Contract Management

Yesterday's ANAO report Management of the Civil Maritime Surveillance Services Contract comments 

1. Civil maritime surveillance has been identified by the Department of Home Affairs (Home Affairs) as important to deterring, preventing, detecting and responding to civil maritime threats, including illegal maritime arrivals as part of Operation Sovereign Borders. Following a tender process, on 3 March 2006 a contract commenced between the Australian Government1 and Surveillance Australia Pty Ltd (Surveillance Australia) for the provision of a ‘Detect-Classify-Identify-Report’ surveillance service to inform ‘maritime zone awareness’. 

2. The contract requires the provision of 10 fixed-wing Dash–8 aircraft (six Dash–8 202 and four Dash–8 315), modified with specialised surveillance information management system (SIM) equipment which links aerial surveillance assets to the Australian Border Operations Centre. The contractor is required to provide 15,000 flying hours per annum. Home Affairs is to make monthly payments comprising a service charge (covering one twelfth of the annual fixed charge, an hourly charge and any monthly performance deductions) and reimbursable expenses (including landing and navigation charges and accommodation and meal allowances). 

3. At the time it was entered into, the contract was to expire on 31 December 20192 and had a reported value of $1,187 million.3 Since the contract was executed, there have been 40 contract change proposals (CCPs) approved and Home Affairs has identified that these have significantly reshaped the contract. 

Rationale for undertaking the audit 

4. The contract with Surveillance Australia is the larger of two4 that are in place under ‘Project Sentinel’ for aerial surveillance to prevent people smuggling and manage other maritime threats across the North West approaches of Australia. This ANAO performance audit commenced in the second last year of the extended 14 year contract term to: assess and provide transparency over the services that have been provided to date; provide independent assurance to the Parliament as to whether Home Affairs is managing the provision of contracted services effectively given their importance to Project Sentinel; and examine whether there has been appropriate planning for the end of the contract on 31 December 2021. 

5. This audit was undertaken in a similar timeframe to a separate audit of the Management of the Search and Rescue Contract by the Australian Maritime Safety Authority (AMSA), which provided an opportunity to compare and contrast two aircraft service contracts (and their management) with contractors that are subsidiaries of the same parent company, Cobham Ltd (Cobham). The report of the audit of AMSA was tabled on 18 January 2021 (Auditor-General Report No. 27 2020–21) and concluded that AMSA’s management of the search and rescue contract has been fully effective. 

Audit objective and criteria  

6. The audit objective was to assess whether the Department of Home Affairs is effectively managing the Civil Maritime Surveillance Services contract. 

7. To form a conclusion against the objective, the following high level criteria were adopted: Has the contract delivered against the planned cost, scope and delivery timeframe? Have the specified surveillance assets been provided? Have the specified surveillance services been provided? 

8. At the time the audit commenced, there was a fourth criterion (‘Has there been appropriate planning for the end of contract?’) and the audit scope was to include the transitional arrangements in place for the period post the expiry of the contract on 31 December 2021. In December 2020, twelve months6 out from the expiry of the contract and with no further extension options available, the Secretary of Home Affairs did not agree to a recommendation from his department that he agree to issue a Request for Quote to the incumbent provider to continue providing services. 

9. As a result of the path forward not having been resolved by Home Affairs by December 2020, the Auditor-General decided to remove the fourth criterion from the scope of the audit. As at August 2021 with four months remaining on the current contract, there are no arrangements in place for the next contract. 

Conclusion 

10. The department’s management of the Civil Maritime Surveillance Services contract has not been effective and, as a result, while surveillance services have been provided, the quantum and range of those services has fallen short of the contractual requirements. 

11. The contract has not been managed to secure delivery in line with the planned cost, scope and delivery timeframe. The contract has been varied on 40 occasions as of March 2021 with the effect of significantly changing the scope of the services to be delivered and increasing the term and value of the contract. The department has recognised that variations to the contract have significantly reshaped it and those variations have increased the cost by more than 29 per cent. There has been a high turnover of officers responsible for the management of the contract and the department has not ensured that each of its contract managers had appropriate training or experience. 

