A tradition of reform

Professor John WilliamsThe biggest problem for the law is that the world keeps changing. “We have to apply constantly old principles to new circumstances,” says the University’s Dean of Law, Professor John Williams.

In 1973 a report on privacy law in South Australia warned of the risk of “wire tapping” and “electronic eavesdropping” but obviously made no mention of stickybeaks with drones or spurned lovers posting very private images across social media.

“Privacy law used to worry about the government. Now it’s people on Facebook and Twitter,” Professor Williams says.

It’s one of many examples that led the State Government and Law Society of South Australia in 2010 to unite with the University of Adelaide to create the Law Reform Institute. With Professor Williams as Director, the Institute’s brief is to “help modernise, simplify and consolidate laws and the administration of the justice system and, in doing so, improve access to justice for the community”.

The Institute is tackling its task with a small team and the advice of what Professor Williams calls “a spectacularly good” advisory committee, including judges, and his colleague, labour lawyer and former Dean of the University’s Law School, Professor Rosemary Owens AO.

And an enormous, important, endless task it is. As Professor Williams says, “There are lots of areas where the law simply runs out.”  Like succession law, which dates from an age before complex blended families. “IVF did not exist when many basic principles were developed,” he says. “As for social media, until recently the State Evidence Act did not refer to modern online communications but it had telegrams covered.”

The State’s statutes are equally blind to gender diversity and the existence, let alone rights and needs, of all the South Australians collectively covered by LGBTIQ (lesbian, gay, bisexual, transsexual, intersex, queer).  As the Law Reform Institute outlines, “many South Australian laws still include references to ‘spouse’, ‘husband’, ‘wife’ and ‘marriage-like relationship’, and generally exclude same-sex couples, or couples involving gender-diverse people”. The wording of such laws can damage people’s lives in all sorts of ways, from starting a family, to insurance, to aged care.

It is also why South Australian Governor, His Excellency the Honourable Hieu Van Le AO, announced in his address to open State Parliament in February this year that the Law Reform Institute would review all relevant legislation.

Even the way South Australians swear oaths and make affirmations in court dates from the days before the cultures and values of Indigenous Australians and people of non-Christian faiths were considered. Looking at how to update them has taken more than a year, according to Professor Williams.

It’s an issue South Australians have tackled for a century, with at least three attempts to adapt the law. Back in the 1970s, proposals for change generated a dispute between reformers and the Attorney-General of the day, with the wording of oaths and affirmations becoming an issue considered by the Court of Criminal Appeal.

“As to what the Institute will ultimately recommend… it may come down to just asking witnesses if they will tell the truth, and making the courts truly secular,” Professor Williams muses.

The case for creating simplicity in place of centuries of complexity is certainly an option for the Institute to consider. “Abolishing the oath would altogether remove considerations of a witness’s religion (irrelevant to one’s capacity to tell the truth) from our secular court processes. This might minimise the potential for prejudice, perceptions of discrimination or for the giving of unintended offence,” it suggests in a discussion paper.

But it is updating succession law that most consumes the Institute. Perhaps it is because wills, and who gets what in them, is the one area of the law that touches most people, or maybe it is the sheer complexity of the law.  Whatever the reason, the Institute has already worked on reform on this legislation for two years, publishing half a dozen papers.

The Institute attracts submissions from the people who will have to work with those of its proposals that State Parliament eventually adopts. The review of technology’s impact on legal administration attracted submissions from the chief justice, chief magistrate, director of public prosecutions and the South Australian law and bar associations.

It is all based, Professor Williams says, on a great South Australian tradition of reform. “The Institute stands on the shoulders of giants,” he says nodding to Justice Howard Zelling, CBE QC.

Justice Zelling was a brilliant man, of innate ability and erudition. A 1925 report in The Mail newspaper reported the then seven-year-old from Goodwood astounded professors with his “marvellous memory, unusual reasoning powers and card-index brain”. And, as a law reformer, he set a high standard for Professor Williams and his colleagues to follow.

Between 1968 and 1987, the Law Reform Committee of South Australia (a precursor to the Institute) produced 106 reports, ranging from the arcane, “Problems of proof of survivorship as between two or more persons dying at about the same time in one accident,” (1985) through the more obscure (amending the law of fences was a big deal in 1972) and on to many that make Professor Williams point out that the law can lag seriously.

Like the 1987 report on “inherited imperial Sunday observance”, which argued: “The time may come when the majority of factories, shops and offices are open seven days a week, with the two (or more) day breaks of workers not necessarily falling on Saturday and Sunday. However, it seems to us desirable to retain at least one regular day a week when it is possible for family and friends to be together.”

Certainly it’s a struggle to keep the law updated, as Professor Williams says. Fortunately there is an enduring commitment to genuine law reform at the University, and in South Australia.