Criminal Law

By Charlene Harris

19.05.20

A Knee Jerk Reaction to Elder Abuse

Elder abuse is soon to become an offence in itself in the ACT.  At first blush, that sounds like progress – after all, shouldn’t we be protecting our elderly and vulnerable?  In short, yes, but the reality is that this may not be the best way to go about it.  A closer look at the proposed legislation reveals a number of problems which way very well see our elderly made more vulnerable than they already were.

To begin with, it is worth noting that the creation of specific elder abuse offences was opposed by the Australian Law Reform Commission (“ALRC”), as well as the ACT Bar Association and the ACT Law Society.  As its name suggests, the ALRC conducts inquiries relevant to law reform.  This includes considering community concerns about existing laws, examining issues with the way current laws are drafted, and exploring the creation of new laws needed to deal with technological and scientific developments.  The ALRC’s very purpose is to advise the government so that it can make informed decisions.

In preparing its report entitled ‘Elder Abuse – A National Legal Response’, the ALRC benefited from hundreds of submissions from individuals and organisations, ranging from individual lawyers and academics, to advocacy groups and state and federal government agencies.  Notwithstanding the numerous pained accounts of how elder abuse affects people, in response to the question whether specific elder abuse laws should be introduced, the result was a resounding ‘no’.

While the ALRC made recommendations about developing a National Plan being to combat elder abuse, including such things as enhancing the employment screening for people working in aged care, and implementing national best practice guidelines to improve lawyers’ understanding of the potential for elder abuse through Wills, it made no recommendations about reforms to the criminal justice system, instead finding that the existing laws adequately covered the conduct that constitutes elder abuse.  The report specifically advised against introducing new offences for ‘elder abuse’, ‘elder neglect’ or ‘misuse of powers of attorney.’

It might not seem like a big deal initially, but the problems that arise from creating specific elder abuse offences are numerous.  The first is that the new laws, for the most part, impose lesser penalties than the existing offences that cover the same sorts of conduct, such as use of force and making demands for gain.  This not only sends the message that this kind of offending is less serious when directed at the elderly or vulnerable, it also creates an inconsistency in that people charged with the new offences will be exposed to lesser maximum penalties than their counterparts charged with offences under the existing provisions.

This flows on to the second problem; that the sentencing process will become more complicated as the same conduct can be penalised by two distinct offences, with two different maximum penalties applying depending which particular offence a person has been charged with.  In this way, the duplication of offences creates confusion.  This confusion starts with law enforcement in deciding which charge to lay, and carries right through to the sentencing process.

The other part of the confusion is brought about the actual definitions included in the Bill, which are overly broad and generally unclear.  The definition of a ‘vulnerable person’, for example, includes people over a mere 60 years of age with particular conditions, including a person who, ‘for any other reason is socially isolated or unable to participate in the life of the person’s community’.  This would appear to include people who are isolated due to personal preference, or people such as judges who are unable to partake as fully in the community as bartenders, for example, due to their position.

Another example is the definition of ‘abusive conduct’, which includes all conduct that would make the vulnerable person dependent on, or subordinate to, the abusive person.  Bizarrely, it can include conduct that is not even directed towards the vulnerable person, but to someone the vulnerable person knows.  One more is ‘harm’, which is defined as any degree of ‘physical, psychological or financial detriment’, which is extraordinarily broad and could see the most trivial of things being criminally prosecuted.

Particularly given these broad definitions, a concerning aspect of the Crimes (Offences Against Vulnerable People) Legislation Amendment Bill 2020 is that it places an unreasonable burden of proof on people charged with offences.  It sets out a defence in which the legal burden is on the defendant to prove that their conduct was reasonable, rather than the legal burden being on the prosecution to prove that the conduct was unreasonable.  This is particularly concerning given the resources that may be required to meet this burden.  Cases are likely to require the evidence of experts to prove that the defendant’s conduct, whether in relation to medical, financial or other care, was reasonable.

To use just one example, it may require expert evidence of independent accountants and financial advisors to show that the financial restructuring the defendant took part in was reasonable, requiring them to undertake an analysis of the financial position of both the vulnerable person and the defendant, including the cash, real estate, shares portfolios, superannuation, and trusts held, and examine the implications of whatever financial decisions the defendant made.  The reality is that many defendants will simply not be in a financial position to obtain this kind of evidence, because engaging experts to prepare reports and attend court to give evidence is such a costly exercise.

There is no doubt the Bill was introduced with good intention, but when done with disregard to the advice received it appears the result is legislation that is not only duplicitous, but confusing and unnecessarily broad.  Unfortunately, this may also have the unintended result of people being less willing to engage in care of vulnerable people because it is too easy to fall foul of one of the new offences.

Given the complexity of the proposed offences, if you do find yourself charged in the future it would be well worth your while to speak to a criminal defence lawyer.  With the confusing definitions put forward, you might not know whether you were even ‘responsible for the care of the vulnerable person’, let alone whether you had neglected them in the way intended to be captured by the new laws.