New law to criminalise elder abuse for the Australian Capital Territory

 

This is a summary of the Attorney General's speech in presenting the Crimes (Offences Against Vulnerable People) Legislation Amendment Bill 2020 to the A.C.T. Assembly on 7th May:

The Bill "includes an understanding of vulnerability to mean where a person is socially isolated or unable to participate in the life of the person's community".

The Attorney went on to say that the Bill "…is informed by an understanding that traditional definitions of abuse and the existing responses in the criminal law have been inadequate."

This Bill:

  • creates three new offences intended to protect vulnerable people from abuse; and
  • creates a new sentencing consideration for the courts.

The new offences include:

Institutional responsibility

These are offences which hold institutions [like aged care homes] responsible for the abuse or neglect of vulnerable people in their care or where those institutions fail to protect those persons. 

A new offence – abuse of vulnerable person

A person commits this offence if they are responsible for providing care to a vulnerable person, and if they engage in abusive conduct which results in physical, psychological or financial harm to the vulnerable person or a financial benefit for the abuser or someone associated with the abuser.

Defences for this offence include acting in good faith, in accordance with policies or direction from an institution they are employed at, or in circumstances beyond an employee of an institution's control.

New offence – neglect offence

The Bill also introduces a new neglect offence that brings the ACT in line with other Australian jurisdictions. The offence relies on a failure to provide the 'necessities of life' and has similar defences available as for those for abuse of a vulnerable person.

New sentencing provisions

The Bill inserts a new sentencing consideration for the court which requires it to consider the vulnerability of the victim. In particular, the court will be empowered to consider if the offender knew or ought to have known that a victim was a vulnerable person, the extent of that vulnerability and the loss or harm caused to the vulnerable person. The offender's knowledge of that fact will be a factor in deciding an appropriate sentence.

This Bill is, in our view, a "game changer" for the debate on elder abuse and shows that a law of this kind is capable of being an alternative to prosecutions for existing crimes, but focusses the mind of potential offenders upon the consequences of their conduct, especially with intergenerational conflict.

Unfortunately it does not go far enough to enable the victim, in cases of financial elder abuse, to recover money lost to the offender.

Rodney Lewis, Solicitor,
Elderlaw Legal Services, Sydney
Website: Elderlaw.com.au

Comments  

#1 Bridgette Pace 2020-06-02 18:04
Thank you for the above summary. Such legislation has been a long time coming. What worries me, however, is the level of evidence that might be required before any action can be taken, particularly when aged care facilities disallow and can, in fact, litigate against a person who puts in cameras. Also, I wonder if this legislation will cover the systematic abuses that occur within the guardianship regime which disenfranchises families and the "protected" persons from achieving any kind of justice when their human rights and freedoms have been violated and abused. I wonder whether under the umbrella of "Institutional Responsibility", the Guardianship Tribunal and its cohorts, which are not fit for purpose, would fall within that net because to date, its human rights violations have been conducted with total impunity!
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