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

by leave—I move government amendments (1) to (10) on sheet MM100 together:

(1) Schedule 2, item 6, page 26 (line 8), before "The Secretary", insert "(1)".

(2) Schedule 2, item 6, page 26 (after line 17), at the end of section 99, add:

(2) Subsection (1) does not apply if the debt could be recovered by setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments).

(3) Schedule 2, page 27 (after line 15), after item 10, insert:

10A At the end of Part 5.2

Add:

1230D Non-recovery of certain amounts

If a record of an amount less than the amount referred to in section 1237AAA is entered into the records of the Human Services Department, the Secretary must waive the Commonwealth's right to raise a debt in respect of the whole or a part of the amount if, were the Commonwealth to exercise that right, the resulting debt would be a debt within the meaning of Part 5.4.

Note 1: The amount referred to in section 1237AAA is indexed on each 1 July (see sections 1191 to 1194). Immediately before 1 July 2026, the amount was $250.

Note 2: See also section 1237AAA (waiver of small debt).

Note 3: A waiver under this section of the Commonwealth's right to raise a debt in respect of an amount does not prevent the Secretary from considering whether any person may have engaged in fraud or serious non-compliance in relation to the amount and taking further appropriate action.

(4) Schedule 2, item 11, page 28 (after line 11), at the end of section 1237AAA, add:

Note 4: See also section 1230D (non-recovery of certain amounts).

(5) Schedule 2, item 12, page 28 (after line 25), at the end of section 43D, add:

Note 3: See also section 44 (non-recovery of certain amounts).

(6) Schedule 2, page 28 (after line 25), after item 12, insert:

12A At the end of Part 6

Add:

Division 5 — Other matters

44 Non-recovery of certain amounts

If a record of an amount less than the amount referred to in section 1237AAA of the Social Security Act 1991 is entered into the records of the Human Services Department, the Secretary must waive the Commonwealth's right to raise a debt in respect of the whole or a part of the amount if, were the Commonwealth to exercise that right, the resulting debt would be a debt to which this Part applies.

Note 1: The amount referred to in section 1237AAA of the Social Security Act 1991 is indexed on each 1 July (see sections 1191 to 1194 of that Act). Immediately before 1 July 2026, the amount was $250.

Note 2: See also section 43D (waiver of small debt).

Note 3: A waiver under this section of the Commonwealth's right to raise a debt in respect of an amount does not prevent the Secretary from considering whether any person may have engaged in fraud or serious non-compliance in relation to the amount and taking further appropriate action.

44A Secretary may arrange for use of computer programs to make decisions

(1) The Secretary may arrange for the use, under the Secretary's control, of computer programs for any purposes for which an officer may make a decision that is the doing of a thing under section 43D (waiver of small debt) or section 44 (non-recovery of certain amounts).

(2) A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Secretary.

(7) Schedule 2, item 13, page 28 (before line 28), insert:

Debts

(8) Schedule 2, item 13, page 28 (after line 32), at the end of the item, add:

Non-recovery of certain amounts

(3) The amendments made by this Part apply in relation to a record that is entered into the records of the Human Services Department after the commencement of this item.

(9) Schedule 2, item 14, page 29 (line 3), after "amount", insert "(other than an amount of child care subsidy or additional child care subsidy)".

(10) Schedule 2, item 14, page 29 (after line 23), at the end of the item, add:

(5) In this item:

additional child care subsidy has the same meaning as in the A New Tax System (Family Assistance) Act 1999.

child care subsidy has the same meaning as in the A New Tax System (Family Assistance) Act 1999.

These amendments give full effect to our policy intent by providing for the automatic waiving of future small debts below the new threshold of $250 before those amounts are required to be formally raised as debts by Services Australia. They ensure the small debt waiver regime provides for these waivers consistently under the Social Security Act 1991 and the Student Assistance Act 1973. Specifically, the amendments insert a new section 44A into the Student Assistance Act to ensure a computer program may be used for the purposes of administering the small debt waiver and small undetermined debt waiver provisions in the Student Assistance Act. This ensures the waivers can be administered in the same way as equivalent waivers under social security law.

The amendments also ensure that childcare provider debts can continue to be recovered by setting off against a childcare service payment. This is due to the different debt processes involved with those payments, where debts are not usually raised until the annual reconciliation process has taken place. The amendments I just talked about are covered in the supplementary explanatory memorandum. I table that, along with the letter from the Minister for Social Services to the Ombudsman that I referred to earlier.

Question agreed to.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

by leave—I table a statement from academics and legal experts. The statement says:

We, the undersigned academics and legal experts, call on the Australian Government to immediately remove Schedule 5 from the Social Security and Other Legislation Amendment (Technical Changes No. 2) Bill 2025. In doing so, we add our voices to a building coalition of anti-poverty advocates, legal services, human rights experts, disability representative organisations, and senators … who also strongly oppose the amendment.

Schedule 5 was added to the Bill on 28 October 2025 without prior announcement or any public consultation. This Schedule allows state, territory, or federal police to—in relation to individuals with outstanding warrants for serious violent or sexual offences—lodge a request with the Minister for Home Affairs to have that person's social security payments and concessions (under the Social Security Act 1991 … family assistance payments (under the A New Tax System (Family Assistance) Act 1999 ... and parental leave pay (under the Paid Parental Leave Act 2010 … cancelled.

The (revised) explanatory memorandum to the Bill states:

The objective of this measure 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.

This represents a dangerous departure from fundamental legal principles that underpin Australia's social security and criminal justice systems.

I'll just summarise the concerns in relation to schedule 5. They include the violation of the presumption of innocence and due process; ministerial power without procedural safeguards or independent review; lack of parliamentary scrutiny and consultation; disproportionate impacts for First Nations peoples, as demonstrated in New Zealand; disproportionate impacts for victims of violence; incoherent federal-state arrangements without accountability; and possible severe harm to dependants. International evidence demonstrates harm. Existing mechanisms are inadequate, and current safeguards are more protective. It's an unacceptable precedent that this government is setting.

The position of over 100 organisations who have major concerns with schedule 5 are saying:

We, the undersigned academics and legal experts, call on the Australian Government to immediately remove Schedule 5 from the Social Security and Other Legislation Amendment (Technical Changes No. 2) Bill 2025.

We support proper parliamentary process. If the Government believes such powers are necessary, Schedule 5 should be removed from this Bill and introduced as separate legislation subject to:

We oppose the establishment of a two-tier justice system that strips welfare recipients of the basic legal safeguards that underpin equality before the law—due process and the presumption of innocence.

My fellow senator will read out who those academic leaders and experts are.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Following on from Senator Thorpe's contribution around the statement from academic and legal experts, I think it's important that we get on the record who it is that's telling the government that we really need to have some additional scrutiny of schedule 5. It's people like Marian Sawyer, emeritus professor from the Australian National University; Adjunct Professor Nicholas Cowdrey AO, KC, adjunct at the law schools of the University of Sydney and the University of New South Wales; Adjunct Professor George Newhouse, CEO of the National Justice Project; Associate Professor Hannah McGlade, a member of the UN Permanent Forum for Indigenous Issues; Tracey Booth, acting dean at the Faculty of Law, UTS; Professor Lise Barry, dean at the Macquarie Law School; Professor Tamara Walsh, professor of law and director of the UQ Pro Bono Centre, University of Queensland; and Associate Professor Maria Giannacopoulos, director of the Centre for Criminology, Law and Justice, University of New South Wales. It includes John Scott, professor and head of the School of Justice at QUT; Professor Amy Maguire, director of the Centre for Law and Social Justice at the University of Newcastle; Professor Paul Henman, professor of digital sociology and social policy at the University of Queensland; Kristen Lyons, professor at the School of Social Science, University of Queensland; Professor Juan Tauri, professor of criminology, University of Melbourne; Michael Flood, professor at the Queensland University of Technology; and Gaby Ramia, professor of public policy, University of Sydney.

