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In Ruka v Department of Social Welfare,[1] the Court of Appeal radically redefined the concept of “de facto” marriage for social security purposes, relying in significant respects on the analysis of Canadian courts when emphasising the importance of financial interdependence,[2] and assessing the relevance of battered woman’s syndrome.[3] This article examines the analysis in Ruka, in the light of its background and its remarkable legislative aftermath: a bill proposing to allow the Department of Social Welfare (now the Department of Work and Income) to ignore domestic violence when establishing a “marriage-type” relationship and to remove social security support for battered women after a six month period as an incentive to leave the relationship.
The “conjugal status” principle allows social security administrators to treat two people who are not legally married as if they were married, where those people are deemed to share a relationship which approximates a legal marriage. The application of the principle has a number of significant consequences for the people concerned. Whilst these consequences will vary depending on the structure of the relevant social security scheme, deciding to regard a couple who are not legally married as living in a relationship in the nature of marriage means that, at the very least:
* in relation to an income-tested benefit, the financial circumstances of both parties will be taken into account;
* the rate of benefit payable will be that available to a married couple, rather than the greater sum represented by two individual benefits;
* as the person concerned will be regarded as married, there will be no entitlement to benefit as, say, a lone parent;
* failure to disclose the existence of such a relationship may amount to fraud.
The principal justification advanced for the rule is the argument that it would be wrong in principle to treat a person who is said to be living in a relationship which approximates to a legal marriage better than if that person was legally married.[4] Few issues in social security law have aroused such controversy, however. The rationale for the rule, its nature, and the methods used by governmental agencies in implementing it, have each given rise to extended academic debate and case law across jurisdictions.[5] The criticisms of the rule have been elaborated elsewhere. Essentially, it has been argued that the rule:
* implicitly reinforces the ideology of women’s dependence on men, in making an assumption of support where a woman lives with a man;[6]
* is applied disproportionately to women, and particularly to working class women and women belonging to ethnic minorities;[7]
* fails to recognise cultural differences in living arrangements;[8]
* penalises one form of non-marital living arrangement (heterosexual “cohabitation”) over others;[9]
* is associated with inappropriate moral judgments, and is used as a tool of social control;[10]
* is incapable of precise definition and therefore liable to be applied unfairly;[11] and
* is generally administered in a manner which involves extensive intrusion into the privacy of beneficiaries.[12]
This article focuses on developments in the law in New Zealand, where both legislation and administrative practice bear out many of these criticisms. First, the current provision[13] was certainly based on an assumption of support,[14] even though no duty to support arises outside the context of legal marriage.[15] Secondly, although the relevant legislation is not gender specific in stating the rule,[16] in practice it is applied almost invariably to women beneficiaries. As one illustration, whilst those receiving the “lone parent” benefit (the domestic purposes benefit)[17] account for only 15.1 per cent of beneficiaries,[18] lone parents account for 61 per cent of overpayments established under the conjugal status rule.[19] Out of literally thousands of such overpayments since 1964, the Appeal Authority established by the legislation has heard only two involving benefits granted to men.[20] Thirdly, failure to recognise cultural differences has led to difficulty where administrators confused MŠori customary marriage with de facto marriage,[21] and to problems in the case law where administrators have failed to recognise the extent of customary obligations to support following separation.[22] These issues were compounded by controversy surrounding the benefit fraud campaign in 1997, which was alleged to present stereotyped images of those committing fraud.[23] Fourthly, the rule is stated as applying only to heterosexual relationships. Social security law, like family law, does not recognise other forms of marriage.[24] Whilst the Human Rights Act 1993 prohibits discrimination on the basis of sex, marital status, and sexual orientation, these provisions do not currently apply to limit or affect legislation.[25] Fifthly, the administration of the rule, as will be seen, has been marked by behaviour falling within the criticisms levelled above as to judgmental, arbitrary and intrusive application.
Whilst criticisms of the rule have tended to focus on its formulation and implementation, feminist analyses in particular have seen the rule as one aspect of a denial of economic independence for women within social security regimes,[26] and the overall feminisation of poverty.[27] At issue here is the concept of “joint entitlement” (or the “core family unit”) as the basis for entitlement to a social security benefit, as opposed to treating two-adult households in terms of “individual” entitlement.[28] Although the Royal Commission on Social Policy made tentative suggestions in this respect in 1988, including the proposed introduction of testing on individual incomes,[29] those suggestions have not been adopted.[30]
This article will examine a fundamental shift in the approach to the conjugal status principle in New Zealand, as a consequence of the decision of the Court of Appeal in Ruka v Department of Social Welfare.[31] In Ruka, the Court followed the approach of the Ontario Divisional Court in Re Proc and Minister of Community and Social Services[32] in holding that, in assessing whether a marriage-type relationship exists, particular weight must be given to the commitment of each party to the alleged relationship to support the other financially and to the level of emotional commitment, if any, between the people concerned. Since the alleged relationship in Ruka was characterised by vicious and regular beatings and rapes, the Court had also to consider what weight should be attached to the existence of battered woman’s syndrome when failure to disclose the existence of a marriage-type relationship to social security authorities amounted to a criminal offence.
The aftermath of Ruka will then be considered. The Social Security (Conjugal Status) Amendment Bill, introduced in 1997, proposed to override the analysis in Ruka and to reinstate what had been the prevailing policy approach to the issue of conjugal status prior to the Court of Appeal’s decision. Under that policy approach, no primacy was to be given either to financial interdependence or to emotional commitment and, indeed, neither were considered to be necessary ingredients of a relationship in the nature of marriage. That bill has not yet been enacted and remains before the Social Services Select Committee.[33] The background to the bill, and its provisions, warrant detailed examination for two reasons. First, it is apparent that, following Ruka, the Department of Social Welfare continued to a large extent to apply the pre-Ruka policy reflected in the bill as if that decision had never been delivered. Its successor, the Department of Work and Income, has followed the same course. Secondly, the rationale for that policy has never been expressed in more detail than in the background papers arguing for its implementation through the bill.
The Social Security Act 1964 adopts the common pattern of categorising social security entitlement depending upon the circumstances giving rise to the need for assistance. The main categories of social security benefit arise from unemployment, sickness, invalid status, widowhood, lone parenthood, and age-based retirement.[34] Each of these categories is subject to the application of the conjugal status rule, but, as noted above, the main area of application in practice has proved to be to women who are receiving the domestic purposes benefit granted to lone parents.
The background to the conjugal status clause reveals a mixture of moral, gendered and financial assumptions. Until 1972, entitlement to social security benefits in New Zealand could always be withheld on moral grounds. The earliest example is the Old Age Pensions Act 1898, under section 8 of which a person qualified for a pension only if, amongst other things, he or she was “of good moral character and had been leading a sober and reputable life in the previous five years”. This provision is occasionally pointed to as an early statutory distinction between the “deserving” poor and the “undeserving” poor.[35] The requirement that applicants for, and recipients of, benefits be of good moral character and sober habits was carried over in section 74(b) of the Social Security Act 1964, in conjunction with a requirement that the person concerned should not be living on a domestic basis as husband and wife with a person to whom he or she was not married. In 1972, the Royal Commission on Social Security in New Zealand emphasised the need to separate the “morals” requirement from the discretion to treat unmarried couples as though they were legally married.[36] The Royal Commission recommended deletion of the “good moral character” clause[37] and this recommendation was adopted.
The marital status of applicants was also dealt with, however, in section 63 of the 1964 Act. Under section 63(b), the Department of Social Welfare could regard as husband and wife any man or woman who, not being legally married, were in the opinion of the Department living together on a domestic basis as husband and wife.[38] This provision was retained.[39] In this context, the “male breadwinner” concept was very much to the forefront of the Royal Commission’s thinking.[40] Further, following a High Court decision in 1978, in which it was held that the words “on a domestic basis” restricted the application of the rule to cases where the parties lived under the same roof on a basis of some permanence,[41] the legislation was rapidly amended to remove that phrase.
The present conjugal status provision is administered by the chief executive of the Department of Work and Income,[42] under the general direction and control of the Minister of Work and Income.[43] In the case of each benefit, under section 63 of the 1964 Act:
For the purposes of determining any application for any benefit, or of reviewing any benefit already granted, or of determining the rate of any benefit ... the chief executive may in the chief executive’s discretion -
... (b) Regard as husband and wife any man and woman who, not being legally married, have entered into a relationship in the nature of marriage -
and may determine a date on which they shall be regarded as ... having entered into such a relationship, as the case may be, and may then in his discretion grant a benefit, refuse to grant a benefit, or terminate, reduce, or increase any benefit already granted, from that date accordingly.
The 1964 Act contains no definition of the phrase “a relationship in the nature of marriage” and, as Tipping J observed in Thompson v Department of Social Welfare,[44] it is an “imprecise concept”. Nothing in section 63, or elsewhere in the legislation, provides guidance as to how the discretions conferred by that section are to be exercised. In practice, as is common in similar social security regimes,[45] those officers of the Department to whom the discretion under section 63 is delegated[46] are subject to internal guidelines in the administration of that discretion.[47] A brief examination of the key High Court decisions will suffice to show how this issue was dealt with prior to the landmark decision of the Court of Appeal in Ruka.[48]
In Excell v DSW[49] Fisher J held that:
a Cohabitation for legal purposes normally requires some form of mental commitment to live together as husband and wife and a manifestation of that commitment by conduct. No minimum period is involved. In cases of doubt an inference as to intention will usually need to be drawn from conduct.
b The conduct in question is concerned not with any single factor but with an aggregation of many. No single factor is enough nor will its absence be fatal. It is the cumulative quality, quantity, continuity, and duration of these factors that matters.
Fisher J then went on to cite with approval an inclusive list of factors contained in the Department’s internal administrative guidelines:
While the nature, quality and characteristics of a marriage state differ widely in the community, there are certain common elements which can be assessed. The officer must consider the behaviour of the couple, indicated by the extent to which they:
- share one dwelling as each party's principal place of residence;
- emotionally support and depend on each other;
- pool labour and financial resources;
- share household activities;
- provide domestic services for each other;
- share one bedroom and/or a sexual relationship;
- share companionship, leisure and social activities;
- share parental obligations;
- present to outsiders as a couple; or
- exclude emotional and sexual relationships with third parties.
The decision cannot be based on the absence or presence of any one single factor. It is the quality, quantity, continuity and duration of all the factors found to exist that matters.[50]
In Russell v Department of Social Welfare,[51] a case of alleged fraud through non-disclosure of a relationship in the nature of marriage, Hammond J approved the formulation in Excell continuing:
But the list of indicia there set out are not some kind of points scale or checklist which have to be met before a conviction can be entered. The indicia are a convenient working list of factors. The absence of a single factor, or even several, will not be fatal.
In Smith v Police,[52] after outlining a list of external indicators similar to that in Excell, Quilliam J emphasised that
Plainly the relationship need not be such as to equate with marriage, but one would expect to find that it was such that other people would tend to look upon the parties in much the same light as if they were married.
This approach was applied in Mauri v Department of Social Welfare,[53] in which Sinclair J went on to say that it was impossible to define precisely the meaning of the term, so that each case would turn on its own facts “and will to a large degree turn on the nature of the persons involved, their attitudes to life and the standards they adopt”.
The authorities were reviewed by Tipping J in Thompson v Department of Social Welfare:[54]
Inherent in the concept of a relationship in the nature of marriage are both mental and physical aspects. In deciding whether such a relationship has been entered into it will generally be helpful to consider the physical aspects first. Once they are determined the mental question can be addressed. As to the physical aspects of the relationship the questions in the following list will be relevant:-
(1) Whether and how frequently the parties live in the same house.
(2) Whether the parties have a sexual relationship.
(3) Whether the parties give each other emotional support and companionship.
(4) Whether the parties socialise together or attend activities together as a couple.
