1 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.
2 In being asked to consider ‘Commonwealth laws and frameworks’, the focus of the Inquiry is on more than just law in the form of Acts and legislative instruments to include policy and practice guides, codes of conduct, standards, education, information sharing and other related matters.
3 This Issues Paper is the first consultation document in the Inquiry. It introduces the range of areas covered by the Terms of Reference and asks questions to assist in the development of reform responses through submissions from stakeholders. The submissions and further consultation rounds will inform the next stages of the process: a Discussion Paper to be released in November 2016; and the Final Report in May 2017.
4 Australia’s population is ageing. In 1901, 4% of the Australian population was aged 65 years and older. In 2011 it was 14% and by 2040 it is projected that the figure will be 21%; while those over 85 years will be up to 5% of the population by 2050. As the ALRC acknowledged in the report, Access All Ages—Older Workers and Commonwealth Laws (ALRC Report 120, 2013), an ageing population has implications for a wide range of public policy concerns.
5 This Inquiry focuses on another area associated with older people: namely what has been called, in the shorthand expression, ‘elder abuse’. As the population ages, and the frailties of age and the vulnerabilities of older people increase, 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’. While there are increasing anecdotal suggestions of improper exploitation and abuse of older people, there is limited evidence available about the prevalence and incidence of elder abuse in Australia. Internationally, 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%.
6 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’.
7 The ALRC’s previous work in the report, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, 2014) also frames the Inquiry. The Report recommends a model for decision-making based on ‘supported decision-making’. The Report sets out principles and guidelines that can be applied to Commonwealth and state and territory laws—in particular, guardianship and administration laws. Central to the recommendations were the ‘National Decision-Making Principles’ and a Commonwealth decision-making model. Key to the principles is the paradigm shift signalled in the United Nations Convention on the Rights of Persons with Disabilities away from ‘best interests’ decision-making to a focus on ‘wills, preferences and rights’, so that when people with disability are supported to make decisions, or have decisions made for them, it is their wishes and preferences that drive those decisions—not other people’s ideas about their best interests.
8 The two key principles informing the Inquiry are expressed in the Terms of Reference as:
the principle that all Australians have rights, which do not diminish with age, to live dignified, self-determined lives, free from exploitation, violence and abuse; and
the principle that laws and legal frameworks should provide appropriate protections and safeguards for older Australians, while minimising interference with the rights and preferences of the person.
9 These ideas may be expressed on the one hand as a principle that focuses upon autonomy; on the other, one that focuses on protection. The ALRC is also to have regard to relevant international obligations relating to the rights of older people under United Nations human rights conventions to which Australia is a party.
10 This Issues Paper is intended to encourage informed community participation by providing some background information and highlighting the issues so far identified by the ALRC as relevant to the areas listed in the Terms of Reference. The Issues Paper may be downloaded free of charge from the ALRC website: <www.alrc.gov.au>.
11 You can get involved in the Inquiry in a number of ways, including by making a submission or by participating in a consultation. The ALRC invites individuals and organisations to make submissions in response to specific questions, or to any of the background material and analysis provided.
12 There is no specified format for submissions, although the questions provided in this document are intended to provide guidance for respondents. Submissions may be made in writing, by email or using the ALRC online submission form. Submissions made using the online submission form are preferred. You are encouraged to answer as many—or as few—of the questions in the Issues Paper as you wish. Generally, submissions will be published on the ALRC website unless marked confidential. Confidential submissions may still be the subject of a request for access under the Freedom of Information Act 1982 (Cth). In the absence of a clear indication that a submission is intended to be confidential, the ALRC will treat the submission as public. The ALRC does not publish anonymous submissions.
Submissions using the ALRC’s online submission form can be made at: https://www.alrc.gov.au/content/elder-abuse-ip47. All submissions should reach the ALRC by 18 August 2016.
Australian Bureau of Statistics, Who Are Australia’s Older People? Reflecting a Nation: Stories from the 2011 Census <http://www.abs.gov.au>; Rae Kaspiew, Rachel Carson and Helen Rhoades, ‘Elder Abuse Understanding Issues, Frameworks and Responses’ (Research Report No 35, Australian Institute of Family Studies, 2016) figure 1.