May 12, 2020

ACT Become First Australian State To Propose Specific ‘Elder Abuse’ Laws

Aged care and the welfare of older people have become a permanent fixture in news headlines throughout Australia’s dealing with the COVID-19 pandemic.

While the majority of news has been centred around COVID-19 and infection control measures, last week, the ACT Government quietly proposed a new set of laws that would see crimes committed against “vulnerable people” become a new and specific crime of their own.

The legislation’s definition of “vulnerable” is broad — encompassing people living with a disability, all people aged over 60, those with any kind of physical or mental impairment, or people who could be considered “socially isolated”.

These proposed laws also criminalise the ‘neglect’ of a vulnerable person both in the family home and in care, and offences can apply to both individuals and corporate entities.

Much of what is considered ‘elder abuse’ is already illegal in Australia, with crimes like physical and sexual abuse already being prosecuted as forms of assault.

According to the ACT Government, these new reforms will ensure that all those who subject vulnerable persons to psychological and financial abuse will be held criminally accountable.

For Better Or Worse?

Although the proposal of these new laws has been welcomed by organisations like COTA’s ACT branch, some experts believe that these proposed laws are flawed and will simply overlap existing laws and become arbitrary offences.

President of the ACT Law Society, Chris Donohue, spoke with HelloCare earlier today and revealed that new legislation did not reflect expert advice and that many aspects of the new laws were overly vague.

“While the Society certainly wants action to be taken on elder abuse, including financial abuse, it was with some alarm that we saw yesterday the introduction in the Legislative Assembly of flawed legislation to address the issue,” said Mr Donohue.

“The creation of additional offences was recommended against in the Australian Law Reform Commission report, Elder Abuse — A National Legal Response (May 2017), but despite that, the Government is proceeding after an inadequate and truncated consultation process.”

“The Society’s and the Bar Association’s carefully considered comments have again been ignored.”

Under the new legislation, a person who is seen to be “socially isolated or unable to participate in the life of their own community,” – is also deemed to be a ‘vulnerable person.’

Mr Donohue went on to say that the ACT Law Society sought clarification on this definition and believes that it is far too vague to support a criminal charge.

He also believes these broader terms may actually make some carers reluctant to take on or continue in caring roles out of fear of unintended circumstances.

Spokespersons for both Carers ACT and Carers Australia also questioned aspects of the new legislation in a joint statement, saying that immediate referral of those suspected of abuse to the criminal justice system is in many cases neither appropriate or effective.

“As far as family and friend carers are concerned, these people often take on substantial caring responsibilities out of love and concern for the people they care for, often at a cost to their own financial future and health and wellbeing.”

Such motivations do not lend themselves to perpetrating abuse,” said Lisa Kelly CEO of Carers ACT.

“We do acknowledge that there are cases where carers abuse or financially exploit those they are caring for, although the evidence we are aware of indicates that this is not common.”

“Moreover, often such behaviour arises through ignorance or is a by-product of the carer being subject to extraordinary stress over a very long period of time.”

Signing Power of Attorney Remotely

Being entrusted as power of attorney gives an individual considerable power over the finances and property of those who they act on behalf of.

The power of attorney can be used as a tool to commit financial abuse, and Mr Donohue believes that the new legislation has failed to address a new issue that has stemmed from COVID-19 legislation.

“There is a pressing need for governments in Australia to do more in relation to elder abuse, and the Society and the Bar Association have communicated with the Attorney-General on a number of occasions with specific suggestions,” said Mr Donohue.

“For example, in relation to witnessing requirements for Enduring Powers of Attorney. The ACT Government has to date failed to act on these suggestions.”

“Instead, the new witnessing requirements under today’s COVID-19 legislation will allow Enduring Powers of Attorney to be witnessed remotely.”

“While this may have some attractions from an expediency point of view, it will also severely increase the risk of elder financial abuse, as it is diametrically opposed to the notion of having such documents properly explained and witnessed by competent independent persons.”

Large sections of the public have long bemoaned what they believe to be inadequate sentencing for those who commit crimes against vulnerable Australians.

But these new laws do not guarantee harsher penalties in the nation’s capital.

Tougher sentencing could have been brought about by making ‘vulnerability’ an aggravating factor in existing sentencing legislation.

This would mean that the age and vulnerability of a victim would be reflected in the sentencing of criminals who commit crimes against them – similar to cases where crimes are committed against pregnant women.

 

Photo Credit – iStock – sandorgora

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