Dignity is on the march. As illustrated by Justice Kennedy’s recent majority opinion in United States v. Windsor, the concept — once seen as exclusive to moral philosophy — has taken on increasing importance in the legal realm, particularly in the recognition of individual human rights. Jeremy Waldron's recent book, Dignity, Rank, and Rights, offers a profound and provocative take on dignity's newfound centrality to law. Waldron contends that dignity currently operates as a universal legal status that entails individual rights. He suggests that this development reflects the gradual democratization of aristocratic privilege — a kind of "leveling up" of humanity.
This Review disentangles and separately examines the two core accounts of dignity in Waldron's work. The first, which purports to identify the nature of contemporary legal dignity as a form of status, appears to be promising step toward better understanding the role dignity plays in law. The second, Waldron's historical account of dignity's development that offers up something like an origin story for our contemporary conceptions, is more troubling. Borrowing from feminist theory and queer theory, as well as from the equality projects to which they are allied, I contend that Waldron's narratives of extending aristocratic privilege threaten to entrench inequality and injustice while limiting the potential for marginalized groups to employ dignity as a deeply remedial legal tool. I urge Waldron to revisit dignity's expressive connection to human worth, which has proven central to dignity-based antidiscrimination and antisubordination projects.
The Victorian Law Reform Commission's The Forfeiture Rule report states
The forfeiture rule prevents a person who has unlawfully killed another from inheriting from their victim or acquiring another financial benefit from the death. It is an unwritten rule of public policy enforced by the courts. It has no statutory basis yet overrides the words of a will, entitlements provided in legislation, and legally binding agreements to which the deceased person was a party. The rule applies where the court is satisfied, in civil proceedings, that the person was responsible for an unlawful killing. A person acquitted in criminal proceedings, or not prosecuted for a criminal offence at all, may still be precluded from obtaining a benefit. The only exception in Victoria is where the person is not guilty because of mental impairment.
Emerging in the late 19th century from common law doctrines that stripped murderers and other felons of their property, the rule remains relevant today. It conveys the community’s strongest condemnation of the act of unlawfully taking another human life.
The rule is not applied often, as it is directed to circumstances where the person responsible for the death stands to benefit from the deceased person’s estate or otherwise as a result of their close relationship with the deceased person. However, of the 85 homicides in Victoria last year, 27 (33 per cent) were committed by a family member. It is likely that in many of these cases the forfeiture rule prevented the person responsible from obtaining a benefit.
Need for reform
Although the public policy is sound, the rule requires reform for two reasons: clarity and fairness. The scope of the rule as it applies in Victoria is unclear. There is no doubt that it applies to murder, but the reach of the rule to all forms of unlawful killing, including inadvertent and involuntary acts, is unsettled. Where it does apply, the effect that the rule has on the subsequent distribution of forfeited benefits is uncertain. The rule can operate unfairly because it is applied inflexibly and without regard to the moral culpability of the person responsible for the unlawful killing. This is at odds with changes in community attitudes, as reflected in the greater range of criminal offences and sentence options today compared to when the rule was first articulated.
The application of the forfeiture rule can also have unfair consequences for third parties as it can affect their potential rights to take a forfeited benefit. Those affected may include alternative beneficiaries named in a will, other beneficiaries of the deceased person’s estate, the innocent descendants of the unlawful killer, and any person who co-owns property with the unlawful killer and the deceased person as joint tenants.
Legislative responses in other jurisdictions
Responding to similar concerns, other jurisdictions have introduced legislation to replace or augment the operation of the common law rule. New Zealand’s Succession (Homicide) Act 2007 (NZ) (‘the NZ Act’) codifies the rule. It sets out the homicides to which the rule applies, excises those to which it does not apply, and specifies its effect on the distribution of the benefits to which the person would have been entitled.
The United Kingdom has taken a minimalist approach. The Forfeiture Act 1982 (UK) (‘the UK Act’) leaves the scope and effect of the rule at common law intact, but gives the court a discretion to modify its effect if required by the justice of the case. The Australian Capital Territory and New South Wales subsequently introduced legislation that is closely modelled on the UK Act: the Forfeiture Act 1991 (ACT) (‘the ACT Act’) and the Forfeiture Act 1995 (NSW) (‘the NSW Act’). The key difference between the three statutes is that the NSW Act was amended in 2005 to give the court a discretion to apply the rule to a person who has been found not guilty by reason of mental illness.