There's also Dr Alessandro Pelizzon, discipline lead of law at the University of the Sunshine Coast; Professor Heather Douglas, University of Melbourne; Linda Steele, professor at the Faculty of Law, University of Technology Sydney; Alex Steel, professor, Faculty of Law and Justice at the University of New South Wales; Lynda Cheshire, professor of sociology at the University of Queensland; Greg Martin, professor of criminology and sociolegal studies at the University of Sydney; Professor Thalia Anthony, Faculty of Law, UTS; Professor Chris Cunneen, Jumbunna Institute for Indigenous Education and Research; Ruth Phillips, professor of social policy at the University of Sydney; Professor Lou Crabtree-Hayes, professorial research fellow at the Institute for Culture and Society at Western Sydney University; Lorana Bartels, professor of criminology at the Australian National University and adjunct professor of law at the University of Canberra and the University of Tasmania; Dr Penny Crofts, professor, UTS; Linda Briskman, professor of social work at Western Sydney University; Professor Greg Marston, Director of the Centre for Policy Futures at the University of Queensland; Dr Zoe Staines, senior lecturer in criminology and social policy at the University of Queensland—it's a long list.

It includes Dr Francis Markham, fellow at the ANU Centre for Social Policy Research at the Australian National University; Dr Elise Klein, associate professor of public policy at the Crawford School of Public Policy at ANU; Dr Ben Spies-Butcher, associate professor of economy and society at the School of Communication, Society and Culture at Macquarie University; Dr Christopher Rudge, lecturer and deputy director of Sydney Health Law at the Sydney Law School, University of Sydney; Dr Simone Casey, principal research fellow, Centre for Inclusive Employment at Swinburne University of Technology; Dr Edward Jegasothy, senior lecturer at the School of Public Health at the University of Sydney; Dr Sue Olney, associate professor of political science at the University of Melbourne; Dr Eve Vincent, associate professor of anthropology at Macquarie University; Dr Emma Mitchell, Macquarie University research fellow in sociology at Macquarie University; Gareth Bryant, associate professor at the University of Sydney; Emma Power, associate professor, School of Social Sciences and the Institute for Culture and Society at Western Sydney University; Haylee Davis at the Jumbunna Institute for Indigenous Education and Research; Estrella Pearce, lecturer in criminology, School of Social and Political Sciences at the University of Sydney; Fiona Allison, associate professor, Jumbunna Institute, UTS; Dr Kate Thomas; Dr Mark Riboldi, lecturer at UTS Business School, University of Technology Syndey; Dinesh Wadiwel, associate professor in sociolegal studies and human rights at the University of Sydney; Monique Hurley, lecturer at Melbourne Law School and associate legal director at the Human Rights Law Centre; and Adjunct Associate Professor Terese Henning at TOPCAT.

There's Associate Professor Helen Gibbon at the University of New South Wales Faculty of Law and Justice; Dr Vicki Sentas, associate professor at the Centre for Criminology, Law and Justice at the Faculty of Law and Justice at the University of New South Wales Sydney; Kate Swaffer, activist and researcher at the University of South Australia; Phillip Wadds, associate professor at the University of New South Wales Faculty of Law and Justice; Melissa Johnston, lecturer at the University of Queensland; Natasha Cortis, associate professor, Social Policy Research Centre, University of New South Wales; Dr Sean Mulcahy, La Trobe University; Stefanie Plage, research fellow, ARC Centre of Excellence for Children and Families over the Life Course; Dr Sarah Bennett, associate professor in criminology at the University of Queensland; Dr Emma Antrobus, also a senior lecturer in criminology at the University of Queensland; Rose Stambe, research fellow at Griffith University; Dr Michelle Peterie, senior research fellow at the University of Sydney; Dr Peter Walters, associate professor at the School of Social Science, University of Queensland; Lana Tatour, University of New South Wales; Dr Phuc Nguyen, La Trobe University; Dr Leah Williams, senior lecturer at the University of New South Wales Faculty of Law and Justice; Emile Carreau, lecturer at the University of New South Wales Faculty of Law and Justice; and Dr Sarah Ball, lecturer in public policy at the University of Queensland.

The names also include Dr Georgia Van Toorn from the University of New South Wales; Dr Susan Collings, senior research fellow, Transforming early Education And Child Health Research Centre, Western Sydney University; Associate Professor Helen Gibbon from the University of New South Wales Faculty of Law and Justice; Scarlet Wilcock, a senior lecturer at the University of New South Wales Faculty of Law and Justice; Dr Janet Hunt, honorary associate professor, Centre for Indigenous Policy Research at the Australian National University; Melissa O'Donnell, academic researcher; Esther Erlings, senior lecturer at Macquarie Law School; Arianna Gatta, research fellow at the School of Economics and the Centre for Policy Futures, University of Queensland; Andreea Lachsz, Quentin Bryce Law Doctoral Scholar at UTS; Anna Copeland, associate professor and director of clinical legal education at Murdoch University; Associate Professor Trish Luker, Faculty of Law, UTS; Francesca Dominello, senior lecturer at Macquarie Law School, Macquarie University, Sydney; Sarah Moulds, associate professor in law, University of South Australia; Emily Piggott, Centre for Innovative Justice, RMIT University; Piers Gooding, associate professor, La Trobe Law School; Dr Laura Bedford, senior lecturer in criminology at the University of Melbourne; Dr Emily Wolfinger, Western Sydney University; Dr Rebecca Scott Bray, associate professor, University of Sydney; and Andy Kaladelfos, senior lecturer, University of New South Wales Faculty of Law and Justice.

We also have legal and policy experts, and I might leave it to Senator Thorpe to continue that list.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

