SALRI in 2022: The year in review
2022 has proved yet another busy and productive year for the South Australian Law Reform Institute (SALRI).
SALRI is an independent non-partisan law reform body based at the University of Adelaide Law School. The Law Reform elective is linked to SALRI. The work undertaken in the Law Reform class plays a valuable role to inform and support SALRI’s work.
2022 project overview
Review of the Ageing and Adult Safeguarding Act 1995 (SA)
On 1 November 2022, SALRI released its major report, ‘Autonomy and Safeguarding are not Mutually Inconsistent’: A Review of the Operation of the Ageing and Adult Safeguarding Act 1995 (SA).
SALRI was asked by the State Government to undertake this independent statutory review. The Office for Ageing Well and the Adult Safeguarding Unit are set up under this Act.
As part of this project, SALRI considered current law and practice through its extensive consultation with a diverse range of interested parties and community members. SALRI made 46 recommendations to improve the operation of the Ageing and Adult Safeguarding Act as well as the bodies implementing the Act. SALRI’s report sought to balance the autonomy of the adult who might be vulnerable to abuse with the need to safeguard such individuals from abuse and exploitation. SALRI’s recommendations reflect the Act’s strong focus on upholding human rights by respecting the autonomy, dignity, and presumption of decision-making capacity of an adult, but also the intersection with the key role of safeguarding.
This proved a major project with a tight timescale. The Report drew on SALRI’s wide research and consultation. SALRI is committed to active and inclusive engagement, especially with regional and rural communities, the disability community and the Aboriginal communities. The team of co-authors included Associate Professor David Plater (SALRI Deputy Director) and Professor Williams (SALRI Director) as well as Associate Professor Sylvia Villios, Dr Michaela Okninski and Anita Brunacci of the Adelaide Law School. The Report also drew on the valuable input of recent law graduates Divya Narayan (lead researcher), Holly Nicholls, Kim Tran and postgraduate student Olga Pandos, as well as current law students Rachel Tan and Taylor Portelli. SALRI thanks all the authors, but a special thanks to the stellar work of Ms Narayan as lead researcher.
This reference also highlights the value of the Law Reform class and the student input to SALRI’s work, especially when we have the opportunity to employ recent graduates or current students as researchers.
SALRI’s recommendations are now with the State Government for their consideration.
Review of the Mental Health Act 2009 (SA)
SALRI was also asked in 2022 by the State Government to conduct the independent statutory review of the operation of the Mental Health Act 2009 (SA). This has also proved a major and important review with extensive community and expert interest and SALRI has undertaken wide consultation and research. There has been a focus on consultation with consumer groups as well as regional and Aboriginal communities. SALRI visited Port Pirie, Port Augusta, Berri, Naracoorte, Whyalla and Port Lincoln and held a number of Adelaide focus groups, roundtables and other meetings. Professor Williams and Olga Pandos have led SALRI’s work. SALRI thanks Ms Pandos for her stellar work on this major review.
This Report will be publicly released in early 2023.
SALRI has sought to progress its reference from the previous Attorney-General to examine the problematic law of witness competence under s 9 of the Evidence Act 19629 (SA) and, as a closely linked issue, oaths in court (drawing on a past SALRI Report) has also arisen. SALRI’s Report will also address the vexed distinction between sworn and unsworn evidence and the contentious present warning as to the purported superior quality of sworn over unsworn evidence.
No funding was attached to this review and SALRI has had to look at witness competence ‘off the side of the desk’, in between other more pressing projects. SALRI is grateful for the generous input of Jemma Holt, the Hon David Bleby SC and the Hon Geoff Muecke. It is intended to now resume this project and complete it in the early part of 2023.
Impact and engagement
SALRI’s impact remains considerable for its size. SALRI takes part in regular industry, media and community events.
The previous Attorney-General introduced or tabled for public consultation Bills based on the major SALRI Reports on:
- a right of privacy and new action for breach;
- powers of attorney;
- succession law; and
- the common law forfeiture rule in unlawful homicide.
These Bills all lapsed with the 2022 State election.
Termination of Pregnancy Act 2021
On 7 July 2022, the Termination of Pregnancy Act 2021 to decriminalise abortion (broadly based on SALRI’s major report) came into effect. This Act had passed on a conscience vote in 2021.
Visit to the Law Commission of England and Wales
While on leave in London during September 2022, Associate Professor David Plater and Olga Pandos arranged to visit the Law Commission of England and Wales to brief them on SALRI’s work and were made very welcome by Lord Justice Green and the other Law Commissioners. The Law Commission was very interested in SALRI’s work, especially its engagement with Aboriginal communities and the role of the Law Reform class. The Law Commissioners also highlighted the value of links and collaboration between Commonwealth law reform agencies. A return trip to the Law Commission is planned for June 2023.
Succession Bill 2022
On 20 October 2022, the Attorney-General reintroduced the Succession Bill, noting that ‘This Bill represents some of the most extensive reform to succession law in South Australia since the development of the Inheritance (Family Provision) Act in the 1970s.’
This Bill draws on no fewer than seven reports produced by SALRI between 2014 and December 2017:
- Securities Guarantees for Letters of Administration;
- State Schemes for Storing and Locating Wills;
- Small Estates and Minor Succession Disputes;
- South Australian Rules of Intestacy;
- Management of the Affairs of a Missing Person;
- Review of the Inheritance (Family Provision) Act 1972 (SA); and
- Who May Inspect a Will.
The Bill, in particular, adopts SALRI’s proposals to update the law and restrict the scope for family provision claims and discourage the real problem of greedy or vexatious claims.
Proposed projects for 2023
SALRI will be considering the role and operation of suppression orders in South Australia following a recent successful grant application to the Law Foundation of South Australia Inc. SALRI is grateful for the Law Foundation’s support.
SALRI hopes to examine the role and operation of microboards during 2023.
A recurring issue in SALRI’s recent consultation has been the role and utility of ‘microboards’ to provide flexible and effective long-term care to older persons or persons with disability. The concept of microboards has been raised to SALRI in its consultation by members of the community, health and disability sectors as part of the dissatisfaction with existing options – such as powers of attorney, guardianship and administration orders and the Public Trustee as well as commercial providers. It has been suggested that, drawing on recent developments in Canada and Western Australia, SALRI should look further at the role and operation of microboards to determine their feasibility as a viable alternative to existing support strategies.
Appropriate funding will be required for this project to proceed.
SALRI thanks the many parties and individuals who generously contributed in various ways to its work in 2022.