Why can’t the law keep up with technology?

South Australian law has fallen behind technology, writes Tindall Gask Bentley Managing Partner Morry Bailes.

As this information technology age continues to accelerate at a rapid rate, laws are still sitting on statute books untouched since the day they were written.

Judges say that the amount of legislation coming out of parliament is overwhelming. There is a vast body of law. The process has become one of not only producing voluminous amounts of new legislation, but needing to be in a constant state of review to maintain the law that exists. In reality, keeping up is near impossible.

Complicating matters further, the advancement of technology is not a slow and steady increase, it’s progressing exponentially. So you get the effect of a rapid change of technology versus an increasing mass of law, with one often significantly outpacing the other.

Suppressions

The digital world is making a mockery of the law relating to suppression orders. In Australia we have eight different jurisdictions, which means a suppression order in one state doesn’t apply in another. That was all well and good when a South Australian could only access a Victorian paper by crossing the border. Now, all they need to do is look up an interstate news website to see the name of the suppressed person. That’s not unlawful. The law is only broken if that name is republished in the state where the suppression was ordered. We end up in an absurd situation where a name is suppressed in a state but most people know the identity of the alleged offender, yet it remains an offence to republish that by word or by mouth, which begs the question, why have a suppression order in the first place?

This isn’t to say that the current irrelevance of suppression orders isn’t recognised. Attorneys General across the country are looking at this issue, but nevertheless as it stands this is the way the law is at the moment. Technology has outstripped the law.

The problems relating to suppression law can mostly be overcome if we adopt national, uniform laws that apply in all states. This is the fairest approach to ensure that the identity of the accused is protected, and it has certainly worked for improving defamation law.

Section 51 of the Constitution contains powers the states donated to the Commonwealth for legislating in certain areas. Defamation is not one of them, and neither is the law related to suppressions. So what the states have to do is either amend the Constitution to hand those powers over, or alternatively each Attorney General in each state or territory agrees to pass mirror legislation in their jurisdiction. A South Australian Act, therefore, becomes identical to the Acts in other states. This is what was applied to defamation law, and would also be an effective way to handle suppression law.

The only flaw in this plan is that a suppression order is unenforceable outside of Australia, which means an international newspaper could still reveal the name online. This would only be a problem for these cases that draw overseas media interest.

In recent times identities of suppressed individuals have spread virally through social media, in such a way that it is almost uncontrollable. It remains an offence to publish a suppressed name on a Facebook, Twitter or any other social media web page, but is extremely difficult to police. When creating legislation, parliament should consider whether the law can actually be policed. If it is impossible, then what is the point?

“Sexting”

Suppression orders are just one example of the law’s failure to keep up with technology. I was recently interviewed by a journalist about a new phenomenon known as “sexting” (click here for the story), which involves the electronic transmission of pornographic photographs via mobile phone. It has become a significant issue for teenagers, many of whom are sending revealing photos of themselves and, often unwittingly, engaging in serious criminal offences that can result in an offender being placed on the sex offender register.

I am certain that when those laws were passed by Parliament, and in particular laws establishing sex offender registers, they were aimed at pedophiles rather than 15 year olds taking photos of themselves and sending it to their friends.  As reprehensible as that activity may be, Parliament clearly designed the child pornography laws prior to the digital age hoping to target serious sex offenders, and amendments need to be made to ensure that naïve teens aren’t caught up in the net, convicted of serious criminal offences and placed on the sex offender register by an inadvertent application of law that has been out paced by technology.

Breath testing

A final example is a case recently decided by the Supreme Court of South Australia, Police v Short, where a person who had returned a positive result on a breath analysis machine had his conviction overturned, because the Commissioner of Police had not provided a hand-signed certificate to the Court authorizing the police officer who administered the breath analysis.  Whilst the Court was undoubtedly right in its finding, the requirements placed on the Commissioner of Police by the Road Traffic Act could be argued as antiquated and unnecessary.

Whilst it may be necessary to prove that members of police are authorised to carry out breath analysis on members of the public, the concept of a Commissioner of Police personally certifying that each of the many members of police to do so, would suggest that the law is behind the times.  Surely an innovative technological solution could be found to address the antiquity of the present provisions of the Road Traffic Act.

Court documents

Extraordinarily, many courts in Australia do not allow for electronic filing of documents, which is stunning given the digital age that we live in, and the many amazing systems in place for other corporations, especially the finance industry.  To think that in the 21^st century law firms must employ rounds clerks to carry hard copies of documents to Court to physically file them, rather than E-filing would, I think, surprise the average member of the public. Surely there’s an iPhone app for that by now!  A major investment in the technology used by the Courts Administration Authority is required in South Australia urgently.

Concluding comment

The Courts interpret law, but are only as good as the law they are given from parliaments.  Sometimes it takes a particular case to underscore the fact that the law is not keeping up with technology.  As our information technology age continues to rapidly advance and become even more complex, it requires legislators to constantly review our laws to ensure that they can stay a step ahead, or at the very least keep up with the pace set by technology.

I see daily examples where that is not occurring.  We are now in an age of government by statute.  Whilst I respect the sovereignty of Parliament, Parliament must in turn meet its obligation to maintain our law and legal systems so that they do not fall behind technology.

Author: Morry Bailes