There have been no recorded applications under the ACT Act to modify the effect of the rule. Five such applications have been made under the NSW Act, and a further three to apply the rule to a person found not guilty of an unlawful killing because of a mental illness. All applications under the NSW Act have been successful. However, most cases concerning the forfeiture rule are not made under the Forfeiture Act but involve applications seeking clarification of the effect of the rule and a determination as to where the offender’s interest is to be redirected.
Proposed Forfeiture Act
The Commission released a consultation paper and sought submissions on possible options for reform, based on the approaches illustrated in the NZ, UK, ACT and NSW Acts. A recurring theme in submissions and consultations was that legislative reform is needed, to provide certainty about the scope and effect of the rule and to overcome concerns about the lack of regard to the offender’s moral culpability.
The Commission concluded that Victoria should introduce a Forfeiture Act that draws both from the reforms in New Zealand that codified the rule in order to create greater certainty and from the reforms in New South Wales and elsewhere that introduced a discretion to ensure greater fairness in the application of the rule. The proposed Forfeiture Act would specify the unlawful killings to which the rule applies and, either directly or by consequential amendment to other legislation, clarify its effect. To overcome concerns about the harsh effects of the rule, certain offences would be excluded from its operation. In addition, the court would have a discretion, on application, to modify the effect of the rule on a case-by-case basis where required by the justice of the case.
Scope of the rule
The determining factor for the Commission in defining the scope of the rule for the purposes of the proposed Forfeiture Act is the moral culpability of the person responsible for the unlawful killing. For clarity, the Commission recommends establishing a nexus between the unlawful killings to which the rule applies and murder and other indictable homicide offences under the Crimes Act 1958 (Vic).
In the interests of justice, the Commission recommends excluding from the scope of the rule a small number of homicide offences where any perpetrator is likely to be considered to have low moral culpability and the offence does not warrant a bar on the offender taking a benefit from the deceased person. These are:
• dangerous driving causing death
• manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact
• infanticide.
These offences were identified in submissions and consultations and have been excluded from the rule in other jurisdictions. Motor manslaughter is excluded at common law from the operation of the rule in the United Kingdom, and the NZ Act excludes killings caused by negligent acts or omissions, killings in pursuance of a suicide pact and infanticide. Given the nature of each of these offences and the low moral culpability of the offenders, any application to modify the effect of the rule in the circumstances of these offences would be likely to succeed. The exclusion of these offences will therefore create greater certainty and will reduce costs to the estate resulting from unnecessary litigation.
Judicial discretion
Under provisions similar to those in the UK, ACT and NSW Acts, the court in Victoria would have the discretion to modify the effect of the rule as required by the justice of the case. However, unlike the equivalent legislation, the proposed Forfeiture Act would expressly direct the court to consider the moral culpability of the person responsible for the unlawful killing and set out the evidence to which it should have regard. An interested person—who could be the person responsible, the executor or administrator of the deceased person’s estate, or any other person who in the opinion of the court has an interest in the matter—would be able to make an application for a forfeiture modification order. The procedural details of the scheme would be modelled on the UK, ACT and NSW Acts.
Unlike the NSW Act, however, the proposed Forfeiture Act would not empower the court to extend the scope of the rule beyond the limits of the common law to persons who have been found not guilty by reason of mental impairment. The Commission does not consider that the rule should apply to a person who is not morally culpable for the unlawful killing.
Effect of the rule
The deceased person may leave a will that appoints the person who is later responsible for their death as executor. If the deceased person does not leave a will, the court usually appoints a person who is a major beneficiary to administer the estate. The Commission recommends that the proposed Forfeiture Act should clearly preclude a person who is responsible for the death from taking up an appointment either as executor or administrator. This would be achieved by deeming them to have died before the deceased person.
As the person’s responsibility for the death may not be established until some time after the death, the Commission also recommends that the court be given an express power to pass over a person who applies for probate or administration where there are reasonable grounds for believing that they committed an offence related to the deceased person’s death.
The effect of the rule on the entitlements of innocent beneficiaries and third parties would also be clarified. In some circumstances, another beneficiary under a will, or a descendant of an offender, may stand to gain a share of the estate but only if the offender dies before or shortly after the deceased person. Even though they are innocent of any wrongdoing, they are unable to take a share if the offender is alive but precluded by the rule from inheriting. This will be the case even if it is likely that the deceased person would have wanted them to inherit or if they were the deceased person’s closest living relative. To overcome this problem the Commission recommends deeming the offender to have predeceased the deceased person.
