The Department of Social Services has been warned it is “not above the law” after a tribunal heard government officials threatened to ignore an order to reinstate a man’s jobseeker payments.
In a published judgment, Administrative Appeals Tribunal senior member Michelle Evans-Bonner criticised the department, which is responsible for Services Australia and Centrelink, over what she called “poor conduct”.
Evans-Bonner accused the department of issuing an “ultimatum” that it would ignore the tribunal’s decisions if they were unfavourable, reminding it that it was “not above the law”.
In a subsequent statement to Guardian Australia, the department disputed the tribunal’s interpretations of its submissions, saying it “takes very seriously its commitment to being a model litigant”.
At issue was a judgment from the tribunal to reinstate a man’s jobseeker payment. Centrelink had cancelled the payment, but the tribunal found the man was eligible.
The tribunal acts to review federal government decisions, including those made by Centrelink. It ordered Centrelink to pay Peter Dawson arrears for jobseeker payments between 31 March 2020 and 22 February 2021.
The judgment said Dawson had claimed jobseeker after his company shut down due to the lockdowns in March 2020. It was hundreds of the thousands of dollars in debt.
Centrelink appealed that ruling, but missed the deadline by three days.
It requested the tribunal make an exception, citing “an administrative oversight” for missing the deadline.
Evans-Bonner said the department secretary was “often a party to proceedings in the tribunal and is aware of the 28-day time-limit”.
“Indeed, in my time at the tribunal I have never presided over an application where the secretary has missed the 28-day time limit,” she said.
Though he is not named in the judgment, the secretary of the department of social services is Ray Griggs.
Evans-Bonner ruled that the “administrative oversight” was “not an acceptable explanation for the delay”.
However, the judgment said the department had already argued it would essentially “ignore any decision of this tribunal and will apply the law as [it] sees fit”.
That position was confirmed in oral submissions made to the tribunal, the judgment said.
Evans-Bonner said that was “totally unacceptable, and contrary to the secretary’s statutory role as an accountable public office holder, and as a model litigant”.
She declined to hear the department’s case, citing, in part, “the poor conduct of the secretary in giving me, the tribunal, what was effectively an ultimatum that if I were to hand down a decision averse to the secretary, that the secretary would ignore it”.
“I remind the secretary that he is not above the law,” she said.
Evans-Bonner was not required to make a judgment on whether the man was eligible for benefits, though she acknowledged the department may have had a case over amount of arrears ordered.
However, she declined to allow the department’s appeal.
“Given the secretary’s conduct in this matter and although I have delivered these reasons orally, I propose to publish these reasons in the coming days because there is a public interest in doing so, including the promotion of transparency and accountability in government decision making,” Evans-Bonner said.
A Department of Social Services spokesperson said “no ultimatum was intended in the submission to the Administrative Appeals Tribunal”.
“The department takes very seriously its commitment to being a model litigant,” the spokesperson said.
“The Services Australia advocate, during the hearing, attempted to clarify that one of the grounds for the application for an extension of time was to obtain further information about Mr Dawson’s income and assets to be able to effectively determine Mr Dawson’s entitlement to jobseeker payment.
“Of course, the tribunal’s decision has been implemented.”
In June, the Scott Morrison government reached a $1.8bn settlement over the robodebt scandal, in which Centrelink issued hundreds of thousands of unlawful welfare debts.
It was accused of ignoring rulings of the Administrative Appeals Tribunal as part of that scandal.
