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A Commissioner for Older People in NSW?

A Commissioner for Older People in NSW?

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 3/2008 by G. Griffith

The purpose of the Briefing Paper is to review international legal and administrative developments relating to older people, specifically the establishment of the first Commissioner for Older People in Wales.

The Welsh model:
The question of establishing a statutory, independent Commissioner for Older People has been raised in a number of jurisdictions, notably Wales and Scotland. To date, it is only in Wales that such a body has been set up. The Commissioner for Older People (Wales) Act 2006 received Royal Assent on 25 July 2006, giving powers to the Welsh Assembly Government to establish the office of the Commissioner and to make regulations relating to the office’s tenure and powers. [2]

Considerations in support of a Commissioner for Older People: These were as follows:
    • ageing population – by 2021 one in three Welsh households will include someone aged 65 or more.
    • strategy for older people – to address the issues arising from an ageing population, in January 2003 the Welsh Assembly Government published a 10-year Strategy for Older People in Wales, the first of its type in the United Kingdom.
    • UN Principles - adopted in 1991 were the United Nations Principles for Older Persons, with these falling into five categories relating to the status of older persons: independence; participation; care; self-fulfilment; and dignity. The UN Principles were said to support the case for a Commissioner for Older People in various ways, for example, through the insistence that older people should be able to live in dignity and security and be free of exploitation and physical or mental abuse.
    • legal developments - the proposal for a Commissioner for Older People was seen as a further development in the protection of the elderly from discrimination in employment and other areas. [2.2]

Announcing plans for the introduction of a draft Bill for a Commissioner for Older People in December 2004, the Secretary of State for Wales Peter Hain said: ‘The older persons’ commissioner will also act as a watchdog to help ensure that older people can contribute to society as equal partners, so that we really value our older citizens. This will be the first such commissioner for older people in Britain and we have not so far identified a comparable independent office relating to older people anywhere else in the world’. [2.5]

Commissioner for Older People (Wales) Act 2006:
The Commissioner is appointed as an independent statutory officer for a term of 4 years, renewable once only. ‘Older people’ are defined as a person aged 60 and over. The Commissioner is to have regard to the UN Principles and is to act as a watchdog charged with promotion, consultation, review, advocacy, education and investigative functions. In this last capacity, it can be compared with the role of an Ombudsman, although its actual involvement in investigating particular cases of maladministration is more restricted. Effectively, as with the Children’s Commissioner for Wales, upon which it is modeled, the Commissioner for Older People is empowered to examine the case of a particular older person or persons if it involves an issue that has general application to the lives of older people in Wales. The new Commissioner’s review functions are broadly based, covering the Welsh Assembly itself and, more generally, those organizations charged with the delivery of services to older people in Wales. This review function also extends to the mechanisms available for advocacy, the making of complaints and whistle-blowing. [2.6-2.7]

The proposal for a Scottish Commissioner for Older People:
Along similar lines to its Welsh counterpart, a Private Member’s Bill proposed by Alex Neil MSP to establish a Commissioner for Older People in Scotland was introduced in the Scottish Parliament on 20 September 2006. The Commissioner for Older People (Scotland) Bill lapsed at dissolution on 2 April 2007 and has not been re-introduced since. Among the issues raised in connection to the proposed Commissioner for Older People in Scotland was that of overlap and duplication. With the proliferation of government regulatory and other agencies under the devolved arrangements, in addition to a full complement of representative bodies, the question was asked whether a Commissioner for Older People was needed. [3.1]

The United States: Commissioners and Ombudsmen for Older People have been established in the US. [3.2]

Australian perspectives and developments: The issue of a Commissioner for Older People is raised in the context of Australia’s ageing population. By 2051 around one in 4 people in NSW will be 65 years and over. Differences in emphasis and perspectives notwithstanding, the policy implications of an ageing population are real enough. As the Productivity Commission reported: ‘In itself, population ageing should not be seen as a problem, but it will give rise to economic and fiscal impacts that pose significant policy challenges’. Legal implications also arise, as recognised by the development of ‘elder law’, concerned with identifying the legal needs of older people and evaluating the adequacy of current legislative regimes in addressing those needs. [4.1-4.8]

Government responses to the ageing population: The challenges posed by Australia’s ageing population have been met by a number of government initiatives at federal and State level. On 26 March 2008, COAG (Council of Australian Governments) agreed to establish a new ministerial council on ageing. [4.14] In April 2008 the NSW Government released the report, Towards 2030: planning for our changing population. [4.9]

A Commissioner for Older People in NSW? There is no shortage of government and non-government organizations working on behalf of older people in NSW, which begs the question whether a new watchdog and/or advocacy body is needed at all. Would such a body only duplicate the work of existing organizations? Is there a genuine and identifiable gap to be filled, a compelling social and/or legal need that has to be addressed by a Commissioner for Older People? Another consideration is that, as nursing homes are regulated by the Commonwealth Department of Health and Ageing, some of the work such a Commissioner might be expected to undertake would be found more under federal than State jurisdiction. On the other hand, the scope of NSW involvement in the delivery of services to older people and the making of relevant laws remain very considerable. It may be that a NSW Commissioner for Older People could operate as a one-stop shop, providing advice and direction on the availability of services at all levels of government. [5]