Member for Isaacs

Labor's approach to the problem of elder abuse - Mark Dreyfus QC MP

20 February 2018

Thank you for the invitation to speak today, and for that kind introduction. Its good that the serious issue of elder abuse has brought together such a list of distinguished speakers. Congratulations to the Seniors Rights Service for organising this terrific conference.










Thank you for the invitation to speak today, and for that kind introduction. Its good that the serious issue of elder abuse has brought together such a list of distinguished speakers. Congratulations to the Seniors Rights Service for organising this terrific conference.

I acknowledge the First Nations Peoples, and in particular the owners and custodians of the land on which we meet, the Gadigal People of the Eora Nation and pay my respects to their elders, past and present.

Last week was the 10th Anniversary of the Apology to the Stolen Generations. I note this milestone because the anniversary coincided with the launch of the Closing the Gap Report for 2018. Sadly, the Report showed no improvement in the disparity between Indigenous and non-Indigenous life expectancy. The last figures on life expectancy are from 2013 and they show that Indigenous men are likely to live 10.6 fewer years than non-Indigenous men. Indigenous women are likely to live 9.5 fewer years than non-Indigenous women. These are numbers that have remained almost entirely static since 1998. In a nation which is still grappling with the continuing injustice, disadvantage and chronic health problems suffered by our First Nations People, it is worth reflecting that some of our most vulnerable older Australians are our Indigenous brothers and sisters.

In particular, when we talk about combatting elder abuse and providing dignity for older Australians, we must realise that there is a need to develop culturally appropriate aged care for First Australians. We must also realise that for members of the Stolen Generation, and more broadly for all First Nations Peoples, there is quite rightly a deep trauma attached to the idea of entering back into institutionalised care.

The story that brings me to this stage began in 1982. One of my first ever professional jobs was as a Research Fellow at the University of Melbournes National Research Institute for Gerontology and Geriatric Medicine. I was asked to prepare a report which looked at the subject of older Australians and the law.

At around the same time, as a young lawyer not long out of law school, I volunteered at a community legal service in Fitzroy, in inner Melbourne. Fitzroy Legal Service was one of the first community legal centres established in Australia, and working there was a great experience for a young lawyer. Assisting disadvantaged members of the community with their very real legal problems taught me a great deal about the realities of the law, and what justice means in practical terms.

That work started me on a path where I was able to explore the values that should inform the laws response to issues facing older Australians. However, if we are going to recognise these issues, then we must also look at who is currently dealing with the growing prevalence of elder abuse in our communities.

Community Legal Centres around the country are, alongside hospitals and aged care providers, among the principal institutions that deal with the impact of elder abuse on a daily basis.

Community Legal Centres are currently bearing the brunt of a dual assault: first, there exists an increasing need for their services across a wide range of legal areas because legal aid has been drastically reduced. This includes an increasing need for legal advice in cases involving elder abuse. CLCs in every State and Territory, including of course the Seniors Rights Service, are doing wonderful work to help older Australians who have experienced the cruelties and deprivations of elder abuse. I have learned firsthand from a visit to Townsville CLC last year what this work involves.

Second, Community Legal Centres have had their funding cut by this Government. If the current Government were serious about combatting elder abuse, then they would immediately commit to properly funding CLCs and begin the process of expanding access to legal aid. In short, they would undertake one part of the project that I commenced as Attorney-General: the broadening of the concept of access to justice. By this I mean we must provide a broader range of options for people who find themselves afflicted by elder abuse to gain assistance.

When I was Attorney-General, I often referred to the concept of access to justice. I have continued to argue in Opposition that the concept should be understood as broader than simply the ability of individuals to enforce their legal rights in our courts. Access to justice is a concept that also relates to how the institutions of the state of which the formal justice system is only one part operate to ensure that all Australians live under the protection that our laws aim to provide.

It is my view that while people must always have the opportunity to fight for their rights in court, in a society under the rule of law, justice should not be something individuals must constantly be fighting for. Rather, courts should be a last resort when something has gone wrong, while justice should be the norm in our society, experienced by all Australians as part of our way of life.

This is particularly apt in the context of elder abuse. Older Australians do not want to spend their time seeking legal redress for wrongs committed against them. The stresses and expenses of being a party to litigation are something that most people do all they can to avoid. Including, I might say, lawyers. Clearly, if our system of justice is working well, older Australians will only to need to enforce their rights in a court in the most exceptional circumstances.

