Legislative Council: Tuesday, June 27, 2023



Forfeiture Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 February 2023.)

The Hon. J.M.A. LENSINK (15:33): I rise to make some remarks in relation to this particular legislation. Forfeiture law has been an important principle for some time, going back, as I understand, through concepts advocated through the Old Testament and Greek times as well. It is universally one of the most common law practices. I will not go into an in-depth speech in the same way as the Hon. Mr Simms did on another bill, but just make those opening remarks.

The review into the South Australian application of modern common law forfeiture rules has been ongoing for multiple governments. Initiated in 2011, a report by the South Australian Law Reform Institute (SALRI) landed in 2020 under the former Liberal government, when the Hon. Vickie Chapman was the Attorney-General. It contained 67 recommendations, one of which is that forfeiture should be contained within a standalone piece of legislation. An initial version of that bill was introduced in 2021. The former Attorney-General actively sought feedback and community consultation on that bill; however, it did not progress in that session of parliament.

The bill before us today is very similar to that of the former government. It is presented under the implication that, while the premise of forfeiture rules remain sound and vital to the prevalence of justice in our community, there are circumstances and situations where there needs to be less rigidity in the application of forfeiture laws to ensure that it reflects the core of our modern community expectations.

This bill extends the scope of forfeiture to apply to not only murder and manslaughter as it currently stands but to all homicide described by the Criminal Law Consolidation Act. It also specifies any person found guilty of aiding or abetting those offences.

In current law, an individual who is found to be mentally incompetent of committing an offence has not, in the eyes of the law, committed the offence. An individual who is alleged to have killed another yet is then found to be mentally incompetent of committing the crime of murder is not able to be convicted of that crime; therefore, forfeiture laws should not apply to that person. Our understanding is that this was generally the practice, but by stipulating it in the bill it crystallises the legal position.

Part 3, clause 9 allows an offender the right to application for modification of orders to the Supreme Court. I understand there have been questions of common law as it stands when there are situations of moral culpability. Clause 13 of the bill acts on another recommendation by SALRI to ensure that, when a conviction is overturned by a court after an estate has already been distributed, there is the ability for recompense. The explanation of clauses run the argument that:

…return of benefits that were distributed in accordance with the forfeiture rule…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.

We are pleased to offer support for this law but will have some questions and seek clarification during the committee stage.

The Hon. C. BONAROS (15:37): I rise on behalf of SA-Best to speak on the Forfeiture Bill 2022, which we know is the result of 67 recommendations presented by SALRI in their report, 'Riddles, mysteries and enigmas: the common law forfeiture rule', examining the utility of the forfeiture rule in a modern context. I have to be the first to admit that I enjoy these reports more for the value of their titles and their artwork at times. They do provide lots of entertainment.

I will take the opportunity at the outset though, on a very serious note, to acknowledge the extremely important work of those involved in this report at SALRI, in particular Dr Villios, Dr Plater, Olivia Jay, Terry Evans and Emily Ireland, of course with the most valuable input from Professor John Williams, but also, and even more importantly, the number of University of Adelaide students who took part in this report, including Charlie Hamra, who many of us in this place will know. I know they would have been in good hands with Dr Villios at the helm in terms of preparing this report.

As many of us in this place will recall, the bill is based on that SALRI report and was tabled in 2021 by the former Attorney but did not progress, and like that bill this bill shares basic commonalities in the pursuit of expanding the application of the forfeiture rule beyond just all cases of murder and manslaughter. Of the 67 SALRI recommendations, this bill picked up the most substantive ones that relate to the issues raised in the report around fairness and equity of the rule as it operates at common law.

The legal maxim of the common law rule of forfeiture, as we know, is steeped in history, which I will not go into in detail in this place but it stems from a broad range of public policy principles, the cornerstone of which is that no person should benefit from his or her or their wrongdoing, which to the attitudes of most people is a reasonable underlying rationale.

As part of that wholesale review of the utility and performance of those forfeiture rules at common law, SALRI made those 67 recommendations that I referred to, which in essence form the foundational basis for this act. I think the need for reform in this space, as is highlighted in the report, is very welcome. It is clear that the limitations of the common law application of the forfeiture rule simply do not meet today's community expectations when it comes to a host of complex consequences arising from the rule in its current form.

In practice, it has been identified that the common law application rule of forfeiture, even at its most flexible, often delivers outcomes that are incomplete or unfair when weighed against the circumstances of a range of cases and is no longer appropriate. The limiting aspect of the rule's application means that consideration for persons charged for unlawful killings, the competence of the individual committing the offence or the ability to preserve deceased assets to protect the interest of third parties until a finding of guilt is made, are not able to be put before a judge.

