Law Council Update

older Australians must be protected against abuse

The Law Council of Australia strongly welcomes the decision by Commonwealth, state and territory Attorneys-General to prioritise enduring power of attorney (EPOA) law reform to better protect older Australians from financial abuse.

“Our population is ageing,” Law Council of Australia President, Dr Jacoba Brasch QC said.

“Older Australians are our parents, our grandparents, our aunts, uncles, sisters, brothers and friends and we need to do more to protect them.

“The Law Council and others, including the Age Discrimination Commissioner, have been calling for these reforms for five years, so we are pleased the nation’s Attorneys-General have recognised the urgent need for a more consistent approach to governing EPOAs.”

EPOA arrangements are intended to ensure a person’s interests are protected when they lose capacity to make decisions for themselves. However, in the absence of adequate legal safeguards, financial elder abuse by appointed decision-makers may be facilitated by such arrangements.

“What this means is that those who we expect to care for us when we may no longer be able to fully care for ourselves, take advantage of the trust placed in them. Tragically, this abuse is often perpetrated by a family member.

“It is estimated that as many as 185,000 older Australians experience some form of abuse or neglect each year and that financial abuse is the most prevalent form.”

Earlier this year, the Law Council of Australia convened a national roundtable to discuss EPOA law reforms with respect to financial matters The roundtable brought together national experts from the legal sector, public advocates, older persons stakeholder groups, law reform and human rights representatives.

Participants agreed that law reform in this area is urgently required to tackle the national problem of elder abuse.

Following the roundtable and further consultation with its Constituent Bodies, the Law Council wrote to the Commonwealth Attorney-General to propose certain model provisions as a starting point for national reform in this area.

These model provisions are directed towards mitigating financial abuse of older Australians arising from EPOAs by ensuring, among other things, that a person making an enduring document makes an informed decision about its content and the identity of the appointed decision-maker, and that the decisionmaker understands and makes a commitment to comply with, their duties and obligations.

The Law Council notes that the AttorneysGenerals also decided to consider alternative models for the National Register of EPOAs. Consistent with the Australian Law Reform Commission’s recommendations, it is the Law Council’s view that the development of nationally consistent laws regarding EPOAs and a national model enduring document are necessary precursors to a national register.

The Law Council, in close consultation with its National Elder Law and Succession Law Committee and constituent bodies, looks forward to assisting work undertaken by the Meeting of Attorneys-General towards achieving a more nationally consistent approach.

Consideration of raising minimum age of criminal responsibility doesn’t go far enough

The Law Council of Australia welcomes the decision by Australia’s State AttorneysGeneral to support development of a proposal to increase the minimum age of criminal responsibility (MACR) from 10 to 12 years of age, but believes an opportunity to bring Australia into step with international human rights standards has been missed.

“We, along with other medical and legal experts, have long condemned the fact the minimum age of criminal responsibility in Australia is currently 10 years of age,” Law Council of Australia President, Dr Jacoba Brasch QC said.

“Therefore, we are pleased the State Attorneys-General have agreed to consider lifting the MACR to 12 but continue to call for it to be immediately lifted to 14 years of age. At 12, a child cannot lawfully sign onto Facebook but can be questioned, arrested, detained and imprisoned.”

“The Law Council is concerned by the delays and short-changes inherent in the Attorneys-Generals’ decision, including a preference to raise the age to 12 instead of 14, to consider carveouts, and the failure to take decisive action when the evidence is clear.

“The minimum age of criminal responsibility should be raised to 14, in all jurisdictions, for all offences, without exception.”

A low minimum age of criminal responsibility is not in the public interest and does not make communities safer. Putting children in prison begins a cycle of criminalisation. Evidence shows children remain in cycles of disadvantage and imprisonment due to a lack of early critical support services including health, disability, rehabilitation and family supports.

Aboriginal and Torres Strait Islander children are affected at a grossly disproportionate rate. The factors driving these children into the criminal justice system include significant rates of mental health disorders, cognitive disabilities, and hearing and language impairments, as well as discrimination, socioeconomic disadvantage and intergenerational trauma, which are the products of colonisation and successive government policies.

The United Nations Committee on the Rights of the Child has called for all states parties to raise their minimum age to at least 14 years of age, taking note of recent scientific findings. Australia is a signatory to the Convention on the Rights of the Child.

