Bill Mitchell, Townsville Community Law
Three recent commissions – the Royal Commission into Aged Care Quality and Safety,[i] the Hayne Banking Royal Commission[ii] and the Disability Royal Commission[iii] – have examined the consumer and human rights experiences of older Australians. However, an examination of older Australians’ experience of the social security system is long overdue. This article provides background information to give context to research that is being undertaken by Townsville Community Law (TCL) (formerly called Townsville Community Legal Service Inc.) in partnership with the National Social Security Rights Network (NSSRN).
The project plans to uncover the lived experience of older Australians reliant on the social security system. It will draw on real-life case studies drawn from TCL’s specialist Seniors Legal and Support Service. These case studies will produce insights into how the issue of violence, abuse and neglect can be addressed through the system, including in relation to the Department’s Elder Abuse Strategy.
TCL provides specialist social security legal advice and runs a legal advice service specifically for older people and, as a foundation member-centre of NSSRN, it is well placed to provide the data and insights from casework to inform this new research partnership.
Given the current domestic and international policy dialogue around older people’s rights, this project will provide a timely examination of how our social security system can best support older people.
The Australian Bureau of Statistics uses age 65 as a statistical marker for the beginning of old age. Despite this, the question of who are older Australians doesn’t have an easy answer. The concept of old age is multi-dimensional, and includes chronological (based on a birthdate), biological (related to human body ability), psychological (concerned with psycho-emotional functioning) and social age (related to social roles such as grandparents).[iv] Policy frameworks also encourage the life course approach and a functional perspective, which takes into account other factors such as diversity of older persons and the impacts of inequity. There are additional complexities for Aboriginal and Torres Strait Islander persons, for whom the term elder refers to appointed community members or representatives with cultural and other responsibilities. An elder is not necessarily an older person by chronological age.
At Federation, Australians over 65 constituted 4% of the population. By 2011 the cohort reached 14% and by 2051 it will be around 25%.[v] Terminology has evolved as attitudes to ageing have begun to shift. We now avoid terms like the elderly, elderly people or seniors or other language that reflects benevolent prejudice; the tendency to pity, seeing older people as friendly but incompetent.[vi] Benevolent prejudice seems superficially positive but ultimately reinforces inferiority. It positions older persons as frail, easily duped and needing protection rather than vital, active and independent. [vii] Older Australians are simultaneously hidden and marked out by social stereotyping.[viii] They are treated differently simply because of their chronological age, and many of their specific human rights needs go unaddressed.[ix] This includes a right to social security and social protections.
Older Person’s Rights to Social Security
Older persons belong to the last social group to be accorded their own specific human rights instrument, and are often denied autonomy and agency as rights-bearers within law and society. The United Nations has noted that “a multiplicity of instances of the violations of human rights of older persons exist everywhere.”[x] However, global policy and program exemplars offer solutions to improving older persons’ human rights including their right to social security and social protections. Relevant UN processes that offer opportunity to focus on older person’s right to social security include the 2030 Agenda, the Universal Periodic Review and the Open-ended Working Group on Ageing.
The Open-ended Working Group looked at the substantive issue of social security and social protections at its 10th Working Session in 2019, and at its 2020 working session will look at how the normative right to social security and social protections should be described. This debate has already included how the right to social security is linked to other human rights such as the right to an adequate standard of living (including food and housing), health and health services and the protection of the family unit.
The UN already has a range of normative statements on social security including existing normative standards such as International Labour Organization’s Social Security (Minimum Standards) Convention, Old Age, Invalidity and Survivors’ Benefits Convention and UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security. These statements give us some yardsticks against which the Australian system can be compared.
Older Australians and Centrelink
The majority of older Australians receive regular income support through the Age Pension. In 2012, the National Commission of Audit reported that approximately 80% of all Australians over Age Pension age received income through government pensions. It estimated that the proportion of people receiving income through the Age Pension will remain steady over the next thirty years.
Recent attention to the issue of elder abuse through law reform reports[xi] and a new national plan[xii] means that connections between the social security system and violence, abuse and neglect of older Australians are becoming increasingly relevant. The Australian Law Reform Commission has identified several key connections, including:
- Centrelink has a distinct opportunity to assist with the detection and prevention of elder abuse, especially financial abuse;
- More research is needed in areas such as Carer Payment and payment nominees, or in policies governing the entitlements of older persons; and
- The important interplay between Centrelink, family agreements, aged care arrangements and other related systems.[xiii]
As a key contact points for older Australians, Centrelink is in a frontline position to prevent and respond to elder abuse. Women’s Domestic Violence Court Advocacy Service NSW observed, “Centrelink is a non-threatening, universal ‘soft-entry’ point for older people to access supports”. In recognition of this, the Department of Human Services are developing an Elder Abuse Strategy to identify how Centrelink can better prevent elder abuse and aid those experiencing it, hopefully with the benefit of insights from our research.
 1952 (No.102)
 1967 (No.128)
 (Art. 9 of the Covenant), 4 February 2008, E/C.12/GC/19
[v] Australian Bureau of Statistics, 2071.0 Where and How do Australia’s Older People Live – Reflecting a Nation: Stories from the 2011 Census, 2012–2013; Australian Bureau of Statistics, 2071.0 Who are Australia’s Older People – Reflecting a Nation: Stories from the 2011 Census, 2012–2013.
[vi] The Parliament of the Commonwealth of Australia, House of Representatives Standing Committee on legal and Constitutional Affairs, Older People and the Law, September 2007, p.2.
[viii] Laura Talarsky, Defining Aging and the Aged: Cultural and Social Constructions of Elders in the US, Arizona Anthropologist, 13 (1998), 101.
[ix] Frédéric Mégret, ‘The Human Rights of Older Persons: A Growing Challenge’ (2011) 11 Human Rights Law Review 37, p. 4.
[xiii] See Above note 4, Chapter 16.