Recently, Partner and Head of Pro Bono Leanne Collingburn, Partner Brian Herd, Special Counsel Margaret Arthur, along with Solicitor Jessica Mark and Legal Assistant Tom Kelman, prepared a report outlining elder abuse within the context of coercive control reform in Australia.
The report examines where elder abuse sits within broader recent discussions in Australia about coercive control law and policy reform and encourages key stakeholders, including national, state and territory governments, to continue to include elder abuse in these important reforms.
In this article we will summarise the report.
What is coercive control and what is the status of coercive control reform in Australia?
Coercive control is a pattern of behaviour that typically results in perpetrators controlling the victim’s daily activities, restricting their financial means and isolating them from family and friends. Coercive control is a dangerous form of domestic and family violence used to instil fear in victims. Fundamentally it is about power and control and perpetrators use tactics such as isolating a person from their friends and family, tracking their moments, controlling access to money, where a person goes and even what they wear.
Coercive control is particularly prevalent in relationships that suffer from an imbalance of power. In situations where one party is reliant on the other for basic needs, such as food, finances and basic care, one party can leverage these needs into a level of control that becomes abusive.
Since the murder of Hannah Clarke and her three children in Queensland in 2020, there has been more focus on coercive control in Australia and debate regarding the best laws and policies required to address it. All Australian states and territories are looking closely at coercive control reform for their own jurisdictions and, in September 2022 the Attorney-Generals for the Australian Government and state and territory governments released a consultation draft of the National Principles to Address Coercive Control.
Queensland (QLD), New South Wales (NSW), the Australian Capital Territory (ACT), South Australia (SA), Western Australia (WA) and the Northern Territory (NT) have all held recent public consultations on coercive control reform. To date, QLD, NSW and SA have committed to criminalising coercive control, with NSW introducing a standalone offence of coercive control through the Crimes Legislation Amendment (Coercive Control) Bill 2022 on 23 November 2022.
What is elder abuse?
Elder abuse is defined as a single or repeated act or failure to act, including threats, that result in harm or distress to an older person. These occur where there is an expectation of trust and/or where there is a power imbalance between the party responsible and the older person.
Elder abuse has gained attention in Australia in recent years as a serious problem requiring increased policy focus. Five abuse subtypes are commonly recognised within elder abuse: financial abuse, physical abuse, sexual abuse, psychological abuse (otherwise known as emotional abuse), and neglect.
Elder abuse within the context of coercive control reform in Australia
Older women and older persons in general have been given far less attention as victims of coercive control and this type of violence is not always recognised or captured by legislative and policy frameworks as constituting family or domestic violence, given it occurs beyond the typical intimate partner relationship.
In the context of Australia’s coercive control reforms, only QLD has indicated that the offence will extend beyond intimate partner relationships to include wider family relationships and informal care relationships. NSW has expressly limited their coercive control offence to intimate partner relationships and the existing Tasmanian offences of economic abuse, emotional abuse and intimidation under the Family Violence Act 2004 (TAS) are also limited to intimate relationships.
The consultation draft for the Attorney-General’s National Principles to Address Coercive Control also emphasises intimate partner relationships, and the gendered nature of coercive control.
These consultations have considered a range of reforms including education and awareness campaigns, amendments to the civil protection regimes, and criminalisation.
Reform commitments have included amendments to the civil protection regimes to broaden the definition of violence to include a 'pattern of behaviour' (such as in Queensland) and explaining definitions of behaviour to behaviour that 'coerces' and 'controls' (such as in New South Wales).
We examine the QLD and NSW coercive control consultations and reforms in more detail in our full report, as well as the draft Attorney-General’s draft National Principles to Address Coercive Control.
Why does this matter?
Older people are victims of coercive control and the abuse inflicted on them is most commonly at the hands of an adult child, rather than an intimate partner (though this abuse does sadly also occur). Yet for a multitude of reasons, the abuse is not reported and there is a general lack of awareness about these issues.
The purpose of this paper is not to weigh into the debate on whether coercive control should be criminalised or if it is, that the scope of the offence should extend beyond intimate partners. Criminalisation is, as the Draft National Principles state, only one aspect of coercive control reform.
Other aspects of reform, including common law and policy reforms, are equally as (if not more so) important as criminalisation in responding to coercive controlling behaviour inflicted on older people. Education and awareness are arguably our most powerful tool for prevention, like with coercive control in the context of intimate partner settings, the more we educate people, and the more people are made aware of coercive control of older people, the better we are armed to prevent it and respond to it.
Respectfully, the Draft National Principles should also be broader in scope to ensure that victim-survivors and perpetrators of intergenerational abuse are not inadvertently excluded from broader discussions around Australia on coercive control reform.
HopgoodGanim Lawyers are committed to reducing domestic and family violence through our Pro Bono impact strategy.