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Breaking Bad Law?

Breaking Bad Law?

[An edited version of this post appears on E-Tangata.]

In the opening moments of the 1970s my father left my mother and followed his elusive business dreams to Australia. I have read several letters between the two of them, hurt and angry exchanges, and in all of them she asks him for financial assistance to raise their three children. He sent her a few payments, and eventually the letters and payments ceased.  At some point my mother went on the new domestic purposes benefit for sole parents (well, new in 1973). She stayed on that benefit until I left school, and then she shifted to the DPB woman-alone benefit, and on to superannuation. She was a beneficiary for about 41 years.

During that whole time my mother remained alone. She had offers of marriage but turned them down in part because she did not want to be beholden to richer men. Ironically the State support represented independence for us, despite all the rhetoric about reliance on benefits creating soul-suckingly dependent beneficiaries. My mother taught me about fighting for independence precisely because she was a beneficiary. She did not have to find succour from, or be exploited by, other people, just to survive.

I grew up watching her account for every 1c and 2c piece in our household budget, writing in little notebooks that, over decades, grew to fill drawers in the wall unit in the smoke-yellowed dining room. (And yes she was a beneficiary that smoked, and drank, and we never went hungry, m’kay?) She earned extra money by taking in boarders.

Our mother was deeply concerned to ensure she never overstepped her earning boundaries, and that she never found out where our father had gone, after those early letters stopped coming, so she could honestly report on the benefit forms that she did not know where he was. I clearly remember her actually putting her hands over her ears at one point just so she could not hear us discussing where he was living. ‘Sydney somewhere’ was the most specific fact she allowed herself to learn about him.

In this current period of time, dominated as it is by partisan breast-beating over the speeches, actions and inactions of Metiria Turei, some people might be tempted to use my mother’s story of law-adherence as some kind of moral lesson and counterpoint to Metiria’s.  Don’t. She was not a beneficiary saint or sinner. She just was who she was; she is no paragon or flag-bearer for anyone or anything. Her status as a beneficiary neither enhances nor degrades her moral character and more than her driver’s licence did.

She chose to adhere to the laws of benefit eligibility. And I wonder if it might have cost her dearly to stay alone, as she did, until her death in 2015. She was a gregarious person who shunned many relationships and became quite isolated in her later years. I’ll never know whether she might have been different had she not considered herself bound by such laws.

The only usefulness of her story in the public arena is maybe to prompt discussion about change. Her story is not an end in itself, and never should be. One one further thing: it highlights that the relevant laws in her case have, from their very inception, been doomed to be broken.

Well, to be honest, that is a pretty trite statement. All laws only exist because someone out there will want to break it and do the thing she’s not supposed to do, or fail to behave in the way she is supposed to.

But humour me…and forgive me if you have heard this one before. Instead of looking just at the end result of a given law, it helps to see why it is exists in the first place.

In our heavily targeted benefit system, widows’ benefits and domestic purposes benefits uphold the long-standing social presumption that a husband would, as the primary breadwinner, support his wife and children in the usual nuclear family formation. To be eligible to get a benefit under the Social Security Act 1964, therefore, an applicant must not also be receiving significant financial support from someone else standing in for the missing husband. Applicants must be effectively unsupported if the State is to provide that missing support and effectively ‘step into the shoes’ of the absent husband, or the person who should be providing such support.

The gender-based language has gone, but the absence of support requirement remains. Widows, single people formerly married people, formerly de facto people, must now all be in the same unsupported boat to be eligible for sole parent support (now under s20D of the ’64 Act, formerly known as the DPB sole parents benefit).

If these people do get into a new relationship they must not cross the line into emotional commitment and financial interdependence with another person. To do so would mean they are receiving support from that person. If they do, they must inform that the State of that change in circumstance, be income tested and accept the consequence, including the probable loss of the entire benefit.

And even if eligible, these people can lose some of their benefit if they fail to, or refuse to, name the other parent or to file for a child support assessment under the Child Support Act 1991. And if you thought that was some new neo-liberal rule, ah nope. It has been around since at least 1936, and even earlier, when some deserted wives were able to claim a widow’s benefit provided they could not find the husband who deserted them, and they filed for the earlier equivalent of child support.

Effectively these prohibitions uphold a general rule against resource-pooling designed to ensure that no-one is better off with State support than others would be without it.

In my view these rules shepherded or perhaps forced my mother into a solitary life that I don’t think she really wanted. In many ways she was acting against what we as humans usually do. Regardless of financial circumstances, people try and create bonds and relationships with others. We are social and we need each other. Yet compliance with the laws in this kind of case sets up a stark choice for the sole parent:

  • either live alone with no substantive contact with a romantic partner that crosses an imaginary line into emotional commitment and financial interdependence, and accept support from the State;
  • OR enter such a relationship and lie about its existence, accepting support from the State;
  • OR confess the relationship and lose eligibility.


It has amazed me, the extraordinary rhetoric that has swelled in the wake of Metiria Turei’s politically-driven account of her own circumstances in the early 1990s. In particular there has been a broad presumption in the public discourse that the laws that applied are either morally good or morally bad and that by breaching or adhering to such rules people like Metiria and my mother somehow reveal their moral character.

Sometimes morality and law does coincide and it is right that we should punish or promote certain behaviours as a society, if only to discourage others from doing bad things or to encourage others to do good things.

But let’s not fool ourselves that any law is a guide to the human heart.

I generally try not to kill people. That may reveal that I’m not a habitual murderer, but says nothing else about who I am. I regularly break other kinds of laws, or regulations. Over the years I have smoked and ingested drugs, I have trespassed, driven carelessly, assaulted people, sat on a kai table, used obscene language in a public place, walked over someone’s legs in a wharenui, and transgressed all sorts of lines of decency. I’m sure the list goes on and on. My mother used to get me to buy her alcohol and cigarettes after school. I’m pretty sure she wasn’t supposed to do that.