I will continue the list, because this is what this government has completely ignored. I don't know where your advice is coming from, but we have over a hundred legal and human rights experts that tell you that this is not okay. In terms of legal and policy experts, they are Caitlin Reiger, chief executive officer, Human Rights Law Centre; Kate Allingham, CEO of Economic Justice Australia; Kerry Weste, vice president and chair of children's rights, Australian Lawyers for Human Rights; Debbie Kilroy OAM, CEO of Sisters Inside; Cassandra Goldie, chief executive officer of ACOSS; Leo Patterson Ross, CEO of the Tenants Union of NSW; Alison Battisson, director principal of Human Rights for All and Heretic Law; Judy Harrison, co-convenor of the National Regional, Rural, Remote and Very Remote Community Legal Network; Edwina McDonald, chief strategy officer, ACOSS; Therese Edwards, Single Mother Families Australia; Sarah Marland, executive director, Community Legal Centres NSW; Jonathon Hunyor, CEO of the Justice and Equity Centre; Kira Levin, principal solicitor, Homeless Persons' Legal Service, Justice and Equity Centre; Ellen Tilbury, principal solicitor, Justice and Equity Centre; Kate Beaumont, executive officer, Welfare Rights & Advocacy Service WA; Antonio Gonzales, welfare rights advocate, Fremantle CLC; Jonathan Hall Spence, principal solicitor, Justice and Equity Centre; Joanna Collins, CEO of Pilbara Community Legal Service; Louisa Stewart, principal solicitor, South Coast & Country Community Law; Karen Fletcher, executive officer, Flat Out Inc.; Stephanie Price, manager of Social Security Rights Victoria; Damian Stock, CEO of ARC Justice; James Farrell OAM, CEO, Basic Rights Queensland; Bronwyn Ambrogetti, managing solicitor, Hunter Community Legal Centre; Patrick O'Callaghan, Western NSW Community Legal Centre principal solicitor; JC Weliamuna, principal solicitor, Human Rights Law Program, Asylum Seeker Resource Centre; Benjamin Graham, principal solicitor, Central Coast Community Legal Centre; and Ashley Newnham, acting chief executive officer, South-East Monash Legal Service. I table the document, and I also seek leave to move the amendments on sheet 3481 standing in my name together.

Leave granted.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

You will need to seek leave to table the document.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

I did seek leave, but I didn't actually say at the end of the speech, 'I table the document,' which I think is a formality.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

So you have sought leave previously? Thank you very much, Senator Thorpe.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

I move the amendments in my name on sheet 3481 together:

(1) Clause 2, page 2 (table item 5), omit "Schedules 3, 4 and 5", substitute "Schedules 3 and 4".

(2) Schedule 5, page 38 (line 1) to page 52 (line 11), to be opposed.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

I have a question for the minister. Minister, when you were talking about schedule 5, you said in your remarks that schedule 5 applies to people who've committed an offence of a particular nature. My question to you is: how do you know they've committed that offence if they haven't been found guilty by a court of law?

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

In my remarks, I said 'charged with committing a serious offence or sexual offence', and I also referred to the need to have an outstanding arrest warrant and be a threat to public safety.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Thanks for that clarification, Minister. One of the concerns of legal experts—academic experts—is that this amendment was made to the bill in the House following the Senate inquiry into the bill. Also as, Senator Thorpe talked about earlier today, this has also meant that this schedule was not in the bill when it went to the Human Rights Committee. In responding to some of those assertions by the crossbench, in our earlier exchange, you talked about the fact that these amendments were introduced by the government after you'd received advice. Minister, can you inform the Senate who gave that advice and to whom, when that advice was given and the contents of that advice?

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

I'll check and see whether there are any specific dates I can give, but I was certainly involved in a number of discussions around this matter, and it was post the original bill being put together—essentially going through our government approvals processes. The advice came from a number of different agencies across government. It came over a period of time, and the government obviously went through its own processes of understanding that advice and information that was being provided and then determining the most appropriate way through, which was to seek an amendment to this bill through the insertion of clause 5. I'll see if there's anything more helpful I can give you. It certainly involved the Minister for Home Affairs, the Minister for Social Services and me as a Minister for Government Services. I'll check if any further ministers were involved, and I'll see if I can provide a date or date window from during that time. I'll come back on that. I'm just trying to see if I can give you a scope of time.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Noting that, was any consultation done with people outside of government—any legal experts, any legal advocacy organisations or anyone? Are you able to give us a list of who you consulted in coming to the view that this needed to be done?

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

I should probably also have said that the Attorney-General's Department would have also been involved, when I mentioned other departments that had been providing ministers with advice. I'm also advised that the Minister for Social Services spoke to EJA and ACOSS prior to the announcement about schedule 5. The minister has also committed to working with those organisations on developing the guidance and procedures for the use of that power.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Minister, there's a difference between 'spoke to' and 'consulted with'. 'Consultation' implies that there's a two-way flow of information and feedback is taken on board. 'Spoken to' implies that you simply told them you were doing it. I certainly stood up at a press conference today where ACOSS expressed huge concerns over schedule 5. It was actually calling on the government to remove schedule 5 from this particular bill and to subject it to scrutiny. In those consultations, were EJA and ACOSS supportive of the insertion of schedule 5?

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

I wasn't necessarily implying there was any support from those organisations. I'm just giving you some facts about who the Minister for Social Services spoke to. This was a government decision about a power, based on advice from a number of different agencies, that we decided to include as an amendment.

We didn't have a broad consultation process around it outside of government. It was a process that was led across ministers within government, and, as I said, the opportunity for ACOSS and EJA is really in working with the Minister for Social Services on the operational guidance around this. I've already provided the Senate with a letter from the Minister for Social Services about the approach she intends to take with the Ombudsman around transparency and reporting, and I think there is opportunity for those organisations to be involved in that process. I think a lot of the concerns that have been raised this morning, particularly about how widespread this application of this power would be, are unfounded. It is a very specific and very unusual set of circumstances that would lead to this power being applicable to someone on income support.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Minister, in the debate around the motion moved by Senator David Pocock to split the bill, you commented that statements made by the crossbench about the lack of scrutiny were unfounded because there had been briefings given on the bill. You've also just now said that ACOSS and EJA weren't engaged in a consultation but were 'spoken to'. Minister, is it your assertion, and the government's assertion, that giving crossbenchers briefings—which we all know are one-way processes, where the department tells us what the government is going to do—and speaking to ACOSS and EJA is the level of scrutiny to which the bill has been subjected? Is it your assertion that that amounts to scrutiny?

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

Firstly, I don't recall saying that the concerns around scrutiny were unfounded. I said a lot of the concerns raised by the crossbench around the broad application of this power were unfounded. I said there was the opportunity for briefings, which Senator Thorpe and the opposition did seek. I've been a part of briefings before. I don't see them as a one-way street; I see them as an opportunity for individual senators to essentially cross-examine the department and test some of the policy decisions that have been made. I've sat in a lot of briefings myself; I've sat in them in opposition. I think they are a genuine way for the government to engage and to allow for scrutiny of the decisions that we have taken. Now, if the Greens didn't take that up—I'm not casting a view on that; I'm just saying that was available and it was only taken up by Senator Thorpe and the opposition.

I have at no stage said that there was broad community consultation process around this. The government stands here saying, 'We need this power.' We've been advised by a number of departments on this. We've taken that decision, and we're putting it through as a schedule to this amendment. This is part of the scrutiny of that decision, but I'm not pretending that it was part of a broad consultation process. It wasn't. It's a government decision based on advice that we have from our departments, and we make those decisions regularly.

We are absolutely saying, to those organisations that have an interest in this, that the minister wants to work with them around the guidance and application procedures for this power, alongside the transparency that the relevant minister, who in many cases will be the Minister for Home Affairs, will be providing through to the Ombudsman. I think those are good, appropriate safeguards, and they should address some of the concerns that have been raised here this morning. It's a very, very specific set of individuals that this would apply to. It is not going to apply to millions of Australians, as was said in this chamber this morning. There are safeguards, including on its impact on families and dependants, around how that would operate. The view that it's going to impact children unfairly, I think, is unfounded as well because of the safeguards that have been put into the legislation.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Minister, I guess what I'm struggling with is that the government is telling us that you've had advice from one or more departments that they need this particular power. What I haven't heard is a reasonable excuse for these far-reaching powers. Notwithstanding that the government says they're only going to apply to a select group of individuals, these are far-reaching powers. They bypass the presumption of innocence. They bypass the rule of law. We have 112 or more legal academics and experts telling us that this is concerning. What I'm struggling to understand is why the government has sought to put this into this bill when it was entirely open to the government to lob up another bill with this schedule in it, which could have been sent off to a Senate inquiry. I don't accept the minister's assertion that briefings are a form of scrutiny; they are not. They are information sharing. It is not public, accountable scrutiny of legislation.

