Moral Dilemma

Our moral code should be defined by ‘we the people’; not ‘them the judges’
Posted By Mirko Bagaric on May 1st, 2008

Decisions that fundamentally shape our lives, such as the permissibility of euthanasia, abortion and child smacking, should be made by we the people (through our politicians), not them the judges. That’s why the Rudd government should resist calls from the 2020 summiteers to follow the Victorian example and introduce a federal bill of rights.

Most people are attracted to rights because the notion is consonant with personal entitlements and protections. However experience shows that a bill of rights despite its superficial appeal is a mistake.

A bill of rights is like no other legal document. It is moral, not prescriptive in nature. It has the capacity to radically re-shape the matters that a society covets and protects. A bill of rights merely sets out which rights supposedly exist but fails to provide any details regarding the context in which rights apply and which right prevails when rights clash with other rights and the common good.

Merely declaring, for example, in a document that people have a right to liberty and free speech says nothing about the propriety of practices such as tobacco or alcohol advertising or the pre-trial detention of people suspected of committing serious criminal offences. All of the important social engineering is undertaken in the fleshing out process.

This gets us to the crux of the bill of rights debate: Who do you want to make decisions on the core moral issues that define us as a society?

There are only two choices: politicians or judges. At the moment all of the big decisions in Australia are made by politicians. A bill of rights transfers much of this power to judges, who are among the least adept people in the community to make decisions on matters of cardinal social importance.

When it comes to giving power to people to make decisions, the most important consideration is accountability. Power decoupled from responsibility leads to irresponsible, often naïve and certainly ill-considered decisions.

That’s why we never give the things that are important to us to people that we can’t hold to responsible for their actions. Hence we put our money in banks and our children in crèches rather than trusting strangers.

And that’s why we should never hand over things that are vital to us judges. They are the only group in the community that (effectively) can’t get sacked or disciplined for incompetence or negligent.

If trivial or nonsense rights are given too much scope, they can violate rights which are essential to our well-being. For example, an ample application of the right to privacy will mean that CCTV cameras which have prevented thousands of crimes will need to be turned off, resulting in many more Australians being seriously injured or killed. It also will prevent parents knowing if the bloke next door to them is a pedophile.

Many people think that judges are smart and hence they’re well placed to make important decisions. This is a dumb belief. Judges are simply former lawyers who have no special wisdom or training regarding matters of social importance.

Moreover, ethical choices of all people, including judges, are often more about emotion than logic. On such matters, judges usually follow their intuitions and predilections and use the vagaries of the law to dress up their conclusion in the language of the law to mask their personal political and religious sentiments.

As noted by America’s leading legal commentator, Allan Dershowitz: ‘Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality.’

So what happens when judicial hunches are wrong or at odds with those of the rest of community. At the moment it doesn’t matter much because judges decide legal cases which only impact only on the interests of the parties to a case. Not so in the case of a bill of rights, which give judges the vehicle to impose their individual preferences on all of us – this is a tyranny, not democracy.

Of course, there are many politicians that have a wayward moral compass. However, their decisions are made in the full public glare and the community is given an opportunity to lobby them. Many people, including myself, think that federal parliament got it wrong on their two most recent conscience votes, which gave the green light to embryonic stem cell research and the abortion pill.

But nearly all Australians can happily live with these decisions because we all had the opportunity to participate in the public discussion leading up to the conscience votes. And if we are genuinely aggrieved by the moral choices made by politicians we get to boot them out every three years.

In the end, a bill of rights is internally contradictory. It betrays us the people of only right that we can exercise on morally decisive issues – the right for our voice to be heard in the matters that define us as a community. Courts are closed to all but the richest people in the community and judges don’t care what the community thinks.

Oh, and don’t be fooled by the Attorney-General of Victoria Rob Hulls into thinking that Victorians wanted a bill of rights. Victoria is the only Australia state to have its own ‘little’ bill of rights. During the ‘debate’ prior to the introduction of rights charter, Hulls was keen to point out that he appointed an ‘independent’ committee to look into the matter.

This is a con. The so called ‘independent’ committee was chaired by a longstanding passionate and outspoken bill of rights advocate Not one person on the committee opposed the bill of rights. So much for the right of Victorians to open and transparent government.

This was published in the Herald-Sun (Melbourne) on 1 May 2008.

The ‘super’ way to cure the home ownership crisis
Posted By Mirko Bagaric on May 1st, 2008

First home buyers should be permitted to access their superannuation to purchase a home. That’s a policy that the Rudd government should be introducing in light of changing economic realities and free market imperatives.

