They are one of the most marginalised groups in society – mentally ill patients who are in care facilities because they are accused of committing crimes.
Their conditions are so severe that they are thought incapable of pleading guilty or not guilty to the crime they are accused of committing, as they cannot determine right from wrong.
There is no criminal trial to determine the matter. Rather, they have been assessed as being in acute need of mental health care and rehabilitation.
Government proposing to strip their welfare payments
But the federal government is proposing changes to social services legislation that would cut the welfare payments of patients who are charged with serious crimes.
The changes would affect “forensic patients” who are accused of violent crimes and who are living in mental health care facilities on a permanent basis.
In addition to their accommodation and care, which is funded by the states, these patients also receive Commonwealth-funded welfare payments.
It is these payments that the Commonwealth now plans to cut, on the basis that all of their needs are already being met by the facilities that care for and accommodate them. The welfare payments, the government says, are surplus to their needs.
Social Services Minister Scott Morrison said at a press conference that:
“We are talking about people who have been charged with heinous crimes in many cases and not continuing benefits for people in those situations because they are actually living in facilities where they are being cared for and where they are not allowed to leave because they are considered a danger to the community.”
It is estimated that around 350 patients will be affected by the changes, which will save the federal government around $30 million.
But is the government effectively dishing out its own sentences, when people haven’t been found guilty of any offence?
The response to the proposed changes
There has been opposition to the proposed changes from a number of sources. The changes seek to treat these patients in the same way as prison inmates, who also have their welfare cut while they are incarcerated.
But the difference is that inmates have had the benefit of a trial, and have been convicted and had a prison sentence imposed.
Mental Health Australia chief executive Frank Quinlan told the ABC that:
“The worst thing that this legislation does is equate people who are guilty of no crime, people who may well have been found unfit to plead, people who are in need of state care, it equates those people with people who are guilty of very serious criminal offences.”
Other heads of mental health organisations also said that it was wrong to impose blame on a person who has not been found guilty of a crime, and that in effect, the proposal would do just that.
Those who oppose the changes have voiced serious concerns about what happens to forensic patients after they have been rehabilitated and released from care.
While it is true that all of their accommodation and care is provided by the states, it is also true that without any welfare payments being allowed to accumulate in their bank accounts, they could potentially be released into the community without any money to pay for accommodation (including rental bonds), food, and utilities. In essence, they would be unable to fund the basic requirements that would allow them to get back on their feet and contributing to society.
As Matthew Butt of the Welfare Rights Network pointed out to the ABC, stopping welfare payments:
“could potentially delay or prevent their release back into the community, remembering that these are people who should be detained for the shortest period possible, since the primary purpose of their detention is to allow for rehabilitation and reintegration into the community.”
Opposition disabilities spokeswoman Jenny Macklin noted that the government had not even waited for the completion of a Senate inquiry before introducing the draft legislation and said that the government was simply trying to pass costs on to the states.
Labor senators have indicated they won’t support the planned changes, calling for more consultation and citing concerns about the definition of a serious offence, and the impact on the delivery of clinical services.
Progress of the draft legislation
The Social Services Legislation Amendment Bill was introduced to Federal Parliament in March 2015. Also at that time, the Senate referred the Bill to the Senate Community Affairs Legislation Committee for an inquiry and to report back to the Senate.
Since then, the Bill has passed through the House of Representatives and in June 2015 was introduced to the Senate on the same day the Senate Committee was due to provide its report to the Senate.
Ms Macklin has criticised the government for progressing the Bill through Parliament before the inquiry was finalised.
As the Bill now awaits a second reading in the Senate, it looks set to become law on sometime this month, to the dismay of many.
Are the savings worth the cost?
While $30 million may seem like a huge saving, for a government that is in control of billions of dollars, it is just a drop in the ocean.
Yet for the few hundred people directly affected by this measure, it could mean much more – it may be the only means by which they are able to secure their freedom after rehabilitation, and a way to successfully reintegrate into society.
If you or a loved-one are concerned that the changes may affect you, a criminal defence lawyer may be able to clarify the situation.