Reparation
Two cautions. The first is that this is a violent and traumatic story. The second is that I'm not a lawyer, so I've stuck as closely to others' expertise as I can. Any errors are entirely mine.
Tuesday 21 March: Kia ora friends. I’m deeply grateful for the readership and feedback this piece has received. One reader, who was involved in the events described below, got in touch to say that the missing 9,900 referred to below were ‘found’ - that is, the Minister required their cases be reviewed, whether or not they applied. With this correction in place, I will let the piece stand as it is, as I believe it tells an important story.
If I could, I would not use her name.
It’s not that she has a name, a life, to be ashamed of: if anything, the opposite. I guess I fear that to reduce a person to the times of her greatest pain - to look at her through case law, a handful of articles, or the talkback vitriol reserved for ‘her type’ - is to fail to recognise, fully, her humanity.
But for all the choices taken out of her hands, it was Isabella’s call to fight. She would have known - one court appearance after the next, rehearsing the horror so many times she lost count - just what it was her name would be connected with. Honouring that fight is one reason to tell her story.
There’s another reason. It’s the state of our welfare system. The government has committed to reforming it. In 2018, they appointed something called the Welfare Expert Advisory Group. A bunch of smart people from all walks of life, from unions to academia to business, were brought together, and they concluded that the system is a mess.
The Welfare Expert Advisory Group recommended a bunch of changes, none of them easy. Amongst many things, they said this:
One of the strongest findings from the consultation was that the rules for determining whether a ‘relationship’ exists (that is, whether a relationship is ‘in the nature of marriage’) are not working and are causing considerable harm. The definition of a relationship is unfair and does not reflect how relationships actually form, and the financial penalty for partnering is significant and may be unduly influencing partnering decisions. The welfare system should not unduly influence the decisions people make about their relationships.
Why are these terrible events from Isabella’s life, from so long ago, still important? Why do they still matter today?
I’m going to try to convince you of a couple of things. Welfare reform, especially when it comes to defining relationships in the nature of marriage, remains urgent, even though it’s hard. And although things have changed – it’s no longer the world of the 1990s – Isabella’s story still has things to teach us.
I was studying for my PhD at the time, numbing hours spent reading or searching or simply floundering. I kept coming across her name, references to her case, but always mentioned obliquely, beyond the margins of the papers in front of me. I wanted to know. These were the days before everything was online, and I set out to find her. She eluded me. I kept going. I rummaged through journals in the library, requested articles from the people behind the desk. I asked questions, was oddly tenacious about it in a way I couldn’t quite explain to myself. And then, I found her.
I bent over the photocopied pages. I couldn’t believe what I was reading.
For about 18 years, between 1974 and 1992, Isabella lived with a man named in court documents as ‘T’. For 16 of those years, his viciousness to Isabella was unstinting, almost unspeakable.
In those 16 years, T beat Isabella four to five times a week, sometimes with a baseball bat or axe, and he raped her relentlessly. Her bladder was weakened by the violence, so when she about was about to beaten, the fear made her wet herself. The kicks of his steel capped boots broke her arm, her leg, her teeth. Sometimes she could not open her blackened eyes. She was hospitalised, although she told no one the cause of her injuries. Pregnancy did not stop the violence, and after their son was born in 1977, T beat Isabella when the baby cried.
T did nothing to support Isabella or the baby financially: indeed, whatever money Isabella made, he would often take by force for himself. T’s own sister described his relationship with Isabella as almost one of ‘master and slave’. He came and went as it pleased him and had relationships with other women, but almost no involvement in his child’s life.
T isolated Isabella, preventing her from seeing family or friends. She tried to leave him, but he told her that wherever she went, whether in Aotearoa or around the world, he would find her and kill her. She knew he meant it: he delivered his threats with a shotgun. Her shame stopped her from seeking help, as much as her fear.
It fell to Isabella to provide for herself and her child. For most of her 18 years with T, she had worked. After the baby, in the times she was out of work, she claimed the Domestic Purposes Benefit (the forerunner of today’s Sole Parent Support benefit), declaring any casual earnings she made to the Department, so her benefit could be deducted accordingly.
All these facts were accepted in court.
After those 18 years it was T who ended it, leaving Isabella for another woman. Shortly afterwards, the Department of Social Welfare (now the Ministry of Social Development), which administered the welfare system, received an anonymous allegation. The informant said Isabella had been committing benefit fraud. They said she had been claiming the Domestic Purposes Benefit while living in a relationship in the nature of marriage.
Before we go on, let’s cover some important context.
The events we’re about to focus on took place in the 1990s, a time of major upheaval for Aotearoa’s economy and society, including our social policy.
I’ve written previously how coming out of the Great Depression, Aotearoa created what is called a ‘welfare state’: a system of benefits, job protections and social services meant to take care of citizens from the cradle to the grave. Its ambitions were good, but our welfare state was far from perfect. One of its features was something called the ‘breadwinner model’.
