Alternatives to specific offences

13.25  Stakeholders submitted that factors—other than the availability of offences—may limit the availability and efficacy of criminal justice responses. These include, for example, a lack of understanding of what elder abuse is, a reluctance to acknowledge and report elder abuse, and low rates of prosecution.[39] WA Police stated:

Some of the reasons for under-reporting include that the victim is dependent on the perpetrator for their daily care and are fearful reporting may see them placed in a residential care facility, the shame associated with being a victim of elder abuse, fear of jeopardising relationships with family, and fear of retaliation. There may also be an inability of the older person to access police services to be able to report crime, and the ability to be able to communicate what has been happening to a police officer due to the abuser being the primary carer, the presence of cognitive impairment, or language and cultural barriers.[40]

13.26  The following case study provided by the Eastern Community Legal Centre is illustrative:

‘Larry’ was a client in the ECLC family violence duty lawyer list. He told the police that he didn’t want to proceed with the intervention order application that the police had initiated on his behalf. The police referred Larry to the ECLC duty lawyer to talk about his rights.

Larry told the ECLC duty lawyer that this was the third time that the police had attended at his home in the last six months due to his being subjected to assaults by his adult son (aged 30). The assault that precipitated the recent police attendance had rendered Larry unconscious. Larry refused to admit that his son had assaulted him and claimed that he fell down the stairs. Larry said that the second time that the police attended, they had warned him that they would make an intervention order application on his behalf if they were called out to his home again. He was immensely embarrassed and feared that his son would be rendered homeless if he agreed to exclude him from the home (as recommended by the police). Larry indicated that he understood that the police and ECLC were very concerned about his safety, but said that he loved his son too much to agree to exclude him from the home.

When he appeared before the Magistrate, the Magistrate questioned Larry closely on his safety. In the questioning, the Magistrate deduced that even if Larry were to have a full intervention order excluding the son from the home, that Larry would still allow him to stay.[41]

13.27  The ALRC considers that, rather than creating a new elder abuse offence, other initiatives such as the establishment of specialist elder abuse units by police and improvements in support for vulnerable witnesses may better achieve improvements in criminal justice responses. Such initiatives should be combined with initiatives to enhance community awareness of elder abuse as part of a National Plan.[42] Advocare supported this approach, stating that ‘elder abuse is first and foremost a social problem that requires more education and exposure, which could occur through ongoing media strategies’.[43]

Improving police responses to elder abuse

13.28  Key concerns raised by stakeholders included that police did not always respond appropriately to ‘low level’ abuse, including neglect or financial abuse; and that ageist perceptions of older persons could affect police dealings, including that older people would not make reliable or competent witnesses.[44] A significant number of stakeholders were supportive of increased police training as a mechanism to enhance the criminal justice system response to elder abuse.[45] Some suggested that this could be best achieved through the training and deployment of specialist officers or specialist units.[46]

13.29  However, NSW Police, in evidence to the NSW Legislative Council’s inquiry into Elder Abuse (NSW Elder Abuse Inquiry) cautioned that ‘the constable on the street is not a walking encyclopaedia’.[47] Bearing this in mind, additional training and tools for frontline police might focus on further guidance on identifying elder abuse.

13.30  For example, NSW Police and the Elder Abuse Helpline and Resource Unit have worked together to prepare an ‘aide memoire’ that has been issued to all ‘first responders’.[48] It sets out what may constitute elder abuse, and is produced in card form to fit in the inside cover of notebooks issued to all police officers.[49] Other initiatives that may be of assistance might be the development of a risk assessment and management tool. For example, in Victoria, a ‘Family Violence Risk Assessment and Management Report’ is completed where there is a family violence incident. This report informs the action to be taken by Victoria Police. The report guides police through a risk assessment and risk management process, including:

  • identifying and recording the most relevant evidence-based risk factors and indicators

  • ensuring that decisions by police or others regarding the safety and welfare of affected family members are well informed

  • making a structured assessment of the likelihood of future family violence

  • determining the most appropriate strategy.[50]

13.31  Additional training and access to tools could be supplemented by the establishment of a network of specialist officers or units who could provide advice and support to frontline staff as necessary.[51] Stakeholders were supportive of this approach.[52] In a submission to the NSW Elder Abuse Inquiry, the Elder Abuse Helpline and Resource Unit noted that the level of police response ‘varies from exemplary to less than adequate at times, risking the possibility of further unnecessary suffering of the older person’. It suggested that specialist positions should be rolled out across the state to support frontline staff to achieve a ‘consistently high standard’.[53]

