The Scarlet Letter | Season 1 | Episode 9 | Stephanie O'Leary

This one’s for anyone who believes the law should protect the vulnerable—not punish them. We’re joined by future legal powerhouse Stephanie O’Leary, who spills the tea on how outdated welfare rules are quietly punishing women fleeing abusive relationships. Fresh from her honours thesis, Stephanie dives into the dark side of economic abuse, a form of control that’s as common as it is overlooked, and how Australia's Cohabitation Rule is making things worse. She shares the real-life moment that kickstarted her research, exposes the flaws in the system, and drops bold ideas for how we can actually fix it.

First published 2017.

The Scarlet Letter podcast is produced by the Feminist Legal Studies Group. This podcast features interviews with feminists connected to the law, discussing their life, work, and feminist perspectives. It's perfect for anyone passionate about feminist legal scholarship.

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Transcript | The Scarlet Letter | Season 1 |Episode 9 | Stephanie O'Leary

Tamara Wilkinson: [00:00:00] Good morning, we are Tamara Wilkinson and Becky Batagol. And welcome to this episode of The Scarlet Letter, the monthly podcast of the Feminist Legal Studies Group at Monash University's Faculty of Law. Today we're joined by Stephanie O'Leary, who has just finished her fifth year of a double degree in Arts and Law at Monash and has written an honours thesis on the topic of family violence, decision making and the cohabitation rule.

Becky Batagol: Throughout her degree, Stephanie has continually been excited and inspired by feminists and by feminist study of the law. She hopes to be able to use her law degree to work towards improvement on the rights of vulnerable groups in society. In particular, she hopes to begin a career in the law where she can pursue the practice of the feminist teachings that she's engaged with at Monash and in life generally.[00:01:00]

Thank you so much for joining us today, Steph. Thank you for having me. Steph, could you start by telling us a little bit about your research and what it was about?

Stephanie O'Leary: So my research generally was about the interaction between social security law and family violence in particular economic abuse. I looked at how the rules which dictate how much and if a person's eligible for Centrelink payment, Centrelink payments is affected by family violence and more so how these rules and processes fail to acknowledge the impact of abuse.

Tamara Wilkinson: So Steph, what made you choose this topic to focus on for your Honours thesis?

Stephanie O'Leary: Last year I was volunteering at Social Security Rights Victoria, which is a community legal centre which specialises in social security issues. And I was working on the phone lines and a client called up and told me how Centrelink was claiming that they had a debt against her for an overpayment.

And she explained to me that her abusive husband had claimed a Centrelink payment in her [00:02:00] name. And since then, she had left the relationship. But she was dealing with the ramifications of that. Not only the physical impacts that she was still dealing with, but now this financial debt that she was being said to be having to pay back despite the abuse.

And she was telling me how distraught she was and how this is really affecting her everyday life. Yeah. And it really made me wonder how this could happen in our system. And from then on, it inspired me to look further into the social security act and led to this problem. of the cohabitation rule, which I now better understand than I did then, and subsequently onto my research.

Tamara Wilkinson: It's fantastic that it's inspired by your real world experience. That's really cool. I think that's the best kind of research.

Stephanie O'Leary: And Steph, do you think this is feminist research? I definitely think it is. Not only did I try to sort of conduct it with a feminist lens on everything that I read, especially the cases and everything, but my research really does question why social [00:03:00] security processes disproportionately target women, and furthermore, why these issues that predominantly affect women are being largely ignored, not only in the political sphere, but there's not even tons of research on it in itself.

And also because I did spend a large proportion, thanks to Becky, on reform that sort of, I've used a bit of time to suggest reforms to redress this, these inequalities. Yeah, so I do think it's feminist research.

Tamara Wilkinson: Yeah, and I feel like Perhaps this is an obvious question given your research and given that you're here today, but would you consider yourself a feminist?

Absolutely.

Stephanie O'Leary: I'd probably say card carrying, which I'm lucky enough in this day to be able to do that. I come from a really strong matriarchal family who's always promoted justice and helping others. My mum's a teacher and a strong unionist ever since I was a kid. And there's always been a really strong focus in my family about helping the vulnerable.