What SALRI discovered is that the operation of the rule has created mounting uncertainty with its public policy effect and scope, with criticisms from the legal profession and those seeking the utility of the rule that in its present form it is not fit for purpose.

The bill does make consideration for some of the shortcomings identified by SALRI, as I said, by allowing, for instance, interim orders in the Supreme Court to apply the forfeiture rule to a person who has been found by a court to be mentally unfit to stand trial on a charge of unlawful killing. This prevents the default position currently found where the killers retain a benefit by virtue of no guilt being found due to mental incompetence to be tried.

I am pleased to see that the bill before us today does go some way to address the narrow application of the common law rule by including a broader definition of 'unlawful killings', which will capture the offences of unlawful homicide in the Criminal Law Consolidation Act, inclusive of aiding and abetting, criminal neglect, and death by dangerous driving in a culpably negligent manner, recklessly or at a speed in a manner dangerous to anyone.

An example of this is the application of the forfeiture rule to unlawful killings in various circumstances where a lesser degree or moral hazard and culpability are recognised. The concern is that this leads to poor and unfair outcomes. A circumstance that comes to mind is voluntary assisted dying, or in the context where the offender of an unlawful killing has diminished responsibility due to a cognitive impairment. Perhaps one that is most front of mind is in the family violence context, where a victim kills an abusive spouse and is convicted of manslaughter on the basis of excessive self-defence or provocation.

At present, the common law application of the forfeiture rule strictly prohibits outcomes related to these examples described as unnecessarily harsh and inconsistent with the maxim of the rule's public policy rationale. There are some problematic but interconnected implications and consequential effects this bill will have with respect to issues of intestacy and inheritance that come some few weeks after this chamber passed comprehensive succession law reforms.

Issues raised by SALRI that are based on the English Law Commission in a 2005 report identified, when analysing the application of the rule in various property, succession and inheritance situations, the potential for the rule to result in the sins of the unlawful killer being visited upon their blameless children. In effect, this has created conditions where rational and reasonable outcomes are not capable of being yielded. This is particularly evident, as I said, in those family violence settings where the killer is a victim of spousal abuse. We are pleased that this bill implements a version of the SALRI recommendation that the act codify the effect of the rule on the killer and on the succession rights of third parties.

I note that section 67 of the bill has been amended to give courts discretion to consider reasonable grounds to administer the estate of a deceased person to 'any person the court considers appropriate' in the case the person entitled to a grant of probate of a will has committed an offence relating to the deceased person's death. Further to this and consistent with the Succession Bill, we see the adoption of the SALRI recommendation to address the flow of intestacy in circumstances where a person is disqualified from taking an interest or a share in a deceased estate. I think that is probably a nice, neat and consistent change.

One of the most significant and transformative elements of the bill is the provision to allow for the modification of the operation of the forfeiture rule to allow courts to exercise a discretion to modify the forfeiture rule through consideration of exceptional circumstances, which is also very important, such that it is in the interests of justice to modify the effect of the rule. In considering an application to modify, the court must have regard to the circumstances of the offence, the effect of the application of the rule and the offender, and other purposes that the court determines to be material.

I think by introducing a modification scheme, the bill certainly does modify the forfeiture rule. It brings us in line with other jurisdictions, including the ACT and New South Wales, and also international jurisdictions, the UK and New Zealand, which have all implemented a version of the modification rule. Given I have mentioned New Zealand, while New Zealand has fully codified the forfeiture rule, this bill seeks to follow the New South Wales and UK format where the modification of the rule falls within the discretion of the courts.

I think with that in mind and given those recommendations, it does appear that we have sought to strike the right balance to allow for greater consideration of individual circumstances while also ensuring underlying policy rationales are not weakened. I think there are a number of consequential amendments, which we will get to shortly when we get to the committee stage of this bill.

In all, we note that the utility of the forfeiture rule in practice is not a common feature of our justice system, but the need for clarity in the scope of the rule's operations and the ability to consider individual circumstances closer was certainly made clear by SALRI. I think we should take heed of those reports because they were provided to us for very good reason and based on a lot of impartial advice. With those words, we support the bill.

The Hon. T.T. NGO (15:47): I rise to speak on behalf of the government about the Forfeiture Bill. Firstly, I think we can all agree that an unlawful killer should not be able to profit from his or her crime. Stated briefly, the common law forfeiture rule prevents an unlawful killer from receiving any benefits as a result of their crime.

