From Dawson; Secretary, Department of Social Services and (Social services second review) [2021] AATA 3442
... As I indicated to Mr Parker during the interlocutory hearing, it is totally unacceptable, and contrary to the Secretary’s statutory role as an accountable public office holder, and as a model litigant, that the Secretary is proposing to ignore, by refusing to implement, a decision of this Tribunal that is averse to the Secretary.
46. I remind the Secretary that the Commonwealth’s obligations to act as a model litigant, which includes an obligation to act “honestly and fairly” extends to merits review proceedings (see Appendix B, item 2 and 3 of the Legal Services Directions 2017 (Cth) (Directions)).
47. The Commonwealth’s model litigant obligations also provide that “[a] Commonwealth agency should use its best endeavours to assist the tribunal to make its decision” (Appendix B, item 4, of the Directions). There is a similar duty expressed in s 33(1AA) of the AAT Act which requires the decision-maker to “use his or her best endeavours to assist the Tribunal” to make its decision in relation to the proceedings.
48. It does not assist me, and it is not open to the Secretary, to make submissions that the Secretary will ignore a decision of this Tribunal that he does not agree with and to refuse to implement it. Such a course is at best, contrary to the administration of justice and unethical, and at worst, unlawful.
49. If I refuse this extension of time, the Secretary is legally bound to implement the AAT1 Decision, regardless of whether the Secretary agrees with it. Additionally, I observe that Mr Parker, as a senior lawyer for the Secretary with a duty to this Tribunal and to the administration of justice, had an ethical obligation to advise the Secretary that such a submission should not be made for the reasons that I have explained.
50. I find that the poor conduct by the Secretary weighs strongly against the Tribunal granting an extension of time.
51. Thus overall, I find that the “alternative avenues of relief” factor weighs against the Tribunal granting the extension of time.
Conclusion
52. I turn to my concluding comments. In summary, the Tribunal is not satisfied that it is reasonable in all the circumstances to extend the time to allow the Applicant to seek review of the AAT1 Decision.
53. Although the length of the delay was three days, and despite there not being any other apparent avenues of relief available to the Secretary, and the Secretary having an arguable case should the matter proceed to a substantive hearing, more considerations weigh against, and to a greater degree, against the exercise of discretion to grant the extension of time. These include:
(a) the Secretary’s unsatisfactory explanation for the delay;
(b) that the Secretary was well aware of his appeal rights and the 28-day period in which to lodge an application for review;
(c) the prejudice to Mr Dawson and other members of the general public of the Secretary failing to pay entitlements to persons in need of them in a timely manner, taking into account the beneficial nature of the legislation; and
(d) 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. If the Secretary thought that the AAT1 Decision was legally incorrect, the appropriate course of action would have been to appeal the decision within time.