(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children.
(6) Whether the parties share household and other domestic tasks.
(7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise.
(8) Whether the parties run a common household, even if one or other partner is absent for periods of time.
(9) Whether the parties go on holiday together.
(10) Whether the parties conduct themselves toward, and are treated by friends, relations and others as if they were a married couple.
A negative answer to one or more of the questions will not necessarily mean the absence of a relationship in the nature of marriage. Nor will positive answers to a number of the questions necessarily mean its presence. The weight and effect of all the answers must be assessed. In some cases other matters not on the list may well be relevant and require assessment in the overall picture.[55]
Whilst some of the earlier cases had been equivocal on the necessity to establish an emotional commitment between the parties, concentrating instead on the physical or factual aspects of the relationship, Tipping J emphasised that this “mental ingredient” must be considered. For the first time in the case law, Tipping J placed the significance of emotional commitment above that of the other “physical” indicia of the relationship. In the judge’s view the “mental ingredient” involved some commitment by the parties to their relationship “for the foreseeable future”, with any lesser commitment being neither sufficient for nor consistent with a relationship in the nature of marriage. [56] As with proof of all states of mind it would usually be necessary to decide whether the necessary commitment exists by a process of inference from what the parties had said and done. Whilst “the assessment of whether a potentially disqualifying relationship existed was to be made on a purely objective basis” by the Department, “the ultimate decision will always be one of fact and degree”.[57] Tipping J observed that, once the “mental ingredient” of a commitment for the foreseeable future was established, an appropriate way of capturing the essential issue was to ask:
Does the evidence disclose that the parties so merged their lives during the time in question that they were for all practical purposes living together like a married couple?[58]
The operation of this “checklist” approach, both before and after Thompson, had proved to be both problematic and controversial in practice. The recurring emphasis on “fact and degree” reinforces Calvert’s observation that there are two problems in marital status cases and that these problems are confused by characterising the question as being, overall, one of fact. The first problem is an evidentiary one: for example, do the parties live together? Does one of them support the other? The second problem is what Calvert refers to as the “legal” one, that is to say, what is the legal significance of the facts found?[59] Even those critics who accepted the justification for the conjugal status rule inclined to the view that the Department placed excessive emphasis on matters such as the existence of a sexual relationship between the alleged parties to the relationship[60] and outsiders’ perceptions of their relationship,[61] when addressing the legal significance of evidence, at the expense of more fundamental questions such as demonstrable willingness to provide financial support[62] and mutual emotional commitment.[63] Nor, on the weight of authority, were financial or emotional support seen to be necessary components of a marriage type relationship, as the above survey demonstrates.
The combined effect of asking whether “other people” would tend to regard the parties as married, and judicial acceptance that there was no common standard to be applied,[64] was to leave a significant measure of uncertainty in the application of the test. It would have been small consolation for those faced with criminal prosecution to learn from one High Court judge that a relationship in the nature of marriage “is not difficult to recognise but [presents] problems of definition”.[65] In particular, the emphasis on a factual assessment in each case left no room for a developed principle relating to the role of financial support. Reliance on the perception of the relationship held by third parties also led to extreme cases where, for example, the tribunal’s view of whether a marriage type relationship existed was influenced by attitudes held by those who moved in the same social settings as the people concerned.[66] These issues were placed in stark relief by the material facts in Ruka.
Ruka v Department of Social Welfare[67] was an appeal against conviction for benefit fraud in relation to the appellant’s receipt of a lone parent’s benefit (the domestic purposes benefit).[68] Isabella Ruka, had been living with a man (identified in the judgment only as T) for 18 years. For 16 years, she was viciously beaten by T. During this period, he beat her four or five times a week (sometimes using an axe and a baseball bat) to the point where she was hospitalised twice with broken bones, half of her teeth were smashed and her eyes were so severely blackened that she could not open them. Pregnancy did not stop the beatings. When their child was born, he beat her when the baby cried. After the first year, as one judge put it in the Court of Appeal, there was “nothing less than a long series of rapes”. T did not take on parental responsibilities. He stopped her from seeing her family or friends. He contributed nothing to the running of the house in which they lived. Nor did he share his earnings (but, at the same time, he forced money from her). Threatening her with a shotgun, he repeatedly promised to hunt her down and kill her if she left him. She believed him. His sister described the relationship in evidence as almost being one of “master and slave”.[69]
For a good part of the 16 years, Isabella Ruka worked. At other times she went on a domestic purposes benefit to maintain herself and her son, signing declarations that she was not living in “a relationship in the nature of marriage” with her child’s father. Despite her dreadful situation, the Department of Social Welfare prosecuted her for benefit fraud on the basis of these declarations and she was convicted. Both the District Court Judge and the High Court Judge accepted that Isabella Ruka was a victim of battered woman’s syndrome. However, the District Court Judge held that, despite the evidence of extreme violence, a relationship in the nature of marriage existed, “albeit an appalling one”. The High Court Judge upheld that decision. At issue on appeal was whether the appellant and T had been “living in a relationship in the nature of marriage” within the meaning of section 63 of the Social Security Act 1964. All of the criminal charges turned on failure to disclose the existence of a relationship of this type.
The appeal was allowed and the conviction quashed. The Court of Appeal, sitting as a Full Court, held, by a majority, that there was no relationship in the nature of marriage within the meaning of section 63. The judges in the majority[70] emphasised the statutory context in determining whether or not a relationship in the nature of marriage existed. The “checklist” approach outlined above, whilst conceded as being helpful in some circumstances, was seen as being less useful than a consideration of the purpose of social security legislation. The Court observed that “a circumstance which can be seen to be directly related to that purpose is to be given particular weight in determining whether a relationship is one in the nature of marriage”.[71] Crucially, the judges in the majority held that the expression “relationship in the nature of marriage” necessarily required a comparison with what they described as the positive features of a legal marriage:
The comparison must seek to identify whether there exist in the relationship of two unmarried persons those key positive features which are to be found in most legal marriages which have not broken down (cohabitation and a degree of companionship demonstrating an emotional commitment). Where these are found together with financial interdependence there will be such a merging of lives as equates for the purposes of the legislation to a legal marriage.[72]
Two of those “key positive features” were willingness to provide financial support to the other partner, if the need existed (labelled “financial interdependence” in the judgment),[73] and continuing emotional commitment. The majority went on to hold that the existence of battered woman’s syndrome could not provide the justification for the commission of benefit fraud, but could be taken into account in determining whether a relationship in the nature of marriage existed.[74]
The dissenting judges, Gault and Henry JJ, emphasised rather what they described as “an objective commonsense assessment of the factors which go to make up a particular relationship”, so as to reach “an objective overall conclusion” after weighing these factors against one another.[75] In relation to the factors stressed by the majority, the dissenting judges held that financial interdependence was not an essential feature of a marriage type relationship (although “[complete] financial independence of each of the parties may well be one factor in the overall equation”).[76] The judges accepted as being legitimate an approach which placed emphasis on the “assumption” of “a relationship which has the trappings or character of a marriage, good or bad”, and required “some outward and objectively discernible manifestation that it had lost that character” before it could be said to have ceased.[77] Although the judges in the majority did not directly address this argument, it is suggested that its flaws are illustrated in two observations made in the judgment of Thomas J. First, the concept of a marriage type relationship must necessarily extend beyond the “physical indicia ... of a de facto relationship in common parlance”.[78] Secondly, the approach of the dissenting judges repeats the inconsistency in the approach of the trial judge, who had held that the appellant had “elected” to continue with a marriage type relationship “although it might have been almost impossible for her to get out of it”.[79] As one commentator has observed, the argument of the dissenting judges is circular:
Is continual beating and rape for 17 years to the point where she was too scared to leave not an “objectively discernible manifestation” that the relationship was no longer one in the nature of a marriage? Is it not significantly understating Isabella’s psychological state to describe it as not being “a current positive mental approach”? Abuse over that period of time must not be consistent with a relationship that looks (or feels) like a marriage. Is all that is considered relevant the fact that they physically (mostly) shared the same roof?[80]
Further, the dissenting judges argued that whilst violence against women was “to be deplored”, “[r]egrettably, however, it does occur, sometimes in extreme form. ... It occurs where the parties are married and it occurs when the parties are unmarried”.[81] Nowhere, perhaps, is the key difference between the judges in the majority (who emphasised the positive features of de jure marriage in assessing its de facto counterpart), and the dissenting judges, more apparent than at this point. According to the judges in the majority:
[It] is not to be thought that because certain negative features (eg, physical abuse, lack of emotional commitment) are found in some de jure marriages, the same factors in a relationship between a man and a woman who are not married are to be disregarded in determining whether that relationship is in the nature of marriage.[82]
The three key ingredients of the majority judgments, financial interdependence, emotional commitment and the issues raised by battered woman’s syndrome, can now be examined separately.
Stripped of all other incidents which it shares with other relationships, a de jure (“legal”) marriage is characterised by the parties’ mutual obligation to provide financial support.[83] Prior to Ruka it had long been argued, unsuccessfully, that it followed that willingness to provide financial support should thus become a necessary component in assessing whether a marriage type relationship exists, particularly given the purpose of social welfare legislation and the absence of a legal obligation to support unmarried “partners”.[84] The majority in Ruka accepted this approach. In the joint judgment of Richardson P and Blanchard J, the judges stated that:
In our view a relationship in the nature of marriage for the purpose of the Social Security Act is one in which an essential element is that there is an acceptance by one partner that (to take the stereotypical role) he will support the other partner and any child or children of the relationship if she has no income of her own or to the extent that it is or becomes inadequate. The commitment must go beyond mere sharing of living expenses, as platonic flatmates or siblings living together may do; it must amount to a willingness to support, if the need exists. There must be at least that degree of financial engagement or understanding between the couple. It will not, however, be negated by a refusal to support, or an arrangement that support will not be given, which is motivated by the knowledge that the dependent partner will then be able to claim a benefit. Such a stratagem cannot create a genuine absence of support.[85]
In so holding, the judges applied the analysis in Re Proc and Minister of Community and Social Services.[86] The judges noted that, although, unlike the Ontario statute in Re Proc, the legislation did not say that benefits are to be generally available on the basis of need, “it is apparent that absence or inadequacy of financial support of an applicant with a dependent child is a central concern”.[87] This can be contrasted with the approach to Re Proc in the Australian courts where, under a similar legislative structure to that in New Zealand, the Federal Court had rejected a “purposive” argument based on Re Proc. In that Court’s view, need by itself was “neither a qualifying nor a disqualifying factor when eligibility is in question” and the true purpose of the statute was to provide support based on the qualifying categories of applicant.[88] This argument, which ignores the underlying rationale for those categories and is clearly at odds with the assumption of economic dependence which underpins the conjugal status rule historically, was not considered directly by the Court in Ruka. However, it was clearly dismissed by implication.
Thomas J concurred with the joint judgment of Richardson P and Blanchard J, stating that:
I believe that the objective of s 63(b) is clear. It is to ensure that unmarried couples who enter into a relationship akin to marriage are not treated more favourably for benefit purposes than those who are legally married. Such an objective presupposes that married persons assume a mutual commitment to the maintenance of their relationship. In the context of s 63(b) this responsibility must necessarily include, not only a commitment to the relationship, but some form of financial support or interdependence. The financial interdependence may be direct, being actual support, or indirect, reflecting a mutual understanding about the financial arrangements relating to the relationship. ...