I note that this bill's passage for reform began back in September 2011. The then South Australian Attorney-General, the Hon. John Rau MP, asked the South Australian Law Reform Institute (SALRI) to review the role and application of the common law forfeiture rule and any need for legislative intervention in South Australia. At that time, the Attorney-General drew SALRI's attention to a suggestion that there was a need for a new law to permit the common law forfeiture rule to be mitigated. In 2020, the former Liberal government Attorney-General, the Hon. Vickie Chapman MP, supported SALRI undertaking this reference.

An earlier draft exposure of the bill was developed by the former government and tabled in parliament for public consultation in 2021. However, the bill did not progress any further. The current bill is noticeably the same as the former government bill, with some minor changes. This rule stems from a longstanding principle of public policy that no person should gain from his or her wrongdoing. It is pertinent to note that this rule dates back to Jewish and Roman law and various medieval doctrines that were only formally abolished in 1870. The rule in its current modern form was first formulated in 1892. The forfeiture rule was extended in 1914 to include both murder and manslaughter.

Rather than relying on the judicial form of the rule, SALRI recommends that the South Australian parliament should, for clarity and certainty, introduce a standalone forfeiture act as the preferred vehicle for reform. This bill has been prepared to implement SALRI's recommendation that there should be standalone forfeiture legislation in South Australia.

In addition, the bill extends the common law rule so that it applies not only to murder and manslaughter but to all forms of homicide under the Criminal Law Consolidation Act 1935. In South Australia, the common law 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. In view of this, the scope and operation of the rule has been criticised for its uncertainty and inflexibility. A strict application of the forfeiture rule to unlawful killings in circumstances where a lesser degree of culpability is recognised could lead to potentially unfair implications.

Examples of this would be in situations such as being the survivor of a suicide pact, assisted suicide, euthanasia or mercy killing, or where the offender has a major cognitive impairment (also termed 'diminished responsibility'). Another vivid example is in the 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.

This bill will provide greater clarity and certainty regarding the operation of the forfeiture rule. The current automatic and inflexible application of the rule is at odds with changes in community attitudes. In today's world, this is reflected in the greater range of offences and sentencing options today compared with when the rule was first formulated. As I mentioned, this was more than 100 years ago.

The Forfeiture Bill 2023 will bring relevant and important reform while enhancing justice outcomes for the community by enabling the Supreme Court to modify the application of the rule where it considers that exceptional circumstances exist and it is in the interests of justice to do so. On behalf of the government, we hope the house supports the passage of this bill. In doing so, we will be protecting individual rights and ensuring due process and fairness once this standalone forfeiture legislation is in place.

The Hon. R.A. SIMMS (15:53): I rise to speak on the Forfeiture Bill 2023. As has been stated by other speakers, the bill seeks to reform the common law that prevents an unlawful killer from receiving any profit as a result of their crime. The forfeiture rule is a rule that disallows a person who unlawfully kills another from acquiring a personal benefit as a consequence of the killing. The killer forfeits any entitlement to inherit from the victim, either under the victim's will or, if no will disposes of all of the victim's estate, under intestacy law. If the killer and victim were co-owners of property as joint tenants, the rule prevents the property from passing to the killer.

The forfeiture rule is consistent with a longstanding legal maxim that no-one can derive an advantage from his or her criminal wrongdoing. The rule was first enunciated in the 1891 decision of the English Court of Appeal in Cleaver v Mutual Reserve Fund Life Association. In Cleaver, the court held that the woman who had been convicted for murdering her husband could not claim the proceeds of her husband's insurance policy. Lord Esher MR stated that the rule of public policy in such a case prevents the person guilty of the death of the insured, or any person claiming through such a person, from taking the money.

At present, the rule applies to all cases of murder and manslaughter, with no discretion to modify the operation of the rule regardless of any extenuating circumstances, such as a victim killing an abusive spouse in self-defence. The South Australian Law Reform Institute reviewed the common law forfeiture rule in 2020 and produced a report with 67 recommendations to reform the act. This bill is the result of those recommendations.

The bill applies the forfeiture rule to murder, manslaughter and all forms of homicide, including any person who aids, abets, counsels or procures the commission of these offences. It also allows for the executor or administrator of a deceased estate to apply to the court for an order specifying whether or how the forfeiture rule applies to the distribution of that estate.

The bill will not apply the forfeiture rule to someone found to be mentally incompetent in committing the offence. The bill will allow any interested person to make an application for an order to modify the application of the forfeiture rule where exceptional circumstances exist, such as where the offender is the survivor of a suicide pact, has a major cognitive impairment or, in the context of domestic or family violence, where a victim kills an abusive spouse and is convicted of manslaughter on the basis of excessive self-defence or provocation.

The bill empowers the court to make any other ancillary orders in relation to the forfeiture rule and allows the court to make orders in relation to the enforcement of the forfeiture rule where benefits have already been distributed or where the offender has their conviction quashed on appeal.

