Papering over the void — Could (or should) consumer law be used as a response to elder abuse?

Abstract

The Australian population is ageing and there is rising concern about the incidence and extent of “elder abuse” in Australia. Indeed, In 2016, the Australian Law Reform Commission commenced an inquiry into laws and frameworks to protect older people from abuse. The inquiry will consider regulation of areas of federal jurisdiction such as financial institutions, superannuation, social security, aged care and health. Furthermore, as many laws affecting older people come within the purview of the states and territories – for example the regulation of powers of attorney, wills, and estates – the inquiry will also examine the interaction of relevant federal and state and territory laws. Perhaps surprisingly, there is no Australian law that ‘covers the field’ in relation to elder abuse. Many people assume that instances of elder abuse, especially in instances of physical and financial abuse, are addressed by the criminal law. This is not the case, in fact, only a very small proportion of elder abuse matters are the subject of criminal prosecution. The legal process can be daunting and, depending on the circumstances of the abuse, the older person may have to navigate a variety of laws including those focussing on social security, aged care, property and housing, finance, inheritance, powers of attorney, and guardianship. This article ponders whether consumer law is an unlikely but effective ally for older people experiencing some forms of elder abuse. Indeed, the article argues that, to some extent, consumer law already fulfils, or could fulfil, this function.