A relationship will not be a relationship in the nature of marriage for the purposes of s 63(b) ... unless it exhibits [a] mutual commitment and assumption of responsibility. In the context of the Social Security Act, this will necessarily include financial support or interdependence or, at least, a mutual understanding about the parties’ financial arrangements of the kind I have suggested.[89]
As we shall see, the emphasis on the need for mutual financial commitment provided a powerful spur for the introduction of draft legislation overriding Ruka, on the assumption that partners in a marriage type relationship could easily separate their finances and create a “sham” appearance of independence. This had been a recurring theme in the unwillingness of earlier courts to place primacy on financial matters, to the point where people under investigation for benefit fraud who had been meticulous in separating their finances were liable to be accused of subterfuge.[90]
The majority in Ruka also emphasised the need for emotional commitment as a cumulative condition. Richardson P and Blanchard J stated that:
Where financial support is available nevertheless there will not be a relationship in the nature of marriage for this purpose unless that support is accompanied by sufficient features evidencing a continuing emotional commitment not arising just from a blood relationship. Of these, the sharing of the same roof and of a sexual relationship (especially if it produces offspring) are likely to be the most significant indicators. But since the amendment to s 63 in 1978, the sharing of a household is not essential. And, particularly in the case of older couples, the absence of sexual activity will not in itself deprive the relationship of the character of a marriage.[91]
Thomas J concurred, holding that what distinguished marriage from the relationship of couples who “may nevertheless share premises and living expenses” was an “underlying commitment to the relationship”. A relationship would not be a “relationship in the nature of marriage” for the purposes of the legislation “unless it exhibits this mutual commitment and assumption of responsibility”.[92] As the judgments illustrate, the practical effect of this approach was not to render redundant those external indicators which had been the foundation of the “checklist approach”. Rather, two of those indicators - financial interdependence and emotional commitment - were now necessary cumulative conditions for establishing the existence of a marriage type relationship. The remainder of the indicators in the “checklist”, such as the sharing of accommodation, division of household roles and the sharing of parental obligations, now assumed evidential significance in pointing towards - or away from - a finding of financial interdependence and mutual emotional commitment.
Battered woman’s syndrome, as a species of post traumatic stress disorder:
has been described as the culmination of three specific stages: tension building, followed by a severe beating, the severity of which increases over time, followed by contrition, promises and temporary cessation of the violence. These three stages can recur many times. As a response to such violence (which will also usually include sexual and emotional abuse) women may acquire a condition described as ‘learned helplessness’ meaning they lose the ability to predict whether their natural responses will protect them after they experience inescapable pain in what appear to be random and variable situations. A woman in a relationship involving this cycle will be fearful, have low self-esteem and will often be isolated from others and unable to talk about the abuse.[93]
Prior to Ruka, expert evidence about battered woman’s syndrome had been admitted in relation to perceptions of an imminent threat in pleas of self defence[94] and coercion and duress.[95] In New Zealand, as elsewhere, the syndrome has aroused controversy. For example, the medical legitimacy of the syndrome has been questioned;[96] its responsiveness to cultural differences in relation to the behaviour of women has been questioned;[97] and concerns have been raised as to the appropriateness of the syndrome as an evidentiary tool for redressing concerns about the gendered nature of criminal defences.[98] Three particular questions were raised for consideration in Ruka in relation to battered woman’s syndrome:
1 Can the fact that a woman is suffering from ‘battered woman’s syndrome’ be taken into account in establishing whether she is living in a ‘relationship in the nature of a marriage’ with the man who is battering her?
2 Can the existence of ‘battered woman’s syndrome’ provide the basis of a finding that a woman lacks the necessary mental commitment to a relationship so that she cannot be said to be living in a ‘relationship of marriage’ with the man who is battering her?
3 If so, could such a finding justify dismissal of charges against her ... alleging fraudulent receipt of a social welfare benefit ... when not entitled to do so because she was allegedly living in a relationship in the nature of marriage?[99]
Having held that financial interdependence and mutual emotional commitment were essential elements of a relationship in the nature of marriage, and that they were absent in Ruka, the majority did not rely on the effect of battered woman’s syndrome in formulating the reasons for their decision. The common law defence of necessity, to which battered woman’s syndrome had been held to be relevant in R v Lalonde,[100] had not been put in issue on appeal. Nor was the issue whether battered woman’s syndrome may negative criminal intent directly in issue on appeal once the emphasis on financial and emotional support had been established. The Court of Appeal did not consider, therefore, the argument that the prolonged violence to which Isabella Ruka had been subjected, and the constant state of stress which then ensued, would have made her incapable of making rational decisions, particularly in respect of T. Two of the judges in the majority, Richardson P and Blanchard J, did suggest, obiter, that “as opposed to homicide cases” battered woman’s syndrome could not negative fraudulent intent.[101] In summary, according to these judges, the battered woman’s syndrome did not itself provide a defence but might be relevant in determining whether there was a marriage type relationship:
If it had been necessary to consider the effect of the battered woman’s syndrome suffered by Miss Ruka, that would also have been of some consequence. As she explained and the psychologist confirmed, she felt like Mr T’s slave and was too terrified of him to leave. She had been threatened with death. She believed he had the ability and intent to carry through with what he threatened anywhere she might go in New Zealand. The evidence and other material put before the Court strongly suggests that a battered woman is at greatest risk when she leaves or attempts to leave the relationship. It provides an explanation for the continued sharing of the same accommodation and the other linkages, real or only apparent, between them. Unlike someone not suffering battered woman’s syndrome the appellant had an inability to choose to live elsewhere. The circumstance of living under the same roof, indeed sharing the same bed, is misleading and must carry little weight. The existence of the syndrome does not in itself provide a defence, but it is a factor available to be taken into account in the determination of whether a relationship in the nature of marriage existed.[102]
The other judge in the majority, Thomas J, after an extensive discussion of R v Lavallee,[103] noted that the case had proceeded on the basis that Isabella Ruka had exhibited certain of the characteristics of a person suffering from battered woman’s syndrome:
But while the syndrome represents an acute form of the battering relationship ... it is probably preferable ... to avoid reference to it and to simply speak of the battering relationship. There is a danger that in being too closely defined, the syndrome will come to be too rigidly applied by the Courts. Moreover, few aspects of any discipline remain static, and further research and experience may well lead to developments and changed or new perceptions in relation to the battering relationship and its effects on the mind and will of women in such relationships ... [The] syndrome, where it is found to exist, is not in itself a justification for the commission of a crime. It is the effects of the violence on the battered woman’s mind and will, as those effects bear on the particular case, which is pertinent. It is not, therefore, simply a matter of ascertaining whether a woman is suffering from battered woman’s syndrome and, if so, treating that as an exculpatory factor. What is important is that the evidence establish that the battered woman is suffering from symptoms or characteristics which are relevant to the particular case. In determining whether a battered woman is living in a relationship in the nature of marriage, therefore, the ultimate question is whether the evidence establishes that she possesses those symptoms or characteristics which negative or tend to negative any element which would otherwise point to the relationship being one in the nature of marriage.[104]
The feminist potential in acceptance of battered woman’s syndrome had been argued to carry associated pitfalls in this context, as in others.[105] The woman’s experience may come to be categorised in terms of an individual psychiatric response rather as being the result of underlying causative conditions.[106] Here it has been suggested that the approach of the majority in Ruka represents “an appropriate way for the law to take account of the relevance of prior abuse ... through expert evidence of a more general educative nature”,[107] allowing expert explanations “in terms of social problems rather than individual pathology”.[108] In contrast, reliance on battered woman’s syndrome as a psychiatric model has been said to be “problematic because it sets up a stereotypical standard for abused women to meet”, portraying them as weak and helpless. In that it sets an “ideal woman” standard with a model of “learned helplessness”, it fails to respond to cultural differences in the behaviour of abused women, and does not properly accommodate the stories of women “who do fight back on a regular basis”.[109] A year after Ruka, the Women’s Refuge movement emphasised that, whilst the battered woman’s syndrome was a pressing issue, most of the women who came to refuge “are not helpless frozen women, but the opposite. They do act for themselves ...”.[110]
Although battered woman’s syndrome was not central to the decision in Ruka, it came to occupy a significant role in the draft legislation which the Court of Appeal’s decision precipitated.
The immediate response by the Department of Social Welfare to the decision in Ruka illustrates vividly Cranston’s analysis of three characteristics of welfare bureaucracies. First, there is the “passivity” of social welfare administration, in terms of failure to take effective steps to publicise legal change for those reliant on the system. Secondly, welfare bureaucracies are characterised by “routinization”, a term describing the delay experienced in new developments penetrating the daily practices of the bureaucracy. Thirdly, there is the problem of “take up”, which includes weak provision for effective control of rule-breaking by bureaucracies. This weakness is exacerbated by the general characteristics of social welfare claimants in terms of knowledge, capacity and motivation, limiting effective challenge to decisions taken by welfare authorities.[111]
In terms of passivity, even a year after the decision in Ruka, local offices of the Department of Social Welfare continued to provide explanatory pamphlets to beneficiaries based on the pre-Ruka guidelines, and including a clear statement that “[t]he absence of financial support does not mean a marriage type relationship does not exist”.[112] Welfare advocacy groups regularly reported that letters sent to beneficiaries from Departmental investigators, requiring the beneficiary to attend an interview based on information as to marital status received by the Department, were couched in terms of the pre-Ruka guidelines.[113]
To an extent, this was explicable in terms of “routinization”. Whilst staff were sent an information bulletin shortly after the Ruka decision,[114] the Department’s guidelines on marital status, contained in the internal manual to which staff normally turn, were not altered. This remains the case. Almost three years after the Court of Appeal in Ruka stressed the necessity for financial interdependence and emotional commitment, without which a relationship in the nature of marriage would not exist, the current guidelines tell staff that “[the] decision cannot be based on the absence or presence of any one single factor. It is the quality, quantity, continuity and duration of all the factors found to exist that matters”.[115]
Further, the information bulletin itself arguably understated the effect of Ruka when it briefed staff that “a mutual commitment to financially support each other when required is a primary factor”, as opposed to a necessary condition.[116] The bulletin also placed a heavy emphasis on the presence in Ruka’s case of battered woman’s syndrome, to the point where the decision in Ruka might have been misinterpreted as applying only where battered woman’s syndrome was present.[117] As one indicator, staff were told in the circular that past decisions “where violence in the de facto relationship existed and was made known to the Department at the time (ie cases where the relationship was substantially like Ruka)” were to be revisited, but not past cases where financial independence had been claimed[118] (despite the need for financial interdependence being the crux of the Ruka decision). This was a conscious decision by the Department’s legal division, approved by the Minister of Social Welfare.[119]
This unsatisfactory mix was then compounded by the problem of “take up”. First, those applying for a benefit in circumstances affected by Ruka, if dependent solely on the Department’s published advice to members of the public (as would usually be the case), would have been unaware of the effect of the Ruka decision. Secondly, those whose benefits had been affected by earlier decisions thrown into question by Ruka would be similarly prejudiced, particularly since the Department had decided not to reopen files which did not involve extreme levels of domestic violence. Thirdly, if officers of the Department cancelled or suspended a benefit on the basis of the unchanged internal policy guidelines, in circumstances which did not meet the Ruka criteria, the beneficiary had the right to apply for an internal review of the decision.[120] However, under the legislation, benefits review committees for each office of the Department consist of two officers of the Department and a community representative (whose sources of information on the changes are those just described).[121] The decision of two members is the decision of the committee.[122] Legal aid is not available at the review stage. Appeal then lies to the independent Social Security Appeal Authority.[123] Errors in understanding the implications of Ruka by review committees could thus be corrected. However, the Appeal Authority has only twice cited the Ruka decision as being the direct basis for allowing an appeal in the several cases concerning alleged conjugal status since 1996.[124] Crucially, in this context, the Authority has never addressed the issue arising from inconsistency between the ratio of Ruka and the departmental guidelines. Further, the Appeal Authority itself is administered in a manner which has been described as deterrent to beneficiaries, and appeals are comparatively rare.[125]
All of this might go to explain how, fully one year after the decision in Ruka was delivered, the Minister of Social Welfare announced that there was no indication that any benefit had been granted as a result of the Court of Appeal’s decision.[126] In R v Knight,[127] decided at the same time, the Court of Appeal was told that there was no suggestion that Ruka had triggered a significant number of appeals.[128]
The Ruka decision was delivered shortly before the election of New Zealand’s first coalition government. The Department of Social Welfare warned the incoming Minister of Social Welfare that the implications of the judgment might be far-reaching in terms of family law and social security,[129] and pressed strongly for the legislation to be amended. The result was the Social Security (Conjugal Status) Amendment Bill (1997), a bill designed to override the Ruka analysis both in terms of the ratio of the decision, relating to the requirements of mutual financial and emotional commitment before a marriage type relationship could exist, and the obiter observations concerning the effect of battered woman’s syndrome. The bill will be summarised before examining each of these aspects in detail.[130]
Clause 3 of the bill lists matters to which the chief executive must have regard in exercising the discretion to treat a relationship as a relationship in the nature of marriage.[131] The list is based upon a draft list in a lapsed 1990 bill, which had attempted the same task although for markedly different reasons.[132] However, there are significant differences between the two draft lists. At several points the earlier draft had emphasised as being significant the “basis” for external indicators of a relationship, such as pooling of resources, child care, social arrangements and matters such as housework, so as to emphasise the parties’ own assessment of the relationship. The new draft removes this emphasis and simply lists the activities as such, placing renewed emphasis on what the dissenting judges in Ruka had referred to as the “trappings” of a marriage.[133] The old draft had listed for consideration also whether the people concerned thought that the relationship was likely to continue indefinitely and whether they saw it as a marriage type relationship. The new draft removes these matters from the list of indicators. Conversely, and consistently with the emphasis on outsiders’ perceptions of the “trappings” of the relationship, the new bill states that the chief executive may take into account “any assessment by any person about the nature of the relationship that comes to the attention of the [chief executive] or that is otherwise obtained by or made available to the [chief executive]”.[134]
As one commentator noted of the earlier draft:
... because no indication is given of how the various circumstances are to be evaluated, the definition is open-ended. Indeed it is less a definition than a rule relating to the determination process.[135]
This analysis applies a fortiori to the new draft in clause 3, which goes on to state that, in deciding that a marriage-type relationship exists, the chief executive is not required to establish that any of the listed circumstances exist; is not required to establish financial interdependence; and is not required to give the presence or absence of any particular circumstance or feature any greater weight than any other circumstance or feature (so that, for example, in effect the opinion of neighbours about the relationship may count for as much as the nature of any emotional or financial support that the people concerned offer one another).[136] The explanation provided in the bill, in line with the economic rationalism which permeates its explanatory note, is that to elevate one or more of the criteria “would potentially introduce perverse incentives for people to rearrange their circumstances for the purposes of securing a social security benefit”.[137] In effect, the result is a wider and more ambiguous version of the policy under which Isabella Ruka was originally convicted.
