LSB September 2022 LR

DISABILITY
Report that police may be unwilling to become
involved in an allegation without clear evidence
of physical mistreatment: Legislative Council
General Purpose Standing Committee No 2,
Parliament of New South Wales, Elder Abuse in
New South Wales (Report No 44, 2016) 126 [8.20].
33 Select Committee into Elder Abuse, Parliament
of Western Australia, ‘I Never Thought It Would
Happen to Me’: When Trust is Broken’ (Final Report,
September 2018) 61 [6.25], 67 [6.51]; Legislative
Council General Purpose Standing Committee
No 2, Parliament of New South Wales, Elder
Abuse in New South Wales (Report No 44, June
2016) 85–86 [6.25].
34 Select Committee into Elder Abuse, Parliament
of Western Australia, ‘I Never Thought It Would
Happen to Me’: When Trust is Broken’ (Final Report,
September 2018) 65 [6.42].
35 Legislative Council General Purpose Standing
Committee No 2, Parliament of New South
Wales, Elder Abuse in New South Wales (Report No
44, June 2016) 126–7 [8.19]–[8.23].
36 Ibid 126 [8.19]. See also at: 124–8 [8.12]–[8.28].
37 When the current IO framework of the IO Act
was introduced, despite the broad potential ambit
of the scheme, it was conceded that ‘there is a
strong emphasis on domestic abuse and there is
no doubt that these laws will mostly be used by
people seeking to protect themselves and their
children from domestic abuse’: South Australia,
Parliamentary Debates, Legislative Council, 28
October 2009, 3793 (Hon GE Gago).
38 Intervention Orders (Prevention of Abuse) Act 2009
(SA), sub-s 8(8)(a), (b).
39 Intervention Orders (Prevention of Abuse) Act
2009 (SA), sub-s 8(8)(i) and (k). Sub-s 8(8)(j)
also includes: two people related according to
Aboriginal or Torres Strait Islander kinship rules
or are both members of some other culturally
recognised family group.
40 Carers Recognition Act 2005 (SA), s 5. Relevantly,
‘carer’ is defined in general terms as a person
who provides ongoing care or assistance to: a
person who has a disability (within the meaning
of the Disability Inclusion Act 2018), a chronic
illness (including a mental health illness, within
the meaning of the Mental Health Act 1993);
or a person who, because of frailty, requires
assistance with the carrying out of tasks.
Notably, it does not include a person who is
contracted to provide care or assistance, nor
a person who provides care or assistance in
the course of community work organised by a
community organisation.
41 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 8(9).
42 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 8(4)(m).
43 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 8(4)(n).
44 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 8(4)(o).
45 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 8(5)(a).
46 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 8(5)(b).
47 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 8(5)(e).
48 Australian Law Reform Commission, Elder
Abuse: A National Legal Response (Report No 131,
May 2017) [1.17].
49 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 6.
50 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 28.
51 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 14.
52 Intervention Orders (Prevention of Abuse) Act 2009
(SA), ss 12 and 13.
53 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 12(1)(l).
54 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 12(2)(a), (b).
55 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 13.
56 Intervention Orders (Prevention of Abuse) Act 2009
(SA), div 2 and s 20.
57 Intervention Orders (Prevention of Abuse) Act 2009
(SA), s 20(1)(b).
58 See, for example, Department of Human Services
(Cth) v Fitzpatrick [2018] SASC 180, [32]
(Kourakis CJ).
59 David Lock, ‘Decision-making, Mental Capacity
and Undue Influence: Action by Public Bodies
to Explore the Grey Areas between Capacity and
Incapacity’ (2015) 20(1) Judicial Review 42.
60 Intervention Orders (Prevention of Abuse) Act 2009
(SA), ss 7(2), 20(1)(a).
61 See Rana v Gregurev [2015] SASC 37, [15] (Peek
J): ‘…because the concept of abuse is so
broadly defined, it is…necessary for the courts
to ensure that this broad jurisdiction is not
itself abused by specious or unwarranted claims
with their associated detrimental consequences
to both the limited resources of the courts
and to persons the subject of unmeritorious
applications. The necessary balance is achieved
by investing the Magistrates with a great deal
of discretion in the course they may take in any
given case.’
62 The 2021 AIFS study found that a ‘personal
protection order’ (what in South Australia would
be called an ‘intervention order’) was obtained
against the perpetrator in 3.8% of cases of elder
abuse, breaking down as in cases of financial
abuse (4.4%), physical abuse (9.3%), sexual abuse
(0.7%), psychological abuse (3.8%) and neglect
(0.9%). See Lixia Qu et al, National Elder Abuse
Prevalence Study: Final Report (Research Report)
(Australian Institute of Family Studies, 2021)
86. It also to be noted that the West Australian
Police conceded in evidence before the
Parliamentary Committee that police only very
rarely sought an intervention order in cases of
elder abuse and identified that such orders had
been sought by police in Western Australia in
only three instances during 2017/2018 on behalf
of parties aged over 65: See Legislative Council
Select Committee into Elder Abuse, Parliament
of Western Australia, ‘I Never Thought It Would
Happen to Me’: When Trust is Broken (Final Report,
September 2018) 64. Indeed, the Western
Australian Police Commissioner had doubted
such orders were even available in respect of
financial elder abuse or without the victim’s
consent: See Transcript, Evidence, Legislative
Council Select Committee into Elder Abuse,
Parliament of Western Australia, ‘I Never Thought
It Would Happen to Me’: When Trust is Broken, 7
May 2018, 2-5 (Mr Dawson).
63 Queensland Law Society and Queensland Public
Advocate, Elder Abuse: Joint Issues Paper (2022)
54-55, 53-54 [6.2.4]. The 2022 Queensland study
identified an apparent police reluctance to utilise
such orders in relation to elder abuse and noted
their ‘limitations’ in the context of elder abuse.
64 On the one hand, in the 2021 AIFS study, they
were seen in some instances as putting a stop
to the abuse and also providing a deterrent
going forward. But it was also noted in the 2021
AIFS study that ‘in some cases legal action was
ignored or not understood by the perpetrator
or restraining orders were flouted and did not
prevent the perpetrator from reoffending.’
Substantial minorities of the victims in the
2021 AIFS study considered such actions were
ineffective. See Lixia Qu et al, National Elder
Abuse Prevalence Study: Final Report (Research
Report) (Australian Institute of Family Studies,
2021) 3, 88 and 89.
65 Legislative Council Select Committee into
Elder Abuse, Parliament of Western Australia,
‘I Never Thought It Would Happen to Me’: When
Trust is Broken (Final Report, September 2018)
63 [6.312], 64 [6.38], 65 [6.43]. The Committee
noted that, despite the broad statutory powers,
it had heard of a ‘distinct reluctance’ by the
Western Australia Police to exercise these powers
either where the older person in question did
not consent to the order or did not want the
orders in place. The Committee observed that
the tension between the police duty to protect
vulnerable older people in the community and
the duty to respect the inherent dignity and
autonomy of adults in terms of the decision
to apply for orders under the Restraining Orders
Act 1997 may ‘sometimes result in a lack of
appropriate action being taken to protect an
older person from continued or greater harm’.
The Committee, whilst the appreciating the
difficult position that this tension may create,
was of the view ‘that Western Australia Police’s
duty to protect vulnerable older people in the
community should take precedence where to
take no action could result in continued or
greater harm.’
September 2022 THE BULLETIN 15