29.09.2017
Inquiry into Protecting the Rights of Older Australians from Abuse
On 23 February 2016, the Attorney-General, Senator the Hon George Brandis QC, provided Terms of Reference to the ALRC for a review of existing Commonwealth laws and legal frameworks which seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others. The ALRC was asked to look at the regulation of financial institutions; superannuation; social security; living and care arrangements; health; and the interaction and relationship of these laws with state and territory laws. The ALRC was directed to provide its report to the Attorney-General by the end of May 2017. The Terms of Reference for this Inquiry are on the ALRC website.
The Inquiry was lead by ALRC President, Emeritus Professor Rosalind Croucher AM. An Advisory Committee was established and met on 13 May 2016, 14 October 2016 and 7 April 2017. A list of Advisory Committee members is on the ALRC website. The ALRC released an Issues Paper in June 2016 and a Discussion Paper in December 2016. The Report, Elder Abuse—A National Legal Response (ALRC Report 131) was tabled on 14 June 2017 and launched in Melbourne by the Attorney-General on 15 June 2017, World Elder Abuse Awareness Day.
During the Inquiry, the ALRC conducted 117 consultations around the country, and received 458 submissions from a wide range of people and organisations, including: individuals in their private capacity; academics; lawyers; law societies and representative groups; community legal centres; advocacy groups; peak bodies; and state and federal government agencies. Submissions from advocacy groups and community legal centres included many case studies, drawn from their experiences on the frontline, working with people who had been subjected to abuse. Such examples are included as illustrative case studies throughout the Report. As part of the consultation effort the ALRC also produced information on the Inquiry in 20 community languages which was distributed throughout the community through various ethnic media outlets and community organisations.
The depth of engagement reflected in this process of consultation is the hallmark of best practice law reform. The ALRC is indebted to the many individuals who made the dynamics and experiences of elder abuse painfully clear and so powerfully put the need for action.
Elder abuse usually refers to abuse by family, friends, carers and other people where there is a relationship or expectation of trust. Commonly recognised categories of elder abuse include psychological or emotional abuse, financial abuse, physical abuse, neglect, and sexual abuse. The World Health Organization has estimated that the prevalence rate of elder abuse in high- or middle-income countries ranges from 2% to 14%. The 2016 report by the Australian Institute of Family Studies, Elder Abuse: Understanding Issues, Frameworks and Responses, commissioned as part of the background to the ALRC inquiry, and drawing upon Queensland elder abuse helpline information, identified financial abuse as accounting for 40% of the most commonly reported type of abuse in 2014–15; and children in their 50s as the largest group of offenders.
In this Inquiry, the ALRC was asked to focus on Commonwealth laws and legal frameworks that seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others including laws pertaining to banking, superannuation, social security and aged care. The ALRC was also asked to examine the interaction and relationship of Commonwealth laws with state and territory laws including laws in relation to guardianship and administration and enduring powers of attorney and the appointment of enduring guardians. The intersection of state and federal responsibilities makes responding to elder abuse a complex issue—both from the perspective of laws, but also in terms of practical responsibility.
The ALRC has made 43 recommendations aimed at achieving a nationally consistent response to elder abuse. The recommendations in the Report seek to balance two framing principles: dignity and autonomy on the one hand; and protection and safeguarding on the other. Autonomy and safeguarding, however, are not mutually inconsistent, as safeguarding responses also act to support and promote the autonomy of older people. The recommendations embody the ‘three Rs’ of risk, response and redress: reducing risk; ensuring an appropriate response; and providing avenues for redress.
With respect to the specific areas of law identified in the Terms of Reference, the Report begins with a consideration of aged care: a large and growing area of Commonwealth responsibility, and on which there was much attention at the time of writing the Report. The recommendations go to the reportable incidents scheme, employment of care workers and the use of restrictive practices. The emphasis in the recommendations is on recognising risk and responding effectively. Further recommendations focus on advance planning by a person and include the areas of enduring documents, family agreements, superannuation, wills and banking. The remaining set of recommendations is focused on safeguarding against elder abuse in various settings: tribunal appointed guardians and administrators; social security; the National Disability Insurance Scheme; and new legislation in states and territories for safeguarding ‘at-risk’ adults.