Why did the government choose to put these amendments into a bill that was already in the House when they could have bowled up a separate piece of legislation with this schedule in it and sent it off to a Senate inquiry for it to get the legitimate, public scrutiny that it deserves, which would have given legal experts and academics—the Law Council of Australia and others—the opportunity to put on the record their concerns about these powers, and which would have then given the government the opportunity to respond, rather than just telling us, 'Departments have told us they need it'? I'm sorry; this is a department that has unlawfully apportioned income over 30 years, that was responsible for robodebt, that has had to pause numerous cancellations because they've been found to be unlawful, and that is still suspending payments based on a targeted compliance framework that the minister and the department secretary cannot assure anyone is legal, and yet you are asking the Senate to trust you that, because people in the department have told you they need this, it doesn't have to be subject to the normal scrutiny that every other bit of legislation—and in fact, the remainder of this bill—has been.

So my question to you, Minister, is: why did the government not put this in a separate bill that would enable it to be subject to the proper scrutiny of the Senate process? Why did you choose to put it at the last minute in a bill already before the House?

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

That was the decision the government took. We wanted to ensure that we could have this power available at the earliest opportunity. There was legislation before the parliament that would allow us to move this as a schedule to that legislation, and that was the decision the government took. I accept that you don't agree with it, but it's our decision, and we have been very upfront about it.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Why the urgency, Minister? What is so urgent that this needs to be put into this bill now?

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

It's a decision of government to have this power available at the earliest opportunity. An issue had been identified, and we are responding to it.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

In the last sitting Senator Gallagher spoke of the government's commitment to transparency and proper process when criticising Senator Bragg for abuse of process. Your government pushed through a late amendment to an unrelated bill after three inquiries had reported. Do you think that upholds proper process and transparency?

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

Once this issue was identified to the government and a decision had been taken, the minister made public that decision and the schedule that has been moved to this bill, which has allowed public scrutiny of it. Senator Thorpe and Senator Allman-Payne have just read into the Hansard a list of people who are concerned about that power, which again would lead me to believe that many people working in this field are aware of it. This happens from time to time in government; you make amendments to bills that are already before the parliament. The government has made a decision that this power is needed. There was legislation before Senate, so it was clearly an opportunity to get this power in place as soon as possible.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

Is the 'Department of Let's Get Dezi Freeman and Screw Everyone Else' the department you're talking about, Minister?

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

There were a number of departments involved with discussions around this. As I listed before, there was Attorney-General's, certainly Services Australia as an agency, the Department of Social Services and also the Department of Home Affairs. I'm not in a position to talk about any individual matters.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

There are over 100 experts, who we read out earlier, against schedule 5. Do you have any regard or respect to their advice over your 'Department of Let's Get Dezi Freeman'?

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

I don't agree with the assertion made by Senator Thorpe in relation to that. The government has made a decision about the need for this power. We have included it in schedule 5. We would like the Senate to deal with it today.

In terms of the many names that were read into the Hansard, of course the government engages widely across many of those experts that I certainly recognised by name. They are valuable and respected partners, and we take their advice, but, at times, it doesn't mean you agree with everything people say. I hope that some of the commitments we have given in relation to transparency and reporting around it, and engagement on shaping the operational guidance will address some of the concerns people have, including the fact that this has a very, very narrow and very specific purpose, and that there are safeguards built into the legislation.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

How does the government justify removing presumption of innocence in this instance?

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

This power would apply to someone who is charged with committing a serious violent or sexual offence, where there is an outstanding arrest warrant and they are a threat to public safety. If that person or individual who might be captured under this arrangement comes into contact with the authorities—that is, there is no longer an outstanding arrest warrant—access to the payment can be resumed. It is a very, very specific set of circumstances that this benefit restriction notice applies in, and it's for a very specific period of time so that the moment an individual becomes known to authorities, and there isn't that outstanding warrant, the entitlement to access that payment can be reactivated.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

Do you acknowledge that this schedule essentially means that people on social security are second-class citizens—they do not deserve the full suite of human rights, and the rule of law does not apply to them?

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

It may be helpful if I go through the types of offences that might be covered by the benefit restriction notice. It draws on the concept of serious violent or sexual offences within the meaning of the Criminal Code, but it captures a Commonwealth, state or territory offence where the offence is punishable by imprisonment for life or by a maximum period of at least seven years and where the offence involves or would involve one of the following: loss of a person's life or serious risk to a person's life; serious personal injury or serious risk of serious 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.

An individual captured by this would have to have been charged with one of the offences that I just read out and have an outstanding arrest warrant for that. Specifically, on the points that Senator Thorpe just made, the supplementary explanatory memorandum deals with that on page 21, where it talks about the engagement of certain rights and the narrow set of circumstances, saying that the limitation 'is proportionate to the objective of ensuring that people who have been charged with serious violent or sexual offences and are subject to an outstanding arrest warrant cannot continue to benefit from social security payments, which might be assisting them in evading the authorities'. That deals with the engagement of human rights and the proportionate response to that. It is detailed in those several paragraphs on page 21.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

We know that there's a problem with police targeting Aboriginal people in this country. We have had over 600 deaths in custody. We know that Aboriginal women experiencing violence are seen to be the perpetrators when they call the cops. We know the target on our backs. We know the boots on our necks from the cops every day in this country. It's out there. It's well known. Incarceration rates, deaths in custody—you name it. Minister, what guarantee do you give to Aboriginal women who will be subject to this legislation?

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

Based on my earlier remarks, this part of the legislation—benefit restriction notices—will apply to a very narrow subset of individuals who have been charged with one of the offences that I just read out into the Hansard. I am sympathetic to the view that Senator Thorpe puts around concerns about police and First Nations Australians, but I do not agree with her that this particular power—benefit restriction notices—applies in any widespread way, nor is it designed to target a particular demographic of the Australian community. It is a very, very narrow and specific set of circumstances and for a very set period of time.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

Can I ask then, Minister, which Aboriginal legal services and women's legal services has your government sought advice from to ensure that we are not targeted and not caught up in this dangerous, last-minute addition to this bill.

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

We work—myself and the Minister for Social Services—very closely with women's legal services and with Aboriginal legal services, so of course there is an ongoing commitment to continue to engage with those organisations, including on anything that those organisations notice in the use of this power. I would also say that we're waiting for the ombudsman to respond to the minister's letter. How they decide to engage and report on this power would also be a safeguard in watching the application of this power and whether it is being used in a particular way.

I should say that it's not a power to be given to the police. It is a power that would ultimately be for a decision-maker of the Minister for Home Affairs—

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

With advice from the cops.

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

Obviously, agencies would have to engage, but, ultimately, it's not a power that is available to the police.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

I challenge that: it's on advice from the police, who are violent towards Aboriginal people in this country. So it is a very, very dangerous addition to the legislation. Minister, I want you to guarantee that Aboriginal women and Aboriginal people will not be targeted. I want your guarantee that we will not be targeted as part of this late addition. Guarantee it!