12. There were shortfalls and delays in the provision of the contracted surveillance assets. At the commencement of services under the contract, delays in the modification program meant that four fully compliant aircraft were not available and nine of the 26 required aircrews were not provided. There was also a delay in the provision of the SIM required for the acceptance of the full surveillance system. The department did not effectively apply the contractual framework to manage the shortfalls and delays. 

13. Home Affairs has not received the required quantum of surveillance services and the aircrew requirements have not been met. Under the contracted performance framework, Home Affairs has calculated that Overall Contract Performance (OCP) has met the specified 90 per cent threshold for 92 per cent of the period from 1 January 2008 to 31 December 2020. In contrast to this high level of calculated performance: the contracted Rate of Effort (RoE) in terms of hours flown has not been achieved in any year and has fallen short by an average of seven per cent each year; of the total missions planned, 25 per cent have only been partially completed and a further 11 per cent have been cancelled or aborted; and aircrew requirements have never been met with the number of aircrew on average each month 33 per cent below that contracted (where data is available for analysis). 

Supporting findings 

Contract delivery against planned cost, scope and timeframe 

14. With an authorised cost of $1,187.3 million or $98.9 million per annum, the department contracted in March 2006 for the delivery of civil maritime surveillance services to December 2019, with an option to extend for a further two years. The contract requires that Surveillance Australia provide 10 Dash–8 aircraft, to be operated from bases at Darwin, Cairns, Broome and Horn Island from the scheduled handover date of 1 January 2008; the delivery of the SIM, and the provision of 26 aircrew to meet the annual planned rate of 13,613 flying hours. 

15. The contract has been subject to 40 variations, with a significant variation to further extend the contract approved by the department in March 2021. The department has recognised that the variations have significantly reshaped the contract. The variations have also increased its duration by two years to date and have increased the authorised cost by more than 29 per cent. 

16. Contract managers have not been provided with appropriate training and have not had appropriate experience. Contract managers have also not received appropriate support due to there being no approved contract management plan in place until August 2018, more than 12 years after the contract commenced. There has been significant turnover in contract management staff, in addition to contract management responsibilities changing a number of times, exacerbated by the poor state of records from the time the contract was entered into. Action has recently been taken by the department to improve the resourcing of the management of the contract.

And on and on it goes. 

COVID changes

'Never Let a Crisis Go to Waste': The Impact of COVID-19 on Legal Education' by Peter D Burdon comments 

The COVID-19 pandemic represents the most significant rupture to universities since the advent of neoliberalism. In Australia, the economic shock was brought about primarily by a drop in international student fees, border closures, plus efforts from the Federal government to keep public universities from accessing financial support. In this paper I discuss the impacts of COVID-19 on legal education. What concerns me in particular is the rhetoric under which massive structural changes have been justified in response to the pandemic. Most commonly, university leaders have sought to externalise the problem and adopt the language of unforeseeability, emergency and necessity. Changes to learning and teaching have also been described as an ‘opportunity’ to re-examine outdated pedagogical practices and forms of assessment. While not denying the unprecedented nature of the pandemic, this paper argues that current changes in higher education are not a break from the past but a continuation of the neoliberal project. 

To support this argument my paper proceeds in three parts. In part one I develop the argument that the idea of a university is an empty signifier that changes over time. Attention is given to the role of neoliberalism in shaping the contemporary university and learning and teaching. In part two I develop a theory of crisis capitalism in conversation with scholars of political science and political economy. Crisis, from this perspective, represents an opportunity through which unpopular reforms could be promoted under the language of necessity. With this theoretical framework in place, part three critically examines five recent changes that are relevant to learning and teaching: job losses and casualization; cuts to programs; finding new markets for international students; online teaching; and changes to assessment. 

While not denying the scale of the challenge that confronts higher education, I argue that university leaders are using the COVID-19 pandemic as a crisis to push through unpopular reforms. I substantiate this argument by comparing statements prior and during the pandemic and through a reading of how leaders have used the language of necessity. Ultimately, I concluded that Rahm Emanuel’s dictum that one should ‘never let a crisis go to waste’ is the governing mantra in universities today and will have a profound impact on learning and teaching for decades to come.  

