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Government considers forfeiture reform

16 March 2020

The State Government has welcomed the release of a new report recommending reforms to remove ambiguity from South Australia's forfeiture rules. 

Under the forfeiture rule, killers cannot financially benefit from the crime - for example, through the inheritance from their victim's estate. 

The South Australian Law Reform Institute was asked to review the application of the rule, following concerns about how it was applied in cases where there were significant mitigating factors - such as cases where the killing was provoked by years of physical or emotional abuse. 

SALRI found that the application of the forfeiture rule was currently "contentious and uncertain", and could result in "particularly unfair consequences in the context of family or domestic violence where the... victim of such violence kills an abusive spouse and is convicted of manslaughter."

"While, as a general principle, the forfeiture rule remains an important aspect of our criminal justice system, it is far too complex an area to be governed by a one-size-fits-all approach," Attorney-General, Vickie Chapman said.

"This is reflected in SALRI's final report, which contains 67 recommendations aimed at developing laws that better reflect society's expectations in regards to this contentious area." 

Attorney-General, Vickie Chapman said SALRI's recommendations include:

  • the establishment of a standalone forfeiture law that delivers clarity and certainty, and outlines how to deal with matters involving reducing culpability
  • ensuring the new law is flexible enough to consider an individual's circumstances, while maintaining the underlying principles behind it
  • incorporating an exception to deal with cases where an individual is found not guilty by reason of mental impairment
  • allowing the law to apply in cases where an individual is found unfit to plead. 

"This is a thorough and comprehensive report that is the culmination of years of research - not just into the application of the forfeiture rule, but related matters including the defence of provocation and our succession laws, which have both been the subject of previous SALRI reports," Ms Chapman said. 

"I am grateful for SALRI's considered work in this area, and will consider each of their recommendations in depth." 

SALRI's report can be read on their website