Keynote Address to the Law Council of Australia

Mr Robert Fitzgerald AM,
Age Discrimination Commissioner

Friday, 31 May 2024

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Introduction 

I would like to thank the Law Council of Australia for this invitation to speak at your National Elder Law and Succession Law Committee meeting, and to your committee chair, Darryl Browne, for introducing me.

I wish to acknowledge the Gadigal people of the Eora Nation as the traditional owners of the lands from which we meet and pay respect to their Elders, past, present and emerging.

I began my five-year term as Age Discrimination Commissioner at the beginning of April, so I am almost 2 months in.

It is a privilege being appointed Age Discrimination Commissioner at the Australian Human Rights Commission. I feel well prepared given my past roles, many of which have focused on finding solutions to the big problems that people from diverse backgrounds may encounter as they grow older. 

As Commissioner I intend to build on the excellent work of my predecessors in this role, the late Honourable Susan Ryan AO and the Honourable Dr Kay Patterson AO. 

Today I will provide a brief overview of my priorities for advocacy and the pursuit of law reform and ask for your curious consideration in how your work may champion gaps for these areas to support older people.

The way we go about our lives has fundamentally changed, and our human rights approach must reflect our changing world.

For older people, it is often said that they become invisible, indeed even worse they become voiceless. My job and yours as legal advocates is to give presence and voice to the needs and aspirations of older people.

My priorities include:

1. ensuring positive workplace experiences for mature aged and older workers; 
2. enhancing the rights of older people to live free from abuse; 
3. reducing ageism particularly in key social sectors such as health and aged care; 
4. Strengthening national and international human rights frameworks for older people; 
5. and promoting the rights of First Nations and culturally diverse people as they age.

I will comment on four of these today. 

Strengthening national and international human rights frameworks for older people

I will start with the most recent progress - an update from my trip last week to the United Nations in New York to support the development of a UN Convention on the Rights of Older Persons, in what remains a missing piece in the international human rights framework.

Currently, there is no binding international instrument dedicated to the rights of older persons, like there is for race, sex, children, and disability. This is despite the growing trend of ageing populations, both globally and in Australia.

The time has clearly come for Australia and the world to better safeguard the rights of older people. Australians are getting older, and whether it be in our workplaces, health, social or aged care sectors, the challenges facing our ageing population are increasing - with each issue exacerbated by soaring economic pressures.

A Convention on the Rights of Older Persons would provide valuable practical guidance to law and policy makers and the wider community, by laying out universally agreed principles and standards about older persons that is both comprehensive and coherent. It would clearly recognise and affirm human rights as they apply specifically in older age and to older people in all their diversity.

It would articulate unequivocally that ageism and age discrimination are not acceptable and strengthen current reporting and monitoring on the enjoyment of rights by older persons.

It would further inform a comprehensive national human rights framework, as the Commission’s ongoing Free + Equal project has long proposed.

I was very pleased that Decision 14/1 (A/AC.278/2024/CRP.4) was adopted by consensus at the 14th Session of the UN Open-Ended Working Group on Ageing and will now progress as one of several options to the General Assembly for consideration in a few weeks – I will keep a watching brief on the outcome.

Reducing ageism particularly in key social sectors such as health and aged care

I remain connected to the major reforms of our aged care sector, but my focus is the work being done to support the human rights of older people and older people with disability, including issues around supported-decision making and restrictive practices.

The Commission made a substantial submission to the Draft Exposure Bill of the Aged Care Act 2023, including contributions on these areas from our Disability Commissioner Rosemary Kayess. Rosemary and I intend to work closely on a national approach together. 

In terms of supported-decision making, we have recommended the Australian Government embed this and the ‘will and preferences’ model in the new Aged Care Act. This means it will be consistent with the National Decision-Making Principles and Commonwealth decision-making model recommended by the Australian Law Reform Commission and Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

In terms of restrictive practices, we have recommended the new Act’s provisions and regulations relating to restrictive practices be strengthened to align with Recommendations 4-10 and 4-11 of the Australian Law Reform Commission Report 131, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability Final Report Recommendation 17 and the Review of National Aged Care Regulatory Processes.

In addition, we called for the Act to include specific examples, such as physical, chemical, electronic, and mechanical restraints, to further clarify the scope of the definition of restrictive practices and enshrine a commitment to reduce and eliminate, over time, the use of restrictive practices in aged care.

This rounds off on the Commission’s broader pursuit for a national Human Rights Act and Framework, our Free & Equal work. While we fully support the shift to a rights-based, person-centred approach in the new Aged Care Act, it is important that these rights are enforceable, and that there are accessible avenues for redress and remedy when rights are violated.

