Senate

Revised Explanatory Memorandum - Extracts Only

Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC

Schedule 2 - Stopping welfare payments

1137. This Schedule amends the Family Assistance Act, the PPL Act, the Social Security Act and the Social Security (Administration) Act to provide that welfare payments can be cancelled for individuals whose passports have been cancelled or refused, or whose visas have been cancelled, on national security grounds. This is to ensure that the Government does not support individuals who are fighting or training with extremist groups.

1138. Currently, welfare payments can only be suspended or cancelled if the individual no longer meets social security eligibility rules, such as participation requirements, and residence or portability qualifications. The new provisions will require the cancellation of a person's welfare payment when the Attorney-General provides a security notice to the Minister for Social Services. The Attorney-General will have discretion whether to issue a security notice where either:

•

the Foreign Affairs Minister has notified the Attorney-General that the individual has had their application for a passport refused or had their passport cancelled on the basis that the individual would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, or

•

the Immigration Minister has notified the Attorney-General that an individual has had their visa cancelled on security grounds.

1139. The Foreign Affairs Minister and the Immigration Minister will also have a discretion whether to advise the Attorney-General of the passport or visa cancellation.

1140. Welfare payments will only be cancelled in circumstances where the receipt of welfare payments was relevant to the assessed security risk posed by the individual and the cancellation of welfare would not adversely impact the requirements of security. This is to ensure that those individuals assessed to be engaged in politically motivated violence overseas, fighting or actively supporting extremist groups are captured. It is not intended that every person whose passport or visa has been cancelled on security grounds would have their welfare payments cancelled, but would occur only in cases where it is appropriate and justified.

Part 1 - Main Amendments

A New Tax System (Family Assistance) Act 1999

Item 1 - Subsection 3(1)

1141. This item inserts new subsection 3(1) to explain that:

•

the Attorney-General's Secretary means the Secretary of the Department administered by the Minister administering the ASIO Act

•

the Foreign Affairs Minister means the Minister administering the Passports Act

•

the Human Services Secretary means the Secretary of the Department administered by the Minister administering the Human Services (Centrelink) Act 1997

•

the Immigration Minister means the Minister administering the Migration Act, and

•

a security notice means a notice under section 57GJ.

Item 2 - At the end of Part 3

1142. This item inserts new Division 7 'Loss of family assistance for individuals on security grounds' into Part 3 'Eligibility for Family Assistance' of the Family Assistance Act. Division 7 sets out how the welfare cancellation process will operate for family assistance for individuals. 'Family assistance' is defined in section 3 of the Family Assistance Act to mean:

(a)

family tax benefit; or

(b)

stillborn baby payment; or

(d)

child care benefit; or

(da)

child care rebate; or

(e)

family tax benefit advance; or

(f)

single income family supplement; or

(g)

schoolkids bonus.

1143. However, new section 57GQ makes it clear that this Division does not apply to the child care benefit or child care rebate.

Section 57GH Simplified outline of this Division

1144. This item inserts new section 57GH which provides a simplified outline at the start of Division 7 which states: 'Individuals who might prejudice the security of Australia or a foreign country may lose family assistance.' Division 7 sets out how the welfare cancellation process operates for family assistance for individuals.

1145. While simplified outlines are included to assist readers to understand the substantive provisions, the outlines are not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

Section 57GI Loss of family assistance for individuals on security grounds

1146. This item inserts new section 57GI, which provides that where a security notice is given to the Minister for Social Services the individual who is the subject of the notice will not be eligible for family assistance.

1147. New subsection 57GI(1) provides that where the Attorney-General provides the Minister for Social Services with a security notice under section 57GJ, then while the notice is in force the individual is not eligible to be paid family assistance nor is the individual eligible for family assistance. Note 1 explains that a security notice is notice under section 57GJ of the Family Assistance Act. Note 2 confirms that this Division does not apply in relation to the child care benefit or child care rebate as provided by section 57GQ of the Family Assistance Act.

1148. New subsection 57GI (2) provides that if the Attorney-General gives a security notice to the Minister for Social Services, then any determination that the individual is entitled to be paid family assistance, that is in force immediately before the day the notice comes into force, ceases to be in force on that day. This means that the day the notice comes into force an individual will no longer be eligible for family assistance as prescribed in the notice.

