Divorcing Marital Status from Social Security Payments

This case study is based on a client assisted in 2002 at the ACT Welfare Rights and Legal Centre. The names are changed to conceal identities.

SSA s 4.

SSA s 24 provides a rarely used exception to this rule.

Commonwealth , Parliamentary Debates, House of Representatives, 20 March 1974, 668–9 (Bill Hayden, Minister for Social Security).

This discrimination aims at creating substantive rather than formal equality: South-West Africa Cases (Second Phase) [1966] ICJ Rep 305–6: ‘what is equal be treated equally and what is different is to be treated differently’ ( Tanaka J ).

(1981) 4 ALD 362.

Ibid 365.

Also see R v Purdon [1997] (Unreported, CA NSW, Hunt CJ McInerney J Donovan AJ , 27 March 1997), cited in Easteal Patricia , Less than Equal: Women and the Australian Legal System (2001) 66.

(1995) 36 ALD 682.

This contrasts with earlier decisions on member of a couple provisions such as Re Waterford (1980) 3 ALD 63, 71, as well as the direction of the Canadian Courts: see Carney Terry Hanks Peter , Social Security in Australia (1994) 235 for a discussion of the Canadian decision, Re Proc and Minister for Community and Social Services (1974) 53 DLR (3d) 512.

Carney Hanks , above n 10, 236; Lambe, above n 6, 366.

For example, a person with major depression will be expected to take anti-depressant medication before being assessed. A person using non-traditional medicines or techniques may not be classed as being fully treated.

Smart Carol , ‘Marriage, Divorce and Women's Economic Dependency: A Discussion of the Politics of Private Maintenance’ in Freeman Michael D A , The State, the Law and the Family (9th ed, 1984) 21.

For further discussion of this point, see Spencer v the Secretary to DSS (1987) 13 ALD 497, 501.

Sex Discrimination Act 1984 (Cth) s 6 (SDA).

SDA s 40. See also Ronalds Chris , ‘De Facto Relationships: Mixed Government Approaches’ in Disney Julian (ed), Current Issues in Social Security Law (1994) 85, 91.

Hopkins Andrew McGregor Heather , Working for Change: The Movement against Domestic Violence (1991) 5.

Graycar Regina Morgan Jenny , The Hidden Gender of Law (1990, 1st ed) 87.

Ex parte H v McKay 1907 2 CAR 1.

Wilson John Thomson Jane McMahon Anthony (eds), The Australian Welfare State (1996) 23–4.

Hopkins McGregor , above n 17, 3. Note that in the Second World War, women entered the workforce due to an absence of male workers. Thus female workforce statistics before the war will be much lower than 6.5%.

Pocock Barbara , The Work/Life Collision: What Work is doing to Australians and What to do about it (2003) 19.

Pay equity remains a live issue and was the subject of an inquiry in 2004 chaired by Dominica Whelan of Australian Industrial Relations Commission.

Graycar Morgan , above n 18, 92.

Ibid 148.

International Labour Office, Social Security: A New Consensus (2001) 3. Also noted at the conference was that the Social Security (Minimum Standards) Convention 1952 (No 102) ‘had been written as though men were the social security recipients and women merely their dependants’ and thus ‘was a ‘dinosaur’, representing the macho man as the sole provider hellip; [and further] was out of date in 2001’: 22.

<www.abs.gov.au> at 14 March 2005.

Interestingly, according to one commentator, ‘fewer than 15% of US families conform to the normative ideal of a domicile shared by a husband who is the sole breadwinner, a wife who is a full-time homemaker and their off-spring’: Fraser Nancy , Unruly Practices: Power, Discourse and Gender in Contemporary Social Theory (1989).

Carney and Hanks, above n 10, 240.

See, eg, Smart Carol , above n 13, 21. See also Edwards Meredith , The Income Unit in the Australian Tax and Social Security Systems (1984).

Branigan Elizabeth , His Money or Our Money? Financial Abuse of Women in Intimate Partner Relationships: A Report by the Coburg Brunswick Community Legal and Financial Counselling Centre (2004) ii.

Naffine Ngaire , Law and the Sexes (1990) 70. See also Sackville Ronald , Law and Poverty in Australia (1975) 270. Section 72 of the Family Law Act 1975 contains a legal obligation for parties to a marriage to support each other, an obligation that is in practice not enforced until after a marriage breaks down: Graycar Morgan , above n 18, 127.