I am also interested in the issue of ageism in such key social sectors, and how it is an underpinning cause to many problems we see in businesses predominantly accessed by older people, such as health and aged care.

We use the World Health Organization 2021 ageism definition: 

‘Ageism refers to the stereotypes (how we think), prejudice (how we feel) and discrimination (how we act) directed towards people on the basis of their age.” 

Ageism is an obstacle to the experience of ageing positively. It can result in older people feeling they cannot exercise their rights and that their concerns are not being acknowledged and addressed.

Ageism can be malevolent or benevolent. Families, health professionals, institutions and lawyers can have good intentions, but they may overprotect and reduce an older person’s autonomy – sometimes to the point of malevolent ageism, which can lead to ignoring their wishes or making assumptions on their behalf.

The domino effect for older people is that they may feel they cannot exercise their rights or speak out to report abuse. This underpins their acceptance of elder abuse, particularly in its most rife forms of financial and psychological abuse. This leads me to my next priority, elder abuse.

Enhancing the rights of older people to live free from abuse

Elder abuse is a single or repeated act or failure to act, including threats, that results in harm or distress to an older person. This occurs where there is an expectation of trust and/or where there is a power imbalance between the party responsible and the older person. As I said, it, this can start with ‘benevolent ageism’; but attitudes can tip the scales towards protection and away from respect for an older person’s independence and right to make decisions. When taken to an extreme, it can result in elder abuse, leading to real harm to the older person; be it financial, physical, psychological, sexual, neglect, a combination of these, or sadly even death.  

Perpetrators of elder abuse are often family members, mostly adult children but they can also be friends, neighbours and acquaintances.

Worryingly, the current cost of living pressures has the potential to exacerbate the risk of elder abuse. We all need to be vigilant against the likely increase in financial exploitation particularly for families in the current and looming economic environment. 

The Commission hears of many accounts of elder abuse, and this was also the case in my previous role.

Case Study. The Commission was told about an adult son who became his father’s Attorney under a Power of Attorney and then refused to pay for much needed residential care. The aged care provider placed a caveat on the father’s house due to mounting accommodation costs, learning the son was redirecting his father’s pension to his accounts and was about to transfer the family home. Despite court action temporarily removing financial control, this was eventually returned, and the son transferred ownership of the house to himself. He never visited his father again, who died in care four years later.

There is no doubt there is greater public awareness of elder abuse since it first started to gain recognition in the 1990s.  This is the result of efforts from the sector, various governments, individual advocates, and of course the 2017 Australian Law Reform Commission Report Elder Abuse – A National Legal Response, and subsequent national plans and responses. But we have a long way to go. 

A new National Plan to Respond to the Abuse of Older Australians is due out in July and I will keep a close eye on the outcomes.

In addition, I am building on the work of Dr Patterson to argue for the implementation of recommendations from the 2017 law reform report.

This includes advocating to all Australian Attorneys-General for the urgent harmonisation of enduring powers of attorney laws across jurisdictions, and in time a national online register of enduring powers of attorney.

They were our key recommendations in our recent submission to the Attorney-General’s Department’s Consultation Paper on Achieving greater consistency in laws for financial enduring powers of attorney.

As Australia’s population continues to age and with the largest intergenerational wealth transfer in Australia expected to take place in the coming decades, urgent reform to EPOA laws is needed to better protect the rights of older persons and prevent the abuse of older persons in all its forms.

Current inconsistencies across jurisdictions cause confusion in the community, making it difficult for families to understand the rules, and for those providing advice across our states and territories. They also impede cooperation between state and territory public advocates in investigating instances of abuse.

Harmonisation would make it easier for families to look after older family members in other jurisdictions, and for people to be educated about their rights and attorneys about their responsibilities. For example, when I speak to seniors’ groups very few people know they can revoke their Power of Attorney. 

The Commission is also conducting national research into the awareness around roles, responsibilities and education about Enduring Powers of Attorney arrangements across the jurisdictions. I am looking forward to sharing the results in due course.

We continue to highlight the National Elder Abuse phone line, which has been growing in demand. In the first three quarters of this financial year (until the end of March 2024), there were 7,428 calls to the phone line - 2,157 more calls or a 41% increase - compared with the same corresponding period in 2022-23. These stats do not include calls people make directly to state and territory helplines, so it is alarming. 

We can make some assumptions on why there is an increase in helpline calls from what we learn from callers at the state level, which includes my former commissioner role in NSW. 

This includes an increased awareness of elder abuse.

Treatment of older people can become front of mind when there are prominent media stories, such as the fatal tasering of 95-year-old Clare Nowland last May. 

We also know more people are reaching the age of 75 and older, and there is an increase in poverty among this group – particularly among single women. 

The phenomenon of “inheritance impatience” is another issue that is increasing.