The capstone recommendation of the Report is the development of a National Plan to combat elder abuse, to provide the basis for a longer term approach to the protection of older people from abuse. The Plan will provide the opportunity for integrated planning and policy development. The Report suggests a conceptual template for the National Plan and provides a wide range of examples from stakeholders, drawn from over 400 submissions—sharing ideas, illustrations, suggestions and urgings. In a practical sense, much work already undertaken and in train, both at the Commonwealth level and in states and territories, together with recommendations throughout the Report, may be seen to constitute strategies in implementation of a commitment to combat elder abuse.
Ageing eventually comes to all Australians. This Inquiry has acknowledged that, therefore, elder abuse is ‘everybody’s business.’ It is also everybody’s responsibility—a responsibility not only to recognise elder abuse but, most importantly, to respond to it effectively. The recommendations in this Report address what legal reform can do to prevent abuse from occurring and to provide clear responses and redress when abuse occurs so that all older people may live dignified and autonomous lives free from the pain and degradation of elder abuse.
Inquiry into the Incarceration Rates of Aboriginal and Torres Strait Islander Peoples
In February 2017, the ALRC received the Terms of Reference for an Inquiry into the Incarceration Rates of Aboriginal and Torres Strait Islander Peoples. The ALRC has been asked to consider laws and legal frameworks that contribute to the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system and inform decisions to hold or keep them in custody. ‘Legal frameworks’ encompass police, courts, legal assistance services and prisons. The ALRC has also been asked to consider laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples’ offending, including, but not limited to, laws that regulate the availability of alcohol, driving offences and unpaid fines and differences in application of laws across states and territories along with other access to justice issues. The Terms of Reference for this Inquiry are on the ALRC website. Judge Matthew Myers AM was appointed to lead the Inquiry on leave from the Federal Circuit Court. The ALRC is asked to report to the Attorney-General by 22 December 2017.
The ALRC recognises that the majority of Aboriginal and Torres Strait Islander peoples never commit criminal offences. However, that there is an over-representation of Aboriginal and Torres Strait Islander peoples in the prison system is evidenced in the ABS statistic that, while constituting only 2% of the Australian adult population, Aboriginal and Torres Strait Islander peoples currently represent 27% of the adult prison population and Aboriginal and Torres Strait Islander women constitute 34% of the adult female prison population, making them the fastest growing cohort in the prison system.
The ALRC has been asked to have regard to past reports and inquiries that have highlighted the many social, political and economic factors that contribute to Aboriginal and Torres Strait Islander imprisonment rates. It is just over 25 years since the release of the landmark report of the Royal Commission into Aboriginal Deaths in Custody in 1991. Since that time the number of Aboriginal and Torres Strait Islander peoples in prison has doubled from 13% of the prison population to 27%. The task for the ALRC is to uncover what law reform can do to redress this situation while recognising that law is only one piece in a much larger historical, social and economic context that contributes to the drivers of incarceration.
Due to the relatively short time-frame for this Inquiry of 11 months, and the fact that the Attorney-General’s Department undertook a consultative process on the draft Terms of Reference for the Inquiry that received many submissions from engaged stakeholders, the ALRC decided not to produce an Issues Paper, as is normal ALRC practice. Instead, the ALRC relied on these submissions, and its own research, to identify the issues involved and has undertaken more than 100 consultations around the country to gain an understanding of the multifaceted and intergenerational context of Aboriginal and Torres Strait Islander incarceration. A Discussion Paper outlining our proposals for law reform with a call for submissions will be published in July 2017. An Advisory Committee has been constituted for the period of the Inquiry which has twice during the reporting period: on 20 March 2017 and on 5 June 2017. A list of Advisory Committee members is on the ALRC website.