The Commonwealth Ombudsman’s investigation found that Services Australia and DSS knowingly broke the law while unsuccessfully trying to change child support legislation. Photo: Michelle Kroll.
The Commonwealth Ombudsman has released a report into the actions of Services Australia and the Department of Social Services (DSS) over their non-compliance with the law in regard to child support.
Released on 27 January, the redacted report — titled Following the law is not optional — summarises the investigation into the conduct and practices of Services Australia and DSS, which wrapped up in December.
“As that report contained material subject to legal professional privilege, the Ombudsman decided not to release the full report publicly,” the report’s foreword reads.
“Instead, we are publishing a modified version of the report to provide visibility of the investigation’s findings and recommendations.”
The issue that was investigated was originally identified by Services Australia staff in 2019 and by DSS in February 2020, but rather than change their actions, the agencies sought to address the issue by having the legislation changed.
But as the report notes, “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,” Commonwealth Ombudsman Iain Anderson said.
“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.”
The report says that, under the current child support legislation, a parent with more than 65 per cent care of a child should have no obligation to pay child support to the other parent. Services Australia had a practice whereby parents providing less than 35 per cent of care did not receive child support.
But it says amendments to child support legislation introduced in 2008 and 2018 meant there were unintended outcomes of scenarios where a parent with less than 35 per cent care may be entitled to child support if the other parent is providing 65 per cent of the care or less.
The report says Services Australia proactively reported to the Ombudsman in June 2025 that its practice conflicted with the law and that, as a result, there were circumstances where one parent providing less than 35 per cent 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 was not proportionate or reasonable, and that they failed to appropriately consider alternatives to remediate the issue, appropriately escalate the issue, seek external legal advice, or brief relevant ministers.
“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,” Mr Anderson said.
“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.”
Of the six recommendations made by the Ombudsman, the agencies accepted five, and the sixth ”in principle”. The DSS Secretary announced the government would introduce legislation to retrospectively address the child support issue.
The recommendations include an urgent briefing by the agencies for the relevant ministers to fully explain the significance and impacts of the issue; as a priority, propose to relevant ministers a public statement of government intent to amend the legislation retrospectively; and in the absence of a government decision that the law should not be applied pending an attempt to retrospectively amend the legislation, the agencies should take active steps to implement the legislation.
The other recommendations are that Services Australia should ensure that all staff are aware and provided with a copy of the guidance contained in its July 2025 Legal Compliance and Remediation Playbook; that the agencies should ensure that their policies and procedures reflect the importance of seeking independent external legal advice; and that staff are aware of the duty to notify responsible ministers of issues under the Public Governance, Performance and Accountability Act 2013.
In a November 2025 statement, DSS Secretary Michael Lye said the department was changing child support legislation so the parents who provided the most care for their child received the support they needed.
“The Commonwealth Ombudsman has raised concerns that due to unintended consequences of legislative amendments, a small number of parents with little to no care of their child may be technically eligible for child support under an anomaly in the law,” he said.
“The Department of Social Services is working with Services Australia to finalise amendments as a priority to fix this.”
