The Cohabitation Rule: Indeterminacy and Oppression in Australian Social Security Law
Tranter, Kieran, Sleep, Lyndal, Stannard, John E., Melbourne University Law Review
[This article argues that the cohabitation rule in Australian social security law is uncertain and has, as a consequence, given rise to an oppressive administrative regime. It tracks the indeterminate nature of the rule as a constant feature throughout its history and argues that this imprecision remains within its current formulation in the Social Security Act 1991 (Cth). Drawing upon basic ideas about the functionality of rules, it is suggested that the administration of an undefined rule should be attended by resistance and challenge. However, the social security regime and the cohabitation rule appear to have been accepted by the community. This acceptance is explained as being the result of the oppressiveness of the current administration. Drawing upon analysis of Administrative Appeals Tribunal decisions and interviews conducted with Centrelink clients, this article argues that the cohabitation rule unfairly targets vulnerable clients, is implemented through the use of invasive surveillance and provides opportunities for intimidation by Centrelink officers.]
CONTENTS I Introduction A Basis for This Article 1 Feminist Criticism of the Cohabitation Rule 2 General Theories Regarding the Nature of Rules II The Indeterminacy of the Cohabitation Rule in Social Security Law A 1900-70: The Emergence of the Rule B 1980s: Living with a Man as His Wife on a Bona Fide Domestic Basis C 1990-2007: Marriage-Like Relationship Criteria D Consequences of an Indeterminate Rule III Oppression in Contemporary Cohabitation Administration A Targeting the Vulnerable B Invasive Administrative Culture C Intimidation of Clients D An Oppressive Regime: Options for Reform IV Conclusion
Australian social security law distinguishes between 'single' and 'partnered' clients for the purpose of determining payments. While a single client's payment is dependent on their own income and assets, a partnered client's payment is calculated on the basis of the income and assets of both the client and their partner. (1) The result is that payment scales for single clients are greater than those for partnered clients. (2)
Both de jure and de facto marriages have been used by social security law to distinguish between single and partnered clients. (3) As a client's relationship status must be determined 'objectively', (4) it has been necessary for administrators to develop a rule for determining when a relationship between two persons of the opposite sex (5) could be deemed equivalent to a marriage in law. Within social policy literature, the resultant rule has become known as the 'cohabitation rule'. (6) In the Social Security Act 1991 (Cth) the rule operates in two ways. Its first purpose is to determine whether persons who are not de jure married should be treated as a 'member of a couple'. (7) Its second purpose is to determine when de jure married or previously de facto persons should be treated as single. (8) In this second context, it has been established that the rule will allow persons who are 'separated under the one roof' to be considered single. (9)
This article argues that the cohabitation rule is uncertain and that its current administration by Centrelink is oppressive. In Part II it is argued that throughout its history, the cohabitation rule has been marked by indeterminacy due to both its open-endedness and the subjectivity required in its application. This indeterminacy remains notwithstanding 60 years of administration and reform.
In Part III the article draws upon recent Administrative Appeal Tribunal ('AAT') decisions and semi-formal interviews with 16 Centrelink clients to argue that the current administration of the rule targets the vulnerable members of society. This administration utilises invasive surveillance and often results in intimidation of clients by Centrelink officers. …