The treatment of domestic violence in the bill cannot be described as being other than extraordinary. First, the bill states that, in determining whether a marriage type relationship exists, “the [chief executive] must not have regard to the existence or effect of violence or threats by either person in the relationship towards the other”.[138] Secondly, the bill provides that an emergency benefit[139] may be granted where:
(a) The [chief executive] has grounds for believing that the relationship of a man and a woman who are married or have entered into a relationship in the nature of marriage is so characterised by violence or threats by one towards the other that the person subjected to the violence or threats is deprived of the ability to decide whether, or how, to escape from the violence or threats or to leave the relationship; and
(b) The [chief executive] is satisfied that the person subjected to the violence or threats has inadequate financial support for herself or himself or any dependent children, or both ... [140]
The bill then goes on to provide a six month cap on the entitlement, after which the benefit ceases, as a monetary incentive to leave the relationship.[141] All major decisions on legislation are taken through the Cabinet, of course, usually after the material has been filtered through the cabinet committee structure. The “cap” (originally mooted at a possible three month period) resulted from the suggestion of the Cabinet Committee on Health and Social Policy, headed by the current Prime Minister, Mrs Jenny Shipley (then Minister for Women’s Affairs).[142]
In relation to the new criteria for establishing a marriage type relationship, the bill represents a radical departure from legal convention, under which administrative policy is changed to conform to binding court decisions (pending any legislative response). The explanatory note to the bill states quite openly that the Government intends to change the law retrospectively[143] to fit administrative criteria “currently contained in [departmental policy]”, more than a year after the Court of Appeal delivered its decision.[144] These criteria are, as has been seen, totally inconsistent with the Court of Appeal’s decision.
The Department of Social Welfare had urged an amendment on three main grounds, elaborated in background papers supplied to the New Zealand Cabinet (most of whom would have been unfamiliar with the legal and other issues and heavily dependent on the Department for guidance in this respect).[145] The first ground on which the Department relied was a purported need to reduce perceived operational difficulties in complying with the Ruka judgment. The Department had initially advised its Minister in an internal memorandum on Ruka that “[c]ases of financial dependence [sic] can be dealt with adequately by investigators as we are used to this sort of investigation and weighing up the traditional indicators”.[146] This advice proved to be starkly contradicted by the argument it advanced in wider policy circles. Here the Department argued, without supporting reasoning, that the approach to financial interdependence in Ruka would undermine the core family unit of assessment for social security purposes,[147] an analysis which begged the crucial question of how such a “family unit” based on a relationship in the nature of marriage was properly to be defined. This was symptomatic of the Department’s approach throughout the background papers, described by officials in another Ministry as being fuelled solely by the Department’s concern at the effect of the Ruka decision on its administrative practices rather than the conceptual validity of the Court of Appeal’s finding, which the papers nowhere addressed.[148]
The background papers illustrate the lengths to which the Department was prepared to go to in order to protect its established administrative procedures. First, the Ruka decision did not mean that technical separation of a couple’s finances would preclude a relationship in the nature of marriage. As has been seen, the Court of Appeal made it quite clear that “financial interdependence” was not negated by separate bank accounts, but rather that what counted was a willingness between partners, which may be inferred from their circumstances, to support one another financially should that be necessary. The Court emphasised that a “sham” separation of finances would not negate a relationship in the nature of marriage. These crucial legal findings were either ignored, misrepresented or marginalised in the Departmental background papers. The Department repeatedly claimed that a technical separation of finances would have the potential to take couples outside the rule,[149] a suggestion which made its way into the briefing papers supplied to other Ministers.[150]
Secondly, whilst the Department argued that the “financial interdependence” requirement would pose significant administrative problems, this was, of course, irrelevant if the Court of Appeal’s interpretation of section 63 was correct, an argument which the Department did not address. In any event, whether such problems would be significant appears debateable, for three reasons. First, financial aspects of the relationship are enshrined in the bill as an indicative, although not necessary, factor. This being so, if all of the criteria are seen to be equal, as the bill initially appears to intend, financial interdependence must continue to be investigated (just as it was before Ruka) and, on this basis, the need to establish its existence should not then present any added difficulty. Secondly, the Department has wide statutory powers to investigate the financial circumstances of beneficiaries, and regularly does so, so that the administrative difficulty of establishing immediate financial interdependence has been heavily exaggerated.[151] Thirdly, the issue of financial interdependence (and emotional commitment) is not new to Ruka, as the bill itself demonstrates.
What the Department appeared to intend was that it should be able to ignore financial considerations and emotional commitment when deciding whether the people concerned are in a relationship in the nature of marriage, if and when it became administratively arduous for the Department or contradicted the impression provided by the presence of other indicators. This is illustrated by repeated and logically circular statements in the background papers that some relationships would fall within section 63 if financial interdependence and emotional commitment could be ignored,[152] and a repeated emphasis on the difficulty of establishing a relationship in the nature of marriage in the Social Security Appeal Authority and the courts if the correct legal test for the existence of such relationships has to be applied.[153]
The second ground on which the Department relied was the need to reduce perceived “fiscal risk”. In estimating the extent of the fiscal risk, the Department adopted an extremely crude measure. First, it took a significantly flawed estimate of the level of “benefit fraud overpayments” attributable to couples living in a relationship in the nature of marriage as being M$16.8.[154] Then it estimated the average increase in time taken on investigations following Ruka at 25 per cent, and applied it to the overpayments figure to arrive at an estimate of “reduction in the amount of revenue that might otherwise have been collected” of approximately M$4.[155] This approach survived, ultimately to be presented to the Cabinet despite earlier observations by the New Zealand Treasury that the fiscal risk appeared to be negligible and that earlier figures advanced by the Department did not “seem to make any sense” (an analysis shared by officials from the Ministry of Women’s Affairs, who described early figures advanced by the Department as “misleading”).[156] An accurate figure could be determined only by the development and implementation of clear policy based on the Ruka decision, tested by case law, a step which was urged on the Department by other Government officials[157] but which it was anxious to avoid.
A further telling example of what other government departments described as “significantly overstating” the potential impact of the Ruka decision, and as reflecting “a total lack of balance”,[158] lay in the purported effect of Ruka on married couples. Section 63(b), on which Ruka was based, expressly applies only to couples who are not legally married. The Department correctly told its own staff that the Ruka decision had no application to married couples,[159] having received legal advice to this effect from the Solicitor-General.[160] Nevertheless, the Department then repeatedly claimed in background policy papers that it had the potential to do so, thus exaggerating the potential fiscal impact of the decision.[161]
Finally, in this context, as the Ministry of Justice pointed out, the purported difficulty in establishing financial interdependence is not really relevant, not least since other criteria used by the Department and contained in the bill are also problematic to determine conclusively.[162] In addition, in December 1996, after extensive initial publicity about the Ruka decision, the Department reported that Ruka had had “little impact on Income Support, apart from more thorough investigation practices”.[163]
The third argument by the Department, that the proposed amendments will “provide protection against possible adverse judicial action”,[164] is logically circular and self-serving. Following Ruka, adverse judicial action would only result if the Department elected to continue to ignore the Court of Appeal.
Whilst it was clear from the emphasis and content of the background papers that the primary motivation for the bill was administrative and fiscal, the then Minister of Women’s Affairs presented the bill publicly as being prompted by the desire to assist women suffering from the battered women’s syndrome.[165] Overwhelmingly, however, expert opinion (and particularly opinion from the Ministry of Women’s Affairs) supported the view that, if enacted, the bill would have a profound and perversely negative impact on women in violent relationships.[166] Women lawyers argued that, in this respect, legislation based on the bill would put lives at risk.[167]
As has been seen, the bill states that violence or threats of violence cannot be taken into account in deciding whether a relationship is a relationship in the nature of marriage,[168] and links this with “capped” access to an emergency benefit for women in violent situations limited to six months after which, if the woman has not left the relationship, all social security support will be removed.[169] The contrast between these provisions and those of the Domestic Violence Act 1995 could scarcely be stronger. The object of the 1995 Act is stated as being to reduce and prevent violence in domestic relationships by recognising that all forms of domestic violence are unacceptable behaviour and by ensuring that there is effective legal protection for victims of domestic violence.[170]
In relation to the period of “capped” access to social security, the bill states in its explanatory note that:
During the 6 month period the woman will be case-managed to help move her out of the violent relationship. Protocols will be developed for Income Support staff to help achieve this. The protocols will cover procedures for referral to specialist help from organisations and people such as women’s refuge, lawyers, police, and child specialist services, accessing the provisions of the Domestic Violence Act, and the establishment of a case management plan involving reciprocal obligations and a safety plan.[171]
This aspect of the policy, which was not contained in the body of the bill,[172] illustrated most vividly the bill’s origin in the desire to cut welfare costs rather than to provide support for women in violent and abusive relationships.[173] The concept of a protocol was intrinsically linked with the decision to cap the period for which an emergency benefit could be paid, but that period was both suggested, and set, by cabinet committee before consultation with interested groups.[174] In this respect, the Minister claimed that the National Collective of Independent Women’s Refuges (“NCIWR”) had been consulted on the development of policy leading up to the bill,[175] had expressed its full support for its approach, and had offered to share its expertise in terms of developing protocols.[176] The NCIWR, however, immediately expressed concern that this suggestion had been made,[177] and denied that it had been involved at any stage in the drafting of the legislation which it described as being “fundamentally flawed”.[178] Notwithstanding this rebuttal, the Minister of Social Welfare continued to cite the NCIWR in Parliament as intended “partners” in the development and enforcement of the protocols.[179]
The approach to domestic violence in the bill is based on three assumptions. The first assumption is that to treat a women suffering from domestic violence as not being in a relationship in the nature of marriage would be seen as the State condoning violence.[180] Secondly, it was anticipated that false claims of violence would otherwise be made to gain access to benefits.[181] Thirdly, it was argued that women will otherwise be tempted to stay in violent relationships for financial reasons.[182] It is suggested that each of these assumptions is misplaced, the first being based on false logic and the second and third being based on a misunderstanding of the complexities of domestic violence generally and the battered woman’s syndrome in particular.