The breadwinner model was based around marriage and gender roles. A married woman’s main job was stay-at-home motherhood. Her husband’s job was going out to work, to support his wife and children. This meant policies gave men preference for jobs and benefits, and higher wages than women - because with men and marriage to support them, women weren’t thought to need money the same way. You can see how the breadwinner model made it hard for married women to achieve financial independence, and how unwed mothers could miss out on support altogether.
The seachange some people call ‘neoliberalism’ began in the 1980s. By the 1990s, the welfare state - with its ‘cradle to the grave’ ethos, and its expensive price tag - was under fire. In 1991, the newly elected National government cut benefits drastically, particularly the Domestic Purposes Benefit (mostly claimed by women parenting alone). Beneficiaries were told to stop asking for handouts, get off their butts, and take some personal responsibility. And that meant getting a paid job, even at a time unemployment was high and wages low. We need to look at all this from two angles: gender and race.
Sole mothers were now expected to take up paid work, just like men - no more ‘special treatment’ for motherhood - but unlike men, they still had the primary parenting responsibility. That made it harder to work, even when a job could be found and wages were sufficient. And there was no chance that neoliberal social policy would come to the rescue, with extra income support or more affordable childcare. These women still had the drawbacks of the breadwinner model, the difficulty being financially independent when you’re responsible for kids, without even the model’s meagre supports. Poverty in sole parent households became entrenched.
We can see how gender inequality was already built into the welfare state, and in some respects, neoliberalism made it worse. Sole motherhood became shorthand for laziness, or in some minds, things deemed even worse: fecklessness, drug and alcohol problems, promiscuous women breeding to claim welfare cheques they planned to squander.
That’s gender. What about race?
During this time - it can’t be overstated - the discourse around beneficiaries was nakedly racist. Let me give you an example. John Banks, who you might know from his more recent outbursts, was a National government Minister in the 1990s. He also had his own talkback show. One day in 1995, his National colleague - senior whip John Carter - rang into Banks’ show, pretending to be an unemployed Māori ‘dole bludger’ name Hone. ‘Hone’ giggled stupidly on the airwaves, a clownish caricature, about ripping off the benefit. Banks let the call run.
In 1997, when a controversial campaign against benefit fraud was launched, it gave voice to an ugly, creeping confluence of gender and race hostility. Only this time, the hostility carried official government branding. As well as cutting benefit levels and reducing eligibility - all in the name of personal responsibility - the government was cracking down on benefit fraud, real or perceived. One part of this crackdown, the campaign included TV ads featuring a woman who appeared to be Māori or Pasifika shopping for clothes, while a narrator explained that she and her partner had enjoyed a holiday with defrauded benefit money. The advertisement encouraged viewers - upstanding and hardworking, by implication - to inform on suspected fraudsters via a hotline.
We had our national bogeyman, only he was a poor, brown woman.
What does it mean to be married? That’s relatively easy enough to answer. If you’re married, you’ve opted into an agreement. You can point to the exact day you did it. Various laws set out your rights and responsibilities in different situations.
OK, then: what does it mean to be in a de facto marriage - that is, a relationship that isn’t marriage, but is like a marriage? That’s trickier. Does it hinge on whether you live with one another? How often you have sex? Whether you raise kids together, hang out one other’s washing, share dinner or split the bills? Maybe - but for any ‘ingredient’ you might name, there are actual marriages that don’t include it.
If you’re a beneficiary, then whether you’re in a relationship in the nature of marriage, and the moment that relationship began, are especially important. This is because our welfare system still contains traces of the breadwinner model: the assumption that partners support each other financially. Based on that assumption, a couple will get less money on a benefit than if they were two single people, because they’re assumed to be sharing resources. In some cases, like the Sole Parent Support benefit (which replaced the Domestic Purposes Benefit), being in a relationship in the nature of marriage makes you ineligible altogether. That means defining ‘a relationship in the nature of marriage’ is key. Taking a ‘check list’ approach - trying to work out the nature of someone’s relationship from things like sex or housework or bills - has been fiercely debated, in Aotearoa and overseas, from even before Isabella fell foul of the welfare system.
At the time the events in this story took place, benefits were paid under the Social Security Act 1964 (since replaced by the Social Security Act 2018, but the new Act still contains the breadwinner model). The Act gave the Department of Social Welfare, these days the Ministry of Social Development, a bunch of powers to run the welfare system. These included the power to “[r]egard as husband and wife any man and woman who, not being legally married, have entered into a relationship in the nature of marriage”, to stop those people claiming benefits at the higher rates of individuals. But the problem was - and still is - that the Act didn’t define the phrase ‘relationship in the nature of marriage’. That job fell to case law, the courts hashing it out, and it wasn’t an easy task.