We would. help we go make sandwiches for the homeless. I'd attend [00:04:00] rallies with my mum, the union rallies and for refugee rights. And I think that feminism really underlies all those issues because it's about, it's all about a basis in inequality and addressing that power imbalance. And it's always I also went to an all girls school that had a massive focus on social justice and giving back.

And not only was I shown. that females were equally entitled to every opportunity but they reminded us that we had a broader duty to fight for other people to have those opportunities as well. Yeah. And I've got a good group of friends that we all are preaching to the choir with as well.

Tamara Wilkinson: Yeah. Yeah, that's really important.

It's interesting that quite a few of the people we've interviewed have cited a really strong mother history of social justice in the family and a really strong girl group. Yeah. One of a better way. You need your girl gang. Yeah.

Becky Batagol: Someone is bringing up children. That's such a good recipe for activism.

Thank you. I have it now.

Tamara Wilkinson: Look, I feel like your children are going to be on the right track. [00:05:00]

Stephanie O'Leary: Rebelling.

Tamara Wilkinson: So Steph, would you say there's I think it's clear that there is, but would you say there's a strong connection between your work and your feminist outlook? Definitely.

Stephanie O'Leary: Everything I've done at uni, without recognising it or not, I've always tried to find a, in a way that I can talk about the women's rights within the issue, or the feminist issue in it.

And I, I've seen the practical implications of this inequality, and, I really think that it's really important to be not just looking at the obvious intracts of like family law and feminism, but looking at other areas of the law because everything that we do has, is based in inequality in our society at the moment and everything we do needs to seek to redress that.

Tamara Wilkinson: Yeah. Yeah.

Becky Batagol: And I want to talk to you now about your project, Steph, and what we didn't say before is that, that you were I supervised you and also with Dr. Mario Sullivan. So I do know lots about your research, but I'm keen for you to tell us about [00:06:00] economic abuse. Economic abuse is the focus of your research.

What is it and how prevalent is it in Australia?

Stephanie O'Leary: Economic abuse is a form of family violence, which involves behaviours that control a woman's ability to acquire, use and maintain economic resources, thus threatening her economic security and potential for self sufficiency. Throughout research there's said to be four broad categories of abuse so that includes interfering with education or employment, controlling access to economic resources, refusing to contribute and generating economic cost.

So in practice, economic abuse could be a situation where a perpetrator refuses to let the victim work or they claim a Centrelink payment in her name, or they refuse to contribute to the household, but expect the victim to maintain the household and all the expenses relating to the household. Yeah.

And regarding prevalence, earlier this year, the first real research was done in Australia regarding the prevalence. And it was by [00:07:00] RMIT Kutin and Russell and Reid, they analyzed data from a survey by the Australian Bureau of Statistics and found that out of 17,000 Australian surveyed, 11.5% had experienced economic abuse.

Wow. And it's important to note that the majority of those were women. Yeah. Economic abuse occurs regularly in combination with other types of family violence. including physical and psychological violence, and it often goes unrecognized even by victims themselves. So which contributes to the issue of knowing the prevalence of it in Australia because prevailing societal attitudes about gender roles associated with finances like the man's expected to be in charge of finances and they, this compounds the lack of recognition of abuse in Australia.

Tamara Wilkinson: Yeah So many people in Australia rely on a range of social security payments to live through Centrelink Can you tell us a bit about what happens if a person's unhappy with a Centrelink decision about their [00:08:00] social security payment and what the role of the Administrative Appeals Tribunal is in that?

Stephanie O'Leary: In this context, it's actually Centrelink employees that are the main decision makers. They're the ones that most pay. People will have their first point of call and all the interactions with so if you are unhappy, say you've received an overpayment, you've said, been said, to receive an overpayment, the first thing you would do is apply for an internal review through Centrelink themselves, which is by an authorized review officer.

Then after that, if you're still unhappy, you can apply up to the administrative Appeals Tribunal for another review and eventually on to the federal court if that's. That's what you're interested in. It's not a trial. It's like you, but you still have both sides in this case, you'll, it's, there'll be Centrelink and the person challenging the decision and they'll present evidence and it is like a, it's like a mini trial, but a lot more informal.

