With a sneaky tweak, the government has made welfare recipients guilty until proven innocent
- Written by Zoe Staines, Senior Lecturer in Law and Social Policy, The University of Queensland
In the flurry of action in Parliament House in the final moments of the sitting year, the government passed a bill[1] that escaped the attention of most.
New changes to social security law mean a person’s income support can now be cancelled because they are subject to an outstanding arrest warrant for a serious offence.
These are people merely accused of crimes, not found guilty of them.
The change raises fundamental questions about justice, human rights and the role of social security. It transforms welfare from a crucial safety net to a tool of law enforcement, with serious implications.
Flying under the radar
The changes were quietly added to Social Security and Other Legislation Amendment Bill[2] in late October. The government did this without consultation or announcement, and bypassing parliamentary committee scrutiny on the grounds of urgency.
Less than a month later, the amended bill was passed into law. The change was effective immediately.
The legislation grants the minister for home affairs[3] the power to authorise “Benefit Restriction Notices”. These cancel social security, family assistance and parental leave payments for anyone with an outstanding arrest warrant for serious, violent or sexual offences (within the meaning of the criminal code[4]).
No conviction or even court appearance is required.
According to the bill’s explanatory memorandum[5]:
the objective […] is to ensure people who are subject to an outstanding arrest warrant for a serious offence can no longer be supported through the social security and family payments systems.
But an arrest warrant is not proof of guilt. It is merely an allegation that someone may have committed an offence.
Yet curbing social security is a punishment, and not just for the suspect, but often also their family.
6 serious problems
1. Violation of the presumption of innocence
These laws would enable punishment before any judicial determination of guilt. A person could have their support payments cancelled even if they haven’t been charged, convicted or appeared before any court.
The parliament’s own human rights experts warn[6] this may punish people who are legally innocent, directly contradicting the presumption of innocence.
This presumption is expressly protected under the International Covenant on Civil and Political Rights[7], to which Australia is a party. Its erosion under the measure sets a dangerous precedent.
It also cuts across the fundamental protection against double jeopardy[8]: the principle that people will not be tried or punished twice for the same offence. This is because cancelling welfare is a form of punishment, after which a second punishment might also be enforced for those subsequently found guilty.
2. Ministerial power with few safeguards
The laws bypass normal checks and balances in Australia’s social security system. The minister can cancel payments based on police requests, with no independent review.
Ordinarily, decisions by Services Australia can be appealed to the Administrative Review Tribunal. But under this measure, only limited judicial review is available. Courts can check procedural issues, but not whether the decision was fair.
Payments may be cancelled without the person knowing a warrant exists and there is no obligation to reinstate benefits if the warrant is cleared or charges dropped. Back pay isn’t provided if the person is found innocent.
This concentration of power removes safeguards against error and abuse, creating a two-tier system that denies basic procedural protections.
Constitutionally, it blurs the separation of powers[9] designed to ensure courts, not politicians, decide guilt and punishment.
3. First Nations peoples will be hardest hit
First Nations peoples make up 3.8% of the population, but 36% of all prisoners[10], with this overrepresentation continuing to grow[11]. This measure will hit First Nations communities hardest.
The experience of similar powers[12] in Aotearoa/New Zealand since 2013 has shown Māori peoples have their social security payments cancelled at twice the rate of others.
As a result, the nation’s Welfare Expert Advisory Group[13] recommended removing the powers in 2019.
By 2019-2020, 71%[14] of warrant to arrest sanction recipients were Māori.
And while the Australian police say[15] its use of this power will be rare, the similar laws in NZ were used around 700 times in 2019[16], according to the latest available data.
4. Harmful impacts for domestic violence victims
Domestic violence victims are also at significant risk from the measure. Victims fleeing abuse – especially First Nations victims[17] – are increasingly[18] wrongly[19] identified[20] as perpetrators.
If an arrest warrant is issued while they are in hiding, their support payments could be cancelled, cutting off their income at the most dangerous moment in their lives[21] with no chance to explain or present evidence.
This potentially forces them back into violent situations, with the alternative “choice” being dire poverty[22].
Read more: Indigenous women are most affected by domestic violence but have struggled to be heard. It's time we listened[23]
5. Serious doubt about proportionality and effectiveness
These laws could only comply with international law if the measure is proportionate, and actually effective in its objective[24] of stopping payments to people with outstanding arrest warrants “which might be assisting them in evading the authorities”.
The government has provided no evidence that cutting off payments would prevent people from evading the law or encourage their surrender.
That the measure cancels, rather than suspends, payments is also arguably in contradiction with international law, given this less restrictive alternative is available.
6. Another legal problem in the making?
Australia should have learned from its Robodebt Royal Commission[25]. Welfare cancellations without proper safeguards can be found unlawful and cause devastating harm.
Yet, the Benefit Restrictions Notice regime risks creating conditions for another scandal.
When the United States introduced similar “fugitive felon” provisions[26] in 1996, they proved disastrous, with many elderly and vulnerable people losing benefits without knowing warrants existed.
By 2002, around 110,000 people[27] had their benefits removed under these provisions.
Following legal challenges and a class action settlement[28], the US severely restricted these measures and compensated millions of dollars to people whose benefits were wrongly cancelled.
What needs to happen
While these laws are now active, their real-world consequences will take time to unfold.
It remains to be seen whether they will facilitate arrests. In the meantime, there must be rigorous public reporting, independent scrutiny, and formal review of how these powers are used, to ensure the serious risks outlined here do not materialise unchecked.
References
- ^ a bill (www.aph.gov.au)
- ^ Social Security and Other Legislation Amendment Bill (www.aph.gov.au)
- ^ minister for home affairs (minister.homeaffairs.gov.au)
- ^ criminal code (www.legislation.gov.au)
- ^ explanatory memorandum (parlinfo.aph.gov.au)
- ^ human rights experts warn (www.aph.gov.au)
- ^ International Covenant on Civil and Political Rights (www.ohchr.org)
- ^ double jeopardy (www.aph.gov.au)
- ^ separation of powers (peo.gov.au)
- ^ 36% of all prisoners (www.abs.gov.au)
- ^ grow (www.pc.gov.au)
- ^ similar powers (www.workandincome.govt.nz)
- ^ Welfare Expert Advisory Group (ndhadeliver.natlib.govt.nz)
- ^ 71% (www.msd.govt.nz)
- ^ Australian police say (www.abc.net.au)
- ^ 700 times in 2019 (www.msd.govt.nz)
- ^ especially First Nations victims (parlinfo.aph.gov.au)
- ^ increasingly (search.informit.org)
- ^ wrongly (link.springer.com)
- ^ identified (www.abc.net.au)
- ^ most dangerous moment in their lives (www.theguardian.com)
- ^ alternative “choice” being dire poverty (figshare.uts.edu.au)
- ^ Indigenous women are most affected by domestic violence but have struggled to be heard. It's time we listened (theconversation.com)
- ^ its objective (parlinfo.aph.gov.au)
- ^ Robodebt Royal Commission (robodebt.royalcommission.gov.au)
- ^ similar “fugitive felon” provisions (heinonline.org)
- ^ around 110,000 people (heinonline.org)
- ^ class action settlement (www.ssa.gov)
Authors: Zoe Staines, Senior Lecturer in Law and Social Policy, The University of Queensland
