Older people and the law

The ageing of Australia’s population has been well-documented. According to Australian Bureau of Statistics (ABS) figures, in 2006 some 13.3 per cent of the Australian population was aged 65 years and over (with 3.6 per cent of the population aged 80 and over). On ABS projections, by the year 2036, those aged 65 years and over will make up 23.7 per cent of the population, with those over 80 comprising 7.9 per cent of the population.² By 2046 over a quarter of Australia’s population will be in the 65 years and over age bracket.³

This demographic shift has far-reaching implications not only for areas such as aged care and health but also more widely in terms of labour market participation, housing and social policy more generally:

This transformation presents a number of challenges for Australian society, not the least of which is the need to ensure that older Australians live safely and without fear of abuse, violence or exploitation.⁴

Other statistics highlight some characteristics of the older section of the Australian population:

• 41 per cent of people aged 65-69 and 92 per cent of people aged 90 and over have a disability⁵
• The number and proportion of older people living alone has increased from around one fifth in 1971 to more than one quarter in 2001⁶
• Older people often find themselves providing care for another person... Twenty two per cent of men and 19 per cent of women aged between 65 and 74 are carers⁷
• Slightly less than three per cent of the Indigenous population is aged 65 years or over compared to 13 per cent of the broader Australian population⁸
• In 2001, there were only 79 men for every 100 women aged 65 years and this number decreases rapidly in all age groups, for people aged over 85 there were only 45 men for every 100 women⁹
• In 2005, there were nearly two million people... in receipt of the Age Pension. This number represents 66.3 per cent of all people who have reached qualifying age for the Age Pension. This means the remaining 33.7 per cent... are either self funded retirees, being supported by another person or have made alternative financial arrangements...¹⁰
• Twelve per cent of the total population of older people aged 65 to 74 years came to Australia from CALD [culturally and linguistically diverse] backgrounds.¹¹

As with other segments of the population, it is all too easy to stereotype older Australians as being frail, easily duped and in need of protection and assistance in managing their day to day affairs. While some older Australians do indeed need assistance, many are living vital, fulfilling lives, are active within their local communities, and are making significant contributions to Australian society:

It is not that long ago that the reality of being old was, in general, to be poor and relatively frail. Advances in education, in income and social support, and improvements in fitness and health in the mainstream population mean that many older people will be socially, economically and physically active. These social changes will also see a marked increase in the number of people living into what is currently considered to be very old age, with care and support needs that are not yet understood.

...Older people will be as diverse as the rest of our community, and will include people with many social and cultural experiences. ...All these citizens have a right to legal frameworks that support their continued participation in and contribution to society within each of their capacities.¹²

As the Council on the Ageing (SA) noted:

...as legal matters happen, the things that affect older people are exactly the things that affect younger people, except where it relates to particular stages of life and matters that people are moving into that they may be unfamiliar with. Likewise, the full force of the law should be available to older people in the same way that it is available to anybody else. That is particularly important in terms of abuse and exploitation of older people. So one of the main areas of interest is access to legal remedy, as it is with anybody else in the community.¹³

The NSW Ministerial Advisory Committee on Ageing took a similar view:

...older people are citizens of Australia the same as any others. They are covered by the laws of Australia the same as any other citizens. We do not see that they should be categorized and discriminated against, if you like even if it is positive discrimination, in the sense of categorising them as older people with special needs and interests as if they were less than full citizens.¹⁴

Legal needs of older Australians

A number of submissions argued that there are specific characteristics of an older person’s engagement with the law which warrant a tailored response in order to ensure that older people have equal access to the law. It was suggested that, while not all of these characteristics are unique to this demographic group, they nevertheless highlight the need for services and delivery mechanisms other than what the rest of the population might require. These characteristics include:

• Older people experience high levels of disengagement and social exclusion. With respect to legal problems, there is often a sense of powerlessness and lack of willingness to engage...
• Older people utilise informal sources of information and established contacts...
• Older persons' legal needs span a broad range of legal areas...
• Older people may not self-identify that they have legal rights. In addition their presenting issue may not be their only issue (legal or non-legal)...
• There is often an intersection between legal and non-legal issues...
• Issues of elder abuse and other legal issues faced by older people are not just about the individual...
• Older people are not a homogenous community. There are significant socio-economic and cultural differences...¹⁶

It is, therefore, not so much that there is an area of the law relevant only to older people, but rather that it is important to examine whether there are any barriers to older people exercising their legal rights. The Committee agrees with the view that:

...it is the vulnerability of some older people that warrants particular attention to their legal, justice and safety needs. Older people should not, however, be treated as incapacitated, incapable or infantile by virtue of having lived longer than some others in our community.¹⁹

It is also true that:

A crime is a crime, irrespective of the victim's age. The law should treat older people at it treats all people. Age of itself should not affect how the law applies or is formulated. However older people may be more or less associated with particular needs.²⁰

Elder law

A number of overseas jurisdictions have seen the emergence of a legal speciality— ‘elder law’— particularly in the United States, Canada and the United Kingdom:

In America... elder law is a major area of law practice and most American states have their own legislation. There are specific laws devoted to the interests of older people... Having lawyers specialising in elder law and devoting their practice to this area of the law is a must for our ageing community.²¹

Elder law is an emerging new field of legal specialisation in Australia. The University of Western Sydney is the only centre in Australia specialising in elder law. While it is taught as an elective subject to undergraduate students, the University is:

…looking at developing a course in elder law that would be suitable for legal practitioners, trust officers, basically to meet the demand in the community from all walks of life and within academic circles to look at issues surrounding elder law.²²

The Law Institute of Victoria noted that interest in ‘elder law’ was increasing in the profession:²³

Elder law is a relatively new field that has very few specialists. There is a paucity of elder law courses, although Continuing Legal Education providers are addressing this knowledge deficit. There is a demand among practitioners for elder law subjects which currently is not being met.²⁴

Referral of the inquiry

Conduct of the inquiry

The approach of the Committee

The report