US School Surveillance

The CDT Online and Observed: Student Privacy Implications of School-Issued Devices and Student Activity Monitoring Software by DeVan L. Hankerson, Cody Venzke, Elizabeth Laird, Hugh Grant-Chapman and Dhanaraj Thakur  reports

 Finding #1: Students using school-issued devices are monitored to a greater extent than their peers using personal devices. 

Finding #2: LEAs with wealthier student populations reported that their students are more likely to have access to personal devices, which are subject to less monitoring than school-issued devices. 

Finding #3: LEAs feel compelled to monitor student activity to satisfy perceived legal requirements and protect student safety. 

Finding #4: Most prevalent community concerns were focused on appropriate use of student activity monitoring data for disciplinary purposes. 

Finding #5: LEAs communicate privacy expectations to students and families, but are unsure about how much detail about student activity monitoring to include in those messages. 

Finding #6: LEAs are holding device and student activity monitoring software vendors accountable on privacy and security through data sharing and privacy agreements. 

Finding #7: LEAs are looking for ways to improve the privacy and security protections for devices and data shared with student activity monitoring vendors.

The CDT states 

Many school districts across the nation expanded efforts to provide devices like laptops and tablets to students during the global pandemic in an effort to close the homework gap and address inequities in technology access. Part of this shift included the introduction of student activity monitoring software and other digital tools aimed in part at facilitating remote classroom management and driving student engagement. However, these tools can also be used in ways that are unduly intrusive. In this report, we examine whether students who receive school-issued devices are subject to more monitoring than their peers who have their own devices. We also examine local education agencies’ motivations in implementing monitoring and how they communicate about it with parents and students. Building on recent CDT guidance on how schools could address privacy gaps in the implementation of remote education technology (Quay- de la Vallee & Venzke, 2020), this report presents findings based on virtual semi-structured interviews with nine individuals from five local education agencies (LEAs), including district level administrators and information technology (IT) directors..

Crime and Responsibility

The ACT LGovernment has released a report on what is needed for raising the age of criminal responsibility. 

The report states 

The ACT Legislative Assembly has committed to raising the minimum age of criminal responsibility. In preparation, the government commissioned a review of the service system (Review) in order to identify service gaps, implementation issues and alternative models to meet the needs of 10–13-year- olds likely to be affected by the proposed reform.

A team including Emeritus Professor Morag McArthur, Curijo Pty Ltd – an Aboriginal consulting company – and Dr Aino Suomi from the Australian National University carried out the Review between March 2021 and August 2021. 

This report outlines the gaps in the current service system that will require attention in order to meet the needs of children and young people aged 10–13. We will refer to them as ‘children’ from this point, and the term will include young people within the target range. This report identifies opportunities for reform to achieve improved outcomes for children and their families. It also proposes an alternative response to meet the needs of children affected by the changing legislative environment. The Review concluded that, overall, the service system requires reform. 

This Review used multiple sources of data to inform its findings: published key literature; ACT administrative data and casefile review; interviews with young people and families involved in youth justice; and wide-ranging consultations with non-government services, government directorates and key advocacy groups in the ACT. The data used for the Review point to a complex set of needs in children who are at risk of early offending. The findings showed that these complex needs shape children’s pathways across health/mental health, education and child protection services. The Review also highlighted significant agreement on the service challenges that face the ACT system in responding to children with complex needs. There was also a strong consensus among the groups about what should happen to address these challenges. 

This report concludes by outlining what is required to respond effectively to the needs of children who are most affected by raising the age of criminal responsibility. Based on the findings of this report, we argue for seizing the opportunity for comprehensive systems reform. This means building a stronger, more coordinated service system, ensuring early identification of needs and providing more universal support to meet those needs. These reforms are underscored by a shared responsibility for children’s wellbeing and safety. Raising the age of criminal responsibility highlights the importance of early, coordinated and sustained help for children and their families. A key outcome of this reform is to meet children’s needs. This outcome will not only be of value to them and their families but will benefit the wider community as well. 