So it is important that the prism through which I view the problem of elder abuse, if I have the opportunity to once again serve as Commonwealth Attorney General, is informed by the belief that older Australians should experience justice as a way of life, with their legal rights robustly and proactively protected by the law.

What are the values that inform Labors position?

It is axiomatic that the UN Principles for Older Persons, which state 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,

stand as the values which inform law reform in this area.

The Labor Party believes that all older Australians should be free from the atrocities of elder abuse and neglect, intentional or unintentional. Older Australians should be free from fear of physical, psychological, emotional, sexual or financial abuse and Labor will always work to protect the rights of older Australians to a dignified and fulfilling old age.

What Labor started in Government

I do think that the Labor Government in which I served as Commonwealth Attorney General made the aged care system stronger, more sustainable and easier to access through its Living Longer, Living Better reforms. I acknowledge the excellent work of my colleague Mark Butler as Minister for Ageing in the Gillard Government and of Julie Collins as our spokesperson on Ageing and Mental Health in Opposition, and can say that Labor remains committed to implementing the Living Longer Living Better reforms.

So, from young researcher at the University of Melbourne and volunteer at the Fitzroy CLC to Attorney General, I have, in one way or another, thought about and been interested in the rights of and legal protections for older Australians my whole professional life.

The existing legal framework

I note my long held interest in this subject, and how it fits into the role of the Attorney Generals position as a guardian of access to justice, because in order to understand the priorities for law reform, particularly those arising from the 2017 Australian Law Reform Commission Report Elder Abuse A National Legal Response, it is also important to understand how things have changed in the intervening 35 years since I first thought about some of the issues facing older Australians.

It should be said, there has been some progress made since 1982. In 1982 none of the states or territories had laws on their respective statute books which provided for enduring powers of attorney. Instead the common law and equity was the repository of the law on powers of attorney. Under the common law the power of attorney ceased when the principal lost their legal capacity. Logically, an agent could not exercise a power which the principal could not themselves exercise. This created a substantial issue: many older Australians wanted to put in place arrangements so that their legal guardian or attorney could make decisions about their affairs on their behalf. As a consequence, the states and territories, at varying speed, enacted legislation which provided for the creation of enduring powers of attorney. Enduring powers of attorney have provided convenience, but they have also created new possibilities for abuse.

In 1997, the Commonwealth enacted the Aged Care Act. The Commonwealths role is two-fold: first, it provides funding for aged care and regulates its provision through the grant of approvals for providers of aged care. Second, the Act prescribes the responsibilities for approved providers. A number of Principles existing under the Aged Care Act also regulate the provision of aged care. These Principles provide for Charters of Care which set out the Rights and Responsibilities for recipients of services provided for under the Act.

Under these Charters residents are entitled to the right to be treated with dignity and to live without exploitation, abuse or neglect. In residential care, these Charters also include the right to live in a homelike environment where residents can feel safe and secure, and where they can move freely both within and outside the residential care service without undue restriction.

So it must be acknowledged that the existing framework does set out some basic and fundamental principles. We need to acknowledge that while law reform in this area is both necessary and desirable, it is also incremental.

What is the challenge?

Just over twenty years on from the Aged Care Act we are facing a new series of challenges as law makers.

Fortunately, the idea of someone being an older person is a relative concept. The Australian Bureau of Statistics groups people into population age cohorts. Accordingly, people who are generally classified as older will fall into groups of 65 to 84 and 85 and over.

It has been a much commented on fact that Australias population is ageing as a result of the combination of increasing life expectancy, caused by significant improvements in medical science, and lower fertility levels. The proportion of Australians aged 65 or over is increasing. Presently, 15% of Australias population is aged 65 and over. That number is projected to increase to 22.6% by 205455. People living longer, fulfilling lives is a good thing. However, this reality also means that over the next 40 years, as Australia faces what has been referred to as its inescapable demographic destiny, the prevalence of elder abuse, which is currently estimated among comparable high to middle-income countries as experienced in one form or another by between 2% and 14 percent of older persons, will grow.

It will grow, in part, because as longer and healthy lives become the norm, the historical process by which the transfer of property occurred, being that parents or family members died and upon their death title transferred to younger family members, will elongate. In Australia, where cost of living pressures and inaccessibility to affordable housing are pronounced, there exists a social environment in which elder abuse is likely to become more prevalent.

What is it we are guarding against?

So what is it we are actually guarding against? The World Health Organisation has described elder abuse as a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.

Elder abuse may involve physical abuse, psychological or emotional abuse, financial abuse, sexual abuse or neglect.

