IFA 2016 | Protecting the Rights of Older Australians from Abuse

International Federation on Ageing 13th Global Conference, 22–23 June 2016, Professor Rosalind Croucher AM, President, Australian Law Reform Commission; Adjunct Professor, Macquarie University. 

Protecting the Rights of Older Australians from Abuse—the ALRC’s Elder Abuse Inquiry

Thank you very much for the opportunity to speak about the ALRC Inquiry. I am the head of a Federal Government agency, the Australian Law Reform Commission, and through an agency commitment but also a personal commitment, we always begin by acknowledging the traditional custodians of the land, and in Brisbane that’s the Turrbul People. So I acknowledge the traditional custodians and any Indigenous guests here today.

The Elder Abuse inquiry

The Inquiry that the ALRC has is most timely. I think one of the key themes that everyone has picked up on already is the problem, the challenge, the opportunity of an ageing demographic. The Australian population, like other developed countries, is an ageing one. The statistics are quite confronting, however you come in on it: whether it’s in terms of the numbers of workers that will be needed to support an ageing population, or whether it’s the extent to which health services, and aged care services, and disability services will be needed, an ageing demographic provides a very intense opportunity for public policy concern. In fact a parliamentary report in 2007 referred to this as the ‘inescapable demographic destiny’ of an ageing population.[1]

Well, what is the ALRC Inquiry about? We’re a law reform commission. I’ll tell you a little story and then tell you what it is that we are actually going to be looking at. The occasion of my speaking is the fact that we have just released our Issues Paper,[2] which is our first consultation document in the Inquiry, and we released that on World Elder Abuse Awareness Day, the 15th of June. It has 50 questions—all of which need active and lively participation of everyone and anyone who want to say anything on the subject of elder abuse.

But as it is our first consultation document—and we start with questions, never any answers—what are the kinds of questions, what are the kinds of scenarios that we will be looking at? Here I want to just tell you the kind of story that I am sure is one that is very familiar to everyone in this room—in fact everybody attending this conference. To the extent that there is prevalence data, and that in itself is problematic; that the extent to which there are anecdotes, the anecdotes suggest that the cluster of elder abuse issues or situations are ones of financial abuse, of mothers by their sons, and daughters. But it is one that I would describe broadly as ‘inheritance impatience’; and I think it is presented by a perfect storm of possibilities. The perfect storm is: ageing person with assets, increasingly dependent because of the natural frailties and vulnerabilities that go with age.

Take this example:

Mum moves in, she provides some money to build a granny flat in the backyard, or renovate the house so that she can live there. She looks forward to it. She gets an opportunity to see her grandchildren. Her son and daughter-in-law are closer to Mum; they think, ‘terrific, free babysitting, and we get the extra room on the house’. So it’s a ‘win win’ situation. But after a time, Mum’s needs get more. Son and daughter-in-law, their family is growing, they want a bigger house, but Mum’s a problem. They don’t want Mum in it. But Mum’s expectation obviously is different. Her understanding of the deal was that she could stay there—forever—and be part of a family, see her grandkids, have the help she needed, as she needed it. So what can she do?

We can add a few more dashes into this mix: Mum has signed a power of attorney instrument, in favour of her son. A very good strategy—it’s an exercise of autonomous choice, to provide assistance when it’s needed, later in life. In fact there is a campaign in New South Wales, run by the NSW Trustee and Guardian, which is called ‘Get it in black and white’: write a will, prepare a power of attorney and an advance health directive. So an enduring instrument to deal with property and also an instrument to deal with health and lifestyle issues.

But Mum is dependent on her meds. Son now has the power of attorney. She is reliant on her daughter-in-law to go and fill her prescriptions. The pharmacist notices the prescriptions are not being filled as often. Maybe it’s the GP that hasn’t seen Mum for a while. What can they do?

The son is exercising the power of attorney. He thinks, ‘Mum doesn’t need the money, I think I will dip into her super’. And in Australia since 1993 this is part of the ‘perfect storm’. Assets—what are the assets? Possibly a house—even a modest one in Sydney is a very valuable asset. Add in a touch of superannuation. It doesn’t have to be much. But superannuation is a nest egg. It’s one of those things about which inheritance impatience can cluster.

So, you’ve got these possibilities. All questions. What can you do about those situations? They’re exactly the kind of problems that the ALRC will be looking at in the Inquiry.

What’s the inquiry about?

