Criminally unkind: ACT passes elder abuse legislation

On 20 August 2020, the Australian Capital Territory passed legislation criminalising acts of abuse of vulnerable people.

The term ‘elder abuse’, for many, is a problematic term as it suggests it is only an abuse that only affects elders, when the truth of it is, it affects those that are vulernable. The new legislation acknowledges this in it’s cafeful drafting.

The new Crimes (Offences Against Vulnerable People) Legislation Amendment Act 2020 amends the Crimes Act 1900 (ACT) by inserting new sections 36A to 36C. You can review the whole 16 pages of the amending legislation here for the full details.

The Act creates an offence of abuse where all the following exist:

  • the person is responsible for providing care to vulnerable person;
  • the person engages in abusive conduct towards the vulnerable person;
  • the conduct results in either harm to the vulnerable person or a financial benefit to the person or someone associated with that person; AND this
  • the person is reckless about causing harm that might be suffered by the vulnerable person or themselves or someone else associated with them obtaining the benefit (whichever might apply to the situation).

The maximum penalty for the conduct resulting in harm (that is not financial harm) is imprisonment for 3 years and in the situation with conduct results in serious harm, the offender can be imprisoned for 5 years.

When it comes the question of care as noted in the above first point, a person is deemed to be responsible for providing care where the alleged offender exercises control over any aspect of the care needed by that vulnerable person and it does not matter if it is short or long-term care.

A vulnerable person is defined to mean an adult who –

  • has a disability within the meaning of the Disability Services Act 1991; or
  • is at least 60 years old and –
    • has a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or otherwise results in disturbed behaviour; or
    • as an impairment that –
      • is intellectual, psychiatric, sensory or physical in nature and
      • results in a substantially reduced capacity of the person for communication, learning or mobility; or
    • for any other reason is socially isolated or unable to participate in the life of persons community.

New section 36A(5) defines the term ‘abusive conduct’ to mean an act or omission:

  • that is directed at the vulnerable person, and is of a violent, threatening, intimidating or sexually inappropriate nature; or
  • that
    • is directed at the vulnerable person, or someone known to the vulnerable person, and is reasonably likely to –
      • make the vulnerable person dependent on or subordinate to the abusive person; or
      • isolate the vulnerable person from friends or family; or
      • limit the vulnerable persons access to services needed by the valuerable person; or
      • deprive or restrict the vulnerable person’s freedom of action; or
      • frighten, humiliate, degrade or punish the vulnerable person; and
    • is not reasonably necessary for the safe and effective care of the vulnerable person, or for the safety of another person who is present or nearby.

Further, the word ‘harm is defined to mean physical, psychological or financial detriment.

In a further step by the ACT legislators, the Act also creates a criminal offence for failing to protect a vulnerable person from a criminal offence.

New section 36B states the person commits an offence if –

  • they are a person in authority in a relevant institution; and
  • there is a substantial risk that a serious offence will be committed against a vulnerable person under the institution’s care, supervision or controlled by a person associated with the institution or by another person in authority in the institution;
  • the person in authority is aware that the risk exists; and
  • the person in authority can, because of the position of person occupies in an institution, reduce or remove the risk; and
  • the person in authority recklessly or negligently fails to reduce or remove the risk.

The maximum penalty for this offence is 5 years imprisonment.

A ‘relevant institution is defined in the Act and means:

  • an entity, other than an individual, that operates facilities for, engages in activities with, or provide services to, vulnerable people under the entity’s care, supervision or control; or
  • a group of entities mentioned in paragraph (a) if the entities –
    • interact with each other, share similar characteristics and collectively have a sense of unity; or
    • are controlled, managed or governed by another entity.

The broad drafting of this meaning for irelevant institution’ means to capture not simply aged care operators or alleged settings about the smaller and just as important social and support groups and service providers and therefore extends the obligations to many people surrounding a vulnerable person.

In addition to failing to protective on a person mentioned above, there is an additional new offence for neglect of a vulnerable person.

New section 36C states that a person commits an offence if –

  • the person is responsible for providing care to a vulnerable person; and
  • the person recklessly or negligently fails to provide the vulnerable person with the necessities of life that are a necessary part of the care the person is responsible for providing to the vulnerable person; and
  • the person’s failure causes serious harm to the vulnerable person

The maximum penalty for this offence is 5 years imprisonment or 500 penalty units, or both.

Just as mentioned in relation to abuse above, a person is responsible for providing care where they exercise control over any aspect of that care that is needed by the vulnerable person and it does not matter if it is short or long term care.

A new section 442C, also introduced by the amending legislation, provides that the Minister must review the operation of the new section 36A, section 36B and section 36C on the first anniversary of its commencement and provide a report to the Legislative Assembly.

What appears very clear from these amendments is that the legislation is drafted broadly enough to capture offenders from any corner of the vulnerable person’s world; individuals, care facilities and the local community support centre. What the research and statistics of the prevalence of elder abuse has told us is that elder abuse is an epidemic and sadly is carried out by those closest to the person and those in positions of trust.

These new laws will commence on 21 April 2021.

Very sadly, but understandably, we will not know of the efficacy of the legislation until such time as a person is charged under the new sections of the Crimes Act 1900. What is certain about it, however, is that I will be watching this space with great interest as it develops.

I would be most grateful if any of my readers happen across any commentary or cases that relate to these new sections as I would be most interested in learning more about them and how the sections are going to be interpreted and applied by the courts. Please contact me if you do find anything you think might be of interest as I’m always happy to hear from my readers!

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