This next bit, the case law, is central to our story, so I’ll spend a bit of time on it.
The first court decision we’ll cover is from 1991, Excell v Department of Social Welfare. It involved a mum who got done for benefit fraud and was sentenced to six months in prison. Justice Fisher was called on to figure out whether she was receiving a benefit while in a relationship in the nature of marriage - not straightforward, because the relationship was on and off again, and both mum and dad did stints in prison, leaving the other to look after the kids. In working this through, Justice Fisher came up with a list of factors to determine a relationship in the nature of marriage. Using his words, a couple in this kind of relationship will:
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
exclude emotional and sexual relationships with third parties
To get around the problem we identified - for any ingredient you might name, there are marriages that don’t include it - Justice Fisher said not all these factors need to be present for a relationship to be in the nature of marriage. Some factors can be enough. Critically for our story, Justice Fisher didn’t say any of the factors were more important than the others. We’ll come back to this.
Excell v Department of Social Welfare set the rules the Department had to follow to determine relationships in the nature of marriage - until October 1993, when Thompson v Department of Social Welfare came along, modifying the rules. Another mum was done for benefit fraud. Witnesses were called to figure out whether she was in a relationship in the nature of marriage. They talked about how her kids’ dad parked his car outside her house and kept his stuff inside it; how the pair of them went to speedway and the Timaru carnival together.
In Thompson, Justice Tipping also set out a list of factors, broadly similar to those in Excell. Thompson had its problems, and we’ll see later on how it too was modified, but it did do something important. To paraphrase, Justice Tipping said: sure, all these factors might count - but for a relationship to be in the nature of marriage, there had to be a ‘mental ingredient’ of commitment for the foreseeable future. That factor, the commitment, was if you like non-negotiable.
Why does this matter? Well, if you scroll back up to the Excell factors, you’ll notice a relationship in the nature of marriage is mostly defined by things an outsider might observe. The factors don’t put much weight on what the people inside those relationships think or feel. Yeah, maybe someone meets those factors, sharing her roof with a man, her time, her bed. But has she made a commitment to him for the foreseeable future, or him to her? Is she even consenting? Or, in the worse possible scenario, is she there only because she’s scared he’ll kill her if she leaves?
This is exactly the nightmarish trap into which Isabella fell. If that ‘mental ingredient’ of commitment had been considered, she might have stood a chance. She wasn’t given even that.
After it received the anonymous allegation, the Department sent Isabella a letter, informing her that an officer wanted to interview her in relation to her benefit. Isabella was now being investigated under the part of the Social Security Act 1964 that let the Department regard two people as being in a relationship in the nature of marriage, and decide their benefit eligibility on that basis. This was high stakes: if the Department decided she’d been in a marriage-like relationship with T, then the times Isabella claimed the Domestic Purposes Benefit could be considered fraud.
The way the Department handled these kinds of investigations has attracted a lot of criticism. Officers often cold-called beneficiaries at their homes. Put on the spot, these beneficiaries, almost always women, were asked if they were in a relationship in the nature of marriage. They were shown a set of factors meant to determine such a relationship; but these were often the wrong factors, because the Department wasn’t up to date with case law (for ages they kept using Excell when they should have used Thompson). Nor were Department officers trained to recognise domestic violence, or how it might impact on women beneficiaries and their relationship status. Blindsided, looking at the wrong factors and unable to gather their thoughts, woman beneficiaries would often concede maybe they were in a marriage-like relationship after all, but they hadn’t realised.
Then what? Once it got an admission, however obtained, the Department didn’t have to seek any corroborating evidence that the beneficiary was in the wrong. It just went ahead and calculated how much money it thought the beneficiary owed in repayments. This too was controversial, because ‘notional entitlement’ wasn’t taken into account. (To explain notional entitlement, if I was eligible for $80 in benefits, but I claimed $100, then I should owe the Department only the $20 difference - but back then, the Department would have clawed the whole $100 back from me.) Sometimes the repayment sums calculated exceeded $100,000.
The Department would then require the beneficiary to make reparation by paying back the calculated amount. It also had the power to apply a penalty (like a fine, on top of the reparation), or refer the beneficiary for prosecution. Even when the reparation or the penalty was unfair, the beneficiary would usually accept it. If they challenged it, the Department might prosecute them, and life would get even worse. There were almost no checks and balances on the Department’s decision-making, to pick up mistakes or unfairness. Meanwhile, Department officers got performance pay: the more money they recovered from beneficiaries, the more their salaries went up.
Isabella didn’t get a cold call. She was asked to front up to the local office at a given time. A diligent person, that’s what she did.
Isabella’s interview, in late January 1993, started with the Department officer telling her she was being investigated, and this could lead to the cancellation of her benefit or to prosecution. She wasn’t told that she could leave at any time, or consult a lawyer. The officer took her through the different applications she’d made over the years for the Domestic Purposes Benefit, pointing to her declarations that she was not in a relationship in the nature of marriage. Whoever they were, the officer who offered Isabella coffee and pushed the papers towards her, they didn’t see the signs.
