The cohabitation rule: indeterminacy and oppression in Australian Social Security Law.

• Jurisdiction: Australia
• Author: Tranter, Kieran
• Date: 01 August 2008

[This article argues that the cohabitation rule in Australian social security law is uncertain and has, as a consequence, given rise to an oppressive administrative regime. It tracks the indeterminate nature of the rule as a constant feature throughout its history and argues that this imprecision remains within its current formulation in the Social Security Act 1991 (Cth). Drawing upon basic ideas about the functionality of rules, it is suggested that the administration of an undefined rule should be attended by resistance and challenge. However, the social security regime and the cohabitation rule appear to have been accepted by the community. This acceptance is explained as being the result of the oppressiveness of the current administration. Drawing upon analysis of Administrative Appeals Tribunal decisions and interviews conducted with Centrelink clients, this article argues that the cohabitation rule unfairly targets vulnerable clients, is implemented through the use of invasive surveillance and provides opportunities for intimidation by Centrelink officers.]

CONTENTS I Introduction A Basis for This Article 1 Feminist Criticism of the Cohabitation Rule 2 General Theories Regarding the Nature of Rules II The Indeterminacy of the Cohabitation Rule in Social Security Law A 1900-70: The Emergence of the Rule B 1980s: Living with a Man as His Wife on a Bona Fide Domestic Basis C 1990-2007: Marriage-Like Relationship Criteria D Consequences of an Indeterminate Rule III Oppression in Contemporary Cohabitation Administration A Targeting the Vulnerable B Invasive Administrative Culture C Intimidation of Clients D An Oppressive Regime: Options for Reform IV Conclusion I INTRODUCTION

Australian social security law distinguishes between 'single' and 'partnered' clients for the purpose of determining payments. While a single client's payment is dependent on their own income and assets, a partnered client's payment is calculated on the basis of the income and assets of both the client and their partner. (1) The result is that payment scales for single clients are greater than those for partnered clients. (2)

Both de jure and de facto marriages have been used by social security law to distinguish between single and partnered clients. (3) As a client's relationship status must be determined 'objectively', (4) it has been necessary for administrators to develop a rule for determining when a relationship between two persons of the opposite sex (5) could be deemed equivalent to a marriage in law. Within social policy literature, the resultant rule has become known as the 'cohabitation rule'. (6) In the Social Security Act 1991 (Cth) the rule operates in two ways. Its first purpose is to determine whether persons who are not de jure married should be treated as a 'member of a couple'. (7) Its second purpose is to determine when de jure married or previously de facto persons should be treated as single. (8) In this second context, it has been established that the rule will allow persons who are 'separated under the one roof' to be considered single. (9)

This article argues that the cohabitation rule is uncertain and that its current administration by Centrelink is oppressive. In Part II it is argued that throughout its history, the cohabitation rule has been marked by indeterminacy due to both its open-endedness and the subjectivity required in its application. This indeterminacy remains notwithstanding 60 years of administration and reform.

In Part III the article draws upon recent Administrative Appeal Tribunal ('AAT') decisions and semi-formal interviews with 16 Centrelink clients to argue that the current administration of the rule targets the vulnerable members of society. This administration utilises invasive surveillance and often results in intimidation of clients by Centrelink officers. The article concludes that the rule manifests these characteristics in its administration because the rule itself is undefined.

A Basis for This Article

1 Feminist Criticism of the Cohabitation Rule

This article is predicated on feminist criticism of the cohabitation rule. In Australia, the existence of the rule has been justified according to basic principles of equality between married and unmarried women. Essentially, unmarried women who are cohabitating with a male should not get the benefit of social security payments that are not available for married women. (10) Unfortunately, this justification is predicated on the highly problematic model of social and economic organisation whereby in a house with a cohabitating male and female, the male is assumed to earn income and to then distribute that income to the female and child dependents. (11) This basic premise has been heavily criticised. One line of criticism is that this assumption has not been the reality for many women and children in Australia. (12) Another line of criticism has identified the rule as an attempt to control the lives of women because it subjects women to scrutiny and operates on an assumption that women should be dependent on men. (13) Following the reduced emphasis on the breadwinner model within social security law since 1995, (14) some have considered the rule to be of historical interest only. (15) Over the last three years, however, the community has raised concerns with the implementation of the cohabitation rule by Centrelink. (16) These concerns have stimulated a new focus on the administration of the rule and have even resulted in a recent Commonwealth Ombudsman Own Motion Report. (17)