It appears from the evidence that psychological or emotional abuse is one of the most common forms of elder abuse. This may include persons in positions of trust threatening to withdraw affection, place older relatives into aged care facilities, exclude them from the company of their friends or telling them that they are a burden or have dementia.

Financial abuse may include placing the legal responsibility for bills onto an older person, stealing money or goods, or pressuring older people to sign a will or power of attorney in order to transfer rights in real property or confer other financial gain inappropriately. Financial abuse of older Australians does not discriminate on the basis of intellectual capacity or community standing. There have been media stories over the last few years in both Sydney and Melbourne about the unconscionable pressure placed on high profile older Australians by prominent persons, who were not suffering from any financial disadvantage themselves, in order to obtain a benefit to which they were not properly entitled.

Physical and sexual abuse may include pushing, shoving and rough handling at one end of the spectrum to unwanted sexual contact and rape at the other. The crime statistics suggest that older people are less likely to be the target of violence than younger people, but, as the Australian Law Reform Commission Report found, the inappropriate use of restrictive practices may not be caught by the crime statistics though they could be both criminal and tortious.

Finally, the neglect of older Australians, including by failing to provide proper shelter, food or medical care the necessities of life whether in at home care or in residential care is a truly shocking feature of what Elder Abuse.

These are unsettling cruelties, devoid of the love, kindness, friendship and trust that should be the hallmarks of interpersonal relationships regardless of age. Importantly, these are not behaviours which are compatible with the purposes and spirit of the laws of the Commonwealth.

What the next Labor Government will do in office

The next Labor Government will progress the recommendations of the Australian Law Reform Commission Report I mentioned earlier.

Specifically, a Federal Labor Government would progress the ALRCs capstone recommendation to develop a National Plan to combat elder abuse which will set out the strategies and actions that can be taken by both government and communities. As noted by the ALRC, the design of the National Plan should be led by a committee under the imprimatur of the Law, Crime and Community Safety Council of the Council of Australian Governments. This is the ministerial council consisting of Attorneys General, Police Ministers and Emergency Management Ministers of the Commonwealth, the States and Territories.

The National Plan would promote the autonomy and agency of older Australians while seeking to address problems associated with ageism. We would also seek to inform the broader Australian community about the different needs of older Australians. Just because someone is an older Australian does not mean they do not possess significantly different needs from people of the same age. Any National Plan would take account of the gender, sexual orientation, linguistic and cultural diversity of older Australians. In particular, a National Plan would properly address the specific needs of older First Nations peoples and older Australians living in regional, rural and remote Australia.

A future Labor Government would also look at amending the Aged Care Act to provide for a new serious incident response scheme for aged care.

As recommended by the ALRC, serious incident should, at a minimum, be defined to cover the manifestations of elder abuse which I discussed earlier: physical, sexual or financial abuse.

In line with Labors policies aimed at protecting consumers, we will also consider the recommendation of the ALRC which requires financial institutions to take reasonable steps to prevent financial abuse of vulnerable customers.

The Government is yet to fully respond to the 43 recommendations of the Law Reform Commission. To date, there has been a limited announcement from the Government in October of 2017, in which the then Attorney General announced the creation of a peak body with funding of $250,000 attached to it over 2 years to consider the prevalence of elder abuse, and educational training needs. The Government has had the ALRC Report since June 2017. The failure to more fully respond is disappointing, but I was very pleased to hear the new Attorney-General in the media this morning committing to the National Plan. The new Attorney-General is certainly demonstrating a greater recognition of the need to act than his predecessor.

From Labors perspective, combatting elder abuse cannot be left to a law reform agenda alone. Because elder abuse takes multiple forms, it will require a framework in which policy settings are harmonised across different Government portfolios, particularly with the Department of Health and the Minister responsible for Aged Care. It will also require co-operative and facilitative work through COAG arrangements, noting of course that many of the ALRC recommendations have implications for policy design and service delivery in the States and Territories.

Labor is committed at all levels of government to combatting elder abuse in all its forms. We will work in Government not just with the States and Territories, but also with our non-government partners, including the CLCs, to combat elder abuse.

I end this speech by way of an invitation: ensuring that older Australians are protected and are given the opportunity to live dignified, good lives is too important to treat as a partisan issue. Labor will work with the Government on implementing the ALRC recommendations. In that spirit, we will work with the Government to assist the swift and comprehensive introduction of reforms which make a meaningful difference in the lives of older Australians.

Thank you.