13.32  An illustrative example of how specialist officers can assist frontline staff was provided by Superintendent Robert Critchlow in evidence before the NSW Elder Abuse Inquiry:

We had a matter recently in Ku-ring-gai where an abusive relative was appropriately charged with a domestic violence offence against an older person. The constables, in their keenness, removed the offender from the home—as they normally would—and left the older person alone. We relied upon the assistance of an inspector who worked in the command … who was able to step in, amend the bail conditions, intervene appropriately, remedy the situation and train the constables as to what better approach could have been taken.[54]

13.33  In 2016, Victoria Police began a three-year trial to embed and streamline specialist assistance in family violence matters. During the trial, police officers use a tiered screening tool to determine when a family violence incident should be referred to the family violence specialist team as well as the appropriate response by the specialist team. The tool includes two parts: Part A is to be completed by frontline police at the scene of the incident to determine whether to refer the matter on; and Part B is to be completed by the family violence specialist team to prioritise risk.[55]

13.34  Part A includes 14 questions that are scored by police. Six questions rely on interviewing the victim, three questions rely on police observation, and the remaining five questions rely on a review of crime databases to ascertain matters such as relevant criminal history. If the assessment results in a score of four or more, the matter is referred to a specialist team.[56] Part B includes 10 items, and a maximum possible score of 12. If the assessment results in a score of four or more, the specialist team will assign a more fine-grained risk prioritisation. Cases that are categorised as ‘standard’ will receive a ‘standard police response’. Specialist teams will take carriage of risk management for cases prioritised as ‘moderate’ or ‘high/very high’.[57]

13.35  Specialist staff or units may also be responsible for initiatives targeted at a more holistic response to elder abuse. WA Police suggested that this might include participating in interagency activities, developing proactive approaches which harness responses and resources available elsewhere within the government and community sector, and engaging in community awareness activities.[58] For example, NSW Police and the Elder Abuse Helpline and Resource Unit have also worked closely to establish referral pathways such that ‘police are now common callers’ to the NSW elder abuse helpline.[59] Similarly, police involvement in networks such as the Eastern Elder Abuse Network[60] and the Western Australia Alliance for the Prevention of Elder Abuse,[61] which bring together professional staff working with older people, provides further opportunities to develop and use referral pathways. Recognising the time constraints on frontline police, the establishment of specialist positions or units provides an opportunity for greater engagement in such networks.

Assisting ‘vulnerable witnesses’

13.36  In addition to the factors above, the low rate of prosecutions for elder abuse may also arise from the high evidentiary threshold applicable under criminal law and the challenges it presents to all victims of crime, including older people. The grave consequences that flow from the criminal prosecution of a person warrant the need for such a high bar and there are, in most jurisdictions, a suite of mechanisms designed to assist ‘vulnerable witnesses’ who find themselves engaged in the criminal justice system. ‘Vulnerable witnesses’ are witnesses who require additional support. They are usually defined as witnesses with intellectual or cognitive impairment, children, or special classes of victims (such as victims of sexual assault). Stakeholders responding to the Discussion Paper suggested that such mechanisms be improved.[62] The Office of the Public Advocate (SA) pointed to reforms which:

  • provide access to assistance for witnesses with complex communication needs;

  • allow evidence to be taken in informal surroundings in circumstances where a vulnerable witness is involved; and

  • allow alternative mechanisms for the presentation of evidence given by vulnerable witnesses at trial, including pre-recorded evidence.[63]

13.37  The use of witness intermediaries was suggested by Disabled People’s Organisations Australia, referring to the successful use of intermediaries in the United Kingdom.[64] Speech Pathology Australia also supported this initiative, describing it as a best practice example of communication assistance.[65]

13.38  The ALRC recognises the need for adequate support and assistance to ensure ‘vulnerable witnesses’ can engage with the criminal justice system. Broader reviews of support provided to ‘vulnerable witnesses’ should specifically consider older people’s needs.

[39]           See, eg, Eastern Community Legal Centre, Submission 357; National Legal Aid, Submission 192; Justice Connect, Submission 182; Seniors Rights Victoria, Submission 171; Carers Australia, Submission 157; National Seniors Australia, Submission 154; Legal Aid NSW, Submission 140; Federation of Ethnic Communities’ Councils of Australia, Submission 89; Law Council of Australia, Submission 61.

[40]           WA Police, Submission 190.

[41]           Eastern Community Legal Centre, Submission 177.

[42]           See ch 3.

[43]           Advocare Inc (WA), Submission 86.

