that period of leave. A social security payment will not be payable
until such time as the period of leave is taken to be a period of integration back into
the community for the person, or the person is unconditionally released for
psychiatric confinement.
5
Schedule 1 - Amendments
It is appropriate to limit payment of social security payments in this way, as the
nature of treatment in psychiatric confinement is such that activities can take place in
a range of locations, including outside the institution, and leave can be granted for
short periods of time. This can include, for example, being out of the institution for a
few hours to attend an appointment, practise living skills or participate in a training
course. At this stage, the person would still be, in effect, under the control of the
State or Territory, not living independently, and could expect that the State or
Territory would meet their requirements for support, treatment and activities
designed to further their recovery.
New subsections 23(9E) and (9F)
New subsections 23(9E) and (9F) provide the meaning of a serious offence.
New subsection 23(9E) provides that an offence is a serious offence if it is:
murder or attempted murder; or
manslaughter; or
rape or attempted rape.
New subsection 23(9F) 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; or
serious personal injury or serious risk of serious personal injury; or
serious damage to property in circumstances endangering the safety of a
person.
It is intended that this broad description of offences will capture offences where the
conduct constituting the offence involves serious harm, or serious risk of harm, to a
person. As the description of offences in States and Territories are different and can
change over time as new laws are introduced or existing laws are amended, it is not
possible to set out in the social security law specific offences that involve serious
harm, or serious risk of harm, to a person.
Whether a person has been charged with a serious offence is relevant for the
purpose of new subsection 23(9A). A social security payment will not be payable to
a person who is undergoing psychiatric confinement because the person has been
charged with a serious offence. 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. A social security payment will also continue to
be payable if the person's psychiatric confinement is for reasons unrelated to the
commission of an offence.
6
Schedule 1 - Amendments
Application provisions
Item 10 provides the application provisions for the amendments.
Subitem 10(1) provides that, for new subsections 23(9A) to (9C), the amendments
apply on and after commencement in relation to a person's confinement in a
psychiatric institution on or after that commencement, even if:
the confinement began before that commencement; or
the person was charged with a serious offence before, on or after that
commencement.
This item will ensure that the new provisions apply to any person who, on the date of
commencement, is undergoing psychiatric confinement because the person has
been charged with a serious offence. It is appropriate to provide that the
amendments apply to a person who is undergoing psychiatric confinement on the
date of commencement and not only to a person who is charged on or after the
commencement day because it will ensure consistent treatment of people in the
same circumstances. People affected will be having their needs for support,
treatment and activities designed to further their recovery met by the State or
Territory that is responsible for their confinement.
Subitem 10(2) provides that, for subsection 23(9D), the amendments apply in
relation to a period beginning on or after the commencement of item 10. The effect
of new subsection 23(9D) is that a person who has been charged with a serious
offence will be deemed to be undergoing psychiatric confinement (meaning that a
social security payment will not be payable) on certain days, even if, on those days,
the person spends part or all of the day at another location. The effect of
subitem 10(2) is that this deeming of a person undergoing psychiatric confinement
will occur only in relation to days on and after the commencement of item 10.
7
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Social Services Legislation Amendment Bill 2015
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This Bill provides that a person who is undergoing psychiatric confinement because
they have been charged with a serious offence will be taken to be in psychiatric
confinement for the purpose of the social security law, irrespective of whether the
person is undertaking a course of rehabilitation. One of the effects of this is that
relevant social security payments will not be payable to the person while the person
is undergoing that psychiatric confinement. The Bill will also provide for
circumstances in which a person is not taken to be undergoing psychiatric
confinement (meaning that a social security payment will be payable) during a period
that is `a period of integration back into the community for the person'.
Human rights implications
Rights to social protection and social security and the right to an adequate standard
of living
Article 28(1) of the Convention of the Rights of Persons with Disabilities (the CRPD)
provides for the right of persons with disabilities to an `adequate standard of living for
themselves and their families, including adequate food, clothing and housing, and to
the continuous improvement of living conditions'.
Article 28(2) of the CRPD, and article 9 of the International Convention on Economic,
Social and Cultural Rights (the ICESCR) recognise the rights of everyone to social
protection and social security.
There is no explicit obligation to provide social security benefits in the form of
payments or cash. Rather, where social security systems are in place to provide for
certain social risks or contingencies, article 28 of the CRPD requires that the benefits
for the relevant persons, including benefits in kind, must suffice to ensure that people
can realise their right to the adequate standard of living. Poeple in psychiatric
confinement are receiving `benefits in kind' in lieu of a social security payment, in the
form of food, clothing and housing provided by the state or territory psychiatric
institution, and therefore have their basic needs provided for. When such benefits
are being provided, the need for social security in the form of payments is negated.
1
Statement of compatibility with human rights
The Bill provides for circumstances in which a person is not taken to be undergoing
psychiatric confinement (meaning that a social security payment will be payable)
during a period that is `a period of integration back into the community for the
person'. This will ensure that the person's right to an adequate standard of living are
provided for in the period that a person is re-establishing themselves in the
community. Any period of leave from the psychiatric institution that is not a period of
integration back into the community is likely to be a short period, and the person's
basic needs will continue to be provided for by the psychiatric institution during that
period.
Individuals affected (and their families) will have their rights to an adequate standard
of living, and to adequate health, habilitative and rehabilitative care services fulfilled.
This measure is justifiable, reasonable and proportionate and thus consistent with
Australia's international human rights obligations.
Rights of equality and non-discrimination
Article 26 of the International Covenant on Civil and Political Rights and article 2(2)
of the ICESCR recognise the rights of equality and non-discrimination.
One of the effects of the Bill will be that a social security payment will not be payable
to a person who is undergoing psychiatric confinement because they have been
charged with a serious offence. A person may be undergoing psychiatric
confinement on this basis because, for example, they are unfit to stand trial or
because they are found not guilty on the grounds of mental impairment. These
people will be treated in the same way as a person who is in gaol having been
convicted of an offence, or who is remanded in custody while awaiting trial after
being charged with an offence.
While people who are undergoing psychiatric confinement may have a disability, any
differential treatment of these persons is justifiable as those in psychiatric
confinement are receiving benefits in kind (in the form of adequate food, clothing and
housing) and are having their needs met.
Impact on partners and children
Articles 28(1) and 23(2) of the CRPD, article 11 of the ICESCR, and article 26 of the
Convention on the Rights of the Child recognise the impact of social security
payments on partners and children.
The current arrangements for social security payments to partners and children are
adequate to meet their needs. While a recipient's partner is imprisoned or in
psychiatric confinement because the partner has been charged with committing an
offence, the recipient can be paid a higher partnered rate of a social security
payment.
2
Statement of compatibility with human rights
Conclusion
The Bill is compatible with human rights because people in psychiatric confinement
receive `benefits in kind' in lieu of a social security payment. Their basic needs are
provided for by the relevant State or Territory government through the hospital or
psychiatric facility. The current arrangements for social security payments
adequately provide for partners and children of people in psychiatric confinement.
Minister for Social Services, the Hon Scott Morrison MP
3