Does the Albanian government really want to strip older Australians of their rights?

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Does the Albanian government really want to be remembered as the one that deprived many elderly Australians of their basic legal and human rights?

The Federal Government has recently made a number of welcome commitments to improve the lives of older people living in aged care. Nevertheless, there is one obvious problem with the elderly care reform bill that was recently passed in parliament.

Schedule Nine of the Aged Care and Other Legislation (Royal Commission Response) Bill 2022 provides immunity to aged care care providers who comply with the principles of care quality under the Aged Care Act 1997. However, the specific quality care principles required to implement the immunity provision. has not yet been published.

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Furthermore, plan 9 is unfair. It provides immunity for providers and their staff from some of the most objectionable aspects of aged care – the use of restrictive practices without obtaining legal consent. Such practices, which include chemical restraint, physical restraint and seclusion, attracted the most ire of the Royal Commissioners for Aged Care.

The royal commissioners did not recommend that providers and their employees should be given immunity for the use of restrictive practices. So why include this plan in your senior care bill?

It has been argued that legislative differences between states and territories pose a risk to aged care providers due to the uncertainty and difficulty in identifying who has the legal authority to consent to restrictive practices.

The elderly care providers’ solution is immunity if they comply with the as yet unwritten principles of care quality. The Morrison government, and now the Albanian government, simply adopted this solution.

However, granting such immunity is discriminatory because it denies older people living in aged care – a vulnerable group of people – the same legal protection afforded to all other Australians.

It subordinates the common law developed over centuries to regulations made under the Old Age Protection Act. It is an extraordinary overreach of constitutional powers to give providers immunity from key legislation passed by states and territories.

Annex Nine may also breach Australia’s obligations under the International Covenant on Civil and Political Rights and the Optional Protocol to the Convention Against Torture to which Australia is a signatory.

It is also unprecedented to offer immunity to commercial enterprises. Many providers are private or publicly listed for-profit companies (Estia, Regis) and multinational companies (Bupa, Opal).

Some government-funded “consumer” organizations have indicated support for Plan Nine. However, independent advocates and elder abuse and human rights lawyers who speak out without fear of losing government funding have voiced strong opposition.

The number of registered legal cases against elderly carers in the last 25 years is small, possibly as few as six, and the complainants were not always successful.

Given that residents and their families have rarely taken legal action – despite a well-documented track record of decades of neglect, mistreatment and abuse of the people they care for – the willingness of governments to protect approved aged care providers is staggering.

One solution is to offer aged care providers an indemnity, not immunity. There are many examples of similar compensation schemes – most recently the one offered by the Morrison government for health professionals who may be found liable to pay compensation for serious adverse events experienced by people receiving Covid-19 vaccines.

A compensation scheme would also avoid the potential legal and constitutional challenges to the immunity proposal and would ensure no further delays in the Albanian government’s determination to reform the aged care system.

Related: Immunity over the use of restraints in Australian aged care could breach torture conventions, lawyers say

Persons who have been abused must always have access to their common law rights, regardless of where the abuse took place. Rather than protecting providers from lawsuits, perhaps the government should instead encourage providers to take out insurance to protect their commercial interests if a citizen takes legal action.

When the top three elder abuse and human rights lawyers in Australia oppose this legislation, the government should listen. The Albanian government certainly does not want to be remembered as taking such unprecedented measures simply to protect the profits of aged care providers, many of which are multinational corporations, over the rights of vulnerable Australians.

A solution was on the table. The government chooses not to take it.

• Dr Sarah Russell is a public health researcher and advocate for aged care

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