The Australian dream is increasingly becoming the Australian nightmare. A recent report published by the Commonwealth Bank of Australia and the Housing Industry Association confirmed that housing affordability is now the lowest it has been on record.

Average homes in Australia cost 6.1 times the annual household income. In Melbourne, Sydney and the Gold Coast the ratio is around 8. In most western countries the ratio is around 3 to 4. The picture gets far worse when you factor in interest rates. Australia’s are among the highest in the OECD.

So why is it that housing prices in Australia are so inflated? Australian houses don’t cost more because our land is more scarce or our building materials are of higher quality. They cost more for only reason. We place more importance on home ownership than the rest of the world.

This is often to our detriment. We are the only ones silly enough to stretch ourselves to breaking point to have the ‘security of our own home’; even if it means enslaving us to jobs we don’t like and causing us to lose sleep over whether the reserve bank will again crank up interest rates.

Unfortunately, no amount of theorising is likely to result in Australians diluting their desire to own their own patch. Hence, a solution is necessary.

Governments are clueless about how to make housing more affordable for first home buyers. Yet, there is an answer.

It rests in the largesse of the superannuation industry. As a matter of principle, it is repugnant that adult Australians should be forced by government regulation to lock away nine per cent of their hard earned money until they reach retirement age.

This is all the more offensive in climates like we are currently experiencing where your superannuation funds have most likely taken at least a 10 per cent drop since the start of the year because your superannuation manger (who you had no choice in appointing) lacked the economic smarts to invest your money in something other listed shares.

It is too late to agitate for an entire dismantling of the compulsory superannuation system in Australia. About 1,000 billion dollars have been forced from the pockets of Australians into the coffers of big business and there is no way to end this juggernaut.

Still, some tinkering may be possible. The rationale behind compulsory superannuation was to encourage prudential personal investment so that Australians would be less likely to rely on the pension when they retired.

Modelling which compares the efficacy of superannuation with other forms of investment is complex due to the large number of assumptions involved, such as the likely return of superannuation funds over a thirty year period and long term inflation rates.

However, a number of models suggest that you will have more resources at retirement if you plough your extra hard earned into your mortgage than into the lap of a hungry fund manager.

The option of paying off your home and also having a healthy superannuation nest-egg is becoming increasing non-existent for many Australians. For many it is becoming an either/or situation - time to choose between superannuation and a home.

A report released last week by AMP.NATSEM showed that more than twice as many Australains over 60 are paying off a mortgage than they were 10 years ago and that this group has experienced the biggest jump in housing stress –nearly doubling in the decade to 2005-06.

Home ownership is not only often a superior investment choice to superannuation, but also confers a psyche benefit and sense of security that is absent from superannuation investment. Well-being indexes establish that home owners and happier than renters.

Moreover, workers have the right to enjoy the fruits of their labour and should not be forced to defer their spending and well-being. A system of forced savings is counter to notions of personal responsibility and offensive to the intellect of citizens.

Coercive laws are only legitimate where the government can demonstrate that it will encourage compliance with fundamental moral norms that affect the well-being of others or where they will promote the welfare of each individual. This test has not been satisfied in relation to compulsory superannuation.

Allowing first home aspirants to apply their superannuation towards buying a home will have the effect of increasing home prices (in the same way as did the first home buyers grant). However, first home buyers represent only a small portion of all property purchasers and hence the increase will be significantly less than the extra purchasing power of first home buyers.

For them, housing will become a whole lot more affordable. Of course, they may elect to keep their money in superannuation. In any event, in a supposedly free market like Australia, they must be given the choice.

This was published in the Courier Mail (Brisbane) on 1 May 2008.

The folly of paid maternity leave
Posted By Mirko Bagaric on March 31st, 2008

The world is already overpopulated and people should not be forced to subsidy the lifestyle choices of others. Rather than encouraging more Australia children to be born, we would be better off allowing more people currently subsisting on the margins of life to migrate to our opulent shores. That’s why paid maternity leave, despite its feel good overtone, would be a mistake.

Financial incentives and disincentives shape personal choices. Hence paid maternity leave will result in an increase in the birth rate. But this would be morally and socially undesirable.

From the global perspective, it is not possible to make a respectable argument in favour of more humans populating the earth. Currently there are 6.7 billion of us. Fifty years ago there 2.5 billion and at the start of 20th century there were 1.7 billion people. These numbers are just that; numbers – there is no reason to think that one figure is preferable to another. Certainly, there is nothing that 7 billion plus humans can do that 6.7 billion cannot, except create more pollution, waste and accelerate the rate at which all other species are being obliterated.