The Commission also recommends that a person who is responsible for the death of a person should be disentitled from making an application for family provision in order to obtain a larger share of the deceased person’s estate.
If the deceased person and the offender owned property as joint tenants, perhaps in conjunction with one or more other people, the rule has consequences for the beneficiaries of the deceased person and any innocent joint tenants. In normal circumstances, the deceased person’s interest in the property would vest in the surviving joint tenant or tenants in accordance with the law of survivorship. Where one surviving joint tenant is responsible for the death of another, courts have taken different approaches to determining the impact of the rule. The favoured approach has been to deem that the person responsible for the death holds the deceased person’s share on constructive trust for the deceased person’s estate. The Commission recommends that the interest of the person responsible for the death should be severed at the time of the death. This is clearer, simpler and fairer.
These clarifications would make it easier for an executor or administrator to distribute the deceased person’s estate and reduce the associated legal costs. If the outcome is unfair in any particular circumstances, the court could, on application, modify the effect of the rule.
The Commission's recommendations are -
1 Victoria should introduce a Forfeiture Act that defines the scope and effect of the common law rule of forfeiture and provides for the Supreme Court, on application, to modify the effect of the rule if the justice of the case requires it.
2 The purpose of the Forfeiture Act should be set out in the legislation and include: (a) to reinforce the common law rule of public policy that a person who has unlawfully killed another person cannot acquire a benefit in consequence of the killing and, in so doing, to: (i) manifest the community’s denunciation of unlawful killing (ii) deter persons from unlawfully killing others for financial gain (b) to modify the application of the rule to exclude offences where justice requires (c) to provide for the effect of the rule to be modified if the justice of the case requires it in view of an offender’s moral culpability and responsibility for the offence (d) to codify the effect of the rule on rights of succession.
3 The Forfeiture Act should specify that, subject to the exceptions in Recommendation 4, the forfeiture rule applies only where the killing, whether done in Victoria or elsewhere, would be murder or another indictable offence under the Crimes Act 1958 (Vic).
4 The Forfeiture Act should specify that the forfeiture rule does not apply where the killing, whether done in Victoria or elsewhere, would be an offence under the Crimes Act 1958 (Vic) of: (a) dangerous driving causing death (b) manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact, or (c) infanticide.
5 The existing exception to the common law rule of forfeiture for persons found not guilty by reason of mental impairment should be retained.
6 The Supreme Court should be empowered to make a forfeiture rule modification order if satisfied that, having regard to the offender’s moral culpability and responsibility for the unlawful killing and such other matters as appear to the Court to be material, the justice of the case requires the effect of the rule to be modified.
7 In determining the moral culpability of the offender, the Supreme Court should have regard to: (a) findings of fact by the sentencing judge (b) findings by the Coroner (c) victim impact statements presented at criminal proceedings for the offence (d) submissions on interests of victims (e) the mental state of the offender at the time of the offence, and (f) such other matters that in the Court’s opinion appear to be material to the offender’s moral culpability.
8 The Forfeiture Act should empower the Supreme Court to make a forfeiture rule modification order that modifies the effect of the rule in such terms and subject to such conditions as the Court thinks fit.
9 Where a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, and the unlawful killing does not constitute murder, that person, or another ‘interested person’, should be able to apply for a forfeiture rule modification order.
10 An ‘interested person’ should mean: (a) the ‘offender’ (a person who has unlawfully killed another person) or a person applying on the offender’s behalf (b) the executor or administrator of a deceased person’s estate, or (c) any other person who in the opinion of the Court has an interest in the matter.
11 The property, entitlements and other benefits that may be affected by a forfeiture rule modification order should be specified in the Forfeiture Act and include: (a) gifts to the offender made by the will of the deceased person (b) entitlements on intestacy (c) eligibility to make an application for family provision under Part IV of the Administration and Probate Act 1958 (Vic) (d) any other benefit or interest in property that vests in the offender as a result of the death of the deceased person.
12 On the making of a forfeiture rule modification order, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order.
13 On application by an interested person, the Supreme Court should be empowered to revoke or vary a forfeiture rule modification order if the justice of the case requires it.
