Elder Law

Convention on the Rights of Older People: A United Nations Convention on the Rights of Older Persons is needed to combat age discrimination and safeguard the rights of ageing populations in countries around the world, including Australia.

Background

Older people experience ageism "woven into the fundamental fabric of life." The ageist and discriminatory stereotypes they produce are harmful and even hazardous. They are one of the key factors preventing older people from exercising their human rights and they greatly contribute to their vulnerability. There is currently no international law that obligates nations to defend oldies' human rights. However, "The Open-Ended Working Group on Ageing to strengthen the Protection of the Human Rights of Older Persons (OWEGA)," which was established by the United Nations General Assembly in 2010, has constantly discussed the presence of the potential substantive treaty content and recently noted the flaws in the current international human rights framework as it has completely failed to cater the needs of the older people. The flaw can be ended by establishing fundamental rights that are extensions of those protected by previous multilateral agreements, but with a focus on particular problems that older people experience. The necessity for a new UN treaty to stop future violations of the rights of older people has been made clear by the present pandemic outbreak, which has shown how insufficient and uneven regulations fail to adequately protect human rights in old age. Contrary to other groups in society, such as minors, refugees, and women, more than 700 million persons over the age of 60 do not yet have an international organisation or institution to represent them or an international treaty that protects them. A Convention on the Rights of Older Adults, which will serve as a binding international legal instrument to promote and safeguard the rights and dignity of older persons, is thus more likely to receive acceptance.

Position

The treaties in present do not particularly address age-related matters or empower older people as prominent participants, which is frequently the case. Many older folks are unable to fully exercise their human rights due to the absence of a specific treaty. The legally-binding standards on the rights of older people should be strengthened and a new protection regime should be developed because of the following reasons:

Age-related population growth is accelerating at a record rate globally.
Even though older people are particularly susceptible to human rights violations, their rights are not protected by any specific international agreements or norms, unlike those for women, children, prisoners, and people with disabilities.
Only one human right document currently in existence specifically forbids age discrimination. As a result, many countries have done little to address the different forms of bias against the old. Existing human rights standards also don't contain any specific clauses addressing problems like elder abuse or long-term or palliative care.
The rights of older persons have mainly been disregarded by the United Nations and regional human rights organisations. As a result, the current human rights framework disregards the rights of elderly people.
Contrary to other types of prejudice and discriminatory behaviour, ageism is a form of bias that is firmly rooted in many societies and is rarely addressed or challenged. This causes elderly people to be widely marginalised and is the main cause of their seclusion and isolation.
Numerous older people experience abuse and violence in their homes.
Many of them are also denied the liberty to choose their money, property, and health. Social security, access to healthcare, employment, access to food, and housing are common amenities denied to them.
Most nations view the issue of ageing as one of social welfare or economic progress. This restricts older people from being charitable recipients rather than people who should be able to exercise their rights equally with everyone else. A paradigm shift from social welfare to a rights-based one is required.
Protection systems and national standards for older people's rights are sparse and inconsistent. There is a glaring lack of knowledge about the type, extent, and causation of violations of the rights of older people.
When older people's rights are violated, it results in their exclusion, poverty, and discrimination. However, elder individuals contribute significantly to any society through their expertise and experience. Societies will be able to better capitalise on the potential that older people represent if their rights are better protected.
Older people are among the most devoted voters and constitute a group that is continuously expanding. They have a lot of political sways when they cast their ballots. Governments must fulfil these groups' rights and needs if they don't want to lose the support of this sizable voter base.

Discussion

In Australia, there were numerous cases of elder abuse, contempt, and disregard during testimony given before the Royal Commission on Aged Care Quality and Safety. Discussions on the interests of older people and reconsideration of the formation of a convention on their rights are now of the utmost importance in light of the COVID-19 outbreak, which has significantly affected many older people globally. According to UN Secretary-General António Guterres, the crisis is "exacerbating existing socioeconomic issues and inadequacies in the protection of human rights" for older people. Any reaction to COVID-19 must also respect older people's rights and dignity, stressing that they are entitled to the same freedoms as everyone else. In light of this, the Law Council recommends a stronger international legal framework to protect older people's human rights in both emergencies like pandemics and regular settings. According to the OWEGA's current areas of interest, its primary areas of focus may include social security, long-term and palliative care, violence, neglect, and abuse, as well as equality and non-discrimination.

Does Australia have separate legislation for the protection of rights of the older people?

In Australia, several barriers that prevent senior citizens from fully engaging in various aspects of life have been discovered. These include obstacles in public spaces, such as the absence of chairs in airports where individuals might sit down to remove their shoes before passing through security. Another illustration is the inability of public transportation to link to key public facilities and services, which forces the less mobile to travel considerable distances. Not only that, work-life balance is difficult for older people as they frequently care for adult children, grandchildren, spouses, and/or elderly parents. They face prejudice when they apply for any job, seek promotions, or access training. Under the federal Age Discrimination Act of 2004 (Cth) (ADA), older people who experience age-based discrimination can file a complaint with the Australian Human Rights Commission and seek redress for their grievances. This includes discrimination in employment, education, housing, or access to goods and services, as well as in the administration of Commonwealth government laws and programs. The Aged Care Act 1997 was passed by the Australian government to guarantee that all elderly and frail Australians have timely access to the right care and support services as they age. To ensure that people are fully informed and their needs are appropriately assessed, the act offers a variety of support and assistance to older persons and their careers in the community. However, Australia does not have any specific legislation that addresses all of the needs and rights of older people, which would thus allow legislators to establish a Convention on the rights of older people.