Thus, there is no intrinsic benefit in breeding more people. If the world population halved rather than, as predicated, doubled in the next 60 years as a result of natural attrition there would be no basis for regret.

Ostensibly the argument for more people is stronger from the local perspective. The Australian population is ageing and we have a shortage of workers so it seems to make seen to increase birth rates.

However, this simply indicates that more people would preferable. There is no reason that they should be totally (or even mainly) Aussie made. In fact the world would be a far better place if migration restrictions were reduced, producing a rough equilibrium between population levels and the availability of resources.

It is only once this occurs that we will effectively deal with the dispiriting irony of thousands of Africans dying daily from hunger and poverty, while much of the first world gorges itself to ill-health. The on-going starvation crisis has nothing to do with a food shortage. The problem is simply one of distribution. There is enough grain alone produced on earth to make every person fat.

A person’s birth place is merely a happy or unhappy accident. Much of what is important to a person’s flourishing should not turn on so little – morality requires that to the maximum extent possible luck is taken out of the benefits and burdens equation.

It has been claimed that too many foreigners would diminish our material prosperity. Research is equivocal about this. Some models suggest the opposite – that immigrants have a net positive effect on the economy.

In any event, a slight diminution in the living standard of western countries is a small price to pay to reduce global destitution. To determine whether a more relaxed approach to migration is justifiable, one cannot look at the situation only from the perspective of the locals. There is no ethical basis for ranking the interests of one person higher than another.

Certainly I am not suggesting that Australians people should be discouraged from having children. Many people find this the most important and meaningful activity in their life. And for them, we should wish them more children than they can pick names for.

But life is full of a myriad of decisions, choices and personal preferences. Few preferences are inherently desirable or objectionable. This is despite the fact that most preferences are motivated by one single consideration: self –interest.

Sure becoming a gun sportstar, computer whiz, crack doctor, top actor or author might bring some utility or joy to others, but it is negligible compared to the satisfaction derived by the individual. Such is also the case with the children. The rest of the community might benefit marginally by having another labour source, but nearly all the benefit is derived by the parent and child. It is not up to the community to foster this project.

There are a number of positive activities that I have wanted to purse. I’m still convinced that I would have made Peter Sampras’ grand slam record look mediocre if the government supported me in my tennis aspirations. But such is life. The community owes me nothing when it comes to supporting my lifestyle whims.

And such is the case with my decision to have children. The kids are great. The bring lots of joy to my life and make it better than it was otherwise. But childless people can lead just as fulfilled, complete and virtuous lives. They don’t come looking to me or the government for financial support to sustain and enhance their personal projects and activities. Neither should I. It sets a bad example for my children.

A version of this was published in the Herald Sun on 31 March 2008.

Low income earners didn’t break the economy – it’s not up to them to fix it
Posted By Mirko Bagaric on March 23rd, 2008

The biggest enemy of ‘working families’ is not inflation. It is Kevin Rudd and his offensive suggestion that the working poor and middle Australia should show restraint in wage negotiations. The Rudd government has reportedly even rejected Treasury’s recommendation that the Fair Pay Commission should award a measly $18-a-week pay rise to low-paid workers.

People are not morally obliged to remedy problems not of their doing. Families who are struggling to afford the necessities of modern life have made a zero percent contribution to rising costs and it’s for that reason that they owe nothing to the rest of community when it comes to wage negotiations. Deputy Treasurer Malcolm Turnbull nailed it when he noted that the main causes of growing inflation are increased global costs of fuel and food.

Imposing the same wage disciplines on rich and poor alike is a contemptible case of economic discrimination. Rich are poor come from vastly different starting points regarding their capacity to attain any degree of human flourishing. Even slight reductions in purchasing power are felt far more heavily by those that are already wanting. Being forced to sell the family home tends to ache a lot more than having to think twice before choosing to fly first or business class on the next family vacation.

Kevin Rudd’s decision to not legislate a wage rise for federal politicians recently is a meaningless gesture when it comes to setting the tone for how many other Australians should behave. The financial pressures experienced by politicians with their $100,000 plus annual incomes and brimming superannuation entitlements are negligible compared to those faced by the many Australians now battling to save the roof over their head.

Recent data from the Real Estate Institute of Australia shows that the average Australian family can no longer afford the average home mortgage. Close to half of the average family’s post tax income (or 37.4% of gross median family income – the affordability figure is regarded as 30%)) is now required to pay the mortgage. This is the worst result in the 22 years since the survey commenced.

And for loyal Labor-voting families that are thinking about taking Rudd’s advice and not agitating for a pay increase, unfortunately the news is not much better on the rental market.

Rent costs families an average of 23.9% of gross median income – a 0.6% increase in three months.

