It is with mixed emotions that I present my final President’s Overview for the 2016–17 Annual Report, as I leave the ALRC to take up my new Commission as President of the Australian Human Rights Commission on 31 July 2017. I say ‘mixed emotions’ because, although I consider it a great privilege to be joining the Australian Human Rights Commission, I am enormously proud of the work that has been undertaken by the ALRC during my presidency and I have greatly appreciated the challenges and the opportunities that leading the pre-eminent law reform body in Australia has afforded me over the past seven and a half years. I can honestly say that I have enjoyed coming to work every single day! During this time I have led seven inquiries as President and another two as Commissioner in charge. As I have reported on each of these inquiries in ALRC Annual Reports over this time, in this final overview I wanted instead to offer my reflections on some of the other achievements of the ALRC over the decade I have spent at the Commission.
At a time when much is made of the need for women to be encouraged to provide leadership in all aspects of public life, the past ten years has seen a significant number of women holding leadership positions at the ALRC. I consider it a great privilege to have served with three fellow female Commissioners at the one time, including: Professor Jill McKeough, who led the Copyright Inquiry, Professor Lee Godden, the Review into the Native Title Act 1993 and Professor Barbara MacDonald, the Review into Serious Invasions of Privacy in the Digital Era. In this group I should also add the ALRC’s remarkable Executive Director, Sabina Wynn. Having five women in leadership roles in any organisation would be quite rare, but in one as small as the ALRC, to have all the leadership roles filled by women is a significant achievement. In addition, there were also the outstanding women who were appointed as part-time Commissioners for specific inquiries: Victorian Magistrate Anne Goldsbrough, on the 2010 Family Violence Inquiry, and the Hon Susan Ryan AO, who worked with me on the 2012 Age Barriers to Work Inquiry. The Honourable Justices Susan Kiefel, Susan Kenny and Berna Collier were also appointed as standing part-time Commissioners over this period. It was a great privilege to work with these extraordinary and talented women. They stood by my side during my presidency and encouraged and greatly supported the work of the ALRC.
I have also had the privilege to work with other fine Commissioners who have also provided their wise counsel and encouragement. For specific inquiries: Graeme Innes AM, as a part-time Commissioner on the Equality, Capacity and Disability Inquiry, when he was Australia’s Disability Discrimination Commissioner and, most recently, Judge Matthew Myers AM, Australia’s first Indigenous judge of the Federal Circuit Court, leading the Inquiry into Incarceration Rates of Aboriginal and Torres Strait Islander Peoples; and as standing Commissioners, the Hon Justices John Middleton and Nye Perram. I hope that, in the future, this diversity of leadership will continue and that law reform will have the benefit of a range of ideas and experiences reflecting the many voices in the community.
I have previously commented that the ALRC is singularly positioned to undertake highly complex and contested reviews involving legal issues where there is a need to be—and to be seen to be—completely independent from government, industry and special interests. Reflecting on the subject matter of the most recent inquiries, elder abuse and incarceration rates of Aboriginal and Torres Strait Islander peoples, I am aware of how the ALRC must traverse many different and complex areas of great concern to the community and the government, with sensitivity, intelligence and, above all, balance. The ALRC’s work demonstrates the value of a generalist body that is able to engage with a range of different issues, on which we hold no position nor pre-conceived ideas. The ALRC starts with questions, not answers, and involves inquiry stakeholders across the broadest spectrum of interests as part of our extensive consultation practice. In reflecting on the incredible range of topics the ALRC has covered in the course of its history, but also during my presidency, the gravitational pull towards change is also evident. Laws must be both resilient and able to respond to the needs of the community, but must also look to the future and be responsive to changing values, expectations and situations that are always pushing the legal envelope. It is in this difficult nexus between stability and flexibility that the ALRC’s reform work so often resides.
Finally, I am also extremely proud of the resilience of the ALRC itself—a 42-year old organisation—that has had to adapt to the changing priorities of governments and needs of the community. The past few years has seen increasing fiscal restraint required of many government agencies, and I have endeavoured to meet the challenge of diminishing resources while not compromising the quality of the ALRC’s work. One way that we have adapted to this environment is by ensuring our reports are focused documents that are accessible and present the evidence and recommendations clearly and concisely. Providing all our documents online in a range of formats, is part of our strategy for increasing the access to our reports and consultation documents while keeping the cost of production down. Making use of podcasts to explain the key issues in our inquiries, along with community fact sheets, some of which have been translated into community languages, are also part of our communication tools. We are also active on LinkedIn and our Twitter account now has over 12,000 followers! Ensuring that the ALRC’s work is accessible to our stakeholders and also to the broader community has been a priority of mine, and utilising online communications to do so has meant that we are able to reach out to people around the country and ensure that their voices are heard and find a place in our processes.
Now onto the work of the past year. During 2016–17, the ALRC went back to its normal practice of undertaking two inquiries simultaneously—the Elder Abuse Inquiry and the Inquiry into the Incarceration Rates of Aboriginal and Torres Strait Islander Peoples. The Report for the Elder Abuse Inquiry, for which I was the lead Commissioner, was presented to the Attorney-General at the end of May 2017 and tabled in Parliament on 14 June. It was launched by the Attorney-General on World Elder Abuse Awareness Day 2017 on 15 June.
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%.