Merits of the Convention on the Rights of Older People for Australia

An international convention would offer a clear, unambiguous affirmation of the fundamental assumption that older people have the same fundamental rights and freedoms as everyone else.
An international convention would spread awareness of older people's rights and reduce ageism, which is pervasive in all societies.
It would act as a catalyst for domestic legislation and policies that aim to fully protect older people's rights.
While Australia has many significant safeguards in places, such as the Age Pension, Medicare, and Commonwealth-funded elder care, there are still some areas where elderly people are insecure, most notably housing, despite the country's strong welfare safety net traditions.
Australia is relatively advanced in the protections it can provide despite its flaws.
There are many places in Australia and around the world where safety nets and protection for rights are weak or non-existent. These areas of considerable gaps serve as a springboard for new convention inclusions.
A convention might also help transform attitudes towards older people from seeing them as welfare receivers and a burden on society to seeing them as active members of society with rights.
Lastly, and perhaps most importantly, a legally binding worldwide convention would oblige member nations to safeguard, uphold, advance, and implement the human rights of older people. The nation would be subject to international monitoring and review procedures, such as the Universal Periodic Review, where the UN would evaluate the nation's advancement of senior citizens' rights and offer suggestions for improvement.

What are the arguments that can be used against the introduction of the Convention on the Rights of Older People?

Two arguments serve as the consideration for those who reject the international convention on the rights of older people. First, historical experience has shown that international conventions are ineffective and can occasionally worsen the situation. Second, given the abundance of international treaties already in existence, there is no need for an international convention in the area of older people's rights.

The convention won't change anything and might even make matters worse: History demonstrates that rather than bringing about genuine social change, international human rights conventions only produce "superficial" legal rights. On the international stage, it is normal for the nations with the worst human rights records to sign international human rights conventions first. Despite continuing to violate human rights, they can claim that they respect human rights because they have signed the convention. Historical Experience has also demonstrated that the political and international process used to adopt the convention that ignores the legitimate voices of those people that are meant to be defended. In the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), for instance, the lack of emphasis on women's participation led to superficial equality because no "real" equality could be accomplished without involving the targeted group. Hence, critics claim that CEDAW ignores historical prejudice and the fact that women face particular challenges.

Historical experience also demonstrates that there is an "implementation gap" that manifests itself in a dearth of application of international conventions. Particularly at the international level, accountability procedures to monitor adherence to human rights are weak and overworked, without any accompanying effective sanctions, which would be problematic. For instance, the Convention on the Rights of the Child (CRC) wanted to elevate the status of children's rights internationally by developing standards for such rights. However, research on CRC's effectiveness demonstrated that its failure to be enforced against combatants leads to the recruitment of child soldiers in Uganda.

2. The Efficacy of Existing "Hard Law" and "Soft Law": The critics can also argue that the creation of yet another international convention is unnecessary because older people already have a robust "soft law" remedy under international treaties, unlike women, children, or people with disabilities. Even if other social groups had some informal laws in place before their special rights convention, they lagged substantially behind the older population's access to the international laws that are currently in effect. Various detailed existing international documents cover the social concern about the older population such as the Vienna International Plan of Action on Ageing (1983), United Nations Principles for Older Persons and Proclamation on Ageing (1992), Madrid Plan of Action on Ageing (2002), etc. Hence, another international convention is not necessary. The real imperative is to carry out current international initiatives, make use of current human rights instruments, and uphold resolutions and declarations like the UN Principles for Older Persons.

How the Convention on the Rights of Older people can be made successful?

In addition to a worldwide convention based on the UN, there are numerous more international human rights instruments, such as international regional bodies. While creating

new normative standards in this area, these regional bodies might also incorporate local and cultural factors. Globally inclusive tools are usually more difficult to put into practice, especially when cultural variations are significant, and similarly when people get older. This is why regional monitoring and political pressure to implement human rights conventions are more likely to be accepted as legitimate by regional bodies than international instruments.

The experience of existing international public law with international conventions for the rights of diverse minority groups is developing. People with disabilities, women, children, and refugees all have their own "special" international conventions. Some are already "mature" legally, while others are relatively fresh and innovative. There are also valuable lessons that may be learned from the actual implementation process of several of these conventions, which is an area of expanding experience. There should be better monitoring systems and better individual-based complaint procedures. Any future convention for the rights of older people should therefore be developed after learning from the mistakes made by existing human rights conventions.

The adoption of an acceptable method for the establishment of the convention is a crucial component to ensuring a better outcome. Local, regional, and international NGOs should be welcome and allowed to participate in such a process. Such a procedure will allow the older person to voice real issues. Older people should play a prominent role in this process by defining their rights and ideas of what it entails to be a citizen.

The future convention on the rights of older people should not lay down more emphasise on the concerns like elder abuse and neglect problems like mental disability, guardianship, or institutional long-term care. These concerns, which are crucial and fundamental to older people's rights, portray ageing from an ageist angle. It uses "needs-based" speech rather than "rights-based" discourse and portrays older people as weak, inept, and dependent. Therefore, any future convention should be fair and give equal weight to both securing rights to safety and care and the right to citizenship, participation, and inclusion. Significantly, this could only be accomplished by involving advocates for older people's rights, gerontologists, and representatives of older people's groups in the drafting process.