Human rights

Relevant legislation:

Charter of Human Rights and Responsibilities Act 2006 (Vic.)

Elder abuse is a human rights issue

Human rights law is not particularly effective in dealing with private relationships but the principles contained within it, such as the right to self-determination, to participation and to privacy, provide meaningful context. (Note though that Vickery J drew on the United Nations Convention on the Rights of People with a Disability in formulating a more flexible test for testamentary undue influence in Nicholson v Knaggs [2009] VSC 64, see McCallum 2010.)

Lawyers employed by a public authority, such as Victoria Legal Aid or the Department of Justice, are bound to comply with the Charter of Human Rights and Responsibilities Act 2006 (the Charter Act).  The Charter Act makes no direct reference to older people but Charter rights include equality and non-discrimination (s. 8), freedom from torture and degrading treatment (s. 10), freedom of expression (s. 15), protection against medical treatment without consent (s. 10(c)) and privacy (s. 13). Although these rights are only actionable against a public authority they have proved to have strong political and educational value.

It is good practice for all lawyers to respond to clients within a human rights framework. This will help to maximise the potential for action that enables older clients to live their lives with dignity and respect.

Lawyers can promote their clients’ rights by:

  • providing comprehensive information to clients on all their options;
  • involving clients in decision-making (self-determination);
  • maintaining confidentiality;
  • respecting clients’ wishes and instructions (where the client has decision-making capacity  –  see Capacity);
  • arguing for accessibility of services to older people (e.g. physical accessibility for people with mobility impairment, and for measures to improve accessibility for people from diverse cultural and linguistic backgrounds);
  • deciding to give priority to certain cases with human rights in mind.

Other legislation that provides protection for older people includes:

  • Age Discrimination Act 2004 (Cth)
  • Disability Discrimination Act 1992 (Cth)
  • Equal Opportunity Act 2010 (Vic.)

These acts potentially apply when a service provider has discriminated against a client on age or disability grounds (e.g. a bank or other financial service provider, or real estate agent involved in a financial or other transaction).