And then the decision maker uses a social security acts and the surrounding policy directives to determine whether the preferable decision was made in these earlier [00:09:00] decisions. So it's still an adversarial. Yes. Yeah. It's a. Like the Administrative Appeal tries to be like it's like a mini trial with less of the barriers It's a lot less formal.

Okay, but you still will have to present your side. It's still adversarial. The decision maker is still making decisions It's not a conversation. Sure. Yeah. Yeah.

Becky Batagol: And so Steph, why did you focus on decisions of the Administrative Appeals Tribunal?

Stephanie O'Leary: My main reason was even though Centrelink is the main decision maker, they don't record any of their reasoning processes or any of their decisions.

So I focused on the AOT because they provide full transcripts of the decisions or they have up to a point now so they're providing less transcripts of the social security division. So I was able to look in a variety of different cases and see the reasoning and the application of the law.

Tamara Wilkinson: Your research focuses on the Cohabitation Rule, which you've mentioned already.

Could you give us just a very [00:10:00] brief pre see of what the Cohabitation Rule is, and explain to us how a person's status as single or partnered affects their rate of pay by

Stephanie O'Leary: Centrelink? The Cohabitation Rule is like a fundamental principle of the Social Security Act and the Social Security System.

It's a rule by which a person's Centrelink payment is determined in relation to their relationship status. Yeah. So single people and partnered people get paid a different rate. And so when a person's determined to be a member of a couple, they're paid a lower partnered rate of welfare. Yeah.

The reasoning behind this is very well established, that it's based on the assumption that couples will automatically pool their resources for the shared benefit of a couple or a family and thus live more cheaply than a single person.

Becky Batagol: Yeah. Okay. And can you give us idea of what that means in money terms?

What's the difference between the single rate and the partnered rate each fortnight?

Stephanie O'Leary: So if you were claiming today a parenting payment if you were single, you would receive up to $748 a [00:11:00] fortnight. Whereas if you were determined to be a member of a couple, you would only receive 483. So that's a difference of $264.

Which is a massive difference every fortnight for families, especially when you're having someone that refuses to contribute. So if a debt's raised against a person that's claimed, say, a single rate and they successfully claim this date, she'll, the victim will have this debt deducted from that payment as well.

So that's, or she'll have to pay it back incrementally. And so as a consequent. Victims are placed under additional financial strain and it further inhibits their ability to be able to leave or recover from a violent relationship.

Tamara Wilkinson: Yeah, so obviously there's quite a strong link between economic abuse and this cohabitation rule.

Stephanie O'Leary: Yeah, absolutely. So the problem would be that the assumption that underlies the cohabitation rule, that couples automatically pool their resources, is [00:12:00] challenged by economic abuse because In situations of economic abuse, there's either no pooling or no benefit from the pooling of resources. So I thought the best way to explain this was through an example I came across in my research, which really exemplifies the consequence of when the cohabitation rules is applied in the context of economic abuse.

So Helen's case was documented in research by Green and Pierce, who worked at the time in community law and community health. And Helen was a victim of physical and economic abuse for many years. The perpetrator refused to contribute anything to the household and said that the children were hers and the government's responsibility even though she had no resources on her own to provide for them and In order to provide for herself She claimed a single rate of payment and throughout the relationship the perpetrator repeatedly threatened her that if she was to leave He would dob her into Centrelink and telling them if she, that she'd attained that single payment rate, which she was not entitled to. And after she fled the [00:13:00] relationship, that's exactly what he did. And as a result, she was saddled with 88, 000 debt overpayment for obtaining a single rate, even though she was technically entitled to a partner rate.

And therefore when she was trying to recover from this relationship and support her family, she had to repay this 88, 000. And I thought this case really exemplifies the three consequences of when the cohabitation rules applied. Like firstly, economic hardship and deprivation experienced by victims might induce them to seek a higher rate of welfare.

And secondly, a perpetrator can use the operation or threat of operation of this cohabitation rule as a part of their abuse. And lastly, any application of the cohabitation rules further exacerbates financial insecurity and thus inhibits their ability to leave and recover from a violent relationship perpetuating this cycle of welfare dependence and all the things that the government is trying to say that we don't want [00:14:00] associated with welfare.