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

I've already said it's not a power that is being put in place to target particular communities. That's not what this is about. It's about a very specific set of circumstances. Yes, there would be advice from police, but there would also be advice from a number of other agencies, including advice from Services Australia about any impact the cancellation of a payment may have on others, including dependants. But, ultimately, it is a ministerial power, so it's the Minister for Home Affairs that has the power. Transparency and reporting, and engagement with all of the organisations you have outlined are important, and the government remains absolutely committed to them.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

My final question is: the minister is saying that there are measures that will be taken to ensure children are not affected. Can you guarantee that children will not go hungry, will not become homeless, will not become a ward of the state and be taken from their families? Can you guarantee that children in this country will not be affected?

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

The approach the government has taken more broadly in this area is to make sure that we are doing everything that we can to support families, including children and dependants, whether it be through the income support system or through other payments or, indeed, through the childcare system. That gives you a sense of the approach that we take to these matters.

As I said in my response to Senator Pocock's motion earlier, before the Minister makes a determination, the Secretary of the Department of Home Affairs must seek advice from Services Australia to identify any dependants and assess any impact on them, and this advice must be considered as part of the decision-making process. I think Senator Pocock said it doesn't need to be considered. It does. Where appropriate, the minister may recommend special adjustments to ensure continued support for dependants, recognising that each situation will differ. In addition, the measure will not apply to the childcare subsidy or the additional childcare subsidy, as these payments are made directly to service providers, ensuring that dependent children attending child care can continue to be supported to do so. For family payments, arrangements are available for another parent or family member to become the eligible recipient from the date the payment is no longer payable to the person subject to a benefit restriction notice, ensuring again that support for children continues. These safeguards are built into the legislation. When the minister is making a decision, he or she is required to take all relevant considerations into account when considering the likely effect of cancellation on a person's dependants. This includes advice Home Affairs is required to seek from Services Australia.

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

Minister, I'd like to take you to the concerns of the Law Council of Australia. I understand that they've written to the minister with their concerns, and I've also received a letter from them. If I can take you to the first concern that they've raised around the constitutionality of schedule 5, they said:

Concerns have been raised with us that Schedule 5 may punish a person by depriving them of welfare benefits, by means of an administrative decision rather than a finding of a court, before a finding of criminal guilt is made. It is unclear whether any Constitutional implications of this measure have been considered by government—including potentially in relation to Chapter III of the Constitution, under which punishment of criminal conduct is an exclusively judicial function.

Minister, could you advise the chamber whether the government has received advice on the constitutionality of this bill? Additionally, could I ask you to respond to the Law Council's concern and outline how the bill is constitutionally sound, given it does give the minister a power to punish someone for criminal conduct?

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

The government has received, as you would expect, legal advice on the approach that we are taking, and that informed our decision-making.

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

Thank you, Minister. Would you be able to table that, please?

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

No, we don't table legal advice that government receives as part of our decision-making.

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

Thank you, Minister. You said you've received legal advice. Can you confirm that that legal advice said that it was constitutional?

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

I'm not going to confirm the advice that we get as that is cabinet in confidence and legally privileged, but I can say that the government was informed, as you would expect, on legal matters and through advice formally, both in the lead-up to making the decision and around the decision we took as well.

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

It is extraordinary that a government won't even confirm that something that they are doing that is highly controversial—the Law Council of Australia has written to the minister and has written to senators. You have over 100 organisations across this country saying: 'Don't do this. This is a dangerous precedent.' You've got the government saying, 'Well, it's for these violent offenders who are evading the law.' Yet when you ask the government, 'Is it even constitutional?' their response is: 'Oh, I couldn't possibly say. We have advice.'

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

That's not my answer.

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

I'll take that interjection. Effectively, the government is saying, 'We have advice, but we're not going to say because of these conventions.' You have privilege here. You could at least say, 'Yes, it's constitutional.' But it seems like the government is keen to sneak this through and evade any scrutiny. We didn't get a Senate inquiry into this. The government says, 'Well, everyone knew this was happening,' but that's not what I hear from the 100-odd groups who've signed onto that open letter.

The Law Council has put to us:

… a person may be the subject of an arrest warrant for a number of reasons, not all of which mean that person is actively evading police and which more often concern their personal circumstances.

Please correct me if I'm wrong, but this notion that the bill only applies to those that are actively evading arrest is not correct. What schedule 5 actually says is that it applies to a person if there is a warrant for their arrest and they haven't been arrested. So it is actually broader than what the government is saying, and, as the Law Council says:

… police may be unable to locate a person because they are away from their usual residence, suburb or town—including to attend a family gathering such as a funeral. This is not uncommon with First Nations people, noting that the extent of police efforts to locate a person before resorting to an arrest warrant may vary widely. Alternatively, the person may have inadvertently missed a court date, failed to appear, and had a warrant issued for their arrest. Cutting off a person's income is a disproportionate and punitive response to these situations.

Does the government accept the Law Council's concern that a person may be attending to personal circumstances, may not even be aware that there is a warrant for their arrest, and then have their social security cancelled?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to 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.

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

Minister, when were drafting instructions issued to the OPC for schedule 5 of this bill, please?

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

I believe it was in November. I will see if there's a further date that we can provide during the course of the afternoon. It would have been in November.

No, this year.

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

Minister, it passed the House on 29 October, so I'm not sure if that lines up. If we look at the inquiry start date of 4 September and the inquiry end date of 21 October, that didn't include this schedule. Debate in the House was on the 27th and it passed the House on the 29th, so we've got a week there. When was this drafted—between the inquiry and the House passing it? What is the timeline?

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

Sorry, Senator Pocock; I'm just trying to get a date here. I understand that the minister signed a draft amendment in late October, but I'm seeing if there is anything else. My apologies; I thought it was early November. But late October—I'll see if there's anything else we can provide.

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

Minister, you've said a number of times that the government isn't trying to avoid scrutiny here. I'd really like the date on which drafting instructions were sent to the OPC. But I'd also like to know why the community affairs committee did not need to be made aware of these amendments during their inquiry if it was in fact before they reported. Maybe you could tell us when the government decided it wanted to pursue the policy outlined in schedule 5.

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

This question was asked earlier. I am seeking information on that. I don't have the dates in front of me, but I presume that throughout the course of the debate on this bill I will get that. I know there was a discussion across portfolios in October, but I can't give you the specific dates. I'm sure somebody is listening, and we'll see what we can provide.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, this bill includes provisions that have been introduced after the committee stage and, as such, have not been subjected to proper scrutiny. It's true that those who were caught up in the robodebt scandal need closure. One way or another, they need closure. A line needs to be drawn under as many of these debts as possible. This bill as it is, however, fails to achieve that objective to One Nation's standard.

I note that government amendment MM100 was passed this morning on the voices. I would like to ask Hansard to note One Nation's opposition to that amendment, and here's why: the amendment includes section 44A, which allows the government to use a computer program—in other words, AI, artificial intelligence—to mine data and match data and decide whether a debt occurs, and even to issue the debt notice. Are you kidding? This just restarts a robodebt type of debt recovery, but this time using AI. The fundamental problem still exists—data matching across systems with different software, different indexing and different ages that led to matching errors. The government has spent $2 billion trying to sort this mess out and has now pushed back the timeframe to complete the linking of government data back to 2028. We'll get you. Why ask for these powers now when you have no ability to deliver? There's no scrutiny and no guardrails; just do whatever the hell the secretary wants. This is a recipe for robodebt 2.