14 An interested person (as defined in Recommendation 10) should be able to apply for revocation or variation of a forfeiture rule modification order if: (a) the offender is pardoned (b) the offender’s conviction is quashed or set aside and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or (c) in all other cases—if the Court considers it just in all the circumstances to give leave for such an application to be made.
15 If a forfeiture rule modification order is revoked or varied, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was revoked or varied): (a) in the case of a revocation—subject to the terms on which the Court revokes the order, and (b) in the case of a variation—subject to modifications made by the varied order.
16 The Forfeiture Act should provide that, unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture rule modification order must be made by the later of: (a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned—within six months from the date of the death of the deceased person (b) if the forfeiture rule subsequently prevents the offender from obtaining a benefit— within six months from the date on which the forfeiture rule operates to preclude the offender from obtaining the benefit concerned (c) six months after grant of probate of the will of the deceased person or letters of administration of the deceased person’s estate (d) six months after all charges of unlawful killing laid against any beneficiary have been dealt with.
17 The Supreme Court should be permitted to give leave for a late application for a forfeiture rule modification order if: (a) the offender concerned is pardoned by the Governor after the expiration of the relevant period (b) the offender’s conviction is quashed or set aside by a court after the expiration of the relevant period and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction (c) the fact that the offender committed the unlawful killing is discovered after the expiration of the relevant period, or (d) the Court considers it just in all the circumstances to give leave.
18 The Forfeiture Act should provide that a conviction in Victoria or another Australian state or territory is conclusive evidence that an offender is responsible for the unlawful killing.
19 The transitional provisions should be based on section 9 of the Forfeiture Act 1995 (NSW).
20 The Administration and Probate Act 1958 (Vic) should be amended to provide that, where a person appointed executor by a will or who is otherwise eligible to be appointed administrator is precluded by the forfeiture rule from acquiring an interest in the deceased’s estate, the person is to be treated as having died immediately before the deceased person.
21 The Administration and Probate Act 1958 (Vic) should be amended to provide for the Court to pass over a person who applies for a grant of representation where there are reasonable grounds for believing that the person has committed an offence related to the deceased’s death. The provision should be based on section 348 of model legislation proposed in the December 2009 report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys-General on the administration of estates of deceased persons.
22 Part 4 of the Wills Act 1997 (Vic) should be amended with the effect that: (a) where a will contains a devise or bequest to a person who: (i) disclaims it, or (ii) has been precluded by the common law rule of forfeiture from acquiring it the person is, unless a contrary intention appears by the will, to be treated for the purposes of the Act as having died immediately before the will-maker, and entitled to the devise or bequest at the time of the deemed death. (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule
23 The Administration and Probate Act 1958 (Vic) should be amended with the effect that: (a) for the purposes of the distribution of an intestate’s residuary estate, a person who: (i) is entitled in accordance with section 52 to an interest in the residuary estate but disclaims it, or (ii) would have been so entitled if not precluded from acquiring it by the common law rule of forfeiture is to be treated as having died immediately before the intestate, and entitled to the interest in the residuary estate at the time of the deemed death (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule.
24 Part IV of the Administration and Probate Act 1958 (Vic) should be amended to disentitle persons to whom the forfeiture rule applies from making an application for family provision in respect of the deceased person’s estate.
25 The effect of section 50 of the Transfer of Land Act 1958 (Vic) should be amended to provide that, where a joint proprietor has been unlawfully killed (within the meaning of the Forfeiture Act) by another joint proprietor, the property shall devolve at the death of the victim as follows: (a) where the offender and the victim were the only joint proprietors, as if the property were owned by each of them as tenants in common in equal shares (b) where there were more than two joint proprietors, as if: (i) the offender holds their interest as a tenant in common (ii) the surviving innocent joint proprietor(s) take the victim’s interest by survivorship (iii) as between the offender on the one hand and the innocent joint proprietors on the other hand, a tenancy in common exists (iv) as between the innocent joint proprietors, a joint tenancy exists.
26 If an offender obtains registration by survivorship under section 50 of the Transfer of Land Act 1958 (Vic) before it becomes apparent that the forfeiture rule applies, the Registrar should be empowered to rectify the Register appropriately.
27 Payments that would have been made to a person who is responsible for unlawfully killing a person who is a member of a state statutory defined benefit superannuation scheme or who otherwise has pension entitlements under state legislation should be redirected as if that person had died before the victim.
