The abuse and exploitation of older Queenslanders continues to be a significant concern for Queensland Law Society.
This year marks a decade since a joint report published by QLS and the Office of the Public Advocate shed light on the widespread under-reporting and lack of legal frameworks in civil and criminal law to support this community.
In the years since, QLS has worked with key stakeholders in continuing efforts to tackle elder abuse issues and the lack of legal frameworks capable of addressing them. The Society has worked tirelessly for more than decade advocating for law reform and raising awareness of senior citizens who suffer significantly from varying forms of abuse.
The 2010 report described the substantial impact of emotional distress, physical trauma, sexual, financial and social abuse, and neglect on the elder community and how their vulnerability was increased because of variations and changes in levels of capacity.
At the end of 2019, about 15.7% of Queenslanders were over 65.1 By 2056, people over 65 are projected to make up quarter of the population,2 a significant increase in a relatively short period of time. QLS has argued that the legal system could be a vehicle for change in leading a response to address the issues and the abuses which would significantly impact Australian society.
In considering the civil and criminal elements of existing laws, we have argued that the elimination of aggravated, punitive and exemplary damages from section 52 of the Civil Liability Act 2003 (Qld) removed the largest components of damages that might ordinarily have been awarded to an older person.
While acknowledging the criminal law’s recognition of age as an aggravating factor, we questioned why, if older people are considered particularly vulnerable, they have not been provided with similar provisions such as those made for children and the intellectually impaired. In particular, the 2010 report argued that a review ought to be undertaken by government to properly consider the creation of special offences to criminalise elder abuse, neglect or exploitation.
QLS also discussed the protective function of the guardianship regime established under the Powers of Attorney Act 1998 and Guardianship and Administration Act 2000. We acknowledged that this regime was a shift in the right direction, however, even with the regime in place, but without requirements that enduring powers of attorneys (EPOAs) be registered and monitored, there is an absence of accountability mechanisms to monitor the activities of attorneys.
Related to this, we have also brought attention to the ways in which attorneys and family members take advantage of the finances of an older person, particularly in cases where dementia and other memory loss-inducing illnesses are present. Other key issues raised were the limitations of applying for domestic violence protection orders and peace and good behaviour orders due to these orders not applying to common categories of elder abuse or formal care relationships.
The report also discussed the significant, and welcome implementation of the aged care complaints regime. However, the Society noted that the complaints investigation scheme only applied to government-funded aged care facilities, hindering access to the critical function of the regime for many older persons.
In comparing the legislative regimes of several international jurisdictions, the report set out the benefits of creating discrete criminal offences and penalties intended to address elder abuse in its various forms. It argued that, although Queensland legislation and the common law provides some protection, the law ultimately fails to adequately protect against elder abuse and the vulnerability of older persons where there are circumstances such as dependence, frailty, immobility and impaired capacity.
Since the report’s publication QLS and members of its Elder Law Committee, Succession Law Committee, and Health and Disability Committee have tirelessly advocated for amendments to key legislation and policies with the intention of improving legal protections for older persons.
In recent years these efforts have been assisted with the forming of a specialised working group to crystalise the Society’s position on criminal justice aspects of the issue, with members of the Criminal Law Committee and Domestic and Family Violence Committee working alongside these committees.
The Society has played an integral role in education and awareness campaigns, one of which increased calls to the Elder Abuse Helpline through 2017 and 2018. We continue to work with the Elder Abuse Prevention Unit on these issues. After the Elder Law Committee and the Succession Law Committee’s joint efforts on the Guardianship and Administration and Other Legislation Amendment Bill 2017, the amendments passed in 2018 included allowing the Queensland Public Guardian to investigate potential elder abuses after the death of the adult, which is a further significant step in the right direction.
These important changes demonstrate some of the progress made in Queensland, but as the 2010 report predicted, the scale of the problem continues to be revealed and it is clear that the current legal framework continues to fall short.
We note the recent introduction of discrete criminal offences in the ACT, and will scrutinise this proposal and supporting evidence in considering if a similar framework would be beneficial in Queensland. Additionally, a full review of the issues contained in the 2010 report is currently under way, led by a working group comprised of members and guests of the QLS Elder Law Committee in collaboration with the Office of Public Advocate.
The Society also acknowledges the increased vulnerability of this cohort during the COVID-19 pandemic to abuse, and how isolation requirements exacerbate the ability of perpetrators to continue abuse. The full impact of isolating requirements on persons affected by financial and physical abuses will not be known for some time. The current circumstances serve to emphasise the critical need to ensure that the laws in Queensland reflect widespread social values of protecting the most vulnerable in our society, including the elderly community.
Anke Joubert is a legal assistant with the Queensland Law Society legal policy team. This article was prepared under the supervision of senior policy solicitor Vanessa Krulin.
This story was originally published in Proctor June 2020.