Elder abuse in the federal context
2.74 Issues surrounding elder abuse relate to areas of Commonwealth, state and territory and possibly local government responsibility. For example, the Commonwealth makes laws relating to financial institutions, social security, superannuation and aged care. Laws relating to substitute decision making, including guardianship and powers of attorney, and most criminal laws, are the province of the states and territories. In part this is because the Commonwealth’s powers to legislate are limited, and do not extend to areas such as guardianship, powers of attorney, wills and estates, and general criminal law. In the 2007 report, Older People and the Law, the House of Representatives Standing Committee on Legal and Constitutional Affairs described the legal landscape in this way:
Among the nine legal jurisdictions within Australia there are a number of laws that have particular relevance to older Australians. At the Commonwealth level, legislation in the areas of aged care, superannuation, social security and veteran’s entitlements is of particular relevance as we age. In state and territory jurisdictions, legislation relating to substitute decision making, guardianship, retirement villages, wills and probate affects the population as it ages. Criminal matters, such as fraud and other forms of financial abuse, are dealt with primarily at the state and territory level, although Commonwealth legislation covers certain criminal matters. Unlike a number of overseas jurisdictions, there are no specific laws in Australia dealing with what might be broadly classed as ‘elder abuse’.
2.75 This makes responding to elder abuse a complex issue—both from the perspective of laws, but also in terms of practical responsibility. The AIFS Report commented that
responses to the management and prevention of elder abuse sit within a range of complex policy and practice structures across different levels of government, and various justice system frameworks within the private sector and across non-government organisations.
2.76 As Professor Wendy Lacey has noted, this has had the effect that, ‘in the absence of a national framework, the states and territories have developed strategies for co-ordinated interagency approaches to responding to elder abuse, but these are presently contained in variable and relatively weak policy instruments if they exist at all’.
2.77 The ALRC is well placed to consider reforms in this fragmented legal landscape, given that its legislative functions include considering proposals for uniformity between state and territory laws, as well as proposals for complementary Commonwealth, state and territory laws. In the ALRC’s 2010 Family Violence Inquiry, the ALRC considered the complex interactions across the federal landscape, particularly between the Family Law Act 1976 (Cth) and state and territory family violence and child protection laws. In that context the ALRC identified, as a key policy goal, the aspiration of ‘seamlessness’. In this Report too, the ALRC has made recommendations directed at both Commonwealth and state and territory laws and legal frameworks, in order to comprehensively address the range of legal mechanisms available to safeguard older people from abuse.
Elder abuse as a human rights issue
2.78 In its 2016 report, Elder Abuse in New South Wales, the New South Wales Legislative Council set out as its first recommendation that the approach to elder abuse should include ‘a rights based framework that empowers older people and upholds their autonomy, dignity and right to self-determination’.
2.79 Professor Wendy Lacey urged that human rights should be the ‘normative framework’ for adult protection. Similarly, the Law Council of Australia, for example, said that ‘it is vital that all legal responses are based on a rights based approach in which the will and preference of the older person is given primacy’.
2.80 Existing human rights instruments, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, protect the rights of older persons equally with other persons. The Universal Declaration of Human Rights specifically protectsthe right to security in old age. Some instruments, such as the Convention on the Rights of Persons with Disabilities (CRPD) may be particularly relevant to older persons, given that the rates of disability increase with age.
2.81 There is no Convention specifically relating to the rights of older persons. However, the Open-Ended Working Group on Ageing is currently considering whether there should be new human rights instruments relating to older persons. A number of non-binding international instruments, including the United Nations Principles for Older Persons and the Madrid International Plan of Action on Ageing,relate to the human rights of older persons.
2.82 Developing responses to elder abuse through a rights-based lens is not entirely straightforward, however. As Lacey points out:
The challenge for lawyers, advocates and policymakers is that the human rights of older persons have not yet been well defined in international human rights law, and governments (national, regional and local) are presently developing law and policy in the absence of a specific treaty with binding obligations to respect and protect the rights of older people. … [t]he only instruments specifically concerned with older persons reflect non-binding, soft law. … While the UN Principles [for Older Persons] are implicitly human rights-based, they are also written in aspirational terms and speak to others (that is carers and policymakers) rather than older persons. Further, the UN Principles do not speak of ‘rights’ at all, although they are framed around five core themes reflective of a human rights-based approach: independence, participation, care, self-fulfilment and dignity.
Framing principles for this Inquiry
2.83 The objective expressed in the Terms of Reference is to identify best practice laws and legal frameworks that: promote and support older people to participate equally in their community and access services and advice; protect against misuse or advantage taken of formal and informal supporter or representative roles; and to provide specific protections. To meet this objective, and to express a rights-based framework, the ALRC has utilised two key principles to frame the recommendations in this Report: dignity and autonomy; and protection and safeguarding.