2 General Theories Regarding the Nature of Rules

This article also takes as its foundation 'general rules theory' as it applies to the administration of the cohabitation rule. If one accepts the proposition that the character of the cohabitation rule is indeterminate and therefore causes oppressive administration of the rule, this would mean that the cohabitation rule and its administration operates contrary to Terry Carney's claim that the law has had a minimal impact on the culture of welfare administration in Australia. (18) Carney's writings have focused on public law both as a means of empowering clients and as a mechanism for shaping a more respectful and caring society--a use of law that he regards as 'at best an empty gesture or, at worst, a delusion' when it is unaccompanied by wider support for change. (19) In contrast, this article focuses on the ability of law to provide the foundation for an oppressive administrative regime.

In making the claim that the form of the written law informs its administration, this article draws upon some basic theories regarding the expression and function of rules within a society. Writing after the Second World War, Lon L Fuller grappled with what he saw as the failure of law as posited power in authoritarian regimes. (20) Drawing on American legal realism of the 1930s, he argued that 'one starts with the obvious truth that the citizen cannot orient his conduct by law if what is called law confronts him merely with a series of sporadic and patternless exercises of state power.' (21)

As a basic proposition, Fuller suggested that legal statements should clearly set out the limits of permissible conduct. (22) He believed that in order for law to fulfil its social function (informing rational beings of what constitutes appropriate conduct), law must involve the application of simple criteria. According to Fuller, law should consist of a body of rules that are clearly known and capable of being understood. Thus, law should be internally consistent, able to be complied with, not continuously changing, not retrospective in its application and, finally, it should provide the actual basis for a decision-maker's decision. (23) Fuller's thesis allows for criticism of a legal proposition, not because its content fails to measure up to political or ethical ideals, but because it does not measure up to this 'inner morality of law'. (24)

The consequence for authorities which produce and administer rules that do not comply with the 'inner morality of law' is, Fuller suggests, a lack of respect for the authorities and, in extreme cases, popular rejection of the regime. (25) However, Fuller acknowledged that this would only be the response in a society where people are suitably empowered to defend their rights from irrational or arbitrary officials. He provided an alternative hypothesis to explain the situation where an indeterminate rule did not generate opposition and in this Fuller was in agreement with his mid-century interlocutor H L A Hart. (26) Both suggested that a veneer of acceptance can be maintained by officials through oppressive conduct that coerces compliance and silences dissent. (27) It is these two hypotheses concerning the relationship between an indeterminate law, its administration and the popular response to its administration which inform the argument below.

II THE INDETERMINACY OF THE COHABITATION RULE IN SOCIAL SECURITY LAW

This Part argues that throughout its existence, the cohabitation rule has been marked by indeterminacy. The scope of what a decision-maker should consider in order to determine whether a de facto relationship exists has been open-ended. From its origins in women's payments to its legislative enactment in the 1970s and the current marriage-like relationship criteria, the rule has been criticised because it has allowed a decision-maker's subjective evaluations to affect decisions. Parallel with criticism concerning indeterminacy, there has also been criticism that the administration of the rule has been oppressive.

A 1900-70: The Emergence of the Rule

The situation of de facto couples presented difficulties at the very origins of the Australian social security system. The phrase 'good moral character, and ... led a sober and reputable life' in the Old-Age Pensions Act 1900 (NSW) (28) was criticised in the Commonwealth Royal Commission on Old-Age Pensions in 1906 for providing...