Australia: Review Of "Older People And The Law"

Last Updated: 15 November 2007
Article by John Oakes and Jordan Tilse

Key Point

  • The report concludes that Australia's legal framework is not adequately meeting the needs of older Australians in a number of key areas.

On 20 September 2007, the House of Representatives Standing Committee on Legal and Constitutional Affairs tabled its report entitled Older people and the Law.

Committee's Terms Of Reference

The Committee's Terms of Reference were to investigate and report on the adequacy of current legislative regimes in addressing the legal needs of older Australians in a number of key areas including discrimination, fraud and financial abuse and barriers to older Australians accessing legal services.

In the terms of reference the definition of "older" is that of the Australian Institute of Health and Welfare, which defines "older" as 65 years and over.

Difficulties Faced By Older Australians In The Law

A number of submissions to the Standing Committee identified that there are specific characteristics of an older person's engagement with the law which require a tailored response. These characteristics include:

  • older people often experience disengagement, social exclusion and feel powerless and unwilling to engage in legal problems
  • older people utilise informal sources of information and established contacts
  • older persons' legal needs span a broad range of legal areas
  • older people may not self-identify that they have legal rights
  • there is often an intersection between legal and non-legal issues; and
  • older people are not a homogenous community.

The report stressed that legal issues facing older persons is not limited to issues regarding wills, powers of attorney, guardianship and administration. Older people also interact with the law in relation to areas including accommodation issues, age discrimination, elder abuse, property issues, consumer issues, family law issues (including a growing number of grandparents with custody of grandchildren), health issues, and welfare issues.

HREOC Submissions And Standing Committee Recommendations

The Human Rights and Equal Opportunity Commission ("HREOC") made a submission to the Committee identifying a number of impediments older persons face in the law and made a number of recommendations about amending the law to address these problems. HREOC recognised these issues are increasingly important, in light of the rapidly ageing population, as well as the problems of older people living alone, with disabilities, and as carers. Three of the key areas in which HREOC made submissions (and which the Standing Committee made recommendations about) are as follows.


HREOC identified several areas where the Age Discrimination Act 2004 (Cth) could be amended to make it more effective in combating age discrimination.

Among other things, HREOC urged the Government to review the "dominant reason test", which explains that an act will only be considered to be done on the basis of age where age is the dominant reason for doing an act. The Standing Committee recommended that this test be removed, so as to bring the Act into line with other anti-discrimination statutes. HREOC also urged the Government to examine the breadth and details of exemptions to the Act. These included exemptions relating to compliance with laws and orders, religious bodies, and voluntary bodies.

The Standing Committee recommended undertaking an independent review of the Act in 2009, and for this review to examine the effectiveness of the Act, and particularly the effectiveness of the range of exemptions under the Act.

Fraud And Financial Abuse

HREOC identified that older Australians are disproportionately high victims of fraud and financial abuse. It suggested that a detailed study into fraud is needed, and national standards are required, such as to implement standard cooling-off periods to prevent consumer fraud. It also noted the particular problems faced by Indigenous older Australians.

The Standing Committee recommended that a detailed study of fraud and financial abuse against older people be undertaken by the Australian Institute of Criminology. It also recommended a range of specific measures including funding for mediation and dispute resolution services to assist older people; national financial abuse reporting protocols; a national awareness campaign directed at elder abuse; and a range of regulations be directed to banks, credit providers, Centrelink and superannuation providers.

Barriers To Older Australians Accessing Legal Services

HREOC identified that older Australians face significant barriers to legal services such as technological barriers, lack of awareness, and lack of receptive lawyers.

The Standing Committee recommended instituting courses in elder law for legal professionals, a rebate scheme for legal services provided to older people, dedicated Legal Aid assistance for older people, and an easily accessible legal resource service for older people.


The report identifies specific characteristics of an older person's engagement with the law which warrant a response aimed at safeguarding their legal protection and safety. These issues are increasingly significant given the rapid ageing of Australia's population.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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