There is of course a chance that an above CPI wage increase to lowly paid workers might further drive up inflation. However, this is not a consideration that middle Australia should give a moments consideration to. Any increase in inflation will necessarily be less than their wage increase, so in absolute terms they would still be better off.

But won’t this encourage high income earners to also go hard when it comes to wage negotiations? Not at all. High income earners already do that – always have and always will.

Admittedly, the reaches of our moral and civic duties are not confined to redressing problems of our doing. In some cases individuals are required to step-up to assist another person or to make sacrifices for the good of the entire community even in relation to matters not of their doing.

However, the circumstances in which are required to act with such benevolence are rare. The situations in which we have a responsibility to redress problems caused by others is defined by the maxim of positive duty, which prescribes that we must assist others in serious trouble, when assistance would immensely help them at no or little inconvenience to ourselves.

The principle explains why it is repugnant to refuse to throw a rope to a person drowning near a peer, but we are entitled to resist calls to allow a homeless person to move into our spare bedroom.

It is also explains why developing countries are entitled to refuse to adopt greenhouse targets. Global warning has been caused solely by western nations, which on the back of cheap energy massively increased the prosperity of their people, while at the same time refusing to share the largesse with the largely hungry third world. People in developing nations are no less entitled to improve their lot.

Why should hungry people in the third world care that their use of fossil fuel risks making future people less prosperous? Current destitution bites more harshly than potential future discomfort. If western nations are genuinely concerned by global warning they need to compensate the developing world for fossil fuel restraint. Absent this, their hypocritical environmental concerns will rightly continue to fall on deaf third world ears.

In relation to matters of flourishing on the home front, Middle Australia is in fact the very constituency that is feeling the economic pinch and is already immensely inconvenienced by rising costs. That’s why it is offensive for the PM or any other person to urge middle Australians to show wage restraint. Middle Australians need and are entitled to every last cent that they can secure in the form of wage increases.

Moreover, they should not only be leaning on their employers to improve their lot. The government also needs to step in here. Most Australians will welcome the proposed mid year tax cuts. But their problem – as always – is that they will most benefit the rich.

It is mindless that any Australia living below the poverty line should be required to pay any tax, especially given that they are then subsidised by the welfare system. This is bureaucratic nonsense and socially and economically unjustified. Approximately 10 per cent of Australians are now living below the poverty line (currently at around $700 per week for a family of four). Here’s a question for the 1,000 brainiacs at the Rudd 2020 summit: What is one good reason for not increasing the tax free threshold to the poverty line?

Perhaps they could contemplate this while they took time out from the Canberra bubble and visited the home of one of thousands of Australians battling to hold onto their homes.

A version of this was published in The Age on 15 March 2008.

Time for jury reasons
Posted By Mirko Bagaric on March 12th, 2008

Relatives of the six teenagers killed when a car ploughed into them near Mildura in February 2006 are devastated that the driver of the car Thomas Graham Towle was found by a jury to be not guilty of six counts of culpable driving.

Although he was found guilty of less serious charges, a relative of one of the deceased stated “it just feels like our kids’ lives are not worth very much… I don’t feel like they’ve got justice.’

Did the jury make the right decision? Or was justice denied? Unfortunately we will never know because of an out-dated, irrational quirk in our system of justice.

You see juries in Australia are not required (and not permitted) to give the reasons for their verdict and in fact it is an offence to even ask jurors about their deliberations after the verdict has been delivered. The sacred cow status attached to jurors needs to stop.

There are good reasons for maintaining juries, but if we are going to continue relying on their collective wisdom they must be required to explain their decisions.

This silence of juries flies in the face of trends in all other areas of law and government decision making where there is a growing need for decision-makers to give reasons for their decisions. There is good reason for this. If an individual has their rights adversely affected by the operation of the law, they are entitled to know by what power this occurred and how this power applied to their personal situation.

The process of obtaining reasons enables people to understand why they have been treated in a certain manner and gives them a basis for challenging the decision in question. This is very important in a society where we are supposedly governed by the ‘rule of law’; not the whims of bureaucrats or groups of them.

It follows that the more important the right at stake happens to be, the higher is the imperative to give reasons. Well not in our system. The most important decision made in our legal system is guilt or innocence in relation to a serious crime. Paradoxically it is the only decision that we are not entitled to have explained to us. We can demand to know why our application to build a fence has been refused or why our welfare payments have been reduced by $5, but not why we might be locked up for 10 years or why an accused has been acquitted.