Key Themes 

Children who are at risk of offending experience multiple health and mental health challenges, often with significant underlying trauma and disability. They are known to disengage from school early and to develop problems with substance misuse and are, too often, from Aboriginal and Torres Strait Islander backgrounds or from families where parents have been incarcerated. Many of these children are involved with the child protection system and have a history of family violence (as victims and/or perpetrators), sexualised behaviours and sexual exploitation. They are also at risk of homelessness. 

Children who offend or who are at risk of offending have complex needs 

By the time children interact with the youth justice system, unmet needs have often multiplied and become more complex. The literature clearly recognises that the complexity and clustering of risks and unmet needs increase the probability of future problems. Tackling these issues requires coordinated or multiservice interventions (Baglivio et al., 2020; Farrington, 2002) as well as trauma- informed service responses matched to individual needs. 

Gaps in the current ACT service system 

The literature and the stakeholders consulted in this Review identified the issue that service systems are often unable to meet children’s complex needs, because of a lack of identification and assessment; ineffective information sharing and communication between services; a lack of coordination between services; service gaps; and a lack of familiarity with existing services or the functions of other services (including referral pathways). 

Barriers to adequately addressing complex needs in the ACT include a lack of coordination and integration across the service system, including: limited information sharing; lack of capacity to work with children with multiple needs; limited specialised and generalist programs; service delivery modes that are inflexible; barriers to navigating the system; limited understanding of child-specific familial and cultural needs; and long waiting lists for specialised services. Stakeholder consultations revealed that demand outstrips the availability of services. Almost all stakeholders raised the difficulty of accessing mental health and alcohol and other drug services, identifying long waiting lists or narrow eligibility criteria as some of the main reasons. As a result, and only when problems escalate, the tertiary services (e.g., child protection or Youth Justice) will attempt to comprehensively address the needs of these children. One of the major concerns identified in the consultations was that children aged 10–13 – most affected by the reform – are commonly not eligible for a range of services in the ACT. This is particularly true for children under 12 years of age. They are too young to access many of the adolescent services and too unwell or complex for early intervention services, but not complex enough to access specialised services. They may also have comorbidities (e.g., disability and/or AOD or trauma response) that exclude them from key mental health services. 

The consultations also identified a range of workforce capability issues, including the structure of funding arrangements and tendering in the community services sector. They also included significant workforce shortages in key areas, such as allied health professionals available to support children with trauma experiences and emerging mental health challenges. 

More is required to develop a trauma-informed workforce. The ACT needs a workforce plan, tailored for specific service contexts and including a training and professional development strategy designed to operationalise trauma-informed care principles into practice and build the capacity of the sector to be more collaborative, child and young person -centred and culturally safe. If mainstream organisations set up to support children and families are not taking the lead in working in trauma- informed and culturally effective/sensitive ways, they can inadvertently cause further harm. 

A range of stakeholders identified the need for safe accommodation for children. They emphasised that this need will be intensified with the change to the age of criminal responsibility. Key aspects of remedying the lack of safe (and secure) accommodation include crisis accommodation for the age group and a secure therapeutic facility for children in need of mental health treatment and who are at risk of harming themselves or others. 

Implementing a strong narrative to communicate the changes 

Stakeholders highlighted the importance of bringing the community along with the reform by clearly communicating the key arguments and benefits of a therapeutic or public health response over a youth justice response. Broad arguments should include the science of brain development, the serious impacts of trauma on behaviours and the evidence of negative long-term outcomes associated with early interactions with the justice system. 

The narrative further needs to explain clearly the effectiveness of non-criminal processes in meeting children’s needs: evidence shows that therapeutic approaches prevent criminal/harmful behaviours in young people. It is also important to acknowledge the experiences of victims and to ensure that those who have been harmed will not be forgotten or ignored. As part of developing an alternative response, it will be important to recognise the rights and interests of people impacted by the harmful behaviour of children; they will require access to the same, or similar, supports as are currently available to victims of crime. Restorative processes have been built into the therapeutic proposal identified in this report, to ensure that victims and children have the opportunity to engage in restorative processes. Children who are held accountable for harmful behaviour, then repair damaged relationships and achieve closure, may be at decreased risk of (re)offending. 