Tamara Wilkinson: Yeah, 88, 000 is a huge debt. Yeah for someone who's working let alone for someone who you know Isn't working and is caring for children.

Stephanie O'Leary: That's and the reality is rarely do these debts get repaid? Yeah But they're still pursued all the time.

Becky Batagol: Yeah. Yep. And the stress of that kind of debt must be massive.

Yeah. Yeah. Regardless of whether you can actually pay it back or not. Yeah.

Stephanie O'Leary: Absolutely. And it affects your ability to of course get credit cards and loans and everything else.

Tamara Wilkinson: Yeah.

Stephanie O'Leary: That you might need when you're trying to leave a violent relationship. Yeah. And often in other research, people have said that this fear has resulted in them deciding to stay in a relationship.

Yeah.

Becky Batagol: Yeah. And the safety consequences of that for the victim and her children are massive. Yeah. Yeah. Steph, what view does the Administrative Appeals Tribunal take about economic abuse and family violence?

Stephanie O'Leary: I wouldn't say there's a unanimous consensus of the Tribunal in relation to [00:15:00] economic abuse.

But I think that I think that, There has been cases that have gone in favor of victims, but I only, in my research, found one. So what I did find though, when decision makers were asked to exercise their discretion to determine if a victim was a member of a couple or not it appears that in most cases, they erred on that side of, you are a member of a couple, despite your economic abuse.

Yeah. In my research, I talked about how these phenomena was influenced by a number of factors. Firstly, the law is seen to apply quite broadly, meaning more often than not, most people are seen as the member of a couple than not. Yeah. And in applying the Social Security Act, decision makers have to go through a list of factors to determine if you're a member of a couple.

So this includes they have to look at the nature of the relationship, if there's any sexual relationship, how the couple present themselves to the world, and also their financial relationship. Yeah. So this means that even in a situation of economic abuse. where there's no financial relationships at all.

One of [00:16:00] those other factors could override that. So they, there's no financial relationship at all, but they present themselves to be a couple to the world. Therefore they're still found to be a member of a couple, even though they're not benefiting from that pooling of resources, which is said to be the logic underlying the application of this rule.

Yeah. I also found even in cases where there was a superficial existence of financial. interconnectedness, this automatically meant they were a member of a couple. And this happened even in cases where the victim hadn't consented to that financial, to that joint account, to that joint credit card. And there was no looking any deeper than that superficial existence.

Yeah. And building on other people's research, what I found was this is a, one of, this is a result of gendered assumptions about financial support that the Social Security Act makes. By paying people at a lower, partnered people at a lower rate, the Act assumes all current relationships are relationships where men should provide for women.

[00:17:00] And therefore, the Cohabitation Rule tells Australian women that they should be supported by their partners. But on that, it also makes that cruel assumption that's actually enforceable. Yeah. And it says if you're in something that looks like a relationship, even when there's no pooling or no benefit from pooling, There should be.

Yeah. And that's sufficient and I, that's the act, but there's also a climate, a political climate surrounding this, encouraging the restriction of access to social security. Like last year, this year, part of the budget measures in order to obtain a parenting payment. Or new start recipients who are single with a dependent child must now have a third party verify their relationship status So it's essentially saying you're a group of people that are likely to lie about your relationship status So therefore you need someone else to verify you and it's gonna lead to a whole lot of problems for people on these payments that may be in ambiguous [00:18:00] relationships or in abusive situations And forcing that third party to perhaps commit fraud in order to do this.

Becky Batagol: And Steph you also in your thesis mentioned other initiatives around welfare that have come about in the last 12 months. One was compulsory drug testing of job seekers in certain contexts and also the robo debt crisis. How does this connect to that so called robo debt issue?

Stephanie O'Leary: I think it's broadly a part of the overall stigmatisation of welfare.

This idea that we want to get people off welfare as soon as possible with, but this stigmatization isn't helping, in my opinion. And in situations of economic abuse, and abuse generally people are, desperate and at their core, they need this money to survive. And this idea that these people are bludgers and are really affecting real people's lives, like trying to get votes or, which isn't this isn't a new phenomenon, we've [00:19:00] tried to restrict welfare and restrict the categories of people able to access welfare for a very long time.

