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Flexibility sought in forfeiture law

Tuesday, 9 April 2019

Source: University of Adelaide

Flexibility sought in forfeiture law. iStock Image.

Flexibility sought in forfeiture law. iStock Image.

The independent South Australian Law Reform Institute based at the Adelaide Law School, University of Adelaide is reviewing the current law of forfeiture in South Australia and its impact in murder or manslaughter cases, especially those that involve domestic violence, mercy killings or mental impairment.

“Under the State’s current law of forfeiture, the powerful maxim of public policy applies that no person should benefit from his or her wrongdoing,” says the Director of the SA Law Reform Institute (SALRI), the University of Adelaide's Professor John Williams.

“The underlying rationale of the forfeiture rule is sound, but previous cases have highlighted that there are problems with its scope and application. In particular, the strict application of the forfeiture rule in various situations where a lesser degree of moral culpability is recognised, has shown that the rule may lead to unfair outcomes,” says SALRI project lead author, the University of Adelaide’s Dr Sylvia Villios.

“In domestic violence cases, in which a victim kills an abusive spouse and is convicted of manslaughter based on excessive self-defence or provocation, the forfeiture rule precludes them from subsequently benefitting from their spouse’s death through their estate or life insurance policy.

“The current law of forfeiture allows no flexibility in other cases such as mercy killing or where mental impairment has played a part. Applying the forfeiture rule in succession and inheritance situations has also been unclear and proved problematic,” says Deputy Director of SALRI, the University of Adelaide's Dr David Plater.

In the context of the present rule of forfeiture, SALRI has undertaken to review its existing scope and application.

“As part of reviewing the rule of forfeiture SALRI will consult the community and stakeholders about how the present law has affected them and the implications of its application,” says Dr Plater.

“We especially welcome input from the community at either our Mt Gambier session on 15 April 2019 or at our Adelaide session on 17 April.

Submissions can be made at community consultation sessions, via salri@adelaide.edu.au, in person or on the phone. A SALRI fact sheet gives a list of suggested questions regarding forfeiture.

Members of the community may register to attend and submit their views at SALRI consultation sessions:
Legal community and stakeholders - 5 April, Adelaide,
Community consultation, South East - 15 April, 2.15−3.15 pm at 173 Commercial Street West, Mount Gambier,
Community consultation, Adelaide - 17 April, 10 am to 12 noon at Level 11, Nexus 10 building, North Terrace, Adelaide.

SALRI is due to provide a report to the state government in August 2019.

 

Media Contacts:

Dr Sylvia Villios, SA Law Reform Institute, The University of Adelaide. Mobile: (0)408 011 203, Email: sylvia.vilios@adelaide.edu.au

Crispin Savage, Media and Communications Officer, The University of Adelaide. Mobile: +61 (0)481 912 465, Email: crispin.savage@adelaide.edu.au