[44]           See, eg, Women’s Legal Services Australia, Submission 343; Justice Connect, Submission 182; Eastern Community Legal Centre, Submission 177; Seniors Rights Victoria, Submission 171; Seniors Rights Service, Submission 169; NSW Ombudsman, Submission 160; National Seniors Australia, Submission 154; Australian Association of Social Workers, Submission 153; Australian Bankers’ Association, Submission 84.

[45]           See, eg, Office of the Public Guardian (Qld), Submission 384; Women’s Legal Services Australia, Submission 343; Speech Pathology Australia, Submission 309; Justice Connect, Submission 182; Eastern Community Legal Centre, Submission 177; NSW Ombudsman, Submission 160; National Seniors Australia, Submission 154; Australian Association of Social Workers, Submission 153; ACT Disability, Aged and Carer Advocacy Service, Submission 139; Macarthur Legal Centre, Submission 110; Australian Bankers’ Association, Submission 84; Alzheimer’s Australia, Submission 80; Law Council of Australia, Submission 61; Legal Aid ACT, Submission 58.

[46]           See, eg, Office of the Public Advocate (SA), Submission 170; Seniors Rights Service, Submission 169; Older Women’s Network NSW, Submission 136; Legal Services Commission SA, Submission 128; S Kurrle, Submission 121; Legal Aid ACT, Submission 58. See also, Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016) rec 10; Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) rec 49.

[47]           Evidence to General Purpose Standing Committee No 2, NSW Legislative Council, Sydney, Monday 7 March 2016, 24–32 (Superintendent Robert Critchlow, Commander, The Hills Local Area Command, NSW Police Force); Evidence to General Purpose Standing Committee No 2, NSW Legislative Council, Sydney, Monday 7 March 2016, 24–32 (Assistant Commissioner Denis Clifford, Corporate Spokesperson on Vulnerable Communities).

[48]           Robert Critchlow, ‘NSW Police and the Abuse of Older People’ (2016) 10 Elder Law Review.

[49]           Evidence to General Purpose Standing Committee No 2, NSW Legislative Council, Sydney, Monday 7 March 2016, 24–32 (Assistant Commissioner Denis Clifford, Corporate Spokesperson on Vulnerable Communities).

[50]           Victoria Police, Code of Practice for the Investigation of Family Violence (2014) 17.

[51]           The NSW Legislative Council also recommended the establishment of vulnerable community support officers in each regional command: Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016) rec 10. The Royal Commission into Family Violence supported strengthening the role of specialist officers, recommending that career structures within Victoria Police reflect the role of specialist family violence liaison officers as core business: Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) rec 49.

[52]           See, eg, Women’s Legal Services Australia, Submission 343; Eastern Community Legal Centre, Submission 177.

[53]           NSW Elder Abuse Helpline and Resource Unit Submission No 33 to General Purpose Standing Committee No 2, NSW Legislative Council, Elder Abuse in New South Wales (November 2015).

[54]           Evidence to General Purpose Standing Committee No 2, NSW Legislative Council, Sydney, Monday 7 March 2016, 24–32 (Superintendent Robert Critchlow, Commander, The Hills Local Area Command, NSW Police Force).

[55]           Jude McCulloch et al, ‘Review of the Family Violence Risk Assessment and Risk Management Framework (CRAF)’ (Final Report, School of Social  Sciences, Focus Program on Gender and Family Violence: New Frameworks in  Prevention, Monash University, for Department of Health and Human Services (Vic), 2016) 45–46.

[56]           Ibid 46. Police also retain a discretion to refer a matter to a specialist team if the score falls below this threshold.

[57]           Ibid.

[58]           WA Police, Submission 190.

[59]           Evidence to General Purpose Standing Committee No 2, NSW Legislative Council, Sydney, Monday 7 March 2016, 24–32 (Superintendent Robert Critchlow, Commander, The Hills Local Area Command, NSW Police Force).

[60]           Eastern Community Legal Centre, Submission 177.

[61]           WA Police, Submission 190.

[62]           Office of the Public Guardian (Qld), Submission 384; Disabled People’s Organisations Australia, Submission 360; Office of the Public Advocate (SA), Submission 347; Speech Pathology Australia, Submission 309.

[63]           Office of the Public Advocate (SA), Submission 347.

[64]           Disabled People’s Organisations Australia, Submission 360.

[65]           For a summary of vulnerable witness provisions across the states and territories, see: Department of the Attorney General and Justice (NT), Consultation Results Report: Consultation Regarding Application in the Lower Courts of Recorded Statement Protections for Vulnerable Witnesses: Section 21B of the Evidence Act (2014) 16–17.