Specific offence of ‘elder abuse’

13.4     Some overseas jurisdictions, including a number of states in the US, have enacted specific criminal offences for the abuse of older persons. These offences broadly encompass behaviour that causes or permits an older person to suffer, be injured, or be placed in a situation in which their health is endangered.[2]

13.5     Generally speaking, Australian state and territory laws have not enacted such offences. However a range of types of conduct, which might be described as ‘elder abuse’, are covered in all jurisdictions under offence provisions relating to personal violence and property offences. These include assault, sexual offences, kidnap and detain offences, and fraud and theft offences. Some jurisdictions have offences for neglect, although these are rarely utilised in respect of older people. There are also comprehensive family violence frameworks in all jurisdictions that provide for quasi-criminal protective responses, which may be relevant for older people experiencing elder abuse in domestic settings.

13.6     Some stakeholders supported new criminal offences that would proscribe certain types of conduct, including, for example, assault when perpetrated against an older person where there is a relationship of dependence.[3] It was suggested that specific elder abuse offences would: support ‘effective criminal justice pathways for victims of elder abuse’;[4] act as a deterrent;[5] recognise the increased vulnerability of older persons;[6] and serve an educative function and increase awareness of the issue.[7]

13.7     The ALRC considers that the existing criminal laws largely provide appropriate offences to respond to the types of conduct that might be understood to constitute ‘elder abuse’. Where the type of conduct proscribed is already captured, new offences are unnecessary and risk duplicating existing offences. Some stakeholders also submitted that an ‘elder abuse’ offence risked being discriminatory.[8] The ACT Human Rights Commission submitted, for example, that ‘offences limited to abuse against “elders” have the potential to be paternalistic and discriminatory’.[9]

13.8     Additionally, the need for specificity in framing criminal offences presents a difficulty in seeking to create a new ‘elder abuse’ offence. The Office of the Public Advocate (Qld) commented, for example, that

[t]here is little value in developing a specific criminal offence of elder abuse. With the wide range of behaviours that might constitute elder abuse, the development of a definition that would effectively encompass all of those behaviours and the thresholds for criminality would be extremely difficult. In any event, there are already adequately tried and tested legal offences available to effectively prosecute a wide range of criminal behaviours that might constitute elder abuse.[10]

13.9     Stakeholders suggested that, even if new offences were not introduced, the law should be harmonised to ensure that a court can take into account the age of the victim in sentencing.[11] Courts in each of the states and territories are guided by a mix of statutory and common law principles. Many states and territories specifically recognise the circumstances of the victim when sentencing offenders.[12] In jurisdictions which do not specifically provide statutory guidance, the common law position applies. Under the common law, the elderly nature of a victim is an aggravating factor for the purposes of sentencing.[13]

Offences for misusing powers of attorney

13.10  In all Australian jurisdictions, there are offences that broadly relate to fraud, deceptive conduct, stealing and other property related offences. In certain circumstances, some of these may be applicable to cases of financial abuse of older people, including in respect of abuse of powers of attorney. In Victoria and Queensland there are a range of offences specifically relating to powers of attorney.[14] The ALRC is unaware of any prosecutions under these provisions.

13.11  The Law Institute of Victoria[15] and the Office of the Public Advocate (Vic),[16] welcomed new criminal offences relating to abuse of powers of attorney in that jurisdiction, and supported the creation of similar provisions in other states and territories.[17] The NSW Legislative Council subsequently recommended that NSW legislation be amended to be consistent with Victoria’s Powers of Attorney Act 2014.[18]

13.12  The ALRC is not persuaded that there is a need for a specific offence for misusing powers of attorney. Where they exist, offences for misusing powers of attorney have been established based on the argument that existing, broader offences are not being utilised, as opposed to the fact that they do not encompass the relevant conduct. Creating new offences risks duplicating existing offences,[19] and risks increasing complexity,[20] without any assurance of increased prosecution of the conduct.