A therapeutic response to meet children’s complex needs 

The report offers an overview of an alternative response to meet the needs of children affected by raising the age of criminal responsibility. The response includes a non-justice embedded youth worker model and safe accommodation options to support police’s interactions with children who may be at risk of antisocial or unsafe behaviour. The alternative response proposes a Multidisciplinary Therapeutic Panel (MTP), a collaborative forum to make service delivery decisions for children with complex and challenging needs. The MTP would consider and review children who have been referred to the panel because of the level of complexity of their needs or because there are insufficient or inadequate existing service responses to meet those needs. The work with children and their families would be coordinated by a new wraparound service. 

The wraparound service would develop individualised child and family-centred plans to respond to the complex needs of children. It would be an intensive, structured process, convening a team of highly skilled professionals and involving the child and their family members along with professionals and natural supports relevant to a child with complex needs and their family circumstances. 

The assessment process of the wrapround service would embed restorative processes by utilising Family Decision Making. The opportunity for children to participate in a restorative meeting would be considered as a way of ensuring that victims’ needs are also met. An important part of the proposed approach is to make available a range of restorative practices: restorative meetings; the provision of an apology; victim impact letters; or other forms of reparation. Appropriately used restorative processes are likely to have a therapeutic and empowering impact on both the victim and the perpetrator of harm. 

The MTP and wraparound service would be overseen by a legislated Oversight Committee, responsible for identifying systemic issues that may have arisen because of the changes to raising the age of criminal responsibility and for recommending policy and legislative changes. The alternative response is based on the voluntary engagement of children and their families, because mandated measures are often ineffective and unaligned with the therapeutic aims of the suggested approach. If, however, the ACT Government determines that a mandated response for children with complex needs is necessary, the current legislative levers are already in place – albeit requiring amendments. A mandated response to children should be used: • only as a measure of last resort (for example with repetitive harmful behaviour) • only where there is a risk of harm to the child and or others and that harm is likely to be serious • only where significant attempts at voluntary engagement have been exhausted. 

The need for strong systems for early help and support 

This Review identifies the need for a stronger focus on early support. Decades of research in Australia and internationally demonstrate the benefits of early interventions for children, families and communities. The current ACT service system has limited prevention, early intervention and individualised support services available to children generally and for Aboriginal and Torres Strait Islander children and families specifically. 

Further building the capacity of universal settings, such as early education and care, maternal and child health and schools, will be critical in identifying and responding to the needs of individual children and families. Locating supportive services in universal settings improves the prevention and early intervention possibilities. Schools are particularly important, because they are often where the needs of children and families are first identified. There is much more to be done to ensure that schools are adequately resourced and supported to engage actively with disability, mental health and welfare providers in order to enable integrated and holistic support for children at risk and their families. Stronger relationships can be built between schools and services in the non-government sector. Although schools cannot, by themselves, solve the complex social, economic and family challenges that present daily in the classroom, they remain an important site from which to provide trauma-informed responses, opportunities for early identification and assessment of need. 

Improved integration of responses 

Children’s (and their families’) needs cross directorate boundaries. Families whose children experience a range of issues may find themselves navigating different service systems and multiple service networks, including health, mental health, education and statutory child protection. Collaborative approaches recognise the complex and interlinked nature of issues for children and families and are better able to address complexity through coordinated interventions. 

Despite several serious attempts by the ACT to increase integration across the service systems, stakeholders throughout the consultations still pointed to a system that remains siloed. Information sharing remains an issue. The reforms required to respond to the decision to raise the age of criminal responsibility necessitate the acknowledgement that our service systems need transformative change. All the proposals hinge on creating a coordinated service response through collaboration and sharing responsibility. No single service, agency or directorate can devise and implement a comprehensive plan that would adequately improve outcomes for children with complex needs who engage in harmful and unsafe behaviour. 

A self-determined Aboriginal and Torres Strait Islander response 

Aboriginal and Torres Strait Islander children are overrepresented in the youth justice system and experience ongoing impacts from colonisation, dispossession and alienation from Indigenous cultures. They also have high levels of individual risk factors, such as mental illness and disabilities. 