1149. New subsection 57GI (3) clarifies that if the security notice ceases to be in force, then the individual is not eligible for any family assistance for any day the notice was in force. However, new subsection 57GI(4) provides that if a security notice given to the Minister for Social Services in relation to an individual recommends that payments of family assistance of the individual be paid to a payment nominee of the individual under Part 8B of the A New Tax System (Family Assistance) (Administration) Act 1999, and apart from subsections 57GI(1) to (3), the individual would be eligible for the whole or a part of that family assistance, then that whole or part may be paid to a payment nominee of the individual under that Part. Part 8B of the Family Assistance Administration Act provides for the appointment, payment and responsibilities of nominees. This provision enables payment to be made on behalf of the individual but ensures that the individual does not receive the money. Instead, a payment nominee will receive and distribute the money for purposes according to a written direction by the Secretary under subsection 57GI(6). This ensures that where possible, children of the individual (and other concerns under family assistance law) are not detrimentally affected because of the individual's conduct.

1150. New subsection 57GI(5) provides that if a person is to be appointed as the payment nominee of the individual, then paragraph 219TD(2)(b) of the Family Assistance Administration Act does not apply in relation to that appointment. This means that the Secretary of DSS does not have to take into account the wishes (if any) of the individual in appointing a nominee to receive the payment on the individual's behalf, but instead can appoint a nominee without consulting the individual. This provision recognises that in practice it may be very difficult to contact the individual. It would also defeat the objective of the reforms if the individual was able to direct who should receive the payment on their behalf.

1151. Under subsection 57GI (6) where a person is appointed as the payment nominee of the individual, section 219TN of the Family Assistance Administration Act does not apply in relation to the nominee. Instead, any amount paid to the nominee on behalf of the individual is to be applied by the nominee in accordance with a written direction given by the Secretary under this subsection. This means that the payment nominee is not under a legal obligation to act in the best interests of the individual. This is a reasonable measure to implement the objective of the reforms.

1152. New subsection 57GI (7) provides that where a security notice is given to the Minister for Social Services in relation to an individual who is aged 19 or less on the day the notice is given then for any day while the notice is or was in force, the individual cannot be a Family Tax Benefit (FTB) child of another individual, cannot be a regular care child of another individual and cannot be a client of an approved care organisation. This means that a person cannot be paid family assistance on behalf of an individual aged 19 or less who has been classified as a security risk.

1153. New subsection 57GI (8) clarifies that subsections 57GI (1) to (7) have effect despite any other provision of the family assistance law.

1154. New subsection 57GI (9) provides that where an individual ceases to be eligible for family assistance because of subsection 57GI (2), the Secretary must cause reasonable steps to be taken to notify the individual of the cessation. In practice, notifying individuals who may be participating in overseas conflicts may not be possible.

Section 57GJ Security notice from Attorney-General

1155. This item inserts new section 57GJ which sets out what comprises a security notice from the Attorney-General. Subsection 57GJ(1) specifies that the Attorney-General may give the Minister for Social Services a written notice requiring that Division 7 apply to a specified individual.

1156. There are two alternative limbs that may lead to the Attorney-General issuing a notice. Only one of the limbs need apply.

1157. The first limb is under paragraph 57GJ (1)(a) which provides that the Foreign Affairs Minister may give the Attorney-General a notice under section 57GK in relation to the individual.

1158. The second limb is under paragraph 57GJ (1)(b) which provides that the Immigration Minister may give the Attorney-General a notice under section 57GL in relation to the individual.

1159. Upon receipt of a notice from either the Foreign Affairs Minister or the Immigration Minister, the Attorney-General has discretion whether to provide a security notice to the Minster for Social Services, and would take into account the requirements of security in making that decision.

1160. New subsection 57GJ(2) provides that a notice under this section may recommend that payments of family assistance of the individual, to the extent set out in the notice, be paid to a payment nominee of the individual under Part 8B of the Family Assistance Administration Act. Part 8B of the Family Assistance Administration Act is concerned with the appointment, payment and responsibilities of nominees. This provision enables payment to be made on behalf of the individual's family but ensures that the individual does not receive the benefit of any family assistance. This ensures that where possible, children of the individual are not detrimentally affected because of the individual's conduct.

1161. New subsections 57GJ(3) and (4) provide that, before giving a security notice the Attorney-General must have regard to:

•

the extent (if any) that any welfare payments of the individual who is the subject of the notice, are being, or may be, used for a purpose that might prejudice the security of Australia or a foreign country, and

•

the likely effect of welfare cancellation on the individual's dependants. To facilitate the Attorney-General's decision, the Attorney-General's Secretary is required to seek advice from the Secretary of the Department of Human Services and inform the Attorney-General of that advice.