Asked why she had not told the Department about her relationship with T, Isabella did not seek to defend herself. She immediately answered, “At the time he was not working and my father said it is no way to bring up my grandchild. I had to apply for the Domestic Purposes Benefit. I should have let Social Welfare know about the situation but I did not”.
Shown further documentation, and asked again why she hadn’t declared her relationship, she said, “Stupidity. The greed got in my eyes”.
Isabella then took the full blame on her herself, even claiming that T had warned her not to go on the benefit, but she hadn’t listened to him. In the kind of irony that hurts to read, the Department officer said afterwards of Isabella, she was ‘a very honest person’.
Later, during the court process that followed, a psychologist who’d assessed Isabella would give evidence that her Battered Woman Syndrome (a type of post-traumatic stress disorder), arising from T’s violence, would have affected her behaviour when interviewed by the Department. The psychologist explained that Isabella would have been ashamed, unable to think clearly, eager to placate an authority figure and willing to accept blame for wrongdoing, since the abuse she had suffered would have made her likely to believe she deserved mistreatment. Battered Woman Syndrome is in some respects contested, and we’ll come back to it soon. For now, it’s enough to observe that the Department didn’t recognise there was domestic violence, and nor did it ask.
After the interview with Isabella, T was also interviewed by the Department, and he confirmed Isabella had been a marriage-like relationship with him. If that had been the case, and there had indeed been benefit fraud, then T - who took Isabella’s money - had clearly gained by it. Nonetheless, it was Isabella who was prosecuted. In 1995, Isabella was convicted of benefit fraud by the District Court, under the Excell test. She was sentenced to 150 hours of community service, and ordered to make reparation of almost $45,000 at the rate of $10 per week - a task which would have taken until she was 88 years old.
We’ve touched on a couple of themes we’ll now come back to. We talked about the challenges defining a relationship in the nature of marriage, and the dangers of focusing only on factors outsiders can observe, without the ‘mental ingredient’ of commitment between partners. We’ve seen that domestic violence can impact on relationship status in complex ways, especially for beneficiaries. After being convicted by the District Court, Isabella, with the support of a group of feminist lawyers, went to the High Court. There, she lost again. Eventually, she made it to the Court of Appeal. Let’s look at how this court grappled with these issues - which will set us up to think about how these issues still matter today.
We’ll start with the second theme first, domestic violence. It’s worth noting that at the time of this story, the idea of domestic violence as a ‘social issue’ was fairly new, and legal protections were still developing. Troubling assumptions weren’t uncommon: if a woman stayed in a violent relationship, then clearly it couldn’t be that bad. Maybe she liked it. Maybe she provoked it. Trauma and its impacts weren’t well understood either. Even sympathetic people used language we might find jarring today. The psychologist who interviewed Isabella explained Battered Woman Syndrome to the court as follows:
[A battered woman may] remain because they profess to love their partner and believe the apologies, protestations of love and promises to change. Later, the insults, abuse and threats which accompany the violence may destroy the woman's confidence that she can survive outside the relationship. A battered woman commonly experiences low self-esteem and may blame herself for her abuser's behaviour. Other constraints such as financial dependence, having children to care for, or beliefs such as the feeling that marriage is a lifetime commitment or that children need two parents, also make it more difficult for the woman to leave the relationship. In other cases abusers may threaten to kill the woman or to harm her children or family if she leaves. The woman is inclined to genuinely believe these threats and so remain in the relationship.
The Court of Appeal did not question that Isabella had Battered Woman Syndrome, and nor had the lower courts. But what exactly was the relevance of that fact? The lower courts had thought, not much. Although they decried the violence against Isabella, that didn’t mean her relationship with T wasn’t in the nature of marriage. After all, they reasoned, violence happens in actual marriages too. And as one of the lower court judges had put it, with a startling illogic, Isabella had still “elected” to stay in the relationship, “although it might have been almost impossible for her to get out of it”.
The relevance of Battered Woman Syndrome was what the Court of Appeal had to figure out - and it’s not as straightforward as it seems. They had to work with the arguments already put in front of the lower courts. An argument that Isabella acted out of necessity, that she’d had no choice but to claim the benefit, wasn’t up for consideration. Neither was the argument that having Battered Woman Syndrome could ‘negative criminal intent’; another way of saying Isabella wasn’t making rational decisions when she claimed the benefit, so couldn’t be held responsible. Nonetheless, one Court of Appeal judge did suggest, obiter (in passing), a blanket assumption that Battered Woman Syndrome negatives criminal intent could be a bad idea. This might sound counterintuitive, but it’s worth stepping through.