In relation to the first assumption, it is suggested that the effect of applying Ruka, and allowing the consideration of violence in deciding whether a relationship in the nature of marriage exists, does not condone violence. On the contrary, it sends the message that, to quote a judge who was cited with approval in Ruka, “[i]n the late 20th century, it is no longer appropriate that the definition of ... a relationship in the nature of marriage includes violence as an accepted ingredient”.[183] The effect of the bill, in contrast, is to send the message from the State that, for beneficiaries, domestic violence is consistent with the state of marriage.
Further, the assumption ignores the fact that it would be entirely possible to work with women so as to ease their exit from violent situations whilst recognising that they are not in a relationship in the nature of marriage. Indeed, prior to the decision in Ruka, there had been repeated observations by the Social Security Appeal Authority that the departmental methodology in this area was flawed and that violence should be taken into account in assessing marital status and the woman assisted (in contrast to the established policy of recovery of overpayments, imposition of penalties and prosecution).[184] Whilst the Department’s Investigations Unit Manual made provision for this to occur,[185] the case law, including Ruka, suggests that this provision was overlooked in practice.
The second assumption, that false claims of violence will be made to gain access to benefits, implies that such claims are easy to falsify and that collusion between the woman and the man concerned will occur. In fact, “faking” the symptoms of battered woman’s syndrome would be extremely difficult since the syndrome commonly represents the last stages of long-running and extreme violence.[186] The concept of collusion is clearly at odds with the reality of the syndrome in which a range of tactics, including violence and sexual abuse, are used to “gain and maintain power and control over the woman”.[187] The assumption that false claims might be made is simply one aspect of the pervasive fear in the background documents that the syndrome can be either falsified or “managed” for economic ends. When the Cabinet Committee on Health and Social Policy first considered the bill, it concluded, significantly, that “it was not the intention of Ministers that women who did not already receive a benefit should use the condition of BWS to enter the benefit system” (emphasis added).[188]
The third assumption, that women suffering from the battered woman’s syndrome will be motivated by economic incentives to stay in the relationship, is completely at odds with the evidence in Ruka. At times the man involved actively opposed Isabella Ruka’s receipt of a benefit for herself and her children.[189] Indeed, one common means used by men to control women in this situation prior to Ruka (particularly when the woman was attempting to leave the relationship) had been to take measures to have the benefit stopped by alleging to the Department that a marriage-type relationship existed. It has been observed that “[t]heir reward for breaking free was a large overpayment and in most cases prosecution and a criminal record”.[190]
Expert evidence was called in Ruka suggesting that women who suffer from the battered woman’s syndrome do not leave the relationship because they are incapable of making rational choices. This frozen capacity would then presumably extend to an inability to choose to succumb to the theoretical “perverse incentives” of economic rationalism.[191] Yet, as noted above,[192] considerable danger has been seen to lie in such expert evidence, and indeed in the use of the “syndrome” itself, because of the stereotypical focus then created. The assumption that a woman might stay in an abusive relationship so as to continue to receive a social security benefit may be challenged on a more simple basis. Even if one assumes that rational economic planning is possible in such an environment, the relationship itself does not provide the basis for entitlement (or for continuing entitlement) to a social security benefit. To the contrary, and even after Ruka, the external indicators that a relationship exists will usually operate so as to imperil entitlement.[193] This is all the more so given that battered women may not have any control over whether they appear to outsiders to be in a relationship with their abusers.[194]
The over-arching influence of economic rationalism is also responsible for the proposed cessation of any other access to social security payments if the currently vague promises of “case management” have not worked and the woman remains in the relationship after the six month period has elapsed. In this context, the Ministry of Women’s Affairs observed that:
* it is notoriously difficult to persuade women with battered woman’s syndrome to leave an abusive relationship;
* many sufferers strenuously resist attempts to move them out of the relationship;
* “there is ample evidence that women who are victims of domestic violence are most at risk soon after they leave the relationship”;
* in many cases encouragement to leave the relationship is unrealistic;
* the Department of Social Welfare failed to consult it and other expert agencies about the potential effectiveness and feasibility of the six month time limit proposal;[195] and
* a possible perverse effect of the bill could be a greater confusion between measures to assist the larger group of battered women who do seek help to leave violent relationships,[196] and who might avail themselves of the proposed support, and the very much smaller group of women who could genuinely be said to be suffering from “battered woman’s syndrome”, who would probably not do so.[197]
Finally, reverting to Cranston’s analysis of problems of “take up”, the provision for an emergency benefit of only six months, if enacted, assumes that a woman who is suffering from the battered woman’s syndrome will have the will-power to make an application. Any such applicant would be aware that, if she failed, the Department would in all probability take steps to establish a relationship in the nature of marriage.[198] Even if the applicant succeeded, the Minister of Social Welfare conceded that the Department would be obliged by the legislation to attempt to recover “overpayments” from the period before she applied.[199] Obvious conflicts would arise also from the joint administration of the “case management” and the penalty provisions by the same Department.[200]
The Social Services Select Committee, which considered the Social Security (Conjugal Status) Amendment Bill, reported to the House of Representatives on 8 May 1998.[201] Following a tied vote in the committee, the House was required to resolve whether or not the bill would proceed.[202] The majority of the committee recommended that, if the bill was to proceed, it should remain before the House until February 1999 and then be referred back to the committee, which would continue to monitor developments in the meantime. The collapse of the Coalition Government which had sponsored the bill, coupled with the imminence of a general election in November 1999, has left its immediate future uncertain and it seems probable that the bill will continue to lie before the House for some time.
Regardless of the future of the bill, its background and the ideas it embodies provide valuable cautionary lessons for New Zealand and other similar jurisdictions. It is suggested that the decision in Ruka accurately reflected the purpose of the principle underlying the marital status rule in social security and set out a clear and workable test. Parity between legally married couples and “de facto” couples was achieved by a comparison focussing on the relevant aspects of a “legal marriage”, resulting in neither advantage for, nor disadvantage to, couples who are not legally married, whilst allowing support consistent with the purpose of a social security regime.[203] In this respect, the New Zealand courts distanced themselves from an approach which they had followed for decades in common with courts in Britain, Ireland and Australia,[204] and adopted relevant aspects of the approach adopted more recently by Canadian courts.[205]
The process under which the bill was developed in response to the decision in Ruka provides some telling lessons in public administration. First, a fundamental issue of principle in terms of the purposes of the social security scheme was successfully presented by officials in the administering department as relating primarily to the mechanics of administration. In part, the motivation to present the issue in this way can be attributed to the separation of the Department into “business units” under state sector restructuring.[206] For the Income Support Service, the division within the Department of Social Welfare responsible for administering social security benefits at the relevant time, sums recouped from beneficiaries as notional overpayment (in this area as in others) represented a significant saving. The nature of the people affected presented little in the way of a “business risk” through further legal challenge arising from the failure to implement the Ruka judgment fully.[207] At the same time, by exaggerating the potential for benefit abuse, the Department enhanced its case for further funding of fraud prevention.[208] It is difficult to overstate the effect of strong departmental advice on members of a cabinet committee, most of whom, in all probability, would have had a minimal grasp of the underlying issues.[209] This is particularly so when the result of the Department’s advice would serve the overall thrust in Government policy towards paring back entitlement to social security.[210]
At the same time, whilst the current New Zealand Government is rightly regarded as being perhaps the world’s strictest adherent to the course of pure economic rationalism, the application of that theory to the battered woman’s syndrome must represent the theory’s wilder shores. Ultimately, the Court of Appeal’s decision in Ruka was about how a social democratic state defines marriage for its most vulnerable citizens. In the Court’s opinion, viewed positively, the concept of marriage includes mutual financial and emotional support and excludes violence. In reversing this approach, the bill probably represents the first attempt by a democracy to enact legislation implying that domestic violence is consistent with the marriage relationship for social security purposes.
[*] LLM (Manc), Senior lecturer in law, University of Canterbury. I am grateful to the referees of this article for their helpful comments.
[1] [1996] NZCA 487; [1997] 1 NZLR 154.
[2] Re Proc and Minister of Community Services (1974) 6 OR (2d) 624; 53 DLR (3d) 512.
[3] R v Lavallee [1990] 1 SCR 852; (1990) 76 CR (3d) 329.
[4] In New Zealand see, eg, Royal Commission on Social Policy (NZ), Working Papers on Income Maintenance and Taxation (1986) para 7.1. In Thompson v Department of Social Welfare [1993] NZHC 2044; [1994] 2 NZLR 369, Tipping J emphasised that the aim of the rule was “to ensure that those who choose to enter into what effectively amounts to a married state, but without getting legally married, are not to be treated more favourably for benefit purposes, either as to entitlement or as to quantum, than those who are married not only in fact (de facto) but in law (de jure)”. For similar approaches in other jurisdictions, see Mendes da Costa, D Studies in Canadian Family Law (1972) 787-791; Ogus, AI and Barendt, EM The Law of Social Security (3rd ed, 1988) 354-357 (UK); Cousins, Mel The Irish Social Welfare System: Law and Social Policy (1995) 88-89; Carney, Terry and Hanks, Peter Social Security in Australia (1994) 232-233.
[5] Ibid.
[6] Freeman, Michael DA and Lyon, Christina Cohabitation Without Marriage (1987) 29-30, citing Ginsberg, M Class, Capital and Social Policy (1979), who describes the rule as “the implicit reinforcement of patriarchy within the social security system” (at 79). See also Scutt, JA Women and the Law (1990) 369-379.
[7] Cranston, Ross Legal Foundations of the Welfare State (1985) 197.
[8] McLure, Margaret A Civilised Society (1998) 224-225.
[9] Fairbairns, “The Cohabitation Rule: Why it Makes Sense” (1979) 2 Women’s Studies International Forum 319.
[10] Cranston, supra note 7, at 193-200.
[11] Ibid.
[12] Ibid, 196. For examples in the context of New Zealand, see Black, John, Harrop, Stephen and Hughes, John Income Support Law and Practice, at para 1063.25. Although the provisions of the Privacy Act 1993 apply to the Department of Work and Income, which has taken over the administration of the relevant social security provisions from the Department of Social Welfare, the Department has wide powers of investigation under s 11 of the Social Security Act 1964, and the 1993 Act provides limits on disclosure where the detection or investigation of offences are concerned (Privacy Act 1993, s 27(1)(c)).
[13] Social Security Act 1964, s 63(b).
[14] For the background, see below. This is true also of Canada (Mendes da Costa, supra note 4, at 787); Britain (Committee on One Parent Families (“The Finer Report”), 1974, 340), Ireland (Cousins, supra note 4, ch 5), and Australia (Commission of Inquiry into Poverty: Law and Poverty in Australia, AGPS, Canberra (1975) 270).
[15] Family Proceedings Act 1980, s 63(1).
