Adult safeguarding and elder abuse in New South Wales 

This article states the law of New South Wales. The Ageing and Disability Commissioner Act 2019 (NSW) creates an independent office to deal with abuse, neglect and exploitation of adults with disability and older adults¹. It is a reporting and investigation statute rather than a rights statute, and the prior question in any problem under it is what the Commissioner can actually do, because the Act's stated principles are expressly not enforceable.

Objects and principles — and their limits

Section 4(1) states two objects: to protect and promote the rights of adults with disability and older adults, and to protect them from abuse, neglect and exploitation.

Section 4(2) then requires the Commissioner, and any other person exercising a function under the Act, to have regard to five principles: the right to respect for worth and dignity and to live free from abuse, neglect and exploitation; the right to respect for cultural and linguistic diversity, age, gender, sexual orientation and religious beliefs; the right to privacy and confidentiality; the right to exercise choice and control in the pursuit of goals and the planning and delivery of supports and services; and the crucial role of families, carers and other significant persons, and the importance of respecting and preserving those relationships.

Section 4(3) directs attention to compounding disadvantage, naming women, Aboriginal and Torres Strait Islander adults, gay, lesbian, bisexual, transgender and intersex communities, adults from culturally and linguistically diverse backgrounds, and adults living in regional and remote areas. Section 4(4) requires regard to be had to the wishes of the particular adult.

Section 4(5) then withdraws the remedy. The section "is intended to give guidance in the administration of this Act and does not create, or confer on any person, any right or entitlement enforceable at law". A student who frames a claim on the s 4 principles has misread the section: they guide the exercise of functions and nothing more.

What the Commissioner does

Section 12(1) confers the functions. The first two are the operative ones:

• to deal with allegations of abuse, neglect and exploitation of adults with disability and older adults, whether on a report or at the Commissioner's own initiative, including by referring matters to appropriate persons or bodies and by conducting investigations (s 12(1)(a)); and
• following an investigation, to take further action the Commissioner considers necessary to protect the adult, "including by making an application to a court or tribunal in respect of the adult" (s 12(1)(b)).

The remaining functions are public education; advice and general assistance, including referrals to independent advocacy services; inquiring into and reporting on systemic issues; consulting the Board; advising and making recommendations to the Minister; and monitoring, assessing and reporting on the New South Wales implementation of Australia's Disability Strategy 2021–2031.

Section 12(3) secures independence in terms: "The Commissioner is not subject to the control or direction of the Minister."

The route to protective orders is therefore indirect. The Commissioner does not make orders; the Commissioner investigates and may apply to a court or tribunal, which then decides. An answer should identify the application, not attribute an order-making power to the office.

Reporting, and the protections that follow

Section 13(1) provides that a person may make a report to the Commissioner about an adult with disability or older adult where the person has reasonable grounds to believe the adult is subject to, or at risk of, abuse, neglect or exploitation, or about circumstances the person has reasonable grounds to believe will result in such abuse. Section 13(2) confirms that the adult may report on their own behalf. Section 13(3) provides that a report need not be in writing.

Reporting is thus permissive and the threshold is reasonable grounds for belief, not proof.

Two protections attach. Under s 13(4), a person who makes a report in good faith in accordance with the section "is not liable to any civil or criminal action, or any disciplinary action, for making the report" — the inclusion of disciplinary action matters for an employee reporting about their own employer. Under s 15, the identity of a good faith reporter, or information from which it could be deduced, must not be disclosed unless with that person's consent, as necessary for law enforcement, or as prescribed by the regulations.

Section 15A separately protects employees or contractors who assist the Commissioner, and the Act confers compulsory attendance and document production powers (s 16), search warrant powers (s 17) and a public inquiry function (s 19). The Act also provides for Official Community Visitors (ss 20–23).

The contrast with South Australia

Both jurisdictions make reporting voluntary rather than mandatory, and both work through a specialist body. They differ in how the adult's own position enters the scheme.

South Australia's Ageing and Adult Safeguarding Act 1995 (SA) conditions a safeguarding response on the adult's consent or a SACAT order, with six exceptions each requiring the Director's approval. The New South Wales Act, in the provisions considered here, instead requires regard to be had to the adult's wishes under s 4(4) while giving the Commissioner investigation functions and a power to apply to a court or tribunal. A student comparing the two should work from each statute's own provisions rather than assuming the schemes are variations on one model.

Applying this in a problem question

1. Identify whether the person is an adult with disability or an older adult within the Act.
2. Do not plead the s 4 principles as a source of rights; s 4(5) forecloses that.
3. For a report, apply the reasonable grounds threshold in s 13(1), and note that the report need not be in writing.
4. Address the s 13(4) immunity, including its extension to disciplinary action, and the s 15 identity protection.
5. Describe the Commissioner's route to protection accurately: investigation under s 12(1)(a), then application to a court or tribunal under s 12(1)(b).
6. Where comparing jurisdictions, take each scheme's provisions on their own terms.

Self-check

• Have I avoided treating the s 4 principles as enforceable?
• Have I applied the reasonable grounds threshold rather than requiring proof?
• Have I attributed applications, rather than orders, to the Commissioner?
• Have I named this as New South Wales law?