Battered Woman Syndrome had been used as a defence in court, but in different types of cases, like where a woman had killed an extremely abusive partner. It hadn’t been used as a defence for benefit fraud. The judge who made the passing remark thought that while Battered Woman Syndrome might impair someone’s decision-making in a situation like Isabella’s, this would have to be figured out case by case. Feminist commentators have agreed. As they’ve argued, a blanket assumption reinforces the ‘ideal’ of women’s helplessness, ignoring the fact that women can and do fight back - and it pathologises the ‘damaged’ woman, not the man who abused her, or the social structures that enabled it. I would add another danger. A woman deemed ‘impaired’ or ‘helpless’ can be at risk of all new victimisation. After all, maybe she’s unreliable, hysterical, or she’s got an axe to grind. Maybe you can’t trust what she says. Maybe she’s not fit to keep her kids. This road can lead to dark places.
With these arguments out of bounds at the Court of Appeal, the door was closed to two potential approaches for thinking about the impact on beneficiaries of violence in relationships. But another door remained open. The Court of Appeal turned back to the question considered by the lower courts: whether Isabella had been in a relationship in the nature of marriage with T. If she wasn’t, she would have been entitled to the Domestic Purposes Benefit, meaning no fraud had taken place. This was the point on which Isabella’s appeal turned, and it’s still with us today in the form of the Ruka test.
In the course of a 27-page judgement, Ruka v Department of Social Welfare, Isabella gave us the rules the Department (now the Ministry) is still bound by today. With it, a profoundly misogynistic possibility - that a woman could be in a relationship without her consent - was laid to rest.
The Court of Appeal looked at the old check list approach to defining a relationship in the nature of marriage. And they said, you can’t define such a relationship by comparing it to the possible negative features of marriage, including violence and rape. Instead, they said, you have to compare with the positive features of marriage - and, for a relationship to be in the nature of marriage, two positive features had to be present.
The first of those positive features was the willingness to provide financial support. That doesn’t mean couples necessarily sharing their money: these days, and even then, partners might agree not to. Instead, it means partners have an understanding that when the chips are down - when one of you needs help from the other - you’ll share resources to take care of the both of you.
The second of those positive features was emotional commitment, the ‘mental ingredient’. The Court of Appeal thought yes, some of the items on the old check list, like sex or housework or bills, might show emotional commitment. Then again, they might not. Emotional commitment still has to be inferred from what people say or do, and sex or housework or bills might offer a clue. But there’s no playbook - and in a situation like Isabella’s, the court thought that factors like sharing a roof or a bed should be given little weight.
After her four-year struggle, the court quashed Isabella’s conviction and reversed her lifetime of reparation.
Isabella had won. Through the pages of case law, she had made a quiet kind of history for the women of Aotearoa. Some called it a landmark; and if the world was a fairer place, it would have been.
We might not know what happened next if it wasn’t for John Hughes.
I have discovered very little about Hughes, except that at the time, he was a senior law lecturer at the University of Canterbury. I picture him a little like I was all those years ago: in the library, hunched over the pages he was reading, a stack of dry government documents, in disbelief. I picture him as he sat down to write his own 1999 article; one that, like the Ruka case itself, would prove to be a landmark, whether or not its author intended. As I read his words I felt his dismay - in its quiet deliberation, its sense of moral injury - between every carefully-worded line.
Ruka v Department of Social Welfare had been decided by the Court of Appeal in 1997. We’ve seen how case law sets the rules the Department (now Ministry) has to go by, when determining a relationship in the nature of marriage. Ruka v Department of Social Welfare created new case law, with the Ruka test now replacing Thompson to determine relationships in the nature of marriage.
The change wasn’t welcomed by the Department. With its two key factors, willingness to provide financial support and emotional commitment, the Ruka test would be harder to apply. It would mean understanding the subjective views of beneficiaries, not judging their relationship status based only on their observable behaviours. Sometimes, that would mean Department officials having to grapple with domestic violence and its implications for relationships.
When courts create case law, they have to stick within the boundaries of the bigger legislation they’re working under. And when politicians don’t like the way case law is playing out, they’ve got the power to change that bigger legislation. Following Ruka v Department of Social Welfare, the Department urged its Minister (the Minister of Social Welfare) to amend the law and reverse Ruka. Soon after, something called the Social Security (Conjugal Status) Amendment Bill (1997) was introduced to Parliament.
To create a Bill, a bunch of work goes on behind the scenes. Officials develop the main ideas to appear in the Bill (policies), and Cabinet agrees to them, before more officials figure out how to write up those ideas into a workable law for Parliament to consider. It’s a process that can involve to-ing and fro-ing, sometimes endless paper, and many government departments giving advice wearing their different hats. Painstakingly, this is the process Hughes delved into: not just the Bill itself, but the story of its creation, and its immediate aftermath.
