Missed opportunity to address elder abuse

Thursday, 7 May 2020

Missed opportunity to address elder abuse

The ACT legal profession today expressed dismay at the ACT Government’s introduction of flawed legislation to address elder abuse.

“This is yet another missed opportunity,” said ACT Law Society President Chris Donohue, “given the pressing need for governments in Australia to do more in relation to elder abuse.”

“The Government’s proposals are a poorly thought out response to what is a complex problem. The Bill will create an effectively arbitrary offence provision that duplicates offences already applying in the ACT.”

Sadly, the process of consultation surrounding this proposal has been poor and indeed these amendments were introduced despite specific assurances this Bill was not going to be introduced this week.

The Government’s approach is particularly disappointing given the cohesive and informed response to elder abuse that was comprehensively considered in the Australia Law Reform Commission report, Elder Abuse — A National Legal Response (May 2017). Over 100 individuals and organisations made submissions to the ALRC during that process.

“The ALRC recommended against the enactment of specific elder law offences, on the basis that existing criminal laws generally adequately covered conduct which constituted elder abuse,” said the President of the ACT Bar Association, Steve Whybrow. “The creation of new offences was noted as unnecessary, and would risk duplicating existing offences.”

“There has been no explanation from the ACT Government as to why it has chosen to disregard the unambiguous conclusions of the ALRC report,” said Mr Whybrow.

Additionally, the legal profession holds a number of serious concerns with the definition of ‘vulnerable person’ contained within the Bill.

The Bill introduces duplication (and confusion) in regard to the interaction of the various elements of the definition. For example, the definition applies to all adults within the meaning of the Disability Services Act 1991 (ACT), and adds an overlapping class of adults over 60 years of age who have specified disorders.

It is not clear what the phrase ‘for any other reason is socially isolated or unable to participate in the life of the person’s community’ means. The phrase is incredibly vague and uncertain in its operation and should not be used to support a criminal charge.

The Law Society and the Bar Association have communicated with the Attorney-General on a number of occasions with specific suggestions for actions that could be taken to combat various aspects of elder abuse — for example, in relation to witnessing requirements for Enduring Powers of Attorney. The ACT Government has to date refused to act on these suggestions.

Mr Donohue said, “It is unacceptable that the Government is proceeding with defective legislation that will not achieve its intended objective and despite advice to the contrary. Unfortunately, it is something the legal profession is becoming increasingly used to. Also, the broad criminal provisions could bring about a reluctance for carers to take on the role of carer for fear of unintended consequences.”

Mr Whybrow said, “The ACT Government is proving that it prefers to pass substandard legislation in order to make a headline rather than listening to expert advice.”

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