Not one of us leads a life in which we break no law.

By the same token there no point in pretending that any law is neutral. Laws are created in their cultural and political context. While the laws prohibiting resource-pooling appear gender neutral, they are enforced primarily against women and far more rarely against men. The benefit laws reflect a presumption that people live in nuclear families and can therefore struggle to deal with the notion of whāngai (Māori adoptions), for example.  This context doesn’t make the laws moral or immoral, but can lead to consequences that enforce a particular societal structure or view of that structure.

Māori are well aware of the oppression of seemingly ordinary laws that undergird the structure of a society that was never designed with Māori in mind. We ought not forget that Māori survival and social progress in this country has depended in part, at least, on Māori flouting laws; such as pulling up survey pegs, or  occupying land that laws said were no longer theirs, holding so-called illegal protests, and the like. We owe our law-breaking tūpuna a debt of gratitude, in many cases.

Nor am I drawing a false analogy between politically necessary lawbreaking by some in important parts of our history and the actions of genuine benefit fraudsters. I’m not a fan of benefit fraud (for example), and there are people who have been rightly punished for it.  But there is merit in identifying where  laws can set people up for inevitable failure, or have, with the passage of time, created social problems that can only be solved with sufficient political will.

I think our heavily targeted, morally directive welfare system is replete with laws that encourage failure, non-compliance and moral self-absolution.  We need policies that will incentivise law keeping rather than law breaking.

And we don’t need to be distracted by the current storm of moral one-upmanship that helps no one and clarifies nothing.




Woop woop!! Social Security Act rewrite!

I am all a-jitter. Seriously, I am. I am having a cup of coffee to calm down. I may need a nap. The thing I have been waiting for has finally happened, and to be honest, I just don’t know how I feel about it. Well, it is a bloody doorstop (440 pages), so that ambivalence will on for a while yet. Yes indeed, the Social Security Act 1964 has finally undergone the first full draft of its rewrite. The Rewrite bill (OK, proper name: Social Security Legislation Rewrite Bill)is now available here.

Actually, in all honesty I am shamefully late to post about this. I have been buried up to my neck in other writing and wilfully ignoring all sorts of things (like emails, and children), so it makes me blush to say this was released on 17 March. For crying out loud..I am WRITING  BOOK ON SOCIAL SECURITY LAW. You’d think I’d have caught up with this little earthquake a little sooner.

Cos make no mistake, here there be earthquakes and tigers. I don’t have time today to engage in a full analysis (you are very welcome). But legislative reform of social security in this country has often been about trumpeting much and delivering little; or alternatively trumpeting very little and delivering knockout blows. When I am teaching my welfare law classes I often have to point out a kind of now-you-see it, now-you-don’t magic trick that passes for legislative reform in this area, whereby new provisions are jammed into the old Act but closer inspection reveals there has just simply been a shuffling around of old provisions that might conflate existing tests, but really, the status quo continues to a large degree.

When the government crowed about its streamlining of 7 benefits down to 3, they neglect to mention that often the same tests for eligibility are simply picked up and plonked somewhere else in the Act. So while the DPB (sole parent) was repackaged as sole parent support, the same eligibility tests were applied. The DPB carer’s benefit was also renamed and shifted to the supported living payment. Same tests. Sickness benefit was picked up and dumped into jobseeker support, with the same eligibility tests. Now, obviously there were changes in the application of work-tests and harsher requirements for reapplications, and implementation of other provisions and policies that have made such benefits harder to get; but in many respects the law has trundled on as it always has, really. The only benefits really to disappear in recent years have been widows’ and women alone benefits (both replaced by jobseeker support) most other reform has involved shuffling, reshaping, rebranding, and tightening of obligation.

Which is what makes this rewrite kind of exciting, and freaking scary. The Social Security Act 1964 has become a hot mess. But those of us who work with it recognise some phrases in the legislation like we would recognise old family members; in many cases those phrases were written before most of us were born. There are many things I’ll be looking are a couple:

  1. what has happened to the level of administrative discretion in the Bill? Has it depleted? Is it roughly the same? Where are there any changes?
  2. I know the Emergency benefit is to be replaced with the exceptional circumstances benefit. How different is it? At first glance, not much, but I need a bit more time to cogitate.
  3. where are the bodies hidden? One of the problems of the current Act is the connections between different parts of the Act that the hapless reader may not know about. How well crafted is the roadmap of this Act?

OK, I can’t answer that all right now. But one benefit I have taught many times, the unsupported child’s benefit has, I’m told, been ‘gotten rid of’ along with the orphan’s benefit in this Bill: A quick look reveals that the new benefit ‘supported child’s benefit’ does actually streamline two benefits (orphan’s benefit and unsupported child’s benefit) that existed for pretty much the same reason: the child or children had no parents to look after them. In the old Unsupported Child’s benefit in s29 there is a requirement that there be a family breakdown in the child’s family which has meant that no parent is available to look after the child. Then a non-parent can be granted the payment for looking after the child. The practical implication of the ‘breakdown’ requirement was that children being looked after by way of the whāngai process (sometimes called informal adoptions) didn’t reach this threshold usually; there is not usually a family breakdown when children are looked after as whāngai; although the family member looking after the whāngai will be doing exactly the same thing as in other situations without whāngai. So NOW; the ‘breakdown’ requirement has been excised. Does this mean whāngai carers will now be eligible? Perhaps. There has to be no parent ‘willing and able’ to take care of the child. That requires consideration, but the deletion of the ‘breakdown’ requirement is, I think, a good thing.

But no mistake. that is a substantive change, and not merely cosmetic one. Time to identify the rest.

After my nap, maybe…









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