Government agencies must comply with the law

Today the Commonwealth Ombudsman released a report into the actions of Services Australia and the Department of Social Services (DSS) to address an ongoing issue of non-compliance with the law.

The issue, relating to child support, was originally identified by Services Australia staff in 2019, and DSS were made aware in February 2020. The agencies planned to address the issue by having the legislation changed, however successive attempts to develop amending legislation never meaningfully progressed.

‘It is not acceptable that an agency knows for years that it is not following the law and chooses to continue not to do so. Knowingly and deliberately not complying with the law was at the heart of Robodebt. Trust in government is dependent on agencies complying with the law,’ said Commonwealth Ombudsman, Iain Anderson.

Under child support legislation, a parent with more than 65% care of a child should have no obligation to pay child support to the other parent. Services Australia has a corresponding practice that parents providing less than 35% of care do not receive child support. However, amendments to child support legislation introduced in 2008 and 2018 introduced scenarios where a parent with less than 35% care may be entitled to child support, if the other parent is providing 65% of the care or less. Our Office was told that these were unintended outcomes of the amendments.

On 12 June 2025, Services Australia proactively reported to the Ombudsman that its practice conflicted with the law. As a result of Services Australia's ongoing practice, there are some circumstances where one parent providing less than 35% care of a child is legally entitled to receive some child support from the other parent but is not paid it.

The Ombudsman found that the action taken by Services Australia and DSS to remediate this issue has not been proportionate or reasonable. For years, Services Australia and DSS failed to appropriately consider alternatives to remediating the issue, appropriately escalate the issue, seek external legal advice or brief relevant Ministers.

Services Australia’s concerns about the significant and potentially negative impact of applying the law are valid and understandable - but this should have prompted addressing the issue as a matter of urgency.

‘People detrimentally affected by this do not know that the law is not being applied correctly and therefore cannot make an informed choice of whether to pursue internal or external review of the decision that is impacting them.

The public looks to government to not only know the law that underpins their functions, but to follow that law. It is the responsibility of both policy and service delivery agencies to ensure that, where non-compliance is identified, they take sufficient and timely steps to correct it,’ added Mr Anderson.

The Ombudsman issued a formal report to both agencies, making 6 recommendations on progressing timely remediation of this issue, communicating transparently with the public and how to address issues of legislative non-compliance. Services Australia and DSS have accepted 5 of the 6 recommendations and accepted the remaining recommendation (Recommendation 2) in principle. The Secretary of DSS has also announced that the government will introduce legislation to retrospectively address the issue.

The Ombudsman's report identifies some key principles for all agencies to consider in remediating instances of legal non-compliance. It is important that agencies identify and remediate issues in a timely and effective way. Agencies also need to be transparent with the government and the public.

Read the report on the Commonwealth Ombudsman website.