See, eg, ‘SRWW’ and Department of Family and Community Services [2001] AATA 495 (6 June 2001); Karafoulidis and Department of Family and Community Services [2001] AATA 757 (27 August 2001); Francis Hucker and Secretary, Department of Social Security No 91/89 AAT No 7656.

Easteal Patricia , above n 8, 103. Financial abuse may constitute harassment under the Domestic Violence and Protection Order Act 2001 (ACT). I have not seen a domestic violence order that requires one party to financially support another. As orders are generally made limiting rather than increasing the level of involvement between the parties, and are in practice targeted at reducing physical violence, I would not advocate the use of domestic violence orders as a reliable or desirable avenue for overcoming poverty.

Australian Bureau of Statistics, Census of Population and Housing (1986) table VF025, as re-produced in Ocheltree Gary , ‘Living in a Stepfamily’ (1989) 24 Family Matters: AIFS Newsletter.

de Vaus David , Diversity and Change in Australian Families (2004) 60.

Ibid.

For example, the Secretary of the Department of Social Security or their delegate would need to make this determination in deciding to raise a debt against a person who has claimed a Single Newstart benefit while living with a person of the opposite sex.

SSA s 4.

See, eg, Stoilkovic and Secretary to Department of Social Security (1986) 29 SSE 362; Spencer and Secretary to Department of Social Security (1987) 13 ALD 497, 501.

Re Stuart and Secretary to Department of Social Security (1985) 9 ALN 38.

Le-Huray, above n 9.

Mussett Jane , ‘Crime? And Punishment! Sole Parent Pensioners, Criminal Convictions and Administrative Review’, in Disney Julian (ed), Current Issues in Social Security Law (1994) 95, 105. Indeed it is entirely possible for a Criminal Court to find someone is a member of a couple and subsequently the AAT to find that no such relationship exists: See Re Ridley and Secretary, Department of Social Security (1992) 69 SSR 989.

Social Security (Administration) Act 1999 (Cth) s 63. Other than attend the office, there is actually no legislative requirement to go to an interview.

Author's personal communication with clients at the Welfare Rights and Legal Centre. For a chilling example of the extraordinary lengths to which Centrelink investigators will go, see Re Nisha and Secretary, Department of Family and Community Services [2000] AATA 315 (20 April 2000).

Easteal , above n 8, 60.

Ibid.

Horin Adele , ‘Centrelink Checks Target Sole Parents’, The Age (Melbourne), 31 March 2005, 3.

Centrelink , Annual Report 2003–2004 (2004) ch 3, 55–6.

Commonwealth Director of Public Prosecutions, Annual Report 2003–2004 (2004) 34–5.

Failure to declare employment earnings is the other significant area of prosecution activity. It is worth noting however, that prosecutions that do not involve member of a couple issues are less time consuming as they involve data matching against tax records rather than full investigations.

Easteal , above n 8, 62, finds that 36% of people prosecuted for social security fraud from 1 July 1996 to 30 June 1999 were prosecuted in relation to their member of a couple status. It should be noted that these figures are over 5 years old.

As with many criminal matters, numbers of these individuals would have pleaded guilty, reducing the cost to the CDPP. However, each would have tied up significant Centrelink resources in investigation and referral to the CDPP.

Peter Sutherland also suggests that amendments to the tax-free threshold and taper rates in our income tax regime should accompany the proposed SSA reform.

The assets test and income received from tax-splitting arrangements may prevent or reduce payments in some of these cases.

Welfare systems in the UK, US, Canada and New Zealand currently assess heterosexual couples as a financial unit. For a New Zealand-based perspective see Wiseman Jessica , ‘Determining Relationship in the Nature of Marriage: The Impact of Ruka on the Department of Work and Income's Conjugal Status Policy’, (2001) 36 Victoria University of Wellington Law Review 48.

Reform to rid assumptions of financial dependence should also be seriously contemplated in the areas of public and private tenancy law, family law and fatal accident compensation law: see Grazyna Zurkowska v Llona Matica & Ors [1986] ACTSC 25; Compensation to Relatives Act 1897 (NSW) s 4; Wrongs Act 1958 (Vic) s 19.