The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

8.1.6 Persons issued with a benefit restriction notice

Introduction

This section explains the impact of a benefit restriction notice being issued on security grounds to a person claiming or receiving PLP.

Issuing of a benefit restriction notice on security grounds

The Minister for Home Affairs (known in the PPLAct as the 'ASIO Minister' (1.1.A.78)) may issue a benefit restriction notice in relation to a person if the person has had:

  • their Australian passport cancelled, or their passport application refused, by the Minister for Foreign Affairs, or
  • their visa cancelled by the Minister for Home Affairs.

Before issuing the benefit restriction notice, the Minister must consider:

  • the extent, that payments of PLP are being, or may be used for a purpose that might prejudice the security of Australia or a foreign country, and
  • the likely effect of no PLP being paid on the person's dependants.

In these cases, the Minister for Home Affairs will issue a benefit restriction notice to the Minister for Social Services naming the person in writing. The Minister for Social Services must provide a copy of the benefit restriction notice to the Secretary (1.1.S.40) and the Chief Executive Officer of Services Australia.

Act reference: PPLAct section 278C Benefit restriction notice from ASIO Minister, section 278F Copy of benefit restriction notice to be given to Secretaries

Issuing of a benefit restriction notice in respect of an outstanding arrest warrant for a serious criminal offence

The Minister for Home Affairs (known in the PPLAct as the 'AFP Minister' (1.1.A.66)) may issue a benefit restriction notice in relation to an individual if:

  • the person is the subject of an arrest warrant issued in Australia in respect of a serious violent or sexual offence (within the meaning of the Criminal Code)
  • the person has not been arrested under the warrant, and
  • a cancellation request for the person has been made.

A cancellation request has been made for the person if a request to cancel the person’s PLP has been made, in writing by a senior AFP member (1.1.S.43) or a member of a state or territory police force of an equivalent rank to a senior AFP member.

A cancellation request can be given to any of the following:

  • the Minister for Home Affairs
  • the Minister for Social Services
  • the Minister administering the Human Services (Centrelink) Act 1997
  • the Department of Social Services, or
  • Services Australia.

Prior to issuing a benefit restriction notice the Minister for Home Affairs must consider:

  • 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, and
  • the likely effect of no PLP being paid on the person’s dependents (if they are aware of those dependents).

Benefit Restriction Notices are a measure of last resort. All reasonable steps to execute an arrest warrant must be undertaken prior to the consideration of requesting a Benefit Restriction Notice be issued.

In these cases, the Minister for Home Affairs will issue a benefit restriction notice naming the individual in writing to the Minister for Social Services. The Minister for Social Services must provide a copy of the benefit restriction notice to the Secretary and the Chief Executive Officer of Services Australia.

Act reference: PPLAct section 278BA Benefit restriction notice from AFP Minister

Impact of a benefit restriction notice on the person

While a benefit restriction notice is in force:

  • no PLP is to be paid to the person
  • the person is not eligible for PLP, and
  • PLP is not payable to the person.

A benefit restriction notice comes into force on the day it is given to the Minister for Social Services and remains in force until it is revoked.

Act reference: PPLAct section 278B Loss of parental leave pay for persons, section 278G Period benefit restriction notice is in force

Annual review of a benefit restriction notice

The Minister who gave a benefit restriction notice must review the notice to consider whether it should be revoked within 12 months of it coming into force, and thereafter, within 12 months after the last review.

Act reference: PPLAct section 278GA Annual review of benefit restriction notice

Revoking a benefit restriction notice

The relevant Minister may revoke a benefit restriction notice they have given to the Minister for Social Services. The revocation must be in writing and takes effect on the day it is made. The Minister for Social Services must give a copy of the revocation notice to the Chief Executive Officer of Services Australia and the Secretary.

Act reference: PPLAct section 278H Revoking a benefit restriction notice

Review & appeal of a benefit restriction notice

Any decision made under PPLAct Part 6-1 Division 5 regarding PLP is taken for the purposes of Chapter 5 not to be a decision of an officer under the PPLAct and is not reviewable under PPLAct Chapter 5.

However, the decision to cancel PLP may be subject to judicial review under section 39B of the Judiciary Act 1903 or section 75(v) of The Constitution.

Act reference: PPLAct section 278K Decisions under Division not decisions of officers

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