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

(c) legislative amendments similar to the Californian model for non-mandated reporters
which protect voluntary reporting of suspected abuse from civil and criminal liability
(this might be achieved in part by prescribing each State and Territory’s
Guardianship Act under the Privacy Act); and/or
(d) legislative amendments to incorporate similar immunity provisions giving
immunity to reporters (including their employer entities and related entities)
from civil or criminal liability as a result of the reporting of suspected abuse.
Mandatory reporting tends to be either too broad in its terms 68 or too narrow, 69 both
of which will reduce its effectiveness in targeting abuse. The most effective method to
address concerns of privacy breach in the abuse context is to use a combination of prior
written consent, voluntary reporting and the introduction of immunity provisions.
Voluntary reporting will give some protection to financial institutions against privacy
liabilities, as a statutory right to voluntarily report may be regarded as an ‘authorisation’
by law (NPP 2.1(g)). If the voluntary reporting is based on the Californian model for nonmandated
reporters, the express statutory immunity from civil and criminal liability will
encourage financial institutions to report suspected abuse.
A prior written consent from the customer gives a financial institution protection from
privacy claims as it can (depending on its terms) allow the disclosure to be made in the
context of the abuse. However, this protection is limited to the disclosure of personal
information relating to a person who has consented and will not provide a financial
institution any protection from breaching privacy law if it discloses the personal
information of another person, such as the details of a suspected abuser.
The introduction of specific immunity provisions at both State and Federal level will
encourage reporting by banks in good faith of any suspected abuse and will eliminate
any concern that the protection is somehow limited or subject to other conditions.
Adoption of these strategies will minimise the risk of breaching any privacy principles
and encourage financial institutions to report suspected abuse and encourage a culture
of abuse prevention. The provision of information on the risks and the signs of abuse
to both employees and customers of financial institutions will not only help reduce the
likelihood of abuse but also change the expectations of customers of the way financial
institutions deal with such abuse. This in turn will provide financial institutions with
further protection from breaching NPP 2 under the related purpose exception. 70
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