The Greens note the South Australian Law Reform Institute's assessment that the application of the forfeiture rule in South Australia does not reflect contemporary public policy or social values, is too rigid and inflexible, risks applying the rule harshly to certain unlawful killers whose culpability is less than other unlawful killers, and has resulted in its application in a manner that is inconsistent with contemporary values and attitudes. We therefore welcome this opportunity to fix this area of the law, and we support the bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:57): I thank the Hon. Michelle Lensink, the Hon. Tung Ngo, the Hon. Robert Simms and the Hon. Connie Bonaros for their contributions, and I look forward to the committee stage of the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: This is pretty straightforward questioning in relation to the differences between the 2021 bill and this one, in particular removal of section 10, if the Attorney-General is a person who can make an application in proceedings for an interim order relating to preserving property that may be subject to the forfeiture rule. We are seeking more information about why this alteration was necessary and what advice the government received in order to make that change.

The Hon. K.J. MAHER: I thank the honourable member for her question. It relates to seeking an interim order effectively to preserve an estate before further work or investigation is undertaken. The SALRI report suggests that it could be the Attorney-General who could seek that interim order. In consideration of this, and taking into account advice, that may necessitate the Attorney-General of the day actually forming a view about the merits of whether an interim order should be made, and perhaps even forming a view about the merits or the likely outcome.

The legislation instead allows an interested person to make such an application. It is not the Attorney-General as essentially a middle step forming a view but an interested person, being an offender, the executor or the administrator of the estate of a deceased person, a beneficiary, a person claiming through an offender, or any other person who has a special interest. The idea behind that is that these people would be better placed than the Attorney-General of the day to make such an application.

The Hon. C. BONAROS: I have a question in relation to the SALRI recommendations. I note that there are recommendations that have been implemented in whole, there are others a version of which has been implemented and then there are some that have not been implemented at all. In relation to those where a different version has been adopted or not implemented at all, where was the decision made for those changes? We have SALRI on the one hand giving us a very detailed report as to why we should make them and then we have changes in the bill on the other.

The Hon. K.J. MAHER: For a number of them that have not been implemented, one of the main reasons is that they are not things capable of being regulated at a state level. For some of the areas where there is partial implementation—that is, implemented in a different form—that is to be as flexible as possible in the application, and for other areas, like I have just answered for the Hon. Michelle Lensink, it varies because we think an interested person rather than the Attorney-General does not have the Attorney-General effectively as in some way an interim decision-maker.

The Hon. C. BONAROS: Just to confirm: I understand the jurisdictional issues, but there are some that have not been implemented because the government simply does not agree with the recommendations. One example was that which applied to the identity of a judge, for instance, and there was a different view taken by the government. Did we go back to SALRI and consult further? Did we consult with anyone before making those sorts of changes, or did we just think that this was a better approach?

The Hon. K.J. MAHER: Of course, there will be others that are not jurisdictional issues but are ones on which SALRI has made recommendations. There are some on which successive governments have not agreed. The former government had thought about legislation for this and we have the legislation we find before us now. On some of those a government of the day will take a different view.

That is one of the benefits of reports we have had from SALRI over many years: most of the reports are extraordinarily comprehensive, hundreds and hundreds of pages of thorough investigation, research and recommendations. I do not think there has been a SALRI report where every single recommendation has been acted upon, but that is one of the benefits of the SALRI reports: they give an exceptionally comprehensive suite of possibilities.

The Hon. C. BONAROS: I have to agree with everything the Attorney has just said about the SALRI reports and the work that goes into them. To confirm again: where those changes are made, for whatever reason they are made—and I understand that successive governments will have their own position on something—is that something on which we have consulted with others? Have we gone back to SALRI to say, 'Look, we are thinking of doing this instead,' or have we gone to the Law Society or somewhere else to say, 'Actually, this is this government's position on this,' and had any feedback on that change?

The Hon. K.J. MAHER: I thank the honourable member for her question. As a matter of course, I am advised that governments do not go back to SALRI and say, 'Hey, we are thinking of doing this differently,' or, 'We are not going to implement this; what do you think?' But often with legislation that is developed as a result of SALRI reports, as was the case with this with the former government, there is regularly extensive consultation that occurs once a bill has been drafted. Through that consultation process it is often raised, not necessarily by SALRI but by other stakeholders, 'SALRI recommended this; these are our views on you implementing them or implementing them in the way that you have done.' Of course, feedback also comes back, 'You have implemented what SALRI says. These are the reasons why we think you ought not implement that part of it.'

Clause passed.

Remaining clauses (2 to 18), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:06): I move:

That this bill be now read a third time.

Bill read a third time and passed.