The ICJ Australia has prepared an Elder Law Proposal this year, with the assistance of long-time ICJA Member, Rodney Lewis, Solicitor. The proposal has been sent to State and Commonwealth governments for their consideration.
The paper presents a proposal for a new law addressing elder abuse in Australia in most of its manifestations. The discussion begins with the 2007 House of Representatives Standing Committee Report on Older People and the law, as regards financial elder abuse. That Committee’s report noted the lack of legislation aimed at addressing the abuse of Older People and nothing has changed in the 11 years since then. The issue of mandatory reporting is raised and a proposal is included in the draft Law. However, the final decision on whether or not to include it will be for policy makers. There is also a short discussion on some important terms and a quick look at other models.
The debate on the two paradigms for framing the elder abuse discussion namely, domestic violence and the care perspective is referenced. This proposal addresses elder abuse only from the perspective of someone who is vulnerable, which is both the qualifying and the aggravating factor, thus finding a discrete place and it is submitted, a gap in present legislation.
The proposed law has both criminal and civil outcomes and the former are designed to maximise opportunities especially for preserving relationships and providing redress and restitution.
An argument is mounted for the place in Australian law for an elder abuse statute which also criminalises the defined behaviour. The argument contests the Australian Law Reform Commission (ALRC) conclusion in its 2017 Report on Elder Abuse that the present law is sufficient. A graphic attempt to demonstrate that a gap exists in the law in also included.
The proposed law is annexed to the paper and includes the proposed offences and the supporting proposal for civil claims, trial process and restorative justice.