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

to assist bank employees in identify the indicators of elder abuse. These indicators
remain, however, inconclusive and a judgement call must be made as to whether
there is reasonable suspicion of financial or elder abuse in each case.
(d) Immunity provisions
Legislative amendments to give a reporter or reporting entity immunity from civil
or criminal liability would encourage financial institutions to report suspected
financial abuse. Except for South Dakota, 65 jurisdictions in the United States have
immunity provisions designed to encourage reporting abuse by an individual.
Some of the United States experiences in relation to immunity provisions are
highlighted below.
(i)
(ii)
Immunity provisions should be effective for both civil and criminal liability.
Immunity provisions should only be effective when the reporting person acts
in good faith.
(iii) Immunity should apply to the person who reports the suspected abuse and
should extend to include the employer entity and related entities 66 when an
employee reports suspected abuse. 67
(iv) Immunity provisions should apply to both federal and state laws.
This is necessary to prevent a bona fide reporter being immune in one
jurisdiction but not in another.
6.9 Conclusion
A financial institution which discloses personal information of a customer to a third
party may be in breach of NPP 2. Exceptions to NPP 2 may, in some circumstances,
apply. Some of these exceptions may be applicable to disclosures relating to abuse but
their applicability can only be determined on a case by case basis. Under the current
Australian privacy framework, financial institutions therefore have a positive obligation
not to breach the NPPs but do not have any reliable overall protection from liability
for disclosing a customer’s personal information to third parties in suspected cases of
abuse. The difficulty in identifying and recognising abuse, coupled with the uncertainty
of protection against breaches of privacy laws, could lead to financial institutions being
reluctant to report even if there are grounds for suspicion of abuse.
The risks that financial institutions may be liable for breaches of the NPPs in the abuse
context can be mitigated by:
(a) prior written consent of the customer to whom the personal information relates;
(b) imposition of a mandatory reporting mechanism which will trigger the exception
for disclosures required or authorised by law (NPP 2.1(g));
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