Terms of Reference

I, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to:

• the principle that all Australians have rights, which do not diminish with age, to live dignified, self‑determined lives, free from exploitation, violence and abuse
• the principle that laws and legal frameworks should provide appropriate protections and safeguards for older Australians, while minimising interference with the rights and preferences of the person, and
• relevant international obligations relating to the rights of older people under United Nations human rights conventions to which Australia is a party.

REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 (Cth), the consideration of:

• existing Commonwealth laws and frameworks which seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others. These should include, but not be limited to, regulation of:
  • financial institutions
  • superannuation
  • social security
  • living and care arrangements, and
  • health
• the interaction and relationship of these laws with state and territory laws.

Scope of the reference

In undertaking this reference, the ALRC should identify and model best-practice legal frameworks. The ALRC should also have regard to other inquiries and reviews that it considers relevant, including:

• the recommendations of ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws (2014)
• the recommendations of the Senate Standing Committee on Community Affairs report on violence, abuse and neglect against people with disability (2015), and
• the recommendations of the Commonwealth House of Representatives report, Older People and the Law (2007).

In conducting this inquiry, the ALRC should specifically consider best practice laws, as well as legal frameworks including, but not limited to, the National Disability Insurance Scheme and the Aged Care framework, which:

• promote and support older people’s ability to participate equally in their community and access services and advice
• protect against misuse or advantage taken of informal and formal supporter or representative roles, including:
  • formal appointment of supporters or representatives
  • informal appointment of support and representative roles (eg family members)
  • prevention of abuse
  • mitigation of abuse
  • reporting of abuse
  • remedies for abuse
  • penalties for abuse, and
• provide specific protections against elder abuse.

Collaboration and consultation

In undertaking this reference, the ALRC should identify and consult relevant stakeholders, including Commonwealth departments and agencies, state and territory governments, key non-government stakeholders, including advocacy and policy organisations and service providers, the Age Discrimination Commissioner and the Aged Care Complaints Commissioner.

Timeframe

The ALRC should provide its report to the Attorney-General by May 2017.