Forfeiture Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Veterans Affairs, Minister for Local Government) (12:23): I move:

That the time allotted for all stages of the bill be 60 minutes.

The house divided on the motion:

Ayes 22

Noes 12

Majority 10

AYES

NOES

PAIRS

Motion thus carried.

The Hon. J.K. SZAKACS: I move:

That this bill be now read a second time.

I am pleased today to introduce the Forfeiture Bill 2023, which reforms the common law forfeiture rule. Stated briefly, the common law forfeiture rule prevents an unlawful killer from receiving any profit or benefits as a result of their crime. The rule stems from a longstanding and powerful maxim of public policy—that is, that no person should benefit from his or her wrongdoing.

The rule has a long history, dating back to Jewish and Roman law, and was established in its modern form in the 1892 case of Cleaver v Mutual Reserve Fund Life Association. It was extended to both murder and manslaughter in the 1914 case in the matter of Hall. The rule has been endorsed by courts in countries around the world, including the High Court of Australia. At common law in South Australia, the rule applies to all cases of murder and manslaughter, with no discretion to modify the operation of the rule, regardless of the presence of extenuating circumstances.

While the premise of the rule remains sound, the scope and operation of the rule has been criticised in recent times for its uncertainty and rigidity. In particular, concerns have been raised that the strict operation of the rule may lead to potential unjust outcomes in situations involving a lesser degree of moral culpability or diminished capacity.

It is conceivable that the rule could lead to potential unfair implications in such situations as the survivor of a suicide pact, infanticide, where the offender has a major cognitive impairment, or especially in a context of domestic violence where a victim of domestic violence kills an abusive spouse and is convicted of manslaughter on the basis of excessive self-defence or provocation. The strict application of the rule in such circumstances has been described as unnecessarily harsh, inconsistent and irrational and injudicious and incongruous with its public policy foundations.

In 2011, former Attorney-General the Hon. John Rau MP commissioned the South Australian Law Reform Institute (SALRI) to review the role and operation of the common law forfeiture rule in South Australia. Specifically, SALRI was asked to consider whether there was any need for legislative intervention and to permit the application of the rule to be mitigated in appropriate cases.

SALRI published its report, titled 'Riddles, mysteries and enigmas: the common law forfeiture rule',on 20 February 2020. The SALRI report is a substantive piece of work, containing 67 recommendations for reform, including the creation of a new standalone act, the Forfeiture Act, to clarify the scope and the application of the rule. Members may recall that an earlier version of this bill was tabled in parliament in 2021 by former Attorney-General the Hon. Vickie Chapman MP. I understand that this bill was tabled for the purpose of conducting public consultation but did not progress before the conclusion of the parliament.

I am pleased to formally introduce this bill to the parliament in this place, which is substantially the same as the 2021 bill. In accordance with the recommendations of the SALRI report, the bill provides a statutory basis for the application of the common law forfeiture rule, in the form of new standalone legislation. In particular, the bill provides that the forfeiture rule applies to any benefit that an offender would otherwise obtain as a result of the unlawful killing. For the purposes of the bill, the term 'benefit' is defined broadly to include any property—whether real or personal—interest or entitlement under the estate of the deceased person.

As recommended by SALRI, the bill also extends the common law forfeiture rule so that it applies not only to murder and manslaughter but to all forms of homicide in the Criminal Law Consolidation Act 1935, including any person who aids, abets, counsels or procures the commissioning of those offences.

Turning to the substance of the bill, part 2 of the bill provides for a range of applications that can be made to the Supreme Court for orders in respect of the application and operation of the forfeiture rule. Clause 6(2)(a) of the bill allows for the executor or administrator of the deceased estate to apply to the court for an order specifying whether, or how, the forfeiture rule applies to the distribution of the estate. Alternatively, clause 6(2)(b) of the bill provides that the executor or administrator of the estate may distribute the assets of the estate without having to obtain an order from the court if:

the offender has been found guilty, in criminal proceedings, of the unlawful killing; or

a court has, in civil proceedings, found that the offender committed the unlawful killing.

As recommended by SALRI, and in keeping with the position at common law in South Australia, the bill clarifies that the forfeiture rule does not apply to a person who is alleged to have unlawfully killed another person and has been found by a court to have been mentally incompetent or to commit the offence. A person who is found by a court to be mentally incompetent to have committed the offence does not commit a crime and it is therefore appropriate that the forfeiture rule does not apply in these circumstances.

In the case of a person who has been found mentally unfit to stand trial, the bill makes provisions for an interested person to apply to the court for an order that the forfeiture rule apply to the person as if they had been found guilty of the charge. The court is empowered to make the order if it is satisfied that:

the objective elements of the offence have been established either to the criminal or civil standard of proof (as the case may be); and, further

it is in the interests of justice for the forfeiture rule to be applied.

