A good 12 months for law reform in South Australia
Sarah Brown, Natalie Williams and Dr David Plater While the nation is still grappling with the public debate around same-sex marriage, our state has taken a huge leap forward in recognising relationships of all kinds with the establishment of a formal Relationships Register.
This historic development means that all couples – regardless of sexual orientation or gender identity – can have their relationships formally and legally recognised, without the need for national changes to marriage laws.
Many South Australians may not be aware that the University of Adelaide’s Law School staff, students and alumni have played a key role in this development, through the hard work and recommendations of the South Australian Law Reform Institute (SALRI).
Based in the Law School, SALRI is an independent and non-partisan institute that was established seven years ago in conjunction with the Attorney-General’s Department and the Law Society of South Australia.
“Society is always changing, and so the laws that govern our society must change also. This is the basic premise behind the need for a Law Reform Institute,” says SALRI Director Professor John Williams. “It’s especially important because of new technologies and evolving community attitudes over time, and because in some cases the laws we’re dealing with were written back in the 19th century.”
The Institute contributes to and draws on the Law School’s teaching and research, involving students, academics, graduates and members of the legal profession in its projects. It consults widely and has released reports into areas as diverse as reforms to privacy laws and replacing religious oaths for testifying in court with a simple promise to tell the truth.
Many of its recommendations have become law, including the recent modernisation of evidence laws to deal with new technologies.
While SALRI is typically asked by the Attorney-General to investigate an area of reform, its independence means it is also able to suggest its own reforms in areas of perceived need.
One of the biggest and most widely accepted bodies of work SALRI has conducted to date has been its series of reports into discrimination against individuals and families on the basis of sexual orientation or gender identity.
At the end of 2016, State Parliament passed three Acts to enhance the rights of gay, lesbian, bisexual, trans, intersex and queer (LGBTIQ) South Australians. These laws implemented most of SALRI’s key recommendations. Then, in August this year, the Relationships Register came into being; this was another major SALRI recommendation.
“The new laws and the establishment of a Relationships Register are a major and historic step forward, helping to remove discrimination against LGBTIQ South Australians and visitors to our state,” Professor Williams says.
“It’s especially pleasing to know that SALRI has played a role in this, with bipartisan political support, and at a time when the community has been discussing such issues more broadly.
“Once the Institute makes its recommendations, we have no further advocacy role to play as to whether or not those laws are reformed and enacted. On this occasion, the Parliament has seen fit through conscience votes to make these changes for the benefit of members of the community.”
Sarah Moulds, SALRI research associate and Law School PhD student, was lead author of the reports into LGBTIQ discrimination.
“One aspect of the project our team is proud of is the manner in which this body of law reform was researched and consulted on with the LGBTIQ community and interested parties, including focus groups and online submissions,” she says. “We learnt very quickly that the LGBTIQ community was enthusiastic about equality.
“Members of the community were able to tell us their personal stories of discrimination; people described their family and the things they were missing out on because of the gender of the person they loved. These stories became a compelling theme in our report.”
Ms Moulds echoes former High Court Justice Michael Kirby in saying that “Wide and inclusive consultation with the whole community is vital. Modern law reform is not just for lawyers or experts.”
A number of students also made significant contributions to the Relationships Register report through the Law School’s Law Reform course.
“Their work has helped various of our reports and led to major developments in our law’s history,” says SALRI Deputy Director Dr David Plater, who will chair a national conference on legislative law reform in Canberra this November. “It has also given our students a unique insight into the need for simple, elegant solutions to law reform. This is invaluable experience our students will take with them into their future careers.”
Among other reports produced this year, SALRI has recommended significant changes to the law of intestacy, which governs how an estate is distributed when someone dies without leaving a will, and managing the financial affairs of a missing person.
It also will soon hand over its final report into the partial defence of “provocation” in murder cases – a controversial defence often known as the “gay panic defence”, because of its use as a partial defence in the killing of homosexuals. This report will also look at various linked areas, such as sentencing for homicide offenders and family violence implications.
Another major focus this year has been reform of family inheritance laws. “Under current law, a so-called ‘final’ will and testament is not actually final, and is open to challenge by family members, often expressly against the dead person’s wishes,” says Dr Sylvia Villios, succession lecturer at the Law School who has assisted the Institute on this project. “This project is, in simple terms, about finding the balance between ‘need’ and ‘greed’. Many people are affected by this; it’s a big issue. It often leads to great stress in families.
“The family inheritance project, continuing from the Institute’s LGBTIQ project, further shows the benefit of community consultation. Allowing people to tell their stories of what happened when someone they loved died is in itself very powerful and compelling. We have widely heard, especially from the community, that the current law is problematic, often upholding undeserving and opportunist claims.”
Professor Williams says: “Former High Court Justice Michael Kirby once made an excellent point about law reform: he said it’s beyond simply changing legislation, it’s about contributing to civic engagement, to community debate and input.
“One of the goals of law reform is to say to citizens ‘It’s in your hands to change the law.’ And we hope we’re helping enable this to happen.”
Law graduate (LLB (Hons) 2016)
Solicitor, Alderman Redman
Lawyers and Mediators
Research Associate, Adelaide
Law School, University of Adelaide
As part of her undergraduate Law studies, Sarah enrolled in the Law Reform subject and contributed to SALRI’s research into South Australian laws that discriminated against the LGBTIQ community. Her final assessment piece in the course dealt with surrogacy laws and how they might be reformed to remove discrimination. Her work formed the basis for SALRI’s submission to government on this area of the law.
“Although I am new to the profession, my experience during the Law Reform course opened my eyes to the importance of practitioners sharing the practical reality of shortcomings in the existing laws. I consider myself very fortunate to have had a genuine ‘law reform’ experience early in my career,” she says.
Student, Adelaide Law School,
University of Adelaide
“My time with the SA Law Reform Institute has made law very ‘real’ to me.
“Most Law courses are focused on the technical aspects of that particular area of law. However, my time as a student with the Law Reform course and as a research assistant with SALRI forced me to think outside the box and consider not only the effect that law has on society, but vice versa - how society itself can affect the law.”
Story by David Ellis
Photo by Jo-anna Robinson