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.

3.1.17 Benefit restriction notices

Summary

This topic explains the impact of a benefit restriction notice being issued in relation to a person.

Issuing of a benefit restriction notice on security grounds

The ASIO Minister (the Minister administering the Australian Security Intelligence Organisation Act 1979) 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 a benefit restriction notice, the ASIO Minister must consider:

  • the extent (if any) to which any social security payments made to the person are being, or may be, used for a purpose that may prejudice the security of Australia or a foreign country, and
  • the likely impact of a benefit restriction notice being issued on any dependants the person has.

In these cases, the ASIO Minister will issue the benefit restriction notice naming the person 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 of DSS and the Chief Executive Officer of Services Australia.

Once issued, a benefit restriction notice remains in force until it is revoked. The ASIO Minister may give the Minister for Social Services a written notice revoking the benefit restriction notice at any time. The Minister for Social Services must provide a copy of the revocation notice to the Secretary of DSS and the Chief Executive Officer of Services Australia.

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

The AFP Minister (the Minister administering the Australian Federal Police Act 1979) 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 is taken to have been made for the person if a request to cancel the person’s social security payments or concession card has been made, in writing by a senior AFP member 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 AFP Minister
  • 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 AFP Minister 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 the cancellation of the person’s social security payment or concession card has on the person’s 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 AFP Minister will issue the benefit restriction notice naming the person 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 of DSS and the Chief Executive Officer of Services Australia.

Once issued, a benefit restriction notice remains in force until it is revoked. The AFP Minister may give the Minister for Social Services a written notice revoking the benefit restriction notice at any time. The Minister for Social Services must provide a copy of the revocation notice to the Secretary of DSS and the Chief Executive Officer of Services Australia.

Impact of a benefit restriction notice on a person

If the person named in the benefit restriction notice is receiving a social security payment and/or holds a concession card, the payment and/or card must be cancelled in accordance with SSAct section 38M on the day the security notice comes into force.

While a benefit restriction notice remains in force, the person named in the notice is not qualified or payable for a social security payment or a concession card.

If a person’s social security payment and/or concession card is cancelled under SSAct section 38M, the Secretary of DSS (or their delegate) must take reasonable steps to notify the person of the cancellation. Where a person’s payment and/or card has been cancelled and the benefit restriction notice is later revoked, the Secretary of DSS (or their delegate) must take reasonable steps to notify the person of the revocation.

Review & appeal of security notices

The decision to issue a benefit restriction notice is made by the ASIO Minister or the AFP Minister, not an officer under social security law, and is not reviewable under SS(Admin)Act Part 4.

However, the decision to cancel an individual's social security payment or concession card is subject to judicial review under section 39B of the Judiciary Act 1903 or section 75(v) of the Commonwealth of Australia Constitution Act (The Constitution).

Act reference: SSAct Part 1.3B Loss of social security payments and concessions for persons

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