Part 3 of the bill makes provision for the offender or any interested person to make an application for an order to modify the application of the forfeiture rule. In accordance with the recommendations of the SALRI report, clause 9 of the bill provides that the court may only make the order where exceptional circumstances exist, such that it is in the interests of justice to modify the effect of the rule. In determining whether exceptional circumstances exist, the court is required to have regard to:

the circumstances of the offence;

the effect of the application of the rule on the offender or any other person; and

such other matters as appear to the court to be material.

In doing so, the bill seeks to allow for greater consideration of individual circumstances whilst ensuring that the underlying policy rationale of the forfeiture rule is not unduly diminished. In accordance with SALRI's recommendations, part 4 of the bill empowers the court to make ancillary orders in relation to the operation and effect of the forfeiture rule. This includes an application by any interested person:

for interim orders to preserve property or any other benefit that may be subject to the forfeiture rule where there are reasonable grounds to suspect that an unlawful killing has occurred (clause 10); and

for orders relating to other property interests which the offender may have acquired as a result of an unlawful killing, but that do not otherwise form part of the deceased's estate and are therefore not subject to the forfeiture rule (clause 11).

There will be some cases where an offender is convicted or their conviction is overturned long after the deceased has been killed and their estate has been distributed to any beneficiaries. In these circumstances, the SALRI report recommended that the court should have the power to trace the inheritance and to make appropriate orders to ensure those who have benefited from the deceased's estate do not receive an unjust enrichment. To that end, the bill includes power for the court to make orders in relation to the enforcement of the forfeiture rule where the benefits of the estate have already been distributed.

Conversely, there is scope for the court to make orders for the return of benefits in circumstances where the offender is found not guilty of the unlawful killing by a court or a conviction for the unlawful killing is subsequently quashed on appeal.

Further to the creation of new standalone legislation, schedule 1 of the bill makes related amendments to the Probate and Administration Act 1919 (Probate and Administration Act) and Criminal Assets Confiscation Act 2005 (Criminal Assets Confiscation Act) to support the operation of the Forfeiture Act.

Schedule 1 part 1 makes amendments to the Probate and Administration Act to codify the effects of the forfeiture rule on the succession rights of third parties. Schedule 1 part 2 amends the Criminal Assets Confiscation Act to exclude the operation of the act in circumstances where the property vests in a person in accordance with the forfeiture rule, forfeiture modification order, or other order made by the Supreme Court pursuant to the Forfeiture Act.

While the government expects that this legislation will be used in rare circumstances—that is, where the forfeiture rule applies—it nonetheless addresses an important aspect of law which is very clearly in need of reform. Specifically, the bill will provide for greater clarity and certainty regarding the operation of the forfeiture rule. It will also enhance justice outcomes for the community by enabling the Supreme Court to modify the application of the rule in those exceptional circumstances where it is in the interests of justice to do so.

On behalf of the government I would like to thank everyone involved at SALRI for their excellent work in delivering the report that informed the drafting of this bill. During the consultation period some stakeholders expressed surprise that there is no statutory basis for the rule of forfeiture. The government is pleased that, under this bill, this will no longer be the case, and the forfeiture rule can be dragged firmly into the 21^st century. The application of the rule in increasingly complex property, inheritance and succession contexts is another driver for this important reform.

I commend the bill to the chamber and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms used in the measure.

4—Application of Act

The measure applies to property within or outside the State and unlawful killings whether occurring within or outside the State.

5—Property subject to forfeiture rule

This clause clarifies that the forfeiture rule applies to any benefit that an offender would otherwise obtain as a result of the unlawful killing.

Part 2—Application of forfeiture rule

6—Application of forfeiture rule by executor or administrator

An executor or administrator who knows (or ought reasonably to know) that the forfeiture rule applies in relation to the distribution of an estate, must distribute that estate in accordance with the rule and any agreement to modify or disapply the rule is of no effect. It is possible to apply to the Supreme Court for an order specifying whether, or how, the forfeiture rule applies to the distribution of the estate or, if the unlawful killing has been proved in criminal or civil proceedings, the estate can be distributed in accordance with the rule without any court order.

7—Rule does not apply to person who was mentally incompetent or unfit to stand trial

The forfeiture rule does not apply to a person who is found to have been mentally incompetent to commit the unlawful killing and, subject to an order under clause 8 of the measure, the rule does not apply to a person found to be mentally unfit to stand trial on a charge of the unlawful killing.

8—Forfeiture application orders

This clause allows an interested person to apply to the Supreme Court for an order that the forfeiture rule applies to a person who has been found by a court to be mentally unfit to stand trial on a charge of an unlawful killing.

Part 3—Modification of forfeiture rule

9—Forfeiture modification orders

This clause allows the offender or any other interested person to make an application to the Supreme Court for an order modifying the effect of the forfeiture rule.

Part 4—Other orders

10—Interim orders

The Supreme Court may, on the application of an interested person, make any interim orders in order to preserve property or the value of any benefit that might be subject to the forfeiture rule or to protect the interests of any interested person.

11—Orders relating to other property and interests

If the Supreme Court is satisfied that an offender will or may be entitled to obtain any property or interest as a result of an unlawful killing (not being a benefit that is subject to the forfeiture rule), the Court may, on the application of an interested person, make orders under this clause to prevent the offender from obtaining the property or interest.