The government must be responsible, accountable and transparent. The failure of robodebt was to try to match data from incompatible computer systems, which led to innocent people being presented with a debt notice, and it led to inaccurate amounts being claimed. This resulted from the use of computer matching software. Amendment MM100 repeats that same mistake and will surely lead to the same outcome of substantial errors in data matching leading to erroneous debt collection. As the Royal Commission into the Robodebt Scheme found, people died as a result of these debt notices. Introducing a system that makes these notices, untouched by human hands, is not the answer. The answer is careful scrutiny.

One Nation cannot support this bill with section 44A included. Senator David Pocock introduced a perfectly logical amendment to pull schedule 5 from the bill. The schedule was introduced after the bill went to committee. It has not been properly scrutinised. The provisions of schedule 5 could be misused to suspend benefits for persons accused, but not convicted, of a crime. In particular, fathers accused of domestic violence will be robbed of their benefits—whether that is unemployment, parenting payment, rent allowance or whatever—placing them in a weakened position to defend those charges. This schedule is designed to encourage domestic violence allegations. This provision should be limited to persons who have been convicted, not accused, of a crime, even where an arrest warrant has been issued. An arrest warrant is not a conviction. It is the police saying the accusation is serious and the complainant may be in danger. Suspending their liberty via an arrest warrant is how this is dealt with, not levying a financial penalty by terminating their income before a conviction.

Greens amendment (2) on sheet 3487 restores the six-year limit for debt collection. While One Nation would have gone with seven years to align with the tax law, I understand that the six-year limit restores a provision the Liberal-National government repealed in order to facilitate robodebt initially. Again, you're bringing it all back. Without this provision, the government has unlimited recovery powers. It has gone back to 2004 in some cases. I understand they have gone back to last century. This is a denial of natural justice and administrative fairness. Who has the documents from that far back to challenge a notice? Make no mistake: these debt notices are guilty until proven innocent. One Nation will support the Greens amendment.

Without all of those amendments in place, One Nation cannot support this bill. We are happy to work with the government to clean the mess called robodebt and have the bill reintroduced next year with due scrutiny of the ramifications of using AI and with schedule 5 properly scrutinised. Minister, my question is: will you pull these last-minute inclusions out of the bill or send the bill back to a committee so that these last-minute inclusions can be properly scrutinised by the people's representatives in this house?

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

I've been asked that a number of times through the course of the session and, indeed, we've had a vote on this already. The government is not supporting the removal of schedule 5 from the bill, and I don't agree with the assertions made by Senator Roberts.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Minister, Senator David Pocock asked you about the constitutionality of schedule 5, and I don't think you answered his direct question. You said that you were confident in the legal advice. Are you and the government confident that schedule 5 is constitutional?

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

I think I dealt with this in answering Senator Pocock's question, because I wanted to be clear that the government has considered issues around constitutionality, that we have taken advice and that we are confident in the advice and the way we have responded with this amendment. It's assisted in drafting this schedule. So I have answered that. In answer to Senator Pocock's earlier question, the Minister for Social Services agreed to the draft text for the schedule 5 amendment on 24 October 2025.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

It's a direct question. I feel like the minister is talking around the answer. Is the government confident that schedule 5 is constitutional—yes or no?

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

I've answered that. We are confident that schedule 5 has been drafted based on the legal advice that we have, which did include the constitutionality of approaching this issue.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

This is the most cryptic set of responses that you could imagine—'confident that the legislation has been drafted consistent with the advice that considered the constitutionality of it'. The very clear question is: is schedule 5 constitutional? The question isn't: have you considered advice that considered whether or not it was constitutional or done it in accordance with advice that considered whether or not it was constitutional? The question is: is it constitutional?

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

I love it when Senator Shoebridge comes to the rescue! I've answered the question, and I have nothing further to add. The government is confident in the way we have approached this task based on legal advice that we received, which includes issues around the constitutionality of our approach.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Did that advice say it is constitutional for the executive to punish individuals by the removal of their benefits in the way envisaged in schedule 5? Did it say that that was a constitutionally valid act for the executive to perform?

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

In accordance with longstanding practice, the government does not disclose the legal advice we received.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Have you sought advice? I'm not interested in the outcome of the advice at this moment. Have you sought advice as to whether the executive punishing people by removing their benefits, as provided in schedule 5, is constitutional?

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

We can keep harping on this. I've answered the question; my answer is not going to change. We deal with some of those matters in this supplementary explanatory memorandum.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Have you received advice as to the number of people that it is expected schedule 5 will apply to in its first year of operations and its second year of operations? What are the numbers that are suggested will be covered by schedule 5?

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

No, we haven't received any numbers. I don't know how you would get that sort of advice or model the kind of advice that would give the government numbers. It's not based on numbers. It's based on a very specific and narrow set of circumstances which would lead to that benefit restriction notice being utilised. This is about ensuring that we have a full range of powers available to us, should they be required, in that very rare circumstances that a benefit restriction notice might be applicable.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Thanks very much, Minister. You say 'very rare circumstances'. Of course, the Law Council's position is that there are a significant number of potential circumstances where schedule 5 can be used—amongst other cases, where an individual has been served with a warrant but is not aware of the nature of it, or where a warrant has been issued and the person is away because of family circumstances and is not at their usual address. Have you considered the multiplicity of circumstances that might be picked up by schedule 5 when you give the Senate the answer that you expect it will be on very rare occasions?

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

Senator Shoebridge might need to repeat his question. I was trying to take some advice while you were talking, Senator Shoebridge. My understanding is that this is an issue that has been identified recently in terms of advice to the government. That would say to me that it's pretty, pretty rare in that it has only in 2025 been identified as an issue that the government might like to address.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, two things flow from that. What are the circumstances that brought this to the attention of the government in 2025 after the substantive bill had found its way through the bulk of the processes? There are two questions; that's my first question. What are the circumstances that brought this to the attention of the government in 2025?

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

It was identified as a gap in the powers available to government, and advice was provided by a number of agencies. I'm not in a position to talk about individual matters, but it was based on identification of a gap in or a lack of legislative response to a particular set of circumstances which are covered by the benefit restriction notices—that is, someone in receipt of income support being charged with committing a serious violent or sexual offence, who has an outstanding arrest warrant and is a threat to public safety.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I'm not asking you to describe the circumstances of the individual matter, but is it the case that there was an individual matter that was brought to the attention of the government? If so—you said it is on the advice of a series of agencies—can you identify which agencies brought either that matter or other matters to your attention?

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

It was certainly based on advice. The identification of the issue was in response to a particular set of circumstances, yes, and that led to advice being sought across—I answered this before, but I have one more department to add—Home Affairs, the Attorney-General's Department, Services Australia as the agency, the Department of Social Services and the Department of Education as well.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Were each of those agencies involved in this one case, or was it that the one case led you to seek advice from those different agencies? I ask this because there is great concern about how this found its way to being attached to the bill without due process. Understanding how it found its way to be attached to the bill without due process is important. Were each of these agencies involved in the one case, or was it after you heard about the one case that you sought the advice of the agencies? Or is there a third option I'm not aware of?

