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Opinion: royal commission may expose human rights shortfallings


A group of legal academics  believes the aged care royal commission is likely to expose a range of human rights protection gaps and write that both a broader focus and a human rights-specific reference is needed.

A royal commission’s terms of reference identify the range of issues captured by the inquiry and indicate the social and public interest purposes which an inquiry serves. The terms of reference are being developed through an online public consultation platform, which is now available through the Department of Health website and closes on 25 September 2018.

Christie Gardiner Australian Research Network on Law and Ageing (ARNLA)


Christie Gardiner

Members of the public are invited to raise ‘any other areas that should be considered by the royal commission’, beyond the following matters which are expected to be captured by the terms of reference:

  • The quality of care provided to older Australians, and the extent of substandard care;
  • The challenge of providing care to Australians with disabilities living in residential aged care, particularly younger people with disabilities;
  • The challenge of supporting the increasing number of Australians suffering dementia and addressing their care needs as they age;
  • The future challenges and opportunities for delivering aged care services in the context of changing demographics, including remote, rural and regional Australia;
  • Any other matters that the royal commission considers necessary.

Critically identifying who may fall through the cracks, based on the terms of reference, is something that Australia needs to be incredibly sensitive to.

Members of the Australian Research Network on Law and Ageing (ARNLA), a group of legal academics from leading Australian universities, believe that a human rights specific reference is needed to ensure the rights of older Australians in relation to all care related needs and services are appropriately considered.

According to findings by the United Nations ‘nearly all long-term care is provided by family members – and much of it without supportive services, training or financial assistance.’

A narrow focus on publicly funded and institutionalised aged care and home care means that Australians who receive informal or no care may not have their rights and interests adequately considered, unless the royal commission considers it necessary.

For older people, this narrow focus contradicts the evidence-based findings of the Australian Institute of Family Studies which affirmed that a majority of elder abuse and neglect occurs in intra-familial and intergenerational contexts and not while receiving formal aged care or home care services.

Barriers to access to justice, issues within the retirement village and independent living sectors and palliative care arrangements are also at risk of not being represented or being underrepresented in this royal commission.

ARNLA is of the view that developing terms of reference which take a more holistic view of the impact of institutions and laws on older persons, wherever they happen to receive care, will better inform the government’s long-term planning for an ageing population.

To participate in developing the Royal Commission into Aged Care Quality and Safety’s terms of reference go here.

Christie Gardiner, Lecturer ANU College of Law, Lise Barry, Senior Lecturer Macquarie Law School, Eileen Webb, Professor Curtin University Faculty of Business and Law, Robyn Carroll, Professor UWA Law School, Meredith Blake, Associate Professor UWA Law School, Wendy Lacey, Professor UniSA School of Law and Teresa Somes, Associate Lecturer Macquarie Law School are all members of the Australian Research Network on Law and Ageing (ARNLA).

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