As an experienced academic, Hughes knew the literature - all the arguments against what he called ‘the conjugal status rule’, or the ability to regard two unmarried people as married for benefit purposes. He started out by rehearsing these arguments: the reinforcing of women’s dependence on men, the targeting of working class and ethnic minority women, the intrusion into beneficiaries’ privacy to enforce the rule. The difficulty defining ‘a relationship in the nature of marriage’ in the first place.
Following the paper trail leading up to the Bill, Hughes must have felt his fears were confirmed. For a start, the Department was using a maddeningly circular argument: if the definition of a relationship in the nature of marriage was changed, it warned, then some people who fit the definition before would no longer do so (literally the point of the Ruka judgement). And Hughes felt the Department misrepresented the effect of Ruka to Ministers, making out that if couples simply split their finances, that would be enough to avoid the rules and claim individual benefits. (As we’ve seen, this is wrong: the thing that matters in Ruka is the willingness to provide financial support, not how couples actually arrange their finances.)
Hughes recounted how the Department misstated the costs that Ruka might give rise to, even though Treasury thought the fiscal risk was negligible, and said the numbers advanced by the Department did not “seem to make any sense”. And he described how, despite getting an opinion from the Solicitor General saying the opposite, the Department claimed the Ruka rules might somehow extend to legally married couples - exaggerating the dodgy costings even further. As Hughes put it, the background papers leading up to the Bill showed “the lengths to which the Department was prepared to go to in order to protect its established administrative procedures”.
When the Amendment Bill was introduced to Parliament, it tried in no uncertain terms to turn the clock back. Remember how there were problems with the check list approach, especially Excell? The Amendment Bill attempted to restore the check list approach - with no factor more important than any other, because if there were key factors, beneficiaries might arrange their affairs to get around them.
But it was the treatment of domestic violence by the Amendment Bill that Hughes said “cannot be described as being other than extraordinary.” The Bill stated that, when determining a relationship in the nature of marriage, the Department ‘must not have regard to the existence or effect of violence or threats by either person in the relationship towards the other’ (emphasis mine). More than that, the Amendment Bill provided that a person trapped in a relationship by violence or threats could qualify for six months of an emergency benefit - but after that time the benefit would be stopped, as an incentive for her to leave.
Where had this alarming stance on domestic violence come from? Hughes turned to more of the paperwork surrounding the Bill. First, he found this questionable argument: if the state treated a woman experiencing domestic violence as if she wasn’t in a relationship in the nature of marriage, then somehow, the state was condoning the violence. Second, there was concern that women might make false claims of violence to get benefits. Third, it was thought that women might be tempted to stay in violent relationships for money. Hughes saw the Bill as an embodiment of the crudest neoliberal ideas. People are inherently selfish, grabbing at resources. Give them an inch and they’ll take a mile - more than ever when beneficiaries are concerned.
You can imagine the reaction from domestic and sexual violence organisations, and many other people, who saw the Bill as being all about cutting welfare spending, not helping women. Yet somehow, as Hughes went on to document, when the National Collective of Independent Women’s Refuges (NCIWR) spoke out against the Bill, the Minister of Social Welfare claimed they’d been consulted on its development - and that they’d expressed full support. The NCIWR refuted this immediately, calling the Bill “fundamentally flawed”. Nonetheless, the Minister kept referring to the NCIWR in Parliament as ‘partners’ who’d help develop protocols for carrying out the new legislation.
The Bill never passed - it got put on hold, then lapsed after the government changed from National to Labour in the 1999 general election. But that didn’t mean Hughes’ fears never came to pass. His article has a sad kind of coda.
When the government changed in 1999, the Department’s failed response to Ruka was still in the public eye. Frances Joychild, Queen’s Counsel, was commissioned by the new Labour Minister to review decisions the Department had made over the last four years, involving overpayments established against beneficiaries in relationships in the nature of marriage. In other words, Joychild was asked: how had the Department been carrying out Ruka? After all, the 1997 Bill had lapsed, and that meant the Ruka test was still in place - was still the set of rules the Department had to go by.
In 2001, when Joychild completed her review, she found the Department was now applying Ruka correctly - but her assessment of the previous four years was damning. The Department hadn’t given any written direction to its staff, or provided them any guidance, to ensure they used the right test. It hadn’t trained staff in how to recognise domestic violence and its impacts, or what it can mean for benefit entitlement. There was strong evidence that wrong legal test was being applied - and not just Thompson, but the older and harsher Excell. Joychild made a raft of recommendations, including that all decisions of the past four years, where beneficiaries were given overpayments for being in relationships, be reviewed.
How did the Department respond to the Joychild review? Well, it followed her key recommendation - but only to a point. Instead of simply reviewing the decisions in question, the Department set up a process whereby beneficiaries had to apply for consideration. A 2005 investigation by Tina McIvor found that of the 5,700 beneficiaries who applied, an astonishing 63% had their overpayments reversed - amounting to a combined sum of $35 million. But that was only a proportion of the 15,600 questionable decisions taken during those four years. Another 9,900 beneficiaries never applied.