12—Enforcement of forfeiture rule etc after distribution of benefits

If a person has received a benefit as a result of an unlawful killing (otherwise than pursuant to a forfeiture modification order), an interested person may make an application to the Court for an order requiring the person to deliver up the benefit, or to pay an amount determined by the Court to be equivalent to the value of the benefit, to any person who would have been entitled to the benefit if the offender had died before the deceased person.

13—Return of benefits where conviction quashed etc

This clause allows for the return of benefits that were distributed in accordance with the forfeiture rule (or payment of their equivalent value) where the offender is subsequently found not guilty of the unlawful killing by a court or a conviction for the unlawful killing is subsequently quashed on appeal.

Part 5—Miscellaneous

14—Proceedings to be civil

Proceedings under the measure are civil proceedings.

15—Orders under Act

An order of the Supreme Court under the measure may be in such terms and subject to such conditions as the Court thinks fit.

16—Time for bringing proceedings

This clause specifies time limits for applying for orders under the measure.

17—Evidentiary

This clause provides for evidentiary certificates.

18—Regulations and fee notices

This clause provides for the making of regulations and fee notices.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of Administration and Probate Act 1919

1—Insertion of section 36A

Proposed section 36A provides for an alternate grant of probate or administration where the Court considers that there are reasonable grounds for believing that a person otherwise entitled to a grant of probate or administration has committed an offence relating to the deceased person's death.

2—Insertion of section 118

If a person is for any reason disqualified from taking their interest under a will or taking their share in the distribution of an intestate estate, the person is to be treated as having predeceased the testator or intestate (as the case may be).

Part 2—Amendment of Criminal Assets Confiscation Act 2005

3—Amendment of section 7—Meaning of proceeds and instrument of an offence

Property that vests in a person from the distribution of the estate of a deceased person in accordance with the forfeiture rule or a forfeiture modification order or other order under the measure will cease to be proceeds of crime for the purposes of the Criminal Assets Confiscation Act 2005.

Part 3—Transitional provision

4—Application of Act

The measure only applies in relation to an unlawful killing occurring after its commencement.

Mr TEAGUE (Heysen) (12:42): I rise to commend the minister on his rehearsal of the Attorney's speech in another place about 18 months ago.

The DEPUTY SPEAKER: Are you the lead speaker?

Mr TEAGUE: I was just getting to that. I also rise in circumstances where—because there must be separate and distinct reasons in each case—here we are 102 minutes or so into the sitting week and we are languishing under not the first or the second, or even the third guillotine, but the fourth guillotine on debate of a bill that the government well knows has the support of the opposition.

The opposition has engaged in another place in a debate, including in relation to the one and only amendment through which the government has seen fit to alter the standing of the Attorney-General. It is the subject of the bill that was prepared but not progressed to its conclusion by the Marshall Liberal government and the former Attorney in the previous parliament, the Hon. Vickie Chapman.

So we are here in circumstances where the bill has wholehearted bipartisan support. It has been the subject of analysis in the debate in another place, and we now have the benefit of the minister having rehearsed at least the second reading speech of the minister in another place. It perhaps might have completed the picture if the minister had read the Hansard of the committee stage as well in the Legislative Council, then we would know what the debate around the removal of section 10 and the standing of the Attorney, as a person who could make an application in proceedings for an interim order, might have looked like. I just indicate to those following the debate that that is all abundantly available, and I am grateful to the Attorney and to the Hon. Michelle Lensink for consideration of that matter.

The subject matter that the bill addresses has been considered over a period of many years. In particular, recognition of the South Australian Law Reform Institute ought be highlighted in this regard. On 20 February 2022, the South Australian Law Reform Institute's report, titled 'Riddles, mysteries and enigmas: the common law forfeiture rule', set out 67 recommendations for reform, including the creation of a new standalone act, and I just put this debate in that context.

I am not going to stay to set out the history of the debate or the very considerable amount of work that SALRI has done: that goes really all the way back to the commissioning of a review by the then Attorney-General, the Hon. John Rau, in 2011, and so this has been a long time in the making.

Here we are in September 2024, and I suppose it could be said the government has gotten on with it to some extent in circumstances where the bill managed to progress and they dealt with debate on the bill in the other place not quite two years ago. For reasons unknown, it has taken this long until the bill has made it to this place. Some of that I dare say might be down to the sorts of hours that the government has been in the practice of keeping when it comes to sitting days over the last couple of years, but confounded as I am by not the first or the second or the third but the fourth guillotine on debate for no apparent reason I indicate the opposition's support for the bill. I thank the minister. I recognise, in particular, the work of the South Australian Law Reform Institute. I recognise the work of the Attorney and the previous Attorney and the Attorney before that. I commend the bill to the house.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (12:48): I thank the member for his contribution and note the opposition's support of the bill. Again, I reiterate my thanks and the thanks of the government for the work undertaken by SALRI that has led us to this point.

Bill read a second time.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (12:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.