Dignity and autonomy
2.84 The right to enjoy a dignified, self-determined life is an expression of autonomy. The UN Principles for Older Persons state this principle as requiring that:
Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse.
Older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or other status and be valued independently of their economic contribution.
2.85 Dignity is a key principle in a number of international human rights instruments. In Australia, the National Disability Strategy prioritised the concept of dignity in its principles. Similarly, the Productivity Commission identified human dignity as ‘an inherent right’ of persons with disability and suggested that dignity as a human being is linked to self-determination, decision making and choice.
2.86 The UN Principles for Older Persons also expressly include dignity as a principle in the context of older persons ‘in any shelter, care or treatment facility’, combined with the right to be self-determining: ‘full respect for their dignity, beliefs, needs and privacy and for the right to make decisions about their care and the quality of their lives’.
2.87 Dignity is a principle which acknowledges diversity. The preamble to the UN Principles for Older Persons acknowledges an appreciation of ‘the tremendous diversity in the situation of older persons, not only between countries but within countries and between individuals, which requires a variety of policy responses’.
2.88 Autonomy is a significant aspect of a number of the United Nations Principles for Older Persons that underlie the ability of persons to make decisions and choices in their lives: particularly the principles of ‘independence’, ‘participation’ and ‘self-fulfilment’. For example, the principle of self-fulfilment includes that ‘[o]lder persons should be able to pursue opportunities for the full development of their potential’. Autonomy is also enshrined in the general principles of the CRPD, to which Australia was one of the original signatories. It is a key principle of the National Disability Strategy; and is reflected in the objects and principles of the National Disability Insurance Scheme.
2.89 Dignity in the sense of the right to enjoy a self-determined life is particularly important in consideration of older persons with impaired or declining cognitive abilities. The importance of a person’s right to make decisions that affect their lives was a fundamental framing idea throughout the ALRC’s Equality, Capacity and Disability Inquiry. It reflects the paradigm shift towards supported decision making embodied in the CRPDand its emphasis on the autonomy and independence of persons with disabilities, so that it is the will and preferences of the person that drives decisions they make or that others make on their behalf, rather than an objective notion of ‘best interests’.
Protection and safeguarding
2.90 This Inquiry requires a particular focus on safeguards and protections for the rights of older persons, reflected in the title of the Terms of Reference: ‘Protecting the Rights of Older Australians from Abuse’. It is also the clear objective of the Inquiry. Safeguarding against elder abuse requires addressing a range of points of intervention, including those related to preventing abuse, and providing appropriate responses and redress where abuse has occurred.
2.91 Elder abuse undermines dignity and autonomy. Concerning autonomy and intimate partner violence, Professor Marilyn Friedman has written that ‘abuse denies to the abused person … the safety and security she needs to try to live her life as she thinks she ought to’ or ‘according to her values and commitments’.
2.92 Autonomy and protection are sometimes seen as opposing considerations that need to be balanced or traded off against each other, particularly when issues of whether and how to intervene to protect a person from abuse arise. However, protecting older people from abuse can be seen to support and enable their ability to live autonomous and dignified lives. UK health and social care researcher Angie Ash has argued that there are questions about how far the
exercise of ‘choice’ and ‘self-determination’ is possible if an elder is frail, dependent on their abuser for care, has suffered domestic violence for most of their adult life, or is living in impoverished, isolated circumstances … choice is not an absolute concept, but is shaped by social and cultural factors, inequalities and contradictions.
A woolly pre-eminence of ‘choice’ over a human right to live free from abuse, can result in passive professional head-shaking about the mistaken options vulnerable people may ‘choose’, and the continuation of abuse for the older person.
2.93 Ash has suggested instead that ‘upholding the principle of self-determination may demand … making a judgement of how intervention might both uphold individual choice and provide protection from harm’. Professor Jonathan Herring has put this in another way, suggesting that the aim of any ‘intervention to protect is to restore or support autonomy’.
2.94 Where possible, the ALRC has sought to recommend changes to the law that bothuphold autonomy and provide protection from harm. Where this is not possible, greater weight is often given to the principle of autonomy. The autonomy of older people should not be afforded less respect than the autonomy of others. However, in limited cases, where there is serious abuse of vulnerable people, protection is given additional weight.
2.95 For example, in relation to aged care, the ALRC has considered how the move towards greater consumer control for older people must be buttressed by regulatory oversight to ensure accountability and transparency in the provision of quality care, including protections and safeguards against abuse or neglect.
