David Pocock (ACT, Independent) Share this | Hansard source

I move:

That it be an instruction to the committee of the whole to divide the bill to:

(a) incorporate Schedule 5 in a separate bill; and

(b) add to that bill enacting words, provisions for titles and commencement, and a provision giving effect to the amending schedule.

I gave notice of this motion on 3 November, and it is listed on page 17 of the Notice Paper. I move this motion to split schedule 5 into a new bill, with the intention that we will send it to an inquiry for examination. There has been no scrutiny of schedule 5, which introduces an extremely punitive and highly controversial new power for the police minister to cancel someone's social security payments. And, no, we're not talking about jobseeker; we're talking about paid parental leave and single-parenting payments.

These changes warrant some very serious scrutiny, and I want to read out some of the concerns that have been sent to us by the Law Council of Australia. They say:

We are concerned that this measure would deny individuals subject to an arrest warrant the right to presumption of innocence. An arrest warrant is not a statement of guilt, but merely an order that a person appears in court. That person should not be subjected to punitive action unless they have first been found guilty of an offence.

This is really concerning. This is yet another example of a government treating people receiving social security like criminals. Apparently, it's no longer important for the courts to determine guilt. Now we have the government making that decision by itself and stripping people of life-sustaining money before they have been put before a judge, and this should concern everyone in the community.

The Law Council of Australia's letter also says:

Schedule 5 may create further inequity and unintended consequences within our justice system with significant community impacts. The measure only affects people who are already living with poverty and removal of social security payments will detrimentally impact their livelihood and access to housing. This measure could even make individuals more likely to commit crimes (or further crimes) to support themselves. This, combined with the potential of accused persons accessing benefits at shops or ATMs to provide police with evidence of that person's whereabouts, raises the question of whether it is rationally connected to its stated purpose of achieving community safety.

Not only does it flip the presumption of innocence, but it may actually achieve the opposite of what the government is seeking. It may actually stop police from finding people, and it could force desperate people into committing crime to feed themselves and their families. So, in fact, this could be detrimental to community safety. And that's not me saying this, it's the Law Council of Australia! Why not let us investigate that? Why are we pushing this through the Senate with no scrutiny?

One more quote, and I think this is particularly important. The Law Council says:

The unintended consequences of the Bill will disproportionately impact marginalised groups including First Nations people and people with disability. The Senate Legal and Constitutional Affairs References Committee documented at length concerns that police responses to domestic violence in First Nations communities can involve misidentifying First Nations women as perpetrators, rather than victim-survivors. This results in action being mistakenly taken against people who are in the most need of protection. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability documented similar concerns for people with disability, particularly First Nations women with disability. This underlines the risks of removing social security based on arrest warrants being issued, rather than a process of facts being tested before a court of law where a guilty verdict is reached.

And this is not just the view of the Law Council. This is the view of First Nations women's groups and disability representative organisations across the country, who are asking this Senate not to pass this schedule today but to send it to an inquiry for further examination. Here is what People with Disability Australia had to say in a public statement:

Stopping a person's payment before any court process has occurred risks leaving people without income, housing or essentials, and undermines the presumption of innocence that underpins our justice system.

The Disability Royal Commission demonstrated that people with disability disproportionately experience high rates of contact with the criminal justice system, reflecting the broader criminalisation of disability and the lack of appropriate social, health and community supports. Commissioners also documented the significant barriers that our communities face when dealing with police, courts, and other parts of the justice system. These findings show that even within a system designed to uphold due process, people with disability are often denied justice when their rights and needs are not properly understood or accommodated.

We are also deeply concerned that communities traditionally over-policed and disadvantaged, including First Nations people with disability, would be at heightened risk under this amendment.

Given such injustices already occur for our communities under judicial oversight, the risks are far greater in an administrative system where decisions can be made quickly, without due process, evidence, legal representation, or advocacy.

This amendment was introduced without public consultation or adequate scrutiny. Changes that affect millions of Australians should be transparent and informed by those most impacted.

Finally, this one is also very important. This is from the Aboriginal Legal Service (NSW/ACT):

Under this legislation, people's benefits could be stripped away simply because they are unaware police have issued a warrant for their arrest, and without any opportunity to access legal help.

The proposed amendments will inevitably have a greater impact on Aboriginal and Torres Strait Islander people, who are grossly overrepresented at every stage of the criminal process. Cutting off people's Centrelink payments will not only impact those individuals, but put their children and families—too many of whom already live below the poverty line—at risk of homelessness and child removals.

Such a controversial proposed legislative change should be the subject of considered consultation with community and legal experts. We call on the Government to withdraw this proposal.

I'm also gravely concerned about how this bill is going to impact children in our community. We in this place have a duty to protect children, and this fundamentally endangers children. The protections for children in this bill are so thin that they practically don't exist. On current reading, the minister's department have to seek advice on whether a decision the minister makes would impact a person's dependants, but they don't actually have to consider that advice before they make a decision. They just need to have asked for the advice, and then, if that advice said that it would be extremely detrimental to a child, they don't necessarily have to do anything about it. I'm sure the government would say that of course they will, but there's nothing in this legislation that actually ensures that they have to. They simply have had to sought advice: 'Yep, sought advice—away we go.' Even if the advice comes back and says, 'There will be detrimental impact on these children,' the department can, should they wish to, still choose to cancel a payment.

The children who would be impacted by this bill are already the children who are in the most vulnerable living circumstances in the country. They are children who are living off poverty-level payments. They are likely to be children living in remote parts of the country. No matter whether someone is pursued for a serious crime, it is not fair, proportionate, reasonable or ethical to put their dependants in harm's way or to leave them without the basic necessities of life. I would urge my colleagues, before voting to speed this bill through with no scrutiny, to spare a thought for the children who will be put in difficult situations.

To the coalition: I note that in Senator Liddle's speech on the second reading of this bill there were very significant concerns raised with schedule 5, and Senator Liddle said:

It is entirely inappropriate that the amendments weren't put to scrutiny in the committee process.

I'm presenting the Senate with an opportunity to actually send this to a Senate committee, to have a look at it and to allow all of these organisations, such as the Law Council of Australia and groups working on the front line with First Nations women across the country, to actually have their say in providing feedback to the Senate ahead of a vote on this schedule. This deserves more scrutiny. I urge my colleagues to split this bill.

I want to end with something that I think is really worth repeating and thinking about, and that is the comments by Commissioner Holmes, in the robodebt royal commission, on the way that we talk about people on welfare in this country. The government may argue that it's a long bow to draw, but I think this kind of legislation actually does show that we're not serious about due process when it comes to people on welfare payments. We're willing to punish them and punish their children if we deem that they are doing the wrong thing, and this is something we need to take seriously. We need to change the way we talk about this as a country, and so I urge the Senate to support this motion to split off schedule 5 and send it to an inquiry.