Elder abuse is about to become a crime of its own in the ACT, but some fear the creation of a new offence may make the crime harder to prosecute.

Proposed laws making it a crime to abuse or neglect a “vulnerable person” will be introduced to the ACT Legislative Assembly today — the first laws of their kind in Australia.

The ACT Government describes the move as a “cultural game changer” and a firm statement on the important place that older, more vulnerable Australians have in society.

It argues the laws are even more important now, amid reports of surging calls to Legal Aid ACT’s dedicated elder-abuse helplines since the COVID-19 crisis set in.

To make the abuse illegal, the Government set out to answer a complex question — what is elder abuse? Who are the victims and who are the perpetrators?

But some worry that creating those definitions may cause more problems than it solves.

What makes you ‘vulnerable’, and what is ‘abuse’?

The laws primarily target the protection of older people, but they extend protection to other groups.

The legislation’s definition of “vulnerable” is deliberately broad — capturing all people aged over 60, those with any kind of physical or mental impairment, or people who could be considered “socially isolated”.

It also includes anyone with a disability, of any age.

Defining “abusive conduct” is a little trickier, and the laws try to cover areas such as emotional and psychological abuse, financial abuse, physical and sexual abuse.

Attorney-General Gordon Ramsay said the common theme in elder abuse was the abuse of trust.

“Whether it’s an individual family member, or someone in an institution, what we see is that those vulnerable people have an openness at times to relying on people where that trust is misplaced,” he said.

“That can end up being physical abuse, that can end up being financial abuse.

“An appalling abuse of trust.”

However, the laws will go beyond abuse and criminalise “neglect”, where failure to adequately look after a vulnerable person results in serious harm.

And they do not just target the person immediately responsible for caring for older or vulnerable people, but the people who employ those carers too.

In some circumstances, the laws allow for institutions, such as aged-care providers, to be held criminally responsible for abuse or neglect conducted within their homes.

Escalating reports of elder abuse

A key challenge in tackling elder abuse is identifying it in the first place, as it often occurs behind closed doors, and victims can have trouble reaching out for help.

A dedicated phone line was established within Legal Aid ACT in recent years, along with a national elder-abuse hotline, to give those worried about themselves or others a place to get advice.

It has been in almost ever-increasing demand since it was created.

More than 550 calls were made to the ACT service last year, and calls are up 71 per cent this year.

The vast majority concern elder abuse, while other callers have more specific concerns around issues like wills and guardianship.

Legal Aid ACT chief executive John Boersig said many of the stories his agency encountered centred on finances.

He said a family member might take control of an older relative’s finances in a legitimate situation, but over time begin using that person’s income as their own.

“So they rationalise that they can use this money, which they say is for the interest of that person, but, in fact, it’s been put towards their own bills.”

Are new offences the right approach?

Much of what is considered “elder abuse” is already clearly illegal.

Physical, sexual and financial abuse is largely already criminal — and some lawyers argue that existing frameworks should simply be strengthened to better cover elder abuse.

Michael Kukulies-Smith, from the ACT Law Society, said the risk in creating new offences was that they could be harder to prosecute in court.

“If they wish to impose additional penalties because of the vulnerability, that can be dealt with in the existing legislation, or with reference to sentencing legislation by making it an aggravating factor.

“Much as it is done in a case where a victim is a pregnant woman — it can be taken into account as an aggravation, a circumstance of aggravation in sentence.”

Mr Kukulies-Smith said he worried that very specific offences, with specific definitions, could create higher bars for prosecutors to jump over in proving an offence.

That might have the perverse effect of seeing perpetrators walk free, if those new offences could not be proven.

“The current criminal law covers the areas that need to be covered, and it’s a case where additional offences with very specific definitions are not likely to lead to good outcomes in court,” he said.

The Law Society suggested adjusting the law to make crimes against older people an “aggravating factor” in sentencing.

But Mr Boersig said creating the new offences was the right step to take.

“You can understand why the Government wants to label it,” he said.

“I think that’s one of the most important things that we can do here is label this as a scourge and that’s what’s happening.”

He said prosecuting offences like this was always difficult, but that did not mean it should not be tried wherever possible.

Mr Ramsay said the Government was conscious of this issue and it would be up to prosecutors to decide whether they charged an alleged perpetrator with the new elder abuse offence, or an existing offence.

And when someone was convicted of an existing offence, in a circumstance of elder abuse, the new sentencing provisions would apply.

“It’s not a matter of one or the other,” he said.