In this Inquiry, the ALRC identified two sets of framing principles: dignity and autonomy, on the one hand; and protection and safeguarding, on the other. The recommendations in the Report seek to balance these two principles. Where possible, the ALRC has sought to recommend changes to the law that both uphold autonomy and provide protection from harm, but where this is not possible, greater weight is often given to the principle of autonomy respecting the choices that older persons have a right to make. The Report makes 43 recommendations for reform that embody the ‘three Rs’ of risk, response and redress: reducing risk; ensuring an appropriate response; and providing avenues for redress.
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 restrictive practices. The emphasis in these 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 ALRC has also looked to the longer horizon and developed a conceptual template to guide future reform through recommending the development of a National Plan to combat elder abuse.
The Elder Abuse Inquiry acknowledged the WHO’s statement that elder abuse is ‘everybody’s business’, but also sought to make it everybody’s responsibility—a responsibility not only to recognise elder abuse, but most importantly, to respond to it effectively. The ALRC recommendations address what legal reform can do to prevent abuse from occurring and to provide clear responses and redress when abuse occurs. Ageing eventually comes to all Australians and ensuring that all older people live dignified and autonomous lives free from the pain and degradation of elder abuse must be a priority.
A full report on the Elder Abuse Inquiry is at Appendix C.
As with all our inquiries, the ALRC constituted an Advisory Committee for the Elder Abuse Inquiry and I thank the members of this Committee for their generous contributions and engagement throughout the 15 months of the Inquiry. The ALRC conducted 117 consultations all over 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. Special mention must be made of the many submissions from individuals, who generously shared personal stories of heartache and frustration, of families torn apart by elder abuse and who live with the painful knowledge that their loved ones suffered at the end of their lives. One individual referred to their submission as an ‘introduction to a nightmare’; another said, ‘I am a broken person’. These stories present a devastating picture of ongoing grief, loss, anger and powerlessness. We are indebted to the many individuals who made the dynamics and experiences of elder abuse painfully clear and so powerfully put the need for action.
In February 2017, the ALRC received the Terms of Reference for an Inquiry into the Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, and Judge Matthew Myers AM was appointed to lead the Inquiry. The ALRC has been asked to consider laws and legal frameworks that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander peoples in custody.
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. The figures involving women are even more concerning, with Aboriginal and Torres Strait Islander women constituting 34% of the adult female prison population, making them the fastest growing cohort in the prison system.
As a law reform body, the ALRC’s remit is to focus on the legal factors that are contributing to this situation but we must also 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. This is an important and historic inquiry. It is just over 25 years since the release of the landmark report of the Royal Commission into Aboriginal Deaths in Custody in 1991. Yet 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, in tackling what law can do to redress this situation, is urgent and of national significance, recognising that law is only one piece in a much larger historical, social and economic context that contributes to the drivers of incarceration.
The ALRC has undertaken a variety of stakeholder consultations around the country to gain an understanding of the multifaceted and intergenerational context of Aboriginal and Torres Strait Islander incarceration. A Discussion Paper with a call for submissions will be published in July 2017. An Advisory Committee has been constituted for the period of the Inquiry which met twice during the preparation of the Discussion Paper: on 20 March 2017 and on 5 June 2017.
A full report on the Inquiry into the Incarceration Rates of Aboriginal and Torres Strait Islander Peoples is at Appendix C.
Finally, I want to take this opportunity to acknowledge and thank the members of all our Advisory Committees over the years of my presidency who freely gave their time and expertise, and the many people from the legal profession, academia, industry, the non-government sector, government departments and agencies and from the community—our stakeholders—for their contribution to our inquiries. The quality of the ALRC’s work is a testament to this contribution and helps to ensure that our proposals are sensible and achievable and that they strike the right balance between competing interests and perspectives to deliver realisable reform to the Australian community. I also want to acknowledge and thank the Attorney-General of Australia, Senator the Hon George Brandis QC for his support of my presidency and his oft-stated faith in the ongoing importance of the ALRC and his appreciation of the quality of our work.
I must also thank the past and present staff of the ALRC—the legal officers whose commitment, energy and professionalism lies at the heart of our work and produces the high quality analysis and evidence that is the hallmark of ALRC consultation papers and reports. I’ve often referred to them as like a team of ‘elite athletes’. The inquiry teams also include the support of the Executive Director, the Project Coordinator (and my EA), the Communications Manager, the Finance Manager and Finance Assistant, and the Office Services Coordinator—the engine room that underpins and facilitates the law reform process. I have enormous respect for them all as individuals and will miss them greatly. They are the ALRC’s greatest asset.
As the ALRC is reliant on referrals from the Attorney-General, what the year ahead holds for the ALRC is in the hands of the Government and the areas of law the Government may wish the ALRC to interrogate. Although my successor is not yet announced, I know that I am leaving a resilient organisation that is eminently capable of taking on whatever work it is asked to do. I describe the inquiry work of the ALRC as a fine tapestry—the success of which depends first on the design (the scope), then on the weave (the process) and finally on the quality of the materials (our research and evidence base). Ensuring that all these elements are woven into the whole, guarantees the quality of the final product. I leave the ALRC with a strong team of dedicated professionals who are committed to providing the Government with frank and independent high quality evidence and advice; an engaged and active stakeholder pool willing to assist the ALRC in its inquiries and respectful of the organisation and its processes; and a tried and tested methodology for achieving a consultative law reform process that underpins our recommendations, so that parliaments can make informed decisions about the reform of our laws and legal system. It has been a wonderful privilege to have held the presidency of such an organisation, one that I have never taken for granted. I will watch the next chapter in the ALRC’s history with great interest and affection.
Emeritus Professor Rosalind Croucher AM