13.13  Criminal law requires a high evidentiary threshold to be met to sustain a prosecution. Financial offences, in particular, are often difficult and complex to prosecute, and will continue to be so irrespective of the existence of new specific provisions relating to powers of attorney. Moreover, a criminal prosecution does not always offer appropriate redress to the victim. To address the issue of redress, the ALRC recommends that state and territory civil and administrative tribunals be given a power to order compensation for the misuse or abuse of a power of attorney, and in relation to an attorney’s failure to comply with their obligations.[21]

13.14  The other functions served by the creation of new offences, including increased awareness of the responsibilities of attorneys, can be delivered through other mechanisms, including through recommendations relating to additional safeguards for enduring documents,[22] and community education programs developed under the National Plan to combat elder abuse.[23]

13.15  The ALRC does not recommend the repeal of any existing offences, nor the introduction of specific abuse of powers of attorney offences in those jurisdictions that do not have them.

Neglect offences

13.16  Many people voluntarily assume carer roles, and most make an invaluable contribution to those they care for, and to society more broadly. In some cases, however, the person in need of care may have their needs neglected. This may be because the carer may not have the ‘necessary skills, capacity or knowledge to address the needs of the person being cared for, or the resources to access education, support and training in support of their caring role’.[24] It would be preferable to support carers in these circumstances. Criminal prosecution for neglect should be limited to the most grievous instances.

13.17  Stakeholders noted that offences for neglect resulting in something less than the death of the older person do not exist in all states and territories.[25] In the absence of specific offences for elder abuse, it is important to ensure that general ‘neglect’ offences exist in all states and territories.

13.18  All states and territories, except the ACT, have ‘neglect’ offences that may apply to older people. These are generally framed as ‘fail to provide necessaries or necessities of life’,[26] including adequate food, clothing, shelter and medical care. In Victoria, a broader offence framed as ‘negligently causing serious injury’ applies.[27] The offences are serious, attracting penalties that include terms of maximum imprisonment ranging from three to ten years, where serious harm is caused.

13.19  In broad terms, existing offences have a number of elements that must be established, including the existence of a legal duty of care,[28] and a threshold requirement for the likelihood of ‘serious harm’.[29]

13.20  Some stakeholders suggested that ‘neglect’ offences should be amended to impose a specific duty on persons who care for older persons. They submitted that this would reduce barriers to prosecution arising from a need to establish the existence of a duty of care as an element of the offence.[30]

13.21  In NSW and Victoria, there must be ‘a legal duty’ to provide the necessities or necessaries of life.[31] Such provisions rely on a common law understanding of when a legal duty of care arises for the purposes of determining criminal negligence. One example of where such a duty arises is when a person ‘has voluntarily assumed the care of another, and so secluded the helpless person as to prevent others from rendering aid’.[32] This duty has been codified in some states, which prescribe a duty to provide necessaries of life where a person assumes the responsibility ‘of any person who is unable by reason of age, sickness, unsoundness of mind, detention, or any other cause to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life’.[33]

13.22  Some stakeholders also suggested that the need to establish a causal link between the neglectful conduct and the serious harm caused should be removed, arguing that this may remove evidentiary barriers to establishing a criminal standard of neglect where the victim is an older person.[34]

13.23  State and territory laws vary in their treatment of causation. NSW, Victoria, Tasmania and the Northern Territory require that a causal link be established.[35] In Queensland and Western Australia,[36] the failure to provide the requisite care is deemed to have caused the serious harm.[37] In South Australia, it is sufficient that the perpetrator was ‘aware or should have been aware that there was an appreciable risk that serious harm would be caused’ by the neglect.[38]

13.24  Prosecutions in respect of neglect of older persons may be difficult, including because, in some instances, a legal duty may not exist, or because it is difficult or not possible to establish causation in circumstances where the victim is frail and weak. However, the ALRC does not recommend establishing a specific duty on persons who care for older persons. In the ALRC’s view, existing approaches which focus on the victim’s inability to care for themselves or remove themselves from the care of another are preferable. Similarly, the ALRC does not recommend deeming a causal connection between a failure to provide the requisite level of care and the harm caused to an older person. However, a broader review of ‘neglect’ offences might consider whether it is appropriate to deem a causal link between the failure to provide the requisite care and the harm caused.