The underlying reason for this anomaly relates to distrust of jurors, who are assumed, at least implicitly, to be lacking in the higher intelligence and knowledge of human behavior in which lawyers are seemingly over-endowed. This contention appears to be flawed. The empirical evidence that has been conducted about jury deliberations in fact shows that jurors have a sound understanding of the law and approach their task in a reasoned manner. It seems that the rationality gene pool is not exhausted by lawyers.

There are of course dangers associated with this. Jury reasons might in fact show that the reasoning process employed by juries is often wrong and hence provide fertile grounds for appeal.

It may very well transpire that juries act irrationality and contrary to the law. They may in fact pay too much weight to their hunches or base their decisions on irrelevant considerations, such as sympathy or dislike of certain accused people. Worse still though, is not knowing how they reach their decisions There is too much at stake to continue to allow juries deliberations to continue to be lost in the black box of the jury room.

If juries are making sound decisions then accused people will derive some degree of comfort from the fact that they were dealt with fairly. If their decision making is wonky, however, then we can fix it at the appeal stage or by abolishing juries altogether.

In any event, wilful blindness towards such a fundamental part of our justice system cannot be tolerated in a supposedly fair and transparent system of law.

A version of this was published in the Herald Sun on 11 March 2008

Rudd talkfest 2020 equals gimmick of 2008
Posted By Mirko Bagaric on February 10th, 2008

If Kevin Rudd really wants a lasting positive vision for Australia he should be talking to the least resourceful and worst off Australians, rather than having a talkfest with 1000 of the country’s smartest and most influential people.

People with big brains and deep pockets don’t need an alteration to existing societal structures and institutions to make their lot a good one. The situation is vastly different for the handicapped, Aborigines, the chronically ill, victims of serious crime, refugees, homosexuals, single parents, the depressed and the downright talent-less. Not only are many of these people struggling, but most are political mute and socially invisible.

But can’t the smarties advise the PM what the down and outs need to make their miserable lot a bit more tolerable? Surely they can do some ‘research’ and theorise about what needs to be done.

Rudd’s 2020 gimmick would have us believe that, but in fact the opposite is true. An irreducible aspect of understanding what needs to be done to improve another’s lot is an appreciation of the barriers and challenges they face. Why do some people prosper and others fail in society? What is it about some groups that prevents them attaining any modicum of personal success and flourishing?

The best way to understand this is to walk in their shoes. Failing this, the next best approach is to ask them – engage them in a manner whereby they will identify their difficulties and spell out what they need to make their world a better place.

Rudd is demonstrably wrong if he thinks a 1,000 of his hand-picked supposedly smart mates can understand and connect with another’s misery from afar.

People’s beliefs, sensibilities and priorities are principally shaped by one criterion: their personal experiences. That’s why victims of crimes groups are comprised solely of victims of crime; gay lobby groups are comprised solely of gays; the new political party focusing on the interests of carers is comprised solely of carers; only students attend demonstrations relating to increasing student fees and only nurses lobby the government for more pay for nurses.

The defining impact of our personal experiences on our values and outlook is unshakeable. It transcends every person and every institution in society. This applies even to people that are appointed to positions demanding the highest level of independence and impartiality.

In my vocation, lawyers are trained to believe that judges decide cases on the merits, dutifully applying the law. The notion of judicial impartiality and objectivity is a con. Judges don’t just interpret the law. They make it, and always in a way to suit there underlying political and moral sentiments, which have been shaped by their life experiences.

As noted by America’s leading lawyer Allan Dershowitz, ‘Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality. … On many occasions, the impact of [a judge’s] biography is overt and conscious. Other times it is subtle and unconscious. But it is always there’.

That’s why in high profile or sensitive cases, the choice of judge is often more important than the words in the statute book.

There is nothing more pleasing to the legal eye in a human rights case than to see Justice Kirby stroll towards the bench. Kirby nearly always makes decisions that promote humanistic objectives above other goals.

So why is it that Justice Kirby is the most human rights orientated judge in Australia’s history? Well, there’s a fair chance that it relates to the fact that he belongs to a group that has subjected to an enormous degree of prejudice.

Kirby has walked in the shoes of the marginalised. He no doubt appreciates the level of helplessness and despair that come with this.

The fact that so often Justice Kirby’s fellow judges don’t agree with his views has little to do with intellect. It has everything to do with the fact that nearly all judges come from well-to-do backgrounds and hence have no understanding of what it is like to belong to a socially repressed group.

Governing a country is far more difficult than deciding who wins a legal case. The just allocation of resources, benefits and burdens requires the government to consider and balance an enormous number of competing demands and interests.

The first part of this process requires the government to understand the existence and depth of these interests and concerns.

Calling the supposed ‘smarts’ and people of