[16] Section 63(b) of the Act, examined in detail below, speaks of a man and a woman who are “living together in a relationship in the nature of marriage”.
[17] This benefit is available (in very limited circumstances) to men who have the sole care of children (Social Security Act 1964, s 27B), but the recipients are overwhelmingly women (less than 9 per cent of recipients are men: Department of Social Welfare, Statistical Report 1997, Wellington, Government Print (1997) 74).
[18] Department of Social Welfare, supra note 17, at 5.
[19] Hon Roger Sowry, Minister of Social Welfare, press release, Benefit Crime Awareness Campaign a Success, 11 November 1998.
[20] Social Security Appeal Authority Decisions No 31/92 and 70/93 (both unreported). This figure is probably affected also by deficiencies in the appeal process, described below.
[21] Ministerial Advisory Committee on a MŠori Perspective for the Department of Social Welfare, Puao-Te-Ata-Tu (Daybreak), Wellington, Government Printer (1986) 28-29.
[22] Eg, Social Security Appeal Authority Decision No 91/84, unreported, in which the appellant’s domestic purposes benefit was withdrawn when the Department of Social Welfare became aware that the beneficiary was living in the same house as her husband, from whom she had separated. Cultural custom forbade her family from barring him from the family home. The Appeal Authority reinstated her benefit.
[23] Members of the public were invited to inform on beneficiaries in confidence, through a telephone “hot-line”. In this particular context, the advertisement showed a woman appearing to be either MŠori or a Pacific Islander, seen shopping for designer clothes with the shadowy figure of a man in the background, whilst a “voice-over” told the viewer that she and her undisclosed partner had just had an expensive holiday which they had enjoyed by cheating the taxpayer.
[24] Quilter v A-G [1997] NZCA 207; [1998] 1 NZLR 523, in which the Court of Appeal held that the Marriage Act 1955 does not allow same sex marriages. Cf the gender neutral definition of a spouse, including a person in a relationship in the nature of marriage, in s 25 of the Accident Insurance Act 1998.
[25] Human Rights Act 1993, s 151(1). This provision is subject to a “sunset clause”, expiring on 31 December 1999 (s 152). The Human Rights (Amendment) Bill (1998) proposes to exempt further the Department of Social Welfare (amongst other Government Departments) from the provisions of the 1993 Act. That bill is currently proceeding through the House of Representatives. The New Zealand Bill of Rights Act 1990, which also prohibits discrimination, does not override existing legislation (cf R v Rehberg (1994) 111 DLR 4th 336).
[26] Scutt, supra note 6, at 377-378.
[27] See the materials discussed in R v Rehberg (1994), 111 DLR 4th 336, in terms of women’s equality guarantees under the Canadian Charter of Rights and Freedoms.
[28] The “core family unit” is defined to be a heterosexual couple living together in a marriage, or marriage-type relationship, with or without dependent children, or a single person with or without dependent children. “The unit determines who is taken into account in a benefit assessment, determining: who a benefit claim relates to, and thereby the maximum rate; whose income is taken into account in the income test; and who is required to meet requirements such as a ‘work availability’ test” (Department of Social Welfare, Strategic Directions: Post-Election Briefing Paper, Wellington, Government Print (1996) 21).
[29] Royal Commission on Social Policy, Wellington, Government Printer (1988) Vol III, Pt 2, 492. Under what the Commission described as a “modified individual approach”, children would be regarded as financially dependent on adults, but no adult would be regarded as financially dependent on another adult. Similar proposals were examined in Ireland, which itself conducted a Commission on Social Welfare, Dublin, Stationery Office (1986) (see Cousins, supra note 4, ch 11). There is an extensive discussion of the various ways of conceptualising individualisation in the social security context in ch 6 of McCrudden, Christopher (ed), Equality of Treatment between Women and Men in Social Security (1994).
[30] The Commission’s four volume report, which was expansionist in terms of recommendations, was delivered at a time when the then Minister of Finance (Roger Douglas) was aiming towards a more austere, residualist model for social support. See generally McLure, supra note 8, ch 8; Kelsey, Jane Rolling Back the State (1993) ch 5; and Rudd, “The New Zealand Welfare State”, in Roper, Brian and Rudd, Chris State and Economy (1993).
[31] [1996] NZCA 487; [1997] 1 NZLR 154. The President of the Court hearing this case, Sir Ivor Richardson, had also chaired the Royal Commission on Social Policy, supra note 29.
[32] (1974) 6 OR (2d) 624; 53 DLR (3d) 512. The Court did not examine later decisions such as Re Warwick & Minister of Community and Social Services (1978) 21 OR (2d) 528 (Ontario Court of Appeal) and R v Rehberg (1994) 111 DLR (4th) 336. As noted below, the requirement under the Ontario Family Benefits Act, RSO 1970, that the people concerned be living together, emphasised in Re Pitts & Ministry of Community and Social Services (1985) 51 OR (2d) 302, was removed from New Zealand legislation in 1978.
[33] Parliamentary Bulletin, 99.20, 6 September 1999, 46. The progress of the bill is dealt with later in this article.
[34] For summaries see Mackinnon, “Social Welfare”, in Cooke, Sir Robin (gen ed), The Laws of New Zealand (1992) and Atkin, “New Zealand” in Blanpain R (gen ed), International Encyclopedia of Laws: Social Security (1992). As from 1 October 1998, the unemployed, those who are sick and invalids receive a common benefit called the “community wage” (Social Security Act 1964, s 89). Widows in some categories receive a widows benefit (Social Security Act 1964, s 21), lone parents receive a domestic purposes benefit (Social Security Act 1964, s 27B), and age-based New Zealand Superannuation is payable under the Social Welfare (Transitional Provisions) Act 1990.
[35] Easton, Brian Social Policy and the Welfare State in New Zealand (1980) 63.
[36] Report of the Royal Commission of Inquiry, Social Security in New Zealand, Wellington, Government Printer (1972) 349-350.
[37] Ibid, 350.
[38] The responsibility for administering the clause lay at that time with a group of senior officers within the Department, the Social Security Commission.
[39] The interpretation placed on the subsection by the Commission was that it covered “a particular kind of relationship that is for practical purposes a marriage even though the parties have not entered into a legal commitment”. The factors taken into account were listed in a confidential memorandum, quoted in von Tunzelmann, “Administration of Social Welfare Benefits”, in Palmer, Geoffrey (ed) The Welfare State Today (1977).
[40] Social Security in New Zealand, supra note 36, at 351.
[41] Furmage v Social Security Commission (1979) 2 NZAR 74.
[42] As from 1 October 1998, the newly-created Department of Work and Income assumed the responsibility for administration of social security benefits that had previously been carried out by the Department of Social Welfare.
[43] Social Security Act 1964, s 5.
[44] [1993] NZHC 2044; [1994] 2 NZLR 369.
[45] See, eg, Britain (guidelines set out in the DHSS Supplementary Benefits Handbook, HMSO (currently 1984), considered in Crake v Supplementary Benefits Commission [1982] 1 All ER 498); Ireland (Guidelines considered in Foley v Moulton [1989] ILRM 169; see Whyte (1989) 11 Dublin Law University Law Journal 187); and Australia (Social Security Act 1991, s 4(3): see Carney, Terry and Hanks, Peter Social Security in Australia (1994) ch 9).
[46] As of 1 October 1998, the provision is administered by the newly-established Department of Work and Income.
[47] At the relevant time, the guidelines were contained in chapter 8 of the Department of Social Welfare’s internally published Core Topics Manual. These guidelines remain essentially unchanged despite the new administrative structure (Department of Work and Income, Core Topics: Marital Status for Benefit Purposes, 30 July 1998).
[48] [1996] NZCA 487; [1997] 1 NZLR 154. Most adjudicated decisions under s 63 are made by the Social Security Appeal Authority, an independent appeal authority established by s 12A of the Social Security Act 1964. The numerous Appeal Authority decisions are analysed in Black, Harrop and Hughes, supra note 12, paras 1063.2-1063.26, and follow the same approach as the High Court by which the Appeal Authority is bound.
[49] (1991) 7 NZFLR 241. In this case the issue was rather whether the people concerned - a legally married couple - were “living apart from” one another under s 27B of the Social Security Act 1964, which establishes entitlement to the domestic purposes benefit (the “lone parent” benefit). It is noted because Fisher J adopted the Department of Social Welfare’s guidelines under the conjugal status clause, s 63(b), for this purpose.
[50] These factors were listed in the Department’s Core Topics Manual, at para 8.2121 et seq.
[51] Unreported, High Court, Hamilton, 5 November 1993, AP 78/93.
[52] Unreported, High Court, Wellington, 20 June 1985, M 189/85.
[54] [1993] NZHC 2044; [1994] 2 NZLR 369.
[55] At 373.
[56] At 374.
[57] Ibid.
[58] Ibid.
[59] Calvert, Harry Social Security Law (1978) 410-411.
[60] The existence or absence of a sexual relationship was not seen as being conclusive of the existence of a relationship in the nature of marriage (just as it is not conclusive in defining cohabitation within a legal marriage: Thomas v Thomas [1948] 2 KB 294). Nevertheless, any sexual relationship between the parties was treated as a relevant factor in two senses. First, in so far as it was used to distinguish the sharing of accommodation as a boarder or flatmate from other relationships. Secondly, in so far as a sexual relationship was seen as one “incident” of a legal marriage (ie, as one pointer towards the subjective quality of commitment stressed in the Department’s internal guidelines and in the case law).
[61] Going out together socially and thereby appearing as a couple to outsiders was often taken to be one indicator of a relationship in the nature of marriage (Thompson v Department of Social Welfare [1993] NZHC 2044; [1994] 2 NZLR 369).
[62] In Smith v Police, supra note 52, where the couple were careful to share expenses, this was held not to rule out a relationship in the nature of marriage. In Mauri, supra note 53, the Court went further and described the absence of any financial contribution from the man in question as possibly being referable to the appellant’s “obvious desire to retain her benefit”.
[63] Prior to Thompson v Department of Social Welfare, supra note 44, the High Court decisions displayed reluctance to elevate emotional commitment above the other indicia. In Police v Meikle [1985] BCL 376, the Court referred to the difficulty of requiring permanence “under modern conditions”. In Mauri, supra note 53, the apparent lack of any emotional commitment was discounted as being “apparently a situation which [the appellant] was prepared to tolerate and put up with”.
[64] “[The] incidents and attributes of marriage are not the same for all people”, per Tipping J in Thompson v Department of Social Welfare [1993] NZHC 2044; [1994] 2 NZLR 369, 374.
[65] Per Eichelbaum J in Police v Meikle [1985] BCL 376.
[66] Particularly in relation to membership of “gangs” with common perceptions as to the respective roles of the parties in a relationship (see eg Social Security Appeal Authority Decision No 17/93, unreported, in which the man concerned had never involved himself in parenting and “[placed] more importance on his relationship with [gang] members and his bikes than he [did] on his relationships with women”: the Appeal Authority held that this was no different from other relationships within the gang and that the relationship should not be measured against relationships in “the wider community”).
[67] [1996] NZCA 487; [1997] 1 NZLR 154. The following summary of facts is drawn from a newspaper article by Jim Lamb and John Hughes, published in The Press, 21 October 1997.
[68] There were seven charges of wilfully omitting to supply material particulars to the Department of Social Welfare (under s 127 of the Social Security Act 1964) and six charges of fraudulently using a document (the benefit renewal form) to obtain a pecuniary advantage (under s 229A of the Crimes Act 1961).
[69] T was never prosecuted, Isabella Ruka having declined to give evidence against him.
[70] Richardson P and Blanchard J (in a joint judgment delivered by Blanchard J) and Thomas J.
[71] [1996] NZCA 487; [1997] 1 NZLR 154, 161, per Richardson P and Blanchard J, and 179, per Thomas J.
