The Inquiry

1.1          This Inquiry focuses on what has been called, in the shorthand expression, ‘elder abuse’. The World Health Organization (WHO) has estimated that the prevalence rate of elder abuse in high- or middle-income countries ranges from 2% to 14%. As Australia faces the ‘inescapable demographic destiny’[1] of an ageing population, the potential reach of elder abuse may grow. The Toronto Declaration on the Global Prevention of Elder Abuse (2002) stated that ‘[p]reventing elder abuse in an ageing world is everybody’s business’.[2]

1.2          On 23 February 2016, the Attorney-General of Australia, Senator the Hon George Brandis QC, asked the Australian Law Reform Commission (ALRC) to consider existing Commonwealth laws and frameworks that seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others. The ALRC was directed to consider the interaction of those laws with state and territory laws and to identify and model best practice legal frameworks which promote and support older people’s ability to participate equally in their community and protect against misuse or advantage taken by formal and informal supporters or representatives.

1.3          In the background to this Inquiry are a number of particular reviews, including: the 2007 report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Older People and the Law; the 2015 report of the Senate Community Affairs References Committee into violence, abuse and neglect against people with disability in institutional and residential settings; and the 2016 study by the Australian Institute of Family Studies (AIFS), Elder Abuse: Understanding Issues, Frameworks and Responses, by Rae Kaspiew, Rachel Carson and Helen Rhoades. The ALRC’s previous work in its 2014 report, Equality, Capacity and Disability in Commonwealth Laws (Equality, Capacity and Disability Report)[3] also frames the Inquiry.

1.4          As stakeholders observed, elder abuse is ‘complex and multidimensional’[4] and requires a ‘multi-faceted response’.[5] The Law Council of Australia stated that ‘the prevalence and devastating impact of elder abuse is abhorrent’.[6] The Queensland Law Society urged that:

Older people as a group are deserving of special consideration, support and protection from abuse. Considering that the proportion of ageing residents in Australia is steadily increasing, substantial law reform is required to protect this growing demographic.[7]

1.5          In this Discussion Paper, the ALRC supports the development of a National Plan to address elder abuse that will facilitate a coordinated policy response to guide reform and action. A National Plan would provide a framework for a national and community approach to combat ageism, support older persons in protecting their rights and stopping elder abuse. The other proposals set out in this Discussion Paper focus on particular areas identified in the Terms of Reference, and can be seen as applications of aspects of a national strategy.

1.6          The ALRC was asked to consider not only laws, but also legal frameworks. The ALRC has therefore considered policy and practice guides, codes of conduct, standards, education, information sharing and other related matters.

1.7          The ALRC recognises that elder abuse strategies in Australia are, as Dr John Chesterman observes, ‘typically found at the state and territory level’ and include protocols and practice guidelines, with considerable variation among them.[8] Although this reflects the fact that ‘significant developments are occurring at the local level’,[9] the National Plan will provide the opportunity ‘for meaningful strategies to be developed that drive service improvement and coordination’ of the kind that Chesterman suggests.[10]

1.8          The Discussion Paper commences the second stage in the consultation process in this Inquiry. The first stage included the release of the Issues Paper, Elder Abuse (IP 47), which generated 194 public and 16 confidential submissions.[11] Both the Issues Paper and this Discussion Paper may be downloaded free of charge from the ALRC website. Hard copies may be obtained on request by contacting the ALRC on (02) 8238 6333.

1.9          In releasing this Discussion Paper, the ALRC again calls for submissions to build on the evidence base so far established and to inform the deliberations leading up to the Final Report, which is to be provided to the Attorney-General by the end of May 2017.