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

The issue was identified. I can't tell you—once it was identified, there was engagement across government to provide advice in a policy sense. So the particular set of circumstances that led to the problem being identified certainly informed a couple of departments, but I think then there was broader engagement. I can't say that all of those departments were focused on a particular set of circumstances, but we engaged across government to look at the best way and to take advice on the best way to proceed.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

It still is unclear how this found its way into parliament. I note that you didn't include ASIO on the list of agencies. Is that because ASIO wasn't consulted, or were they consulted, and it was just an inadvertence?

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

They sit under the Home Affairs portfolio. If there is further information that I can update the Senate on more broadly across the Home Affairs portfolio, I will do so. In terms of how it has made its way, I think we have been very clear that this is a decision of government. There is an issue that had been identified, we took advice on how to respond to it, and the response was that we should look at a legislative response that allows, in very specific and very targeted circumstances, the use of a benefit restriction notice. That was drafted on instructions from the Minister for Social Services on 24 October, which led to the drafting of these amendments which were then inserted into a bill that was before the parliament. The reason we did that is that we wanted to make this power available at soon as possible once the problem had been identified, and this was the fastest way to do that.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, there's no question that it's acting fast for the Commonwealth government; from drafting instructions on 24 October to being here and having the second day of debate on it on 24 November. In that rush, it appears that there were at least 100 NGOs that weren't heard and weren't considered. I am sure you've heard many of the concerns raised by those NGOs. I will just give you one circumstance that has really struck me and my party, the Greens, as a reason why this should not proceed with haste. I wonder if you have advice on it.

Particularly among the First Nations community, women are often being mischaracterised as the aggressor in instances of family and domestic violence. There are repeated concerns reported about this—women being charged with often serious violent offences, on the basis of retribution or otherwise, in circumstances where defence of themselves and defence of their kids have been mischaracterised as violent acts by themselves. Are you aware of the concerns that have been raised about this?

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

I've certainly heard them raised here this morning, and I'm aware—of course I'm aware, as the Minister for Women, working closely with the Minister for Social Services in ending violence against women and children and the work that we do there and are deeply committed to—of some of the particular issues facing women in the circumstance that you outlined. All of that, of course, would be available in advice that the minister would have to seek before using a benefit restriction notice to consider whether that was the appropriate course of action. That is what the legislation currently provides for.

In relation to the feedback that we've provided, I would think and I would hope—and I work with many of the organisations that have been listed this morning as having signed that letter—that the commitments that the minister has given, about reporting to the Ombudsman on the use of the power and about working with the Ombudsman about the guidance around that material, including working with NGOs on that, should address some of the concerns that have been raised here this morning. It's in a response to that—but also the approach that the Minister for Social Services takes in her work, which she does every day, in sensitively and caringly dealing with all of the matters that cross her desk.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

How is it that the minister, in exercising these powers, is expected to be informed about whether or not a First Nations woman, or any woman, who has been the subject of criminal charges against them in circumstances where they were defending themselves or defending their kids from family and domestic violence, as women often—far too often—do in those circumstances, has sought to protect themselves by hiding their address, hiding their whereabouts or desperately trying to change their look, change their appearance or change their town in order to prevent the violence continuing against them and their family? They're then charged based on some assertion by the police and/or the violent partner. How will the minister inform themselves about the circumstances of that woman and her kids if she's in hiding for her life?

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

I covered this before you were here, Senator Shoebridge. There are a couple of things in response to that. First, in order for this particular power to apply, not only do you have to be charged with a serious violent or sexual offence—and I've gone through that a couple of times—but there needs to be an outstanding warrant, and you need to be a threat to public safety. If we take that point for a moment, in my working in this space, in women's safety, for a long time, in the situation that you outlined, very rarely would an individual be considered a threat to public safety.

Even if you don't accept that, the second level is that advice has to be sought by Services Australia. I work with Services Australia every day. Whenever I'm not in here and I'm out and about, I visit Services Australia. I was in Services Australia Bunbury the other day. I meet with the teams that deal with families living with violence or escaping violence. The idea that Services Australia in the situation that you cite would not be aware of that and that that would not feed into the advice provided to the minister is not believable. It would. Services Australia have a history of engagement with their customers, and that information would of course be relevant to any decision-maker, including the decision-maker in this regard, about whether or not a benefit restriction notice would be applicable. Any dependents that that individual may have would need to be taken into consideration as well. The idea that the situation you describe here would occur and that that information would not be available to the minister prior to them making a decision would not be correct.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I want to be clear that I reject the suggestion that Services Australia would inevitably be aware of violent circumstances, particularly those that First Nations women face. I know this because I've spoken with First Nations women who are so desperately afraid of the state coming and taking their kids that they are utterly distrustful of telling either state child protection authorities or Services Australia circumstances about their domestic violence. The reason First Nations women in particular won't tell government departments about domestic violence and family violence that happens in their families is because they know that, too often when they do, a white van turns up and takes their kids. They know that. That's the lived reality still for First Nations women, kids and families. So for you to say that you have some blithe acceptance that First Nations women will tell Services Australia about the domestic violence that they're suffering and about the threats to their kids flies in the face of so much that I've heard in direct testimony from First Nations women who say that they would never tell the government about this, because they know what will happen: their kids will be stolen.

As I tell you this, one case comes to my mind of a mum in Tamworth in my home state. She couldn't stay in her housing accommodation flat because of a flea infestation, so she was staying with her kids in the car and only using the flat to go to the bathroom. She made the mistake of telling the department of housing of New South Wales about the flea infestation. They came and did an inspection, saw that she was sleeping with the kids in the car and sent in the Department of Communities and Justice, DCJ, and they took her kids. It took her two years to get them back. That's the reality. You can deny the reality all you like, but it just flies in the face of so much of the experience that I've heard from First Nations women. Do you seriously say that Services Australia will know the lived reality of First Nations women and that First Nations women feel safe telling them about domestic violence? Do you seriously say that?

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

It's not relevant to this particular bill. It's a broad assessment of Services Australia, but I am proud to be the minister for Services Australia, and I am proud of the work that they do every day. I think that the teams especially that engage with First Nations community do so with cultural respect and cultural awareness. And, yes, you can always improve the way government engages with communities across Australia, but I stand here to defend the work of Services Australia. It's a huge organisation doing difficult work right around the country. And, yes, I accept that, at times, decisions will be wrong or should have been made sooner, given it's an organisation of 30,000 staff. But I think the teams that engage directly with First Nations communities, whether they be remote or in metro areas, are seeking to improve their work every single day. The broader point I'm making is that, regarding the information that Services Australia has, it might not be that people have shared their innermost or all of the issues that are impacting on their life. But, because Services Australia often has so much contact with their customers over a long period of time, that information would be available to the minister.