[72] At 162, per Richardson P and Blanchard J. See also 179, per Thomas J.
[73] Whilst carrying potentially misleading associations beyond its defined application in Ruka, this phrase will be used in the following discussion for the sake of brevity.
[74] At 162-163, per Richardson P and Blanchard J. See also 173, 182-184, per Thomas J.
[75] At 165.
[76] At 167.
[77] Ibid.
[78] At 179.
[79] At 180.
[80] McDonald, “A Relationship in the Nature of Marriage” [1996] NZLJ 423.
[81] [1996] NZCA 487; [1997] 1 NZLR 154, 166.
[82] Ibid, 162.
[83] This arises under s 63(1) of the Family Proceedings Act 1980.
[84] Hughes, “Domestic Purposes Benefit: Lessons from the Furmage Case” [1979] NZLJ 32.
[85] [1996] NZCA 487; [1997] 1 NZLR 154, 161.
[86] (1974) 6 OR (2d) 624; (1974) 53 DLR (3d) 512.
[87] [1996] NZCA 487; [1997] 1 NZLR 154, 161.
[88] Lambe v Director-General of Social Services [1981] FCA 171; (1981) 4 ALD 362, 367.
[89] [1996] NZCA 487; [1997] 1 NZLR 154, 181.
[90] See the cases outlined at supra note 62.
[91] [1996] NZCA 487; [1997] 1 NZLR 154, 161-162.
[92] At 181.
[93] McDonald, “Battered Woman Syndrome” [1997] NZLJ 436.
[94] R v Oakes [1995] 2 NZLR 673; R v Wang [1989] NZCA 290; [1990] 2 NZLR 529.
[95] R v Witika [1992] NZCA 496; [1993] 2 NZLR 424. See generally Robertson, “Battered Woman Syndrome: Evidence in Action” [1998] OtaLawRw 7; (1998) 9 Otago LR 277.
[96] Goodyear-Smith, “Re Battered Woman’s Syndrome” [1998] NZLJ 39.
[97] Beri “Justice For Women Who Kill: A New Way” (1997) 8 Aust Fem LJ 113.
[98] McDonald, “No Defence of Battered Woman’s Syndrome” (1998) 507 LawTalk 33; Seuffert, “Battered Women and Self-Defence” (1997) 13 NZULR 292.
[99] [1996] NZCA 487; [1997] 1 NZLR 154, 157.
[100] (1995) 37 CR (4th) 97, 107. In that decision, which also involved failure to disclose a marriage-type relationship, Trainor J held that the battered woman’s syndrome also went to the mens rea of fraud. See also the collection of papers on this topic in ch 13 of Lemon, Nancy KD Domestic Violence Law Reader (1996). The Crimes Act 1961 does not provide for a general defence of necessity. Common law defences, however, are expressly preserved by s 20 of the 1961 Act. The Court of Appeal has expressed concern at the “extreme vagueness” of the defence (R v Woolnough [1972] 2 NZLR 509, 516) but has left open the question whether the defence is available (Kapi v Ministry of Transport (1991) 8 CRNZ 49, 55).
[101] [1996] NZCA 487; [1997] 1 NZLR 154, 157, citing R v Oakes [1995] 2 NZLR 673 and R v Lavallee [1990] 1 SCR 852.
[102] [1996] NZCA 487; [1997] 1 NZLR 154, 162-163.
[104] [1996] NZCA 487; [1997] 1 NZLR 154, 173-174.
[105] See Young, “Conjugal Status and Legal Violence: A Comparative Analysis” (1993) 31 Osgoode Hall Law Journal 761, 803.
[106] See the articles supra notes 96-98. See also the contrasting studies in Part II of Gelles, Richard J and Loseke, Donileen R Current Controversies on Family Violence (1993). The divergent approaches are summarised in Lockton, Deborah and Ward, Richard Domestic Violence (1997) ch 2.
[107] McDonald, supra note 93.
[108] McDonald, supra note 98.
[109] Ibid.
[110] Ministry of Women’s Affairs, Social Security (Conjugal Status) Amendment Bill: Approval for Introduction, 22 September 1997, Appendix 1.
[111] Cranston, supra note 7, 209-220.
[112] NZ Income Support Service, Are You in a Relationship? (undated). At the time, the Income Support Service was a division of the Department of Social Welfare. During this time, the author attended several investigative interviews conducted by the Department at which departmental officers produced this pamphlet as a guideline.
[113] Again, the author has seen a number of letters of this type. These range from an elaborate recitation of the “checklist” held in Ruka not to be the definitive approach, to statements that an offence was committed where two people in receipt of individual benefits were perceived by others in the community to be in a marriage type relationship. The letters are on file with the Beneficiary Advisory Service, Christchurch, New Zealand.
[114] Department of Social Welfare, Changes to the definition of a “relationship in the nature of marriage”, Information Bulletin 1996/087.
[115] Department of Work and Income, Core Topics: Marital Status for Benefit Purposes (1998) 3.2.2.4. The earlier guidelines, reflecting this approach, were contained in Department of Social Welfare, Core Topics Manual, ch 8.
[116] Supra note 114.
[117] In the author’s experience this was, and remains, a common misperception amongst departmental staff.
[118] Supra note 114.
[119] NZ Income Support Service, Legal Division, Memorandum to the Minister of Social Welfare, 11 November 1996.
[120] Social Security Act 1964, s 10A(1).
[121] The pool from which these officers are selected includes officers from the same office as the person who made the decision under review. The problem is compounded by the fact that the Department’s investigators (now labelled the Benefit Crime Team but at the relevant time called the Investigation Unit) tend to occupy one office in any given district. It is thus common to find members of the same local team of investigators both presenting the Department’s case and sitting on the benefits review committee.
[122] Social Security Act 1964, s 10A(2). For more detailed discussion, see Income Support Law and Practice, supra note 12, at paras [1010A.2]-[1010A.10].
[123] Social Security Act 1964, s 12J.
[124] Social Security Appeal Authority Decisions numbered 42/97 (SSA 194/95), 26 March 1997, unreported, and 124/97 (SSA 29/97), 25 September 1997, unreported. In SSAA Decision No 50/99 (SSA 180/96), 8 June 1999, unreported, no case law was cited although the factors in Ruka appear to have been applied. In SSAA Decision No 95/97 (SSA 145/94), 21 July 1997, unreported, the Department itself had withdrawn its case as having insufficient evidence to proceed, on the basis of Ruka. The requirements in Ruka were held to have been satisfied in Social Security Appeal Authority Decisions numbered 91/97 (SSA 22/97), 9 July 1997, unreported, and 92/97 (SSA 205/96), 21 July 1997, unreported. In other decisions, either the Appeal Authority has continued to cite the earlier guidelines in Excel and Thompson (Social Security Appeal Authority Decision No 75/97, (SSA 59/96), 3 June 1997), or has cited those guidelines in combination with Ruka (Social Security Appeal Authority Decision No 136/97, (SSA 77/97), 17 December 1997, unreported).
[125] For more detailed discussion, see Income Support Law and Practice, supra note 12, at para [1011J.3].
[126] The Hon Roger Sowry (1997) 29 New Zealand Parliamentary Debates Questions Supplement 3869.
[128] In this decision, the issue was whether to extend time for appeal against conviction on the basis of the previously held misconception as to the test of a relationship in the nature of marriage. One relevant consideration on the application was the “floodgates” argument.
[129] Department of Social Welfare, Strategic Directions: Post-Election Briefing Paper (1996).
[130] Since the bill was introduced, the Department of Work and Income has taken over the income support role of the Department of Social Welfare. References in the bill to the “Director-General of Social Welfare” have been modified in the text so as to refer instead to the chief executive of the Department of Work and Income.
[131] The sub-clause reads: “In exercising the discretions [in s 63], the [chief executive] may have regard to all the circumstances of a relationship, and must have regard to the following matters: (a) The financial aspects of the relationship, including- ... (ii) Any joint ownership of real estate or other significant assets, and any joint liabilities; and (iii) Any significant pooling of financial resources; and (iv) Any legal obligations owed by one person in respect of the other person; and (v) Any arrangements for the sharing of day-to-day household expenses: ... (f) The nature of household arrangements, including- ... (vii) Arrangements for providing care and support of children; and (viii) The living arrangements of the 2 persons; and (ix) Arrangements for the carrying out of household tasks: ... (j) The social aspects of the relationship, including- ... (xi) Whether the 2 persons hold themselves out as being in a relationship; and (xii) Whether the 2 persons plan or engage in social activities together; and (xiii) Any assessment by any person about the nature of the relationship that comes to the attention of the [chief executive] or that is otherwise obtained by or made available to the [chief executive]: ... (n) Any sexual relationship between the 2 persons: (o) The nature of the commitment of each of the 2 persons to the other, including- ... (xvi) The length of the relationship and whether the relationship seems likely to continue for the foreseeable future; and (xvii) Any companionship and emotional support that the 2 persons provide to each other.”
[132] The Social Welfare (No 2) Bill 1990. This bill was introduced by the then Labour Government as one part of an attempt to merge New Zealand’s social security entitlements with entitlement to compensation under the “no-fault” accident compensation scheme, replacing the various categories with a universal benefit. It did not survive the election of a National Government in 1990. See Palmer, “New Zealand’s Accident Compensation Scheme: Twenty Years On” (1994) 44 University of Toronto Law Journal 223.
[133] [1996] NZCA 487; [1997] 1 NZLR 154, 166.
[134] Social Security (Conjugal Status) Amendment Bill, cl 3(2)(iii).
[135] Atkin, WR Living Together Without Marriage (1991) 17.
[136] Supra note 134, cl 3 (3).
[137] Ibid, explanatory note, ii.
[138] Ibid, cl 3(4). In response to opposition to this provision, and after defending it, the Department drafted a proposed amendment which it lodged with the select committee and under which violence would not be “in itself sufficient” for people to be considered not to be living in a marriage type relationship. On obtaining evidence of the extreme levels of violence required for access to an emergency benefit, the Director-General would have had to grant an emergency benefit rather than implementing the discretion to treat the two people as if they were married (under a redrafted clause 3(4)(5)) (attachment, letter from Clerk to Social Services Select Committee dated 8 May 1998).
[139] The emergency benefit, under s 61 of the Social Security Act 1964, is a “safety net” benefit, granted on grounds of hardship, where no other entitlement to a benefit exists. The benefit is means-tested. See generally Income Support Law and Practice, supra note 12, at paras 1061.1-1061.17.
[140] Supra note 134, cl 2(1).
[141] Ibid, cl 2(2). Again, after the almost invariably adverse submissions on the bill had closed, the Department submitted a proposal for a redrafted clause 2 under which the period was extended to no more than 12 months, “violence” was defined as including physical, sexual and psychological abuse, and the emphasis was shifted from inability to leave the relationship to the person concerned being “unable to decide how to protect herself or himself from violence or to end the relationship”.
[142] Cabinet Committee on Health and Social Policy, Minutes of a meeting on 3 September 1997, HSP (97) M 27/3. The Department of Social Welfare then decided that three months was too short a period for an effective safety plan to be created (NZ Treasury, Memorandum T97C/3/95, 10 September 1997, para 13).
[143] Supra note 134, cl 4. The bill is expressed as being retrospective to the date of its introduction, save for decisions made before that date by benefits review committees, the Social Security Appeal Authority or any court (cl 5).
[144] Ibid, explanatory note, ii. In its briefing paper to Cabinet, the Department argued that “[a] change in the law to allow equal consideration of all existing ‘administrative’ criteria would alleviate the current and significant operational difficulties and more importantly ensure the assessment of benefit entitlement according to the intent of the policy (rather than the current legal interpretation of the law [sic])” (Minister of Social Welfare, Defining Marital Status for Social Security Purposes, undated paper for the Chair, Cabinet Committee on Health and Social Policy, 1997, para 49).
