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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The provisions of the proposed Act (which are based partly on the
provisions contained in the Forfeiture Act 1982 of the United Kingdom and
the Forfeiture Act 1991 of the Australian Capital Territory) will operate to
confer a statutory discretion on the Supreme Court only where the
application of the common law forfeiture rule results in injustice. The
conferral of the statutory discretion is not intended to prevent the
development of the common law towards a more flexible approach to the
application of the forfeiture rule.
Clause 2 provides for the commencement of the proposed Act on a day to
be appointed by proclamation.
Clause 3 defines certain words and phrases used in the proposed Act such
as benefit, forfeiture rule and unlawful killing.
Clause 4 provides that the proposed Act does not apply to murders. It also
makes clear that the proposed Act extends to unlawful killings occurring
outside the State and to certain property located outside the State.
Clause 5 enables the Supreme Court, on application from any interested
person, to order that the forfeiture rule is to have a modified operation in
relation to an offender and others affected by the offender's action if the
Court considers that the justice of the case requires it.
Clause 6 enables the Court to mould an order modifying the effect of the
forfeiture rule (a forteiture modification order) to suit the circumstances of
the case.
Clause 7 provides that an application for a forfeiture modification order
must be made within 12 months from the date of the death of the person
who was killed unlawfully (if the forfeiture rule operates from the date of
death) or within 12 months from the date on which the forfeiture rule
operates (if the rule operates subsequently to the date of death), unless the
Court gives leave for a late application. Leave for a late application may be
granted if, subsequently to the making of the original order, the offender is
pardoned or the offender's conviction is quashed or set aside in
circumstances where there is no further right of appeal. Leave may also be
granted in cases where the offender's identity as the killer is not discovered
until after the expiration of the relevant 12 month period or in such other
circumstances as the Court considers just.
Clause 8 enables the Court to revoke or vary forfeiture modification orders
in certain circumstances.
Clause 9 deals with certain transitional matters. It ensures that a forfeiture
modification order can be made in respect of:
*
unlawful killings committed before the commencement of the
proposed Act as well as to killings committed after its
commencement, and
*
pending proceedings.
Explanatory note page 2
However, the proposed Act will not apply to acquisitions of property before
the commencement of the proposed Act by persons other than the offender
or persons claiming through an offender. The proposed Act will also not
affect deteminations of courts in proceedings concerning the application of
the forfeiture rule made before the commencement of the proposed Act.
Clause 10 provides that the Minister is to conduct a review of the operation
of the proposed Act after 5 years of its enactment.
Explanatory note page 3