South Australian Law Reform Institute – 2016 overview: a fruitful year

As 2016 draws to a close, the South Australian Law Reform Institute can reflect on an extremely busy, but fruitful, year. With the completion of a number of significant reports and the passage of legislation that implemented many of its recommendations, the Institute is pleased with the contribution it is making to the law and law reform in South Australia.

Based at the Adelaide Law School, the Institute was established in December 2010, by an agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia. The Institute is assisted by an expert Advisory Board. In addition to its independent research, the Institute is assisted by the students of the Adelaide Law School’s Law Reform elective.

The recommendations which the Institute makes to Government are based on detailed and impartial research which draws on the views of the public and interested parties, as well as national and international comparisions. The acceptance of any recommendation from the Institute is an issue for the State Government and Parliament.

As noted, 2016 has proved a busy and fruitful year for the Institute.

The Institute progressed its major reference to review South Australian legislative or regulatory discrimination against individuals and families on the grounds of sexual orientation, gender, gender identity or intersex status. To follow up its comprehensive Audit Report of discriminatory South Australian laws in 2015, the Institute released three Reports in 2016 on diverse issues relating to the legal recognition of sex and gender, the legal recognition of relationships, parenting rights and the protections and exceptions in anti-discrimination law. The Institute drew on its extensive consultation with the community and interested parties, notably in the LGBTIQ community.

The Institute’s work is reflected in the Statutes Amendment (Gender Identity and Equity) Act 2016 (which passed Parliament on 27 June 2016 and has now commenced operation) and also in the Adoption Review Amendment Bill 2016, the Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill 2016 and the Relationship Register Bill 2016 which have now all passed Parliament and are awaiting Royal Assent. The Statutes Amendment (Surrogacy Eligibility) Bill 2016 passed the Legislative Council on 8 December 2016.

The Institute is grateful that its reports in relation to the LGBTIQ reference have been commended from both sides of Parliament.

The Institute expresses its gratitude to all the parties, especially from LGBTIQ communities and the family violence sector, who generously contributed to its important work this year.

Further, the Institute highlights the valuable contribution of the 2016 Law Reform class.

The Institute is progressing its examination of the law of provocation and is clear that, as stated in the 2015 Audit Report, the homosexual advance aspect of provocation should be removed, but in a wider and non-discriminatory manner that also addresses the gender and family violence implications of the current law.

Beyond the LGBTIQ research, the Institute has also progressed other references during 2016.

The Institute has progressed its major reference into succession law with the release on 1 November 2016 of its Final Report 5, Whether there should be a will register in South Australia. The Institute also released its Final Report 6, Review of the procedures for administration of small deceased estates and resolution of minor succession law disputes in South Australia, on 12 December 2016. This Report makes various recommendations to improve procedures for the administration of small estates and in resolving such succession disputes.

The Institute has largely completed its examination of the complex topic of Intestacy and will be releasing its Final Report, South Australian rules of intestacy, in early 2017.

Final Report 4, reviewing The form of witness oath and affirmation in South Australia, was released on 2 February 2016. This Report recommends replacing the current, and often confusing, system of oaths and affirmations, in favour a new secular promise to tell the truth as a witness.

In addition to the Oaths and Affirmations Report, the Institute concluded its major study into the topical issue of privacy and its Final Report, A statutory tort for invasion of privacy, was released on 9 March 2016. The Report recommended the introduction of a new tort against serious invasion of personal privacy.

In addition to the LGBTIQ reports there has been other legislative change based on the work completed by the Institute. The 2012 Report, Modernisation of South Australian evidence law to deal with new technologies, was incorporated in the Evidence (Records and Documents) Amendment Act 2015 which commenced on 4 April 2016.

Throughout 2016 the Institute’s staff have spoken at various conferences and legal and community events and are often approached for comment by the media.  During the year, the Institute’s staff conducted research and consultation visits to Hobart, Mt Gambier, Port Lincoln, Berri, Wallaroo and Naracoorte.

In 2017, the Institute will be progressing research on the topical reference on the powers of the police in relation to electronic search and seizure and compelling access to encrypted computer records suspected to contain material relating to child pornography or other crimes such as terrorism.

Further, the Institute will be considering the role and operation of the Inheritance (Family Provision) Act 1972. This promises to be another major and topical reference and will be undertaken with extensive consultation. There are concerns over the present law which allows relatives to dispute a will and claim that they are inadequately provided for.

In due course, the Institute will also be examining the topics of funeral instructions, the disposal of human remains and the resolution of burial disputes, with close community involvement. These complex issues raises particular sensitivities for Indigenous communities.

The Institute looks forward to another exciting year in law reform in 2017.

The Institute’s work can be viewed here.

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