But through what I've seen is The vulnerable, especially women, and especially victims of abuse, are often the absolute target, and all the ones that are most affected by these policies. Yeah.

Tamara Wilkinson: Wow.

Stephanie O'Leary: Whether deliberate or not yeah.

Tamara Wilkinson: Yeah. What reforms do you suggest in your research?

Stephanie O'Leary: Firstly, another issue I noted with the decision makers was because there's a lot of discretion in the act, these subjective views about economic abuse are infiltrated into the decision.

And as research shows, many people, including decision makers, aren't actually aware of economic abuse or misunderstand its features. In one case where there was financial abuse, the decision maker said, That although this case reflects personal, physical, financial abuse by Mr. Perry, Mrs. Perry was not prevented by some external force from separating from him.

And found that as a basis for her not to [00:20:00] be treated or to be treated as a member of a couple because she tacitly accepted. Yeah. So I think a good start would firstly be a definition of family violence in the Social Security Act.

Yeah. There's no definition whatsoever in the Act. And I think that'd be a very good start. Yeah. That's something for decision makers to refer to.

Becky Batagol: And it's explicitly including economics. Economics, yeah. Yeah. Which is that most under recognised form of family violence.

Stephanie O'Leary: Yeah. Something that, and that combined with some training as well, which the Australian Law Reform Commission recommended as well, they said that generally there's insufficient guidance for decision makers about how family violence can affect a person's decisions. So That was the 2010 review of family violence laws.

2011 of, yeah, of social security. Oh, yeah. Commonwealth social security laws. Thank you. They recommended a couple things. None of those recommendations have been taken up.

Tamara Wilkinson: Yeah.

Stephanie O'Leary: From what I've heard.

Also specifically there are some sections of the legislation that I think that could use some [00:21:00] wording changes or some, even some examples. Yeah. Just so something that can have, that gives decision makers permission to recognize, to say that family violence is special. This person is not a member of a couple because of this.

Yeah. Because I feel like decision makers feel somewhat restrained by the wording of it. Yeah. And something that just allows them to do it. Because the Australian Law Reform Commission recommended only changing the policy directives, but I think that we need enforceable rights. for the victims, but in a way that allows flexibility for the changing nature and understandings of family violence and everything like that.

Tamara Wilkinson: Yeah, absolutely.

Becky Batagol: And I, as a feminist, I like to bring things back to the practical. So what difference do you hope that your research will make, Steph? I hope someone will read it.

I've already read it.

Stephanie O'Leary: I would like to pursue this issue further because I really think that The [00:22:00] consequence of the rule acting in the way it is now is not only on a personal level, is the damaging effects of economic abuse further exacerbated and inhibiting people's ability to leave and recover and, but it's also undesirable for society and the effective operation of the social security system because economic abuse has been found to result in victims being less likely to be in paid employment.

More likely to be reliant on social security and less engaged with the education system. So by challenging and removing these inaccurate assumptions that the rule perpetuates, I think the system would be more able to effectively assist victims to obtain financial security, provide for those in need and increase social participation and decrease dependence on welfare.

Yeah. What's next for you, Stephanie? I'm hoping to officially get my law degree. Yes. At one point. We are very close. Yes, very close. I, over the summer I'll be interning with the Victorian [00:23:00] Government, with the Department of Premier and Cabinet, doing some legal policy work, which will hopefully lead to some interesting work.

But, from then on, I'd really like to practice in an area that I can, Look at issues and help vulnerable people like this. Yeah, fantastic. Thank you.

Becky Batagol: Thank you for joining us, Steph. It's been an absolute pleasure and really impressive research at your stage of your career. I have no doubt we'll be hearing a lot more from you from you and about you.

Stephanie O'Leary: Thank you, Becky. Thank you, Tamara.

Tamara Wilkinson: And thank you all for listening to this episode of The Scarlet Letter. You can catch us again next month on SoundCloud, iTunes, or on our blog, which is found at feministlegalstudies. wordpress. com. And don't forget to subscribe to The Scarlet Letter to make sure you never miss an episode.