[145] Minister of Social Welfare, ibid, Executive Summary, 1.
[146] Department of Social Welfare, Legal Division, Report to the Minister of Social Welfare, Department of Social Welfare v Ruka, 11 November 1996.
[147] Cabinet Committee on Health and Social Policy, Paper HSP (97) 64, 28 July 1997.
[148] Ministry of Women’s Affairs, Comment on Draft Cabinet Paper seeking legislative change as a result of the Court of Appeal majority judgment, 20 June 1997, 1-2.
[149] Ibid.
[150] See, eg, NZ Treasury, Aide Memoire - Ruka paper at HSP, 3 September 1997 (“married couples could arrange their finances so as to be financially independent of each other, in an attempt to qualify for the [lone parent benefit])”.
[151] For further discussion, see Income Support Law and Practice, supra note 12, paras 1011.1-1011A.5.
[152] Minister of Social Welfare, supra note 144, at 142.
[153] Ibid.
[154] The figure was flawed both globally and in the context of relationships in the nature of marriage. The New Zealand Statistical Association criticised the Department for including, within “fraud” figures, all overpayments of benefit, including genuine mistakes and departmental error, concluding that the Department’s figures could be as much as 60 per cent inflated. Here, the Association cited inaccuracies and the inclusion of non-fraud benefit overpayments within returns made by the Department’s Benefit Crime Unit for accounting purposes (Dialogue, No 99, June 1998). In the narrower context, even within this flawed framework, no effort was made to isolate those cases where an application of Ruka would have changed the result.
[155] Minister of Social Welfare, Defining Marital Status for Social Security Purposes, supra note 144, at paras 30-31. No explanation was provided of how, if at all, the purported increase in investigation time translated directly into a proportionate reduction in “revenue”. Nor was there any explanation of how the reduction in the criteria to be established by the Department could lead to an increase in investigation time (particularly since most investigation time prior to Ruka appeared to be devoted to matters which were not related to financial interdependence, and concentrating on financial interdependence could thus represent a saving).
[156] NZ Treasury, Comments on Ruka Paper, 20 June 1997; Ministry of Women’s Affairs, Draft Cabinet paper seeking legislative change as a result of the Court of Appeal majority judgment, supra note 148, at 2. These were comments on an early draft which has been withheld. Following discussions with the Department, “on the basis that [the Department of Social Welfare] were better placed to judge the risks and benefits Treasury agreed that legislation to address this issue was desirable” (letter from Hon Winston Peters, Deputy Prime Minister and Treasurer, 23 October 1997). Curiously, although vigorously critical of the methodology of the Department of Social Welfare in calculating the fiscal risk, the Treasury repeated the Department’s estimate without comment when briefing the Cabinet (NZ Treasury, Report to the Cabinet Committee on Health and Social Policy, T97C/2446, 28 July 1997).
[157] Ministry of Women’s Affairs, ibid.
[158] Ibid, 4. See also Department of Labour, Labour Market Policy Group, Comments on the Ruka Paper, 20 June 1997.
[159] NZISS Information Bulletin 1996/087, supra note 114.
[160] See the papers cited at supra note 156. The opinion in question has been withheld on grounds of legal privilege (Mr Roger Sowry, Minister of Social Welfare, letter to the author, 6 November 1997).
[161] Minister of Social Welfare, Defining Marital Status for Benefit Purposes, supra note 144, at 25-26.
[162] Ministry of Justice, Ruka Paper, 18 June 1997, 2.
[163] Department of Social Welfare, Report to the Minister of Social Welfare, Court of Appeal Judgment and Its Effect on Legislation, Policies and Practices, 23 December 1996.
[164] Minister of Social Welfare, supra note 144, at 142.
[165] The Hon Jenny Shipley, Minister of Women’s Affairs, press release, Women in Violent Relationships Deserve Support, 22 September 1997. See Boston, Jonathon and Dalziel, Paul (eds) The Decent Society (1992) ch 1, and Boston, Jonathon, Dalziel, Paul and St John, Susan (eds) Redesigning the Welfare State in New Zealand (1999) chs 1 and 2.
[166] Memoranda to the Minister of Women’s Affairs dated 18 July 1997 and 28 July 1997.
[167] Lawyers Slam Mysogynist Bill, NZ Herald, 20 September 1997, 3; and fax from Wellington Women Lawyers’ Association to Ministry of Women’s Affairs dated 23 September 1997.
[168] Supra note 134, cl 3(4).
[169] Ibid, cl 2.
[170] Domestic Violence Act 1995, s 5(1). See generally Webb, HWR and others, Family Law in New Zealand (8ed, 1997) ch 7.
[171] Supra note 134, Explanatory note. No provision was made in the bill itself for any of these aspects.
[172] Although present in proposed redrafted clauses presented to the select committee after submissions had closed (in a proposed new cl 2A).
[173] National Collective of Independent Women’s Refuges Inc, The NCIWF Says No to the Social Security (Conjugal Status) Amendment Bill, press release, 24 September 1997.
[174] Cabinet Committee on Health and Social Policy, Minutes of meeting held 3 September 1997, document HSP (97) M 27/3, 2. As noted above, this committee was chaired by Mrs Shipley.
[175] (1997) 29 New Zealand Parliamentary Debates Questions Supplement 3862.
[176] Minister of Social Welfare, Defining Marital Status for Social Security Purposes, Paper for the Chair, Cabinet Committee on Health and Safety Policy, undated, 1997, para 47.
[177] Ministry of Women’s Affairs, Social Security (Conjugal Status) Amendment Bill: Approval for Introduction, 22 September 1997, Appendix 1.
[178] The NCIWR Says No to the Social Security (Conjugal Status) Amendment Bill, supra note 173.
[179] (1997) 29 New Zealand Parliamentary Debates Questions Supplement 3870-3871.
[180] Office of the Minister of Social Welfare, Social Security (Conjugal Status) Amendment Bill: Approval for Introduction - Supplementary Information, paper attached to Cabinet Committee on Health and Social Policy paper HSP (97) 84.
[181] Ibid.
[182] The Hon Jenny Shipley, Minister of Women’s Affairs, press release, Women in Violent Relationships Deserve Support, 22 September 1997.
[183] [1996] NZCA 487; [1997] 1 NZLR 154, 181. The quotation was from Judge Shaw in Department of Social Welfare v Te Moananui, unreported, District Court, Henderson, 18 March 1996.
[184] For discussion of the case law, see Income Support Law and Practice, supra note 12, at para 1063.24.
[185] Department of Social Welfare, Investigation Unit Procedures Manual, ch 6, 11. This remains the case under the current policy.
[186] See the summary of writing on the syndrome in Seuffert, supra note 98, at 302-304.
[187] Ibid, 303, adding that “the use of these tactics is facilitated by societal attitudes towards women and domestic violence” and that “[this] analysis shifts the focus from the woman’s psychological state to the actions of the abuser and society’s response to those actions”.
[188] Cabinet Committee on Health and Social Policy, minutes of a meeting dated 3 September 1997, document HSP (97) M27/3.
[189] [1977] 1 NZLR 154, 175, per Thomas J (“When she discussed the receipt of a benefit with Mr T, he would say that she had to get some money because no money was coming from him. At other times he would tell her to stop getting the benefit but, at the same time, he would expressly refuse any financial support to assist her.”)
[190] Combined Beneficiaries Union, Submissions on the Social Security (Conjugal Status) Amendment Bill, 1997, 8.
[191] Seuffert, supra note 98, at 325, quotes Anderson J as stating, in the context of expert evidence, that a woman might be faced with no economic alternative but to stay or otherwise be “bonded by economic harship” to accept a relationship that she had learned to be helpless to leave (R v Zhou, unreported, High Court, Auckland, 8 October 1993, T7/93).
[192] Supra notes 105-108.
[193] Particularly since the benefit most often involved is the domestic purposes benefit, designed for lone parents. Supra notes 16-19.
[194] See, eg, the evidence in R v Oakes [1995] 2 NZLR 673 (CA), discussed in Seuffert, supra note 98, at 318.
[195] Ministry of Women’s Affairs, letter to Social Policy Agency, Department of Social Welfare, 20 June 1997. Paradoxically, the Ministry nevertheless earlier supported the concept of a time limit “as it conveys that support is temporary and that there is an expectation on these women that they will move out of the violent relationship as soon as possible” (Draft Cabinet paper seeking legislative change as a result of the Court of Appeal majority judgment, facsimile to Department of Social Welfare, Social Policy Agency, 17 July 1997).
[196] The NCIWR noted that few of the women who come to Refuge are suffering from battered woman’s syndrome. “Most are not helpless frozen women but the opposite. They do act for themselves - getting the right help is largely a matter of timing” (Ministry of Women’s Affairs, Social Security (Conjugal Status) Amendment Bill - Approval for Introduction, 22 September 1997, Appendix 1).
[197] Ministry of Women’s Affairs, ibid, 2.
[198] Indeed, as advocacy groups pointed out, the simple taking of steps to leave the relationship might be construed by the Department as suggesting that the syndrome is not present. By analogy, positive actions in the context of self-defence have been suggested to be inconsistent with the passivity or “learned helplessness” which some experts associate with the battered woman syndrome (see Seuffert, supra note 98, at 324).
[199] “There is no provision in the Social Security Act that will allow for the write off of the overpayment nor is there discretion not to establish the overpayment and recover money, although recovery action could be suspended as an interim measure” (question for written answer 14766, 29 October 1997).
[200] Combined Beneficiaries Union, Submissions on the Social Security (Conjugal Status) Amendment Bill, 6 October 1997, 2.
[201] House of Representatives, Social Services Committee, Report on the Social Security (Conjugal Status) Amendment Bill, No 53-1, 7 May 1998.
[202] What was then the Coalition Government did not have a majority on the select committee. The committee consisted of three members representing the coalition Government (two members of the National Party and one member from the New Zealand First party), one member from the ACT party, and one member each from the Labour Party and the Alliance. The ACT member voted against the bill (apparently on the ground that it created a new entitlement to social security), along with the Labour Party and Alliance.
[203] Of course, whether the rule is justifiable as such remains a continuing cause for debate. See the analyses set out supra notes 26 and 27.
[204] Supra note 44.
[205] Subject to the fundamental difference arising from the absence of a requirement for actual cohabitation in New Zealand (supra note 41).
[206] See in particular, Petrie, Murray Organisational Transformation: The Income Support Experience, Wellington, Social Policy Agency, Department of Social Welfare (1998).
[207] By way of illustration, the Department had earlier delegated to a computer programme employing a mechanical formula what was clearly a matter to be decided on the individual discretion of its officers (in relation to “special benefits” on grounds of hardship). When the High Court held that this approach was invalid in Ankers v Attorney-General [1995] NZFLR 193, affecting potentially 150,000 other claims, a contingency fund was set up to meet potential liability. Few claims were made on the fund. See generally McClure, supra note 8, ch 6. Petrie notes that “[t]hese risks and costs were recognised, at least in part by [Income Support Service] management. They were seen as an inevitable part of using a powerful and necessarily simplistic performance measure to radically change the culture and operating efficiency of the organisation” (supra note 206, at 30).
[208] Supra note 154.
[209] With the exception of the Chair of the Committee, Mrs Jenny Shipley, who had held office as Minister of Social Welfare.
[210] Petrie, supra note 206, at 9 and 34, notes (although not in this specific context) that “[i]n a public sector setting a key principal/agent relationship was seen to be that between a Minister and a department head. The new institutional economics framework prescribed the use of mechanisms to align the incentives of agents with the objectives of principals”, and that “[the] Director General of Social Welfare was ... concerned to ensure the businesses’ ... activities were aligned with the Government’s overarching objectives”.
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URL: http://www.nzlii.org/nz/journals/WkoLawRw/1999/5.html