Aboriginal and Torres Strait Islander people must be strongly represented in building the alternative response that will be required when the age of criminal responsibility is raised. This includes representation on the proposed MTP and employment in the wraparound service. The Aboriginal and Torres Strait Islander community and service providers must be actively engaged in determining appropriate services to meet the needs of children and families. 

Self-determination in responses to children at risk of early offending will require a strengthening of the role of our current Aboriginal organisations, provision of appropriate funding and support for any new initiatives. Workforce capacity building and other support will help to ensure that our Aboriginal Community Controlled Services are sustainable. 

An Independent Authority for children’s safety and wellbeing 

This report calls for an independent authority to oversee and support systems implementation of the reform and to respond to the identified critical service gaps. Currently, many different directorates are responsible for children’s wellbeing and safety, their health, their education and their participation in society. An independent authority would be a vital mechanism in creating an integrated whole-of- government and whole-of-community system to support children’s wellbeing and safety. It would help to develop a greater sense of shared responsibility across government and communities. 

The authority would be responsible for collaboratively developing a shared framework that can be used as a key driver for more joined-up approaches across directorates. This framework would provide the authorising (policy) environment and actively enable services across sectors to work differently and more collaboratively, including at the practitioner level.

Junk

'Low-Quality Patents in the Eye of the Beholder: Evidence from Multiple Examiners' by Gaétan de Rassenfosse, William E Griffiths, Adam B Jaffe and Elizabeth Webster in (2020) 37(3) The Journal of Law, Economics, and Organization 607–636 comments 

A low-quality patent system threatens to slow the pace of technological progress. Concerns about low patent quality are supported by estimates from litigation studies suggesting that most US patents granted should not have been issued. We propose a new model for measuring patent quality, based on equivalent patent applications submitted to multiple offices. Our method allows us to distinguish whether low-quality patents are issued because an office implements a low standard or because it violates its own standard. The results suggest that quality in patent systems is higher than previously thought. Specifically, the percentage of granted patents that are below each office’s own standard is under 10% for all offices. The Japanese patent office has a higher percentage of granted patents below its own standard than those from Europe, the USA, Korea, and China. This result arises from the fact that Japan has a higher standard than other offices. 

AdTech and BodyCams

'Adtech and Children’s Data Rights' by Lisa Archbold, Damian Clifford, Moira Paterson, Megan Richardson and Normann Witzleb in (2021) 44(3) UNSW Law Journal comments 

 The advertising technology industry, known as ‘adtech’, is a complicated network of organisations and individuals that collect, aggregate and deal with large amounts of personal data. As children engage with digital networks for many aspects of their lives, they are increasingly exposed to adtech practices. Depending on their age, children may have less knowledge of the commercial digital environment and less maturity in their decision-making processes than adults have. Their limited resilience in the face of adtech’s onslaught offers a particularly stark illustration of why it is problematic to look to ‘consent’ as the exclusive or predominant mechanism to control the use of consumer data in the digital ecosystem. This article examines the problems arising from adtech’s data practices and makes recommendations on how to strengthen the agency and control exercised by children and protect their best interests in the context of adtech.

'‘Every Move You Make … Every Word You Say’: Regulating Police Body Worn Cameras' by Robyn Blewer and Ron Behlau in the same journal comments 

The death of Minneapolis man, George Floyd, at the hands (or, knee) of a police officer in May 2020 appears to have set a nation, indeed the world, alight with outrage at ongoing, systemic racism and brutality by police officers. Body worn camera (‘BWC’) footage from officers attending this incident provides strong evidence of the circumstances of Mr Floyd’s death. In this article, we draw on criminological research and analyses of legislation in Australia and a number of international jurisdictions, to argue there is a need for improved regulation of BWCs. Despite incurring the substantial cost of deploying this technology, governments are relinquishing control of it to law enforcement agencies who, in turn, draft policies that maximise police discretion and protection while minimising the consequences of non-compliance. For governments to realise their objectives for BWCs, we argue there is a need for greater regulation to ensure BWCs are utilised effectively.

Ultimata

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.