1162. These considerations are not an exhaustive list and it will be open to the Attorney-General to have regard to any other matters when considering whether to issue a security notice.

Section 57GK Notice from Foreign Affairs Minister

1163. This item inserts new section 57GK which provides that the Foreign Affairs Minister may give the Attorney-General a written notice notifying the Attorney-General that they have either refused to issue an individual an Australian passport under subsection 14(2) of the Passports Act, or cancelled an individual's Australian passport under section 22 of the Passports Act. The refusal or cancellation must have been made in response to a competent authority request under subsection 14(1) of that Act, and the request must have been made on the basis of the matter referred to in subparagraph 14(1)(a)(i) of that Act, namely that the person would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.

1164. It is not intended that every decision to refuse to issue an Australian passport under subsection 14(2) or to cancel an Australian passport under section 22 of the Passports Act will result in a notice being given to the Attorney-General. Rather, the Foreign Affairs Minister has a discretion to give a notice. The decision to give a notice would be guided by security advice.

Section 57GL Notice from Immigration Minister

1165. This item inserts new section 57GL which provides that the Immigration Minister may give the Attorney-General a written notice notifying the Attorney-General that they have cancelled an individual's visa under section 116, 128, 134B or 501 (where ASIO has assessed the individual is directly or indirectly a risk to security) of the Migration Act. It is not intended that every decision to cancel a visa will result in a notice being given to the Attorney-General under section 57GL. The Immigration Minister has discretion to give a notice under this section. This decision would be guided by security advice.

Section 57GM Copy of security notice to be given to Secretaries

1166. This item inserts new section 57GM which provides that the Minister for Social Services must give a copy of a security notice to the Secretary of the Department of Social Services (DSS) and the Secretary of the Department of Human Services (DHS). This is to ensure that welfare cancellation can occur as expeditiously as possible.

Section 57GN Period security notice in force

1167. This item inserts new section 57GN which provides that a security notices comes into force on the day it is given to the Minister for Social Services and remains in force until revoked. The criteria for revoking a notice are set out in section 57GO.

Section 57GNA

1168. New section 57GNA requires the Attorney General to review a security notice issued under new section 57GJ. The review will require the Attorney General to consider whether to revoke a security notice within 12 months of it coming into force, and thereafter, within 12 months after the Attorney-General last considered whether to revoke it.

1169. These amendments implement Recommendation 30 of the Report of the Parliamentary Joint Committee on Intelligence and Security and will ensure security notices are subject to regular review to determine whether the person should remain ineligible to receive welfare payments on the basis of national security concerns.

Section 57GO Revoking a security notice

1170. This item inserts new section 57GO which provides that the Attorney-General may revoke a security notice they have given. The revocation must be in writing, and it takes effect on the day it is made. The Attorney-General must provide written notice of a decision to revoke a security notice to the Minister for Social Services who must then give a copy of the notice to the Secretary of DSS and the Secretary of DHS. The Attorney-General's discretion to revoke a security notice would be guided by security advice. New subsection 57GO (4) provides that where a security notice has been revoked that the Secretary of DSS must cause reasonable steps to be taken to notify the individual of the revocation.

Section 57GP Notices may contain personal information

1171. This item inserts new section 57GP which clarifies that a notice under Division 7 may contain personal information (within the meaning of the Privacy Act 1988) about the individual.

Section 57GQ This Division does not apply to child care benefit or child care rebate

1172. This item inserts new section 57GQ which clarifies that Division 7 does not apply to the child care benefit or child care rebate. It is not the intention that payments that encourage workforce participation, studying or training be included. These payments require that the recipient satisfy the work, training, study test.

Section 57GR Certain decisions not decisions of officers

1173. This item inserts new section 57GR which provides that for the purposes of Part 5 of the Family Assistance Administration Act, decisions under this Division, any decision under Part 8B of the Family Assistance Administration Act that is, or is related to, a decision to pay, or not to pay, an amount of family assistance as mentioned in new subsection 57GI (4) of the Family Assistance Act, are taken not to be decisions of an officer under the family assistance law. This means that the reviewability of decisions made under this Division is limited for security reasons as decisions will not be reviewable under Part 5 of the Family Assistance Administration Act.

Section 57GS Instruments not legislative instruments

1174. This item inserts new section 57GS which provides that a notice under this Division or a direction under new subsection 57GI(6) is not a legislative instrument. This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.