Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Hansard source

I don't want to be misrepresented by Senator Pocock on the position on the issues he's raised around constitutionality. As you would expect, the government takes legal advice on a whole range of matters. We are confident in the advice that we have received, and it has informed how we have approached drafting this legislative power.

On the point you raise on behalf of the Law Council of Australia, we think the legislation is very clear—that there is, essentially, an outstanding arrest warrant and that a person hasn't been arrested. That does encompass someone who's avoiding being arrested.

The legislation does allow—including as to advice from Services Australia and others, before this power is utilised—for information to be provided to inform the decision-making. In the example you provide, that someone is unaware that there is an arrest warrant, just remember that they have to have been charged with loss of a person's life or serious risk to a person's life, serious personal injury or serious risk of personal injury; sexual assault; production, publication, possession, supply or sale of child-abuse material; consenting to or procuring the employment of a child or employing a child in connection with child-abuse material; or acts done in preparation for or to facilitate the commission of a sexual offence against a person under the age of 16. So they have to have been charged with that and a warrant issued for their arrest. In the example that you cite there—that someone charged with that is unaware that the police are looking for them—that would be able to be considered by the minister, as part of forming his or her decision about whether or not to cancel the payment. That is very clear and allowable under the legislation.