The NSW Ageing and Disability Commission (ADC) commenced on 1 July 2019. The ADC is an independent statutory body, which is focused on protecting adults with disability and older adults from abuse, neglect and exploitation, and protecting and promoting their rights. The ADC's roles include:
- responding to allegations of abuse, neglect and exploitation of adults with disability (18 years and over) and older adults (65 years and over or, if Aboriginal and/or Torres Strait Islander, 50 years and over), including by providing advice, making referrals and conducting investigations
- following an investigation, taking further action that is necessary to protect the adult from abuse, neglect and exploitation
- raising awareness and educating the public about matters relating to the abuse, neglect and exploitation of adults with disability and older adults
- inquiring into and reporting on systemic issues relating to the protection and promotion of the rights, or the abuse, neglect and exploitation, of adults with disability and older adults
- overseeing and coordinating the Official Community Visitor (OCV) scheme
- meeting other obligations as outlined in the Ageing and Disability Commissioner Act 2019 (the ADC Act).
The majority of the reports handled by the ADC about abuse, neglect and exploitation of adults with disability and older people focus on allegations about family members, spouses/partners, informal carers, and members of the community. Given the roles and functions of the ADC, this submission is focused on two main areas: the experience of adults with disability and older people who are subject to coercive and controlling behaviours; and coercive control in family and ‘carer’ relationships.
- Against the background of our handling of numerous reports about adults with disability and older people who are subject to coercive and controlling behaviours, the ADC supports the introduction of a coercive control offence in NSW. The impact of coercive control is particularly devastating for some adults with disability and older people in light of their heavy reliance on support and the considerable barriers to them being able to take steps to change the situation.
- It is critical that the scope of the offence is not limited to spouses and partners, but also encompasses domestic relationships that include family/relatives and people who ‘have or had a relationship involving one person’s dependence on the ongoing paid or unpaid care of the person’.
- The construction of a coercive control offence needs to take into account specific factors that unfairly and adversely affect the identification of, and response to, coercive control (and broader domestic and family violence) of adults with disability and older people. Among other things, it needs to ensure that the threshold for criminal conduct is not set so high that it unfairly disadvantages vulnerable people (such as those with cognitive impairment); and that the existence of an adult’s disability or care needs is not considered to be an appropriate defence for the use of coercive control.
- Apprehended domestic violence orders are not always an effective protection for the adults with disability and older people in reports to the ADC for a number of reasons. Among other things, they do not always include sufficient conditions to protect the adult; and, because the perpetrator is usually a close family member, the adults themselves tend to be very reluctant to take this action or report breaches, notwithstanding significant harm.
- It is important that the existing witness intermediary scheme is extended to include vulnerable adults (such as those with cognitive impairment). Access to witness intermediaries will be vital for vulnerable adult victims to participate in investigations and proceedings in relation to a coercive control offence; however, in our experience, this is critical support that should be available more broadly to assist them to gain effective access to justice.
- The introduction of a coercive control offence, in and of itself, will not be sufficient to deliver the necessary reforms. It will be important to ensure that it is supported by a public awareness campaign (including targeted promotion in relation to people with disability and older people); education and training of police, support providers, and frontline workers; and development of resources and guidance. The ADC can provide assistance to ensure there is targeted communication and training in relation to people with disability and older people, including with Aged Crime Prevention Officers, and disability, ageing and other relevant sectors.