The idea that there wouldn't be some sensitivity and commonsense approach—because it's a ministerial power; it's not a bureaucratic power—in the exercise of this power is unfair. Yes, I understand you'll be cynical and you won't trust the motives of ministers and all the rest of it, but all of the safeguards that have been put in, including the transparent reporting that the minister has recommended to the ombudsman so that everyone, including all of those that participate in Senate estimates and all of that, will be able to see exactly when and if this power has been used and explore the circumstances of the use of that power, respond to the concerns that have been raised by many of the organisations that you have identified.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

As a former manager of Centrelink Indigenous services, I can guarantee you that Aboriginal women do not trust Centrelink services. Whether they are black workers or white workers or whatever workers, they are still part of the colony that hurts us, Aboriginal women. When I was in Centrelink, there were no Aboriginal people that complained about Centrelink services because they didn't trust Centrelink services for the very reason that Senator Shoebridge has outlined in terms of having threats of having your children removed from you or having your payments cut. So I refute your comments about Aboriginal women. You're not the expert just because you're a minister, and you're not the expert when it comes to what Aboriginal women talk to the colony about and what they don't talk to the colony about. The systems that we have to deal with as Aboriginal women in this country are all violent. They're all violent! From going to the hospital and having a baby—violence. Seeking housing—violence. Going for a job—violence. Any service that the colony has established is racist. Minister, you cannot say that your workers in your service know the communities, because that's a lie.

Aboriginal women, through this schedule 5, are at risk the very most. I'd like to ask you, Minister: the bill actually doesn't say that the person needs to be a threat to public safety, so what constitutes a threat?

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

It is one of the factors that have to be taken into account by the decision-maker.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

The decision-maker will decide what constitutes a threat. Can you tell me who that decision-maker is? The cops?

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

It's a ministerial power.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

Sorry, I missed that. You might need to stand up and say it.

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

I did stand up, and I've said it about five times this morning. It's the minister. It's a ministerial power. It's not a bureaucratic power. It's the Minister for Home Affairs.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Of course, the minister won't conduct their own fact-finding investigation. The minister will be relying upon a brief. So the real question is: Who will be briefing the minister? Where will the information come from?

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

They will have to draw that advice from across government. It would come obviously from the AFP or from state police but also through Services Australia. I imagine the Minister for Home Affairs would be able to receive advice from other departments, including their own, as required.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

So the primary advice briefing will come from the AFP, which will then go before the minister for social security? Is that the pathway, that the primary advice briefing will come from the AFP? It was just unclear to me as to how it gets to the desk of the decision-maker. Can you clarify what ministerial hat they'll be wearing as decision-maker?

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

The Minister for Home Affairs. It will come from the AFP or a state or territory police force, but it must also be informed by information from Services Australia.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

So we have a briefing that's going to cover those issues we discussed. I won't repeat them, but the issues are about vulnerable First Nations women in those circumstances. We have a briefing that's going to come from the cops, the AFP, and go to the home affairs minister. It's going to be informed by, potentially, something that comes from social services, but the primary briefing is a police document going to the home affairs minister in the security space. Is that what's happening?

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

No, that's not correct. I said it would certainly come from the AFP or state or territory police, but as I said a number of times this morning the Department of Home Affairs must seek advice from Services Australia to identify any dependants and assess any impacts on them, and that advice must be considered as part of the decision-making process. Where appropriate, the minister may recommend special adjustments, depending on the nature of the situation, recognising that each situation will differ.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

Minister, if an Aboriginal woman who was at a protest spoke about the genocide that goes on against her people and in Palestine and everywhere else there are genocides being committed around the world, and that Aboriginal woman was on a Centrelink payment and was under investigation by the AFP, can you tell me what would happen to that Aboriginal woman?

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

In relation to this bill, the individual who may face a benefit restriction notice must have been charged with an offence that I've gone through today: the loss of a person's life; serious risk of a person's life; serious personal injury; serious risk of personal injury; sexual assault; the production, publication, possession and supply or sale of child abuse material—for example, 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 16. It does not cover any individuals attending a protest.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

Does that include a threat to national security?

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

This would only cover offences where the individual has been charged and is punishable by imprisonment for life or a period or a maximum period of at least seven years and the offence involves or will involves one of the following, which I have read out a number of times: engaging in a terrorist act, which has the life imprisonment part of the Criminal Code, but you would have had to have been charged with that offence. I'm not sure attending a protest and speaking at a protest—unless you have been charged with a serious terrorist offence, this section would not apply.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I note that the Law Council of Australia, whose legal analysis I have a huge amount of respect for, says that the definition of serious, violent or sexual offence in division 395 of the Criminal Code Act is very wide and includes offences across Commonwealth, state and territory law with maximum penalties as low as seven years as well as capturing conduct which would involve serious risk of personal injury. It also includes any risk of sexual assault no matter when committed. Further, they say, 'We are advised that this definition has a broad reach across many Commonwealth, state and territory offences and therefore many accused persons, and there appears to be no canvassing of the range of offences or persons to which the schedule may apply.' The Law Council are right, aren't they?

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

The government has been clear that this is a problem that has been identified in 2025. This idea that it's a power that would be widely applicable is simply incorrect. I don't accept that. I've been clear about the circumstances where it would apply. They are exceptionally rare.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

To be clear about the protective measures in this bill, the protective measures in the bill only require—and I'm reading here from the proposed 38MA(3), 38MA(4) and 38MA(5)—the AFP minister to get advice from the human services secretary, as I read it, if the AFP minister is aware of a person's dependants. Is that how it works—that it's only if the police are aware of dependants that the advice from human services is actually mandatory? If so, it leaves the problem of how the AFP is going to be aware of a woman's dependants.

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

My advice is that advice must be sought from Services Australia. I'll read the explanatory memorandum, which says:

… a cancellation request is to be made to the AFP Minister, the Minister for Social Services, the Minister administering the Human Services (Centrelink) Act 1997, the Department of Social Services or Services Australia (being the 'Human Services Department').

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I'm not entirely sure that was responsive to the concerns that I raised and the question I asked. Subsection 38MA(3), on benefit restriction notices, says:

(3) Before giving a notice under this section, the AFP Minister must 14 have regard to the following:

(a) the extent to which the person is likely to be a threat or danger to the community while the person is not arrested under the warrant;

(b) the likely effect of the operation of section 38M on the person's dependants, if the AFP Minister is aware of those dependants.

Then, in subsection 38MA(4), it says:

(4) The Secretary of the Department administered by the AFP Minister must:

(a) seek the advice of the Human Services Secretary in relation to paragraph (3)(b)

That is, as I understand it, only if the police are aware of dependants. It's not automatic that they will seek the advice of the human services secretary; it's only if police happen to be aware of dependants. Whatever your comfort level might be about Services Australia being aware of the circumstances of First Nations women, surely you don't have that same comfort in relation to the police?

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

My advice is that they must seek the advice of Services Australia, and, if you look at 'Considerations for giving a notice', there is subsection 38MA(4)(a) and (b), as you rightly point out. There is also subsection (5), which says:

(5) The Secretary of the Department administered by the AFP Minister must:

(a) seek the advice of the Human Services Secretary in relation to paragraph (4)(b); and

(b) inform the AFP Minister of that advice.

That would be advice coming from Services Australia on the situation the individual is in and would form part of the consideration by the home affairs minister.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Mine says '(3)(b)' on the amendment sheet I'm reading off. That advice from the human services secretary is only triggered when the police are already aware of the dependants, so it's like pulling yourself up by your own bootstraps. Your response earlier was that we shouldn't worry that vulnerable First Nations women will be protected because Services Australia will be aware of all of their concerns, the dependence and the history of domestic violence. But, of course, your legislation says that services—

Dave Sharma (NSW, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

Order! As it is 1.30 pm, the committee will now report to the Senate and move to senators' statements.

Progress reported.