2.96 Reforms related to enduring documents—variously, enduring powers of attorney, enduring guardianship and advance care directives—focus on improving safeguards against misuse of an appointment by a substitute decision maker, thereby promoting people’s ability and confidence in planning for a future time at which they may require substantial decision-making support. Appropriate protections related to advance planning are also addressed in chapters concerning will making and superannuation.
2.97 In relation to court and tribunal appointed decision makers, the focus of recommendations has been on maximising the possibilities for involving the person who may be the subject of a guardianship and administration order in the application process, and ensuring that guardians and financial administrators understand their obligations to promote the autonomy and well being of a person who is subject to a guardianship and administration order.
2.98 The interrelationship of the principles of autonomy and dignity and protecting and safeguarding has particularly informed the ALRC’s approach to adult safeguarding, discussed in Chapter 14. In that chapter, the ALRC recommends that adult safeguarding agencies have a role in safeguarding and supporting ‘at-risk’ adults. Protecting these people from abuse will serve to support their autonomy and show respect for their dignity, because living in fear of abuse can prevent a person from making free choices about their lives and pursuing what they value.
2.99 Placing further emphasis on the need to respect people’s autonomy, the ALRC recommends that the consent of an at-risk adult should be obtained before adult safeguarding agencies investigate abuse or take other actions. Where someone subjected to abuse refuses help, in most cases this refusal should be respected. But the ALRC also concludes that safeguarding agencies should be able to act in particularly serious cases of physical abuse, sexual abuse and neglect of ‘at-risk’ adults. This may be seen as necessary action to secure people’s long-term autonomy interests and their immediate dignity.
The Commonwealth’s power to legislate is limited to those powers specifically listed in the Australian Constitution. It has no enumerated power to legislate with respect to the welfare of adults generally. In the context of this Inquiry, the Commonwealth’s legislative power is generally understood to be limited to aged care, superannuation, banking, and social security. There is some suggestion that the external affairs power (s 51(xxix)) or the executive power of the Commonwealth (s 61) might support Commonwealth legislation on elder abuse generally. However, the extent to which these powers might support general elder abuse legislation is not settled: Wendy Lacey, ‘Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia’ (2014) 36 Sydney Law Review 99.
House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Older People and the Law (2007) [1.7].
Kaspiew, Carson and Rhoades, above n 45, 1.
Lacey, above n 109, 102.
Australian Law Reform Commission Act 1996 (Cth) ss 21(1)(d)–(e).
Australian Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010).
Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016) rec 1.
Lacey, above n 109, 113.
Law Council of Australia, Submission 61.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 2(1), 26; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) arts 2(2), 3; Office of the High Commission for Human Rights, Normative Standards in International Human Rights Law in Relation to Older Persons: Analytical Outcome Paper (August 2012) 8, 11–12.
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948) art 25(1).
The CRPD states that ‘State Parties undertake to adopt measures to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life’: Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008). Other conventions that may apply include: Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1980, 1249 UNTS (entered into force 3 September 1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). For a discussion of age and disability, see Australian Institute of Health and Welfare, Australia’s Welfare 2011, Cat No AUS 412 (2011) 11–12.
United Nations General Assembly Open-Ended Working Group on Ageing, Report of the Open-Ended Working Group on Ageing, UN Doc A/AC.278/2015/2 (29 July 2015) 7.
United Nations Principles for Older Persons, GA Res 46/91, UN GAOR, 46th Session, 74th Plen Mtg, Agenda Item 94(a), UN Doc A/RES/46/91 (16 December 1991) annex 1.
Second World Assembly on Ageing, Political Declaration and Madrid International Plan of Action on Ageing, Madrid, Spain (8–12 April 2002).
Lacey, above n 109, 114–115.
United Nations Principles for Older Persons, GA Res 46/91, UN GAOR, 46th Session, 74th Plen Mtg, Agenda Item 94(a), UN Doc A/RES/46/91 (16 December 1991) –.
See Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948) art 25(1); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
Australian Government, National Disability Strategy 2010–2020, 22.
Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth) (Report No 30, 2004) 182.
United Nations Principles for Older Persons, GA Res 46/91, UN GAOR, 46th Session, 74th Plen Mtg, Agenda Item 94(a), UN Doc A/RES/46/91 (16 December 1991) .
United Nations Principles for Older Persons, GA Res 46/91, UN GAOR, 46th Session, 74th Plen Mtg, Agenda Item 94(a), UN Doc A/RES/46/91 (16 December 1991).
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).
Australian Government, National Disability Strategy 2010–2020, 22.
National Disability Insurance Scheme Act 2013 (Cth) ss 3–4.
Marilyn Friedman, Autonomy, Gender, Politics (Oxford University Press, 2003) 142.
Angie Ash, Safeguarding Older People from Abuse: Critical Contexts to Policy and Practice (Policy Press, 2015) 71.
Herring, above n 53, 35.