Our children – my children – will have to wait much longer for the wealth transfer to occur, and that wealth transfer is being pushed out by five to 10 years. What we know about adult children is that they are not patient, so inheritance impatience will, in fact, grow. 

Relationships Australia also reports greater awareness about elder abuse but also increased incidents. They reported common forms of abuse including bullying, degradation, and coercive control, including limiting who an older person can see, particularly their grandchildren, to extract a financial advantage.

This gets back to the underpinning legacy of ageism and a cultural dismissal of older people even within their own families. Abuse and neglect can result from the false negative stereotype of older adults having no useful role, combined with non-acceptance of the increasing dependence that can accompany old age.

But the cause and impact vary when we consider various intersectionalities for older people and this needs more research.

For example, from a cultural perspective, the Aboriginal norm is for reciprocity, the expectation that resources will be shared, and kinship (where a wide variety of relationships are involved in familial and community networks). This includes grandparents’ resources and care provision which can complicate understandings of whether and how elder abuse is occurring. Research shows financial abuse appears to be the most common form of elder abuse among First Nations communities.

There is still a significant gap in our knowledge about elder abuse in CALD (Culturally and Linguistically Diverse) communities. Research indicates there are several factors that increase the risks, including language barriers, where the first language is not English, social dependence on family members for support, and the potential conflict caused by cross-generational expectations in relation to care.

We are really where child protection was 30 years ago, and domestic violence was 20 years ago. Unfortunately, we do not have that period of time to respond to this growing crisis. 

Elder abuse is a broad community problem. There are responsibilities across many sectors and professions, including the legal fraternity, and much needed national law reform to protect the human rights of older people to be safe and financially secure as they age.

For a start, I would like to see the adult safeguarding laws and agencies be established in every state and territory, similar to the entities in NSW, SA and ACT.

Throughout my term I am also interested to explore other potential future challenges together. These include:

• Elder abuse laws. ACT is the only jurisdictions to add amendments to its Crime Act, are they working well?
• Mandatory reporting of elder abuse. No states have mandatory reporting – do we have this right?
• Voluntary assisted dying as a form of abuse
• EPOA – should there be criminal sanctions for breaching fiduciary duties under an EPOA?
• Coercive conduct – should this apply to domestic relationships and not just intimate partners?
• How do we improve financial redress where financial abuse has occurred?

These are some conversation starters. There are many points of contention, including the challenge of even recognising the term elder abuse in legal circles, or the definition of ‘vulnerable person’ in the ACT amendments, as an exclusive descriptor, rather than inclusive of any older person.

Available data of case law does not recognise the nuance of family relationships between adult children and their parents, who are often reluctant to have a perpetrator, their “child”, be charged. There is also the stoicism of certain generations of older people who may ignore the red flags despite the trust relationship breaking down. 

Australia has not developed a national legislative or policy response to either elder abuse, legal capacity or adult guardianship.  

Some argue existing frameworks should be strengthened to better cover elder abuse. One option may be to adjust the law to make crimes against older people an “aggravating factor” (increases the seriousness of an offence and the sentence to be imposed) in sentencing.  While others point out the risks of creating new offences is that they could be harder to prosecute in court – specific offences and specific definitions could create higher bars for prosecutors to prove an offence. 

A 2022 South Australian Law Reform Institute review of that state’s Ageing and Adult Safeguarding Act 1995 stated “existing crimes are adequate and new offences relating to elder or other abuse are unnecessary. The problem is not the law, but the enforcement of the law. Careful consideration needs to be given before any decision is made to extend any new offence of coercive control beyond domestic partners to other relationships involving older persons or persons with disability.”

There is much for us to be curious about in how we address these challenges. 

Finally, I would like us to take a step back and put ourselves in the position of older people who may not have full knowledge of the law. I would encourage all of you to take simple actions in your practice to protect the human rights of older people, and support them as your clients, your relatives, neighbours and friends. 

It is important we help older people understand their rights and knowing where to go to get further support. Encourage them to prepare Planning Ahead documents to safeguard their preferences but with the caution they can also become instruments for abuse. Promote the importance of remaining connected to others as a way of self-protection. We must check the way we communicate with older people; patronising language is ageist. Using appropriate language is key to enhancing a sense of competence and value among older people and encouraging their autonomy to make decisions. For example, research tells that older people do not like being called elderly or seniors, and older people who have experienced elder abuse often flinch at the word victim. 

In Conclusion

Australia has a rapidly ageing population, and every effort is required to better secure the wellbeing and safety of older Australians. A nationally consistent approach is essential to empower older people and ensure they live safely with dignity and agency. 

I am committed to pursuing this through a collaborative approach with stakeholders, including the Law Council of Australia. 

Thank you.