We don’t know much about the lives of those 9,900 beneficiaries, almost all of whom were women. Perhaps some were fraudsters, given their overpayments rightly: maybe that’s why they didn’t apply. Perhaps some didn’t know the review process was happening. Perhaps some didn’t have the wherewithal to apply, or found the forms too hard to read, or were too busy struggling with the day to day to revisit the past.
Maybe - almost certainly - some had been through what Isabella had. Maybe they were still going through it.
We don’t know about these women. We don’t know the size of the overpayments they laboured under, or still do. We don’t know what their children went without, food or heating or school uniforms. We don’t know whether their shame felt as heavy as their financial burden; whether they woke to face the day, and then the day after, with blackened eyes or broken bones. We don’t know if they’ll die in debt, or whether they already have.
We will never know their names.
So, how do we fix all this? Is there even still a problem? The Department messed up badly, but it got hauled over the coals. And it’s over twenty years since Frances Joychild found the Ruka test was finally being applied - even if some beneficiaries have continued to carry unfair overpayments. Maybe there’s nothing more to see here?
The Welfare Expert Advisory Group aren’t the only ones who still hold concerns. In 2014, the Child Poverty Action Group launched a campaign to reform the way the welfare system looks at relationship status. Its latest report, published in 2019, included these findings:
Our welfare system has traditional values wired in - remember the breadwinner model? - but it’s more than 60 years since those policy settings were created. Families and family life have changed. Family relationships are important for the wellbeing of both adults and kids, but policy settings can discourage family formation.
The definition of a relationship remains unclear, leaving Work and Income staff having to figure it out. This can lead to serious consequences, including prosecution - often hurting women and children the most.
Investigations can be ‘intrusive and demeaning’, and can be sparked by people dobbing in beneficiaries with unreliable allegations.
OK, there’s still a problem. But can’t we just fix it with a better legal test - something that defines a relationship more fairly than Ruka did, and is more sensitive to issues of violence and trauma?
CPAG doesn’t think so. Remember how we said earlier that, for any ingredient you might name, there are marriages that don’t include it? If that was an issue in the 90s, it’s a bigger issue now. At the time of Ruka, we didn’t even have marriage equality for gay folks, let alone understand what it means to be trans or non-binary and in a relationship. Our understanding of domestic violence and trauma was developing. We shamed unmarried mothers (and to be fair, we sometimes still do). Nowadays, people are voting with their feet. More and more, they’re rejecting traditional marriage, or any kind of marriage at all. Kids these days can have more than two parents. Simply put, the world’s evolving.
CPAG argues - and I agree - that we need to chuck out the breadwinner model, once and for all. That means moving to individual welfare entitlements across the board, not couples-based entitlements that rely on determining people’s relationship status. That may sound like a big change, and it wouldn’t be easy, but remember: tax is paid based off individual’s earnings (not couple or household earnings), and some supports, like ACC payments, are also calculated on an individual basis. Would individual rates across the board mean unfairly making couples better off, because they share expenses that single people have to foot alone? Maybe - but it’s worth noting that New Zealand Superannuation is paid at different rates, including a rate for people who are single but sharing accommodation. Couldn’t something like that work for other beneficiaries?
But the breadwinner model, its persistence, isn’t our only problem. Our institutional antipathy for beneficiaries runs much deeper. Let’s move to problem number two, with a graphic example.
The Privacy Commissioner’s 2019 report received very little fanfare. Perhaps that’s unsurprising: at the back, in a frustrated sort of appendix, the report listed all the previous times the Privacy Commissioner had raised the same issues, again and again without success, starting in the 90s. Every time, it was stonewalled. The 2019 report looked at the way the Ministry of Social Development (what used to be the Department) uses its powers under section 11 of the Social Security Act. Section 11 allows the Department to gather information about a beneficiary to figure out their entitlements, including when conducting fraud investigations. While the Privacy Commissioner’s report did not focus exclusively on relationships in the nature of marriage, it noted that relationship fraud is the most commonly alleged kind, via the hotline.
This time round, the Privacy Commissioner didn’t mince his words. The issue was not section 11 itself, even though it gives the Ministry far more intrusive investigative powers than other government agencies, including the security and intelligence agencies. Rather, when gathering information under section 11, the Ministry was supposed to ask the beneficiary first - unless to do so would ‘prejudice the maintenance of the law’, maybe by allowing the beneficiary to mess with the evidence.
