Proposal to Smoke Out Criminals Via Cutting Off Social Security Is a Breach of Natural Justice

The presumption of innocence is a legal maxim that’s increasingly under threat, despite it being a founding principle of the rule of law. The most distinct threat to the concept right now appears in a piece of Albanese government legislation that seeks to provide various police forces with the ability to request the minister cut off social security payments to individuals with a warrant out for them.

Introduced in the lower house in September, the Social Security and Other Legislation Amendment (Technical Changes No. 2) Bill 2025 was returned to the House of Representatives last week following it’s having been considered by a committee and with its return to the house, a rather consequential government amendment was made without much scrutiny and then it was promptly passed.

The amendment is contained in new schedule 5 of the Technical Changes Bill, and it comprises of a measure referred to as benefit restriction notices, which would provide that a police force with a warrant out against a person suspected of committing a serious criminal offence could request that any social security benefits they receive be cut off by the minister in order to flush them out.

However, the legislation, including the dubious amendment, did come under more pronounced scrutiny in the upper house, which led Senator Lidia Thorpe to move an amendment to see the measure that would allow for the full range of income support payments to be potentially cut off dropped, and a wide range of anti-poverty, disability and legal advocacy groups have supported the move.

Not only is this measure of dubious nature as it weaponises the welfare system in order to penalise people merely considered may have committed a crime, but the new law would further result in the undermining of the legal principle of natural justice, or the doctrine of procedural fairness.

Targeting the most vulnerable

“This is a shocking attempt to quietly expand police power into the welfare, tax and workplace relations systems,” said Senator Thorpe in a 3 November statement. “It hands police and ministers the power to punish people before they’ve been found guilty of anything.”

“The government wants to let police cut off people’s income on the basis of suspicion — not conviction, not a court decision and before someone has even received legal advice,” she added. “It’s a clear breach of the presumption of innocence and the separation of powers. No minister should have power to punish someone just suspected of an offence without due process.”

Thorpe outlined before the press on Tuesday that these measures had been added to the Technical Changes Bill, after it was sent to the parliamentary community affairs committee and the committee on human rights, of which she is a member. She further asserted that when it was added those in the lower house did not then properly debate it.

In the upper house, Liberal Senator Kerryanne Liddle made certain that her party would be progressing the controversial “crack down on offenders and criminals with outstanding warrants by withholding welfare payments”, and she further questioned why, as the Coalition initially attempted to pass such measures in October 2022, federal Labor hadn’t refused them.

“This move will hurt people who are already struggling the most in this country — victim-survivors of domestic violence, children, disabled people and First Peoples, particularly women,” the Gunnai, Gunditjmara and Djab Wurrung woman underscored.

“We already know police routinely misidentify victim-survivors of family violence as perpetrators. Aboriginal women are some of the most misidentified and overpoliced people in this country. Under these powers, a woman fleeing an abuser could lose the only income keeping her and her kids safe.”

The guts of the amendment

Australian minister for social services Tanya Plibersek appeared on Sky News on Tuesday, to remark that “unbelievably” there are parliamentarians who consider “a fugitive on the run from the police for a serious offence like rape or murder or child abuse, should continue to get social security benefits while they’re on the run”.

Schedule 5 of the Technical Changes Bill amends the Social Security Act 1991 (Cth) and various other Acts related to Centrelink payments to ensure that the minister in charge of the Australian federal police, currently the home affairs minister, can cut social security payments off, and revoke any related cards, belonging to an individual with a warrant out against them for a serious crime.

Proposed section 38MA of the Social Security Act would require payments to be cut in relation to serious violent or sexual offences that are detailed within division 395 of the Criminal Code Act 1995 (Cth), which is part of the federal legislation that facilitates the imposition of community safety orders in relation to noncitizens who pose a risk of committing serious violent or sexual crimes.

Senior members of federal, state and territory law enforcement would be able to make requests to the AFP minister, the home affairs minister, the minister related to the Human Services (Centrelink) Act 1997 (Cth), as well as Home Affairs and Human Services. The section also requires that the AFP minister must consider the threat posed by the individual and the effect on their dependents.

Eroding natural justice

The Australian Greens reject the measure, alongside Thorpe. These laws are still before parliament, so there’s opportunity to ensure that benefit restriction notices do not become law. And if they are passed, these Centrelink-related penalisation measures would be in the same hands as those who ran Robodebt: the federal government and the social security department.

Independent member for Clark Andrew Wilkie said that the amendment had been snuck into the legislation at the last minute in the lower house, and he described the benefit restriction notices regime as a “fundamental breach of natural justice”, as “until someone has been convicted in a court and found guilty, they are found innocent.”

Natural justice is the right to procedural fairness in legal matters. The doctrine is said to ensure two principles: the right to a fair hearing and the right to unbiased judgment.

The Law Council of Australia released a statement on Wednesday, suggesting that schedule 5 be removed from the Technical Changes Bill to allow for the measures it contains to be properly scrutinised. The legal body further highlights that the measure undermines the presumption of innocence and the right to procedural fairness.

“No one, even those charged with serious offences, should be subject to punitive action by the state unless they have first been found guilty of an offence by an independent, impartial and competent tribunal,” made certain Law Council of Australia executive member Elizabeth Shearer. “It is unclear whether any constitutional implications arising under the bill have been considered.”

“Adding schedule 5 after a parliamentary scrutiny process vastly undermines the democratic rule of law principles which underpin Australian lawmaking,” the lawyer concluded. “The Law Council urges the Senate not to pass the bill with schedule 5 included” adding that it “should be separated from the rest of the bill and referred to a parliamentary committee for proper and careful public scrutiny”.