We have been asked to look at a range of Commonwealth laws. We have a division between State and Federal responsibilities here in Australia. The Commonwealth has things like superannuation; banking; social security; aged care. Now there’s a whole lot of elder issues, or issues concerning older persons that may arise in any one of those areas. But we’ve also been asked to look at the interaction and relationship of those Commonwealth laws with state and territory laws. And for us that means we can get into things like guardianship and administration; where aged care runs out and perhaps the retirement villages kick in. There’s quite a vast landscape that we can look at.

Why the ALRC?

Why is the Australian Law Reform Commission a good body to be looking at these things? Well as a federal body, while we are looking at laws and legal frameworks, we have the opportunity to see the whole picture — floating, umbrella-like, over all the states and territories. We also have done several inquiries in recent years that will provide a rich resource, both in terms of conceptualising the issues, but also in a very practical sense, in the excellent relationships we have built with a number of stakeholders.

What are those inquiries? In 2010, a landmark report on Family Violence;[3] the second one was an inquiry that looked at barriers for older people in the workforce;[4] and the third one was the one on capacity and disability in Commonwealth laws,[5] in which we went into moving the whole federal paradigm to reflect the United Nations Convention on the Rights of Persons with Disabilities. So each of those inquiries took us into the kind of thinking, both across state and federal boundaries, but also into the kinds of stakeholder groups and the way you conceptualise.

Conceptualising the inquiry

So how are we going to conceptualise this Inquiry? We are doing this on two levels. One, the broad framing principles. With each of our inquiries we determine a set of framing principles. The two in this one that are most important: one is the point of autonomy—treating people who are older as people as autonomous beings, with a right to be treated as dignified, as people with the ability to make choices about their lives. The principle of autonomy—which was the Pole Star for us in the Disability and Capacity inquiry that we completed not too long ago. But the second of the principles becomes in a way more important in this inquiry on elder abuse, and it’s the protections or safeguards that laws should contain in relation to older people. They are not necessarily in conflict, but they must be maintained in sight throughout all of the issues that we consider. They’re expressed in the Terms of Reference and they are important ones.

But there’s also the practical framework — of how you conceptualise in a practical way; how you deal with these sorts of issues. We describe this as the ‘4-Rs’approach:

Risk—how is a person identified as being at risk? And remember we are not dealing with children here, we’re dealing with adults, and there’s a ‘willingness’ of people in situations, like Mum in my story. But there’s a point where willingness and susceptibility to exploitation runs out and abuse kicks in. But definitions in and of themselves, are a key one for us—when you’ve got criminal issues involved, your definitions have to be precise.  When you are looking at things more descriptively, you don’t need that level of precision. But when you start tracking data you need define what it is you are counting.

The second of the ‘Rs’: Reporting—how and to whom are complaints made. What are you complaining about; who is it you are complaining to; and who should have a responsibility to report?  

The third ‘R’: Response—how are suspected or alleged cases investigated; and what service provision should be associated with it?  

And fourthly, Redress—what forums can people go to for redressing elder abuse, and what legal remedies are available? (Perhaps I can put another ‘R’: Remedies).

It’s a practical approach.

Get involved

What I wanted to do today was simply to introduce the Inquiry to you; encourage you to get involved. We have an enewsletter that we suggest you subscribe to. It’s not an ‘overload’ kind of one—every month, or more frequently as we need you to know about things and to tell you what’s going on. We have the Issues Paper—it’s about 50 pages, easy to download. Fifty questions: look at those; see the extent to which you want to say anything or nothing, on some or any or all. If you would like us to come to talk to you or you have newsletters that we can feed into and give a contribution to. Please get involved.

After all, as a federal agency, our report goes to the federal Attorney-General and must be tabled in Federal Parliament. The ALRC has been going now for 40 years. We’re a very respected body, with a significant leverage at the federal and state level. This is your opportunity to get involved, to help us to find some solutions in this very, very vexed and important area.

So thank you for giving me the chance to speak to you today.

[1]          Parliament of the Commonwealth of Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Older People and the Law, September 2007, vi.

[2]          Available at https://www.alrc.gov.au/publications/elder-abuse. An enewsletter for the inquiry was also released at the same time: – http://us1.campaign-archive1.com/?u=0ac682945224f85fa1d89d148&id=b2cb656eb9

[3]          Family Violence — A National Legal Response (ALRC Report 114, 2010).

[5]          Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, 2014)