But instead of asking the beneficiary first, the Ministry was automatically going straight to third parties to gather information - whether or not there was a risk of prejudice to the maintenance of the law. And once they started gathering, in secrecy, there were no holds barred. The beneficiary’s text messages (not just ones related to the potential fraud, but all of them). Information held by the beneficiary’s employer, their kids’ schools, their bank or utilities providers. Their police records, including reports they’d made as the victims of domestic violence or sexual assault. Their hospital records, including records of intimate medical procedures. Forms of evidence that would mostly be impossible to mess with.
In one instance the Privacy Commissioner looked into, a beneficiary described how a photo shared with a sexual partner was produced at an interview, by Ministry investigators wanting an explanation.
The Privacy Commissioner referred to Ruka, noting that when it comes to relationship status, a beneficiary’s views should be sought - especially when domestic violence is involved. I can’t figure out a better way to flag the dangers of the Ministry’s approach than to use the Privacy Commissioner’s own words:
There may also be a risk to the personal safety of an individual in a potentially violent relationship if assessments are not made on a case by case basis as to the most appropriate manner to engage with parties. This could be the individual or third parties ... It is my view that if the Ministry wish to know whether an alleged relationship contains violence they should ask the individual involved, unless to do so would put that individual at risk.
I am concerned that if the Ministry’s practice of gathering this type of information were widely known, individuals could be discouraged from seeking Police support out of fear the Ministry could use the information against them in the future.
The Ministry accepted the findings of the Privacy Commissioner, and has begun to make changes. But the stonewalling of the Privacy Commissioner, and the continuance of appalling practices in relation to beneficiaries’ privacy, lasted almost thirty years. It spanned both Labour and National governments, and included politicians and senior public servants alike - many of whom remain in high-powered jobs today. Remember how we talked about gender and race? Let’s talk about class.
Consequences are for poor people.
I think about Isabella.
I think about her son. He was born the year after me. We could have gone to school together. I hope I would have been his friend: I don’t know. Maybe he was that kid that everyone knew about, whispered about - yet somehow, even as everybody judged, his mum got him to school, his lunchbox in his bag, every single day. Although we’re much the same age, and he’s an adult too, he’s still a kid in my mind. I can’t help it. I think of him with the tenderness, the reaching arms, of a mother.
I think about how we got to that place; how desperately we let women like Isabella down back then, how desperately I wish for something better now. This is when my policy brain kicks in. She is about 65 now, about pension age, contemplating the next part of her life. I would like to believe that she, that any woman like her, has what she needs to live a life that brings her peace. That her income is enough. That her house is warm, and there’s enough room that her girlfriends can come round, and her mokos; and that the wee ones run around, excited to see Nan, talking a mile a minute, getting into the biscuit tin. That she can afford the doctor - can make it there, by bus or by car. That there is something to help the pain in her leg and her arm and her teeth. That in every service she receives, and from every person who supports her, there is an acknowledgement, of the power of her courage and the beauty of her wairua.
I feel anger sometimes - a blazing anger. Whether we vote red or blue, there is nothing we like more than this three-word phrase: ‘hard working kiwis’. By that, we mean people like ourselves, not people like her. I feel anger at those who would judge Isabella, or any woman like her; those who make cookie-cutter good life choices and have all the answers. I think, you do it. Choose, when every option is agony. Force open your blackened eyes to face another day, and then another: raise a broken arm to spoon food into the mouth of your child. You do it. Perhaps I hesitate to use her name, but I celebrate it, offer it my reverence.
We used to have this idea of dignity for everyone, from the cradle to the grave. And yeah, maybe we never did it quite right - but we still made a mistake, throwing out the idea before we could perfect it.
I reflect sometimes, if the story hadn’t changed - if Isabella hadn’t changed it - she’d still be making reparation, would be more than twenty years from her final payment, and maybe wouldn’t see the day. The word ‘reparation’ means to make good, to amend something wrong, to put things right with the person wronged. It is not just about money, but our decency, as people, as a society.
The question isn’t what Isabella, a woman like her, owes the rest of us. It’s what kind of reparation - monetary, moral, spiritual - we could ever make to her.
References
Healey, O. & Curtin, J. (2019). ‘Relationship status’ and the Welfare System in Aotearoa New Zealand. A Report prepared for the Peter McKenzie Project May 2019.
Hughes, J. (1999). Battered Woman's Syndrome and Interdependence as Factors in Establishing Conjugal Status in Social Security Law. Waikato Law Review, 7, 104.
Joychild, F. (2001). Report to the Minister for Social Services: Review of Department of Work and Income Implementation of the Court of Appeal Decision, Ruka V Department of Social Welfare (1997) 1 NZLR 154. Ministry of Social Development.
McIvor, T. (2005). The Ruka review: how a government department ignored the law, and its reluctance to put things right. Scoop.
Office of the Privacy Commissioner. (2019). Inquiry into the Ministry of Social Development’s Exercise of Section 11 (Social Security Act 1964) and Compliance with the Code of Conduct.
Thank you for writing this.
Thank you for writing this and bearing witness. So important and so in need of reform.