Responding to the financial abuse of older people - Loddon ...

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or breach of contract or confidentiality or interference with privacy if they report suspected abuse in good faith; (c) the Australian Bankers’ Association to consider whether it should: (i) amend the Code to include new or separate standards and contractual terms for consumer banking services (including basic savings and investment products) to or for elderly customers; (ii) conduct research on overseas trends and experiences to enhance the value of the review. In addition we commend consideration of all of the reforms proposed by the House of Representatives, Standing Committee on Legal and Constitutional Affairs, 12 and particularly: (d) the Australian Government provide funding mediation and dispute resolution services to assist older people to resolve financial disputes involving abuse. (e) the Australian Government provide funding to the Australian Network for the Prevention of Elder Abuse. (f) the members of the Australian Guardianship and Administration Committee examine the Western Australian legislation relating to reporting by banks and other financial institutions of suspected abuse to the Public Advocate and Advocare, and develop similar initiatives for consideration by their respective state and territory governments. (g) the Australian Government or the Australian Bankers’ Association provide funding and appoint or establish an agency to be responsible for monitoring abuse, developing solutions to combat abuse and providing a focal point to address the issue of abuse. (h) the Australian Government examine a rebate scheme for legal fees for older Australians to improve access to legal services. (i) the Australian Government require that 10 per cent of Commonwealth funding to the Legal Aid Commissions be utilised for assisting older Australians with legal matters that otherwise qualify for legal aid assistance. (j) the Australian Government increase funding to the Community Legal Services Program specifically for the expansion of services, including outreach services, to older people by Community Legal Centres. (k) the Australian Government provide funding to Community Legal Centres to expand their community education role, with a specific focus on older people. (l) the Australian Government establish a resource service for older people, accessible through a single contact point, such as an 1800 telephone number, that can provide assistance to older people in identifying the legal services that are available to them. Further, that the assistance service be supported by a media education campaign to alert older people to their legal rights and to advertise the availability of legal assistance. 6
4. Code of Banking Practice 4.1 Summary The Code has been reviewed to determine whether it imposes any specific positive obligations on banks which have adopted the Code to either: (a) identify and/or report instances of abuse; or (b) provide products or services to elderly customers to protect them against potential abuse. 4.2 The Code The Code is the voluntary code of practice published by the Australian Bankers’ Association setting out standards of good banking practice with respect to banks’ dealings with their customers or potential customers. Most Australian banks have adopted the Code; however some have adopted the Code on a conditional basis. The Code is subject to an independent review at least every three years (para 5 of the Code), with the Viney Review of 2001 being the most significant review undertaken so far. 4.3 Potentially relevant provisions of the Code In our view, there are no provisions in the Code imposing specific positive obligations on banks which have adopted the Code to either identify and report instances of abuse or provide products to elderly customers which protect them against abuse. In reaching the above conclusion, we are mindful that: (a) there is a provision in the Code which pertains to the elderly (although not in the specific context of abuse); and (b) there are other provisions which, although they do not pertain specifically to the elderly, could potentially be relevant in scenarios involving abuse. Paragraph 6 of the Code, which pertains to the elderly, provides as follows: Elderly customers and customers with a disability We recognise the needs of elderly customers and customers with a disability to have access to transaction services, so we will take reasonable measures to enhance their access to those services. The intention underlying the introduction of Paragraph 6 of the Code appears to have been to ameliorate the difficulties elderly and disabled customers have when using technologies such as ‘ATMs, telephone banking or internet banking’. 13 As a result, this 7
Page 1 and 2: Responding to the financial abuse o
Page 3 and 4: Responding to the fi nancial abuse
Page 5 and 6: Contents Preface ..................
Page 7 and 8: Preface In a paper given in Novembe
Page 9 and 10: 1. Introduction and Scope This repo
Page 11 and 12: 2. Glossary In this report: • ‘
Page 13: impose an obligation to protect a c
Page 17 and 18: 5. Office of the Public Advocate 5.
Page 19 and 20: 5.4 Administration orders (a) If th
Page 21 and 22: nevertheless be able to guess the s
Page 23 and 24: ‘general duty of confidentiality
Page 25 and 26: capacity’. 48 As a result, any fi
Page 27 and 28: in reporting abuse to a third party
Page 29 and 30: y or on behalf of an enforcement bo
Page 31 and 32: Reporting requirements are in two c
Page 33 and 34: to assist bank employees in identif
Page 35 and 36: 7. Confidentiality 7.1 Summary (a)
Page 37 and 38: Additionally, the following particu
Page 39 and 40: 7.6 BFSO scheme (a) The BFSO scheme
Page 41 and 42: (e) Where a representative of a cus
Page 43 and 44: (c) The fiduciary relationship aros
Page 45 and 46: Indeed, the duty to honour a custom
Page 47 and 48: suspicious transaction. These terms
Page 49 and 50: The common law has formulated the t
Page 51 and 52: 9.6 Contextual truth A defence of c
Page 53 and 54: (d) whether the opinion was honestl
Page 55 and 56: equires that the duty and interest
Page 57 and 58: 10. Recommendations On the basis of
Page 59 and 60: Notes 1. Julian Gardner, Uncovering
Page 61 and 62: 34. Instruments Act 1958 (Vic) s 12
Page 63 and 64: 69. Mandatory reporting may give re
Page 65 and 66:
96. Cheques Act 1986 (Cth) s 33(2)(
Page 67 and 68:
Schedule 1: Office of the Public Ad
Page 69 and 70:
Schedule 1: Office of the Public Ad
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