In 2020, the Council of Attorneys-General (CAG) Age of Criminal Responsibility Working Group Review considered the issue of raising the minimum age of criminal responsibility. This report has never been released. Before the AttorneysGeneral embark on developing a new proposal, the Law Council calls for the public release and consideration of the original report.

The Law Council’s policy statement on raising the minimum age of criminal responsibility to 14 years of age, published jointly with the Australian Medical Association, is available here. Its submission to the CAG Working Group Review is available here.

Closing the justice gap for the missing middle

A position paper released today by the Law Council of Australia seeks to ensure all Australians have effective access to justice.

“A guiding principle of the rule of law is equality before the law,” Law Council of Australia President, Dr Jacoba Brasch QC said. “This means all people must be equally protected by the law. If legal services are financially out of reach of any Australian, then we have failed to uphold this principle.”

“When it comes to access to justice in this country, we have a ‘missing middle’. This is the group of individuals who do not meet eligibility criteria for publicly funded legal services yet lack the resources to afford a private lawyer’s assistance for all or part of their legal matter.”

The Productivity Commission found in its Access to Justice Arrangements report that: “Even many relatively affluent Australians could not afford a lawyer if they had a serious legal issue. Legal assistance providers also indicated that those refused a grant of legal aid (on the basis of means) cannot necessarily afford to engage a private lawyer — there is a ‘justice gap’.”

“Initiatives to improve access to justice have understandably concentrated on supporting Australians facing the most complicated and compounded forms of social and economic disadvantage. However, we must also turn our collective efforts to closing the justice gap for all,” Dr Brasch stressed.

“Particular sectors of our community may be more likely to fall within the missing middle,” Dr Brasch said. “These include older persons, people living in rural, regional and remote (RRR) areas, women, single parents, LGBTQI+ people, children and young people, people with a disability, migrants, and people experiencing family violence.”

The Law Council’s Position Paper, Addressing the Legal Needs of the Missing Middle, outlines a range of strategies for meeting the legal needs of the missing middle.

“It will require a multifaceted approach and support from both policymakers and the legal profession to remove the barriers faced by the missing middle. The strategies unveiled today will provide a foundation for the Law Council to advocate for and achieve positive change.”

Key strategies identified include: increased funding for legal assistance services; lowbono services; legal expenses insurance; self-representation resources; and ombudsmen services.

“A significant proportion of Australians falling within the missing middle are located in RRR areas,” Dr Brasch explained. “The Law Council will continue to encourage policy options for promoting the recruitment, retention, and succession of lawyers in RRR areas, which could include expanded adoption of RRRfocused curriculums in undergraduate.

Time to enshrine a First nations Voice to Parliament

On International Human Rights Day, the Law Council of Australia restates its unwavering support for a First Nations Voice to Parliament enshrined in the Australian Constitution, as called for in the Uluru Statement from the Heart and the recommendations of the Referendum Council.

“Constitutional recognition is vital to protect the rights and aspirations of Aboriginal and Torres Strait Islander peoples,” Law Council of Australia President, Dr Jacoba Brasch QC said.

A First Nations Voice, constitutionally enshrined, is a manifestation of the right to self-determination, which, at a minimum, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to pursue their economic, social and cultural development.

The right to self-determination applies to all peoples but was given special resonance in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which represents an authoritative common understanding, at the global level, of how governments should engage with and respect the rights of indigenous peoples. Australia formally announced its support for the UNDRIP on 3 April 2009.

“The human rights of Aboriginal and Torres Strait Islander peoples continue to be undermined in this country through socioeconomic disadvantage, poorer health and education outcomes, and alarming rates of incarceration and child removals, as well as the destruction of their cultural heritage,” Dr Brasch said.

“The discrimination and intergenerational trauma that Aboriginal and Torres Strait Islander peoples face on a day-to-day basis cannot be alleviated unless and until their rightful place in this country is recognised and the legacy of colonialism confronted. The legal and justice system has played an undeniable part in this history of colonisation, discrimination and trauma.”

A Voice enshrined in the Constitution would provide an effective representative body for First Nations through which this work might begin with Parliament.

“The Law Council recognises the considerable strength, endurance, dignity and leadership of Australia’s First Nations peoples in defending their human rights and putting constructive and achievable ways forward to the nation so that these can be better respected, protected and fulfilled into the future,” Dr Brasch said.

“The Uluru Statement from the Heart was made four years ago. It is time for governments to allow Aboriginal and Torres Strait Islander peoples to take the lead on the issues that affect them.”