On 15 December 2018, Premier Gladys Berejiklian announced that “a powerful and independent Ageing and Disability Commissioner will be established in NSW to investigate, and stamp out, the abuse of older people, and adults with disability”. The Premier noted that this responded to a number of recent reviews including a November 2018 report by the NSW Ombudsman.
Several other countries have enacted adult safeguarding laws, which give agencies the power to investigate the abuse and neglect of vulnerable adults, including adults who have full decision-making capacity. These include the United Kingdom, Canada and the United States. In 2018, South Australia became the first jurisdiction in Australia to enact adult safeguarding laws.
A key issue with adult safeguarding laws is weighing up the need to protect an adult from harm with the adult’s right to autonomy: i.e. their right to make their own decisions about their lives.
The full details of the proposed NSW Ageing and Disability Commissioner have not yet been outlined. It is therefore difficult to make comparisons with the adult safeguarding laws in other jurisdictions. From a review of the laws in South Australia and Scotland, key questions to consider in NSW are:
- whether the Commissioner’s jurisdiction will extend to all vulnerable or “at-risk” adults (as in South Australia and Scotland);
- whether any agencies or persons will have a duty to report abuse to the Commissioner (as in Scotland);
- whether the adult’s consent will be required before the Commissioner can take action (as in South Australia, with limited exceptions); and
- whether the Commissioner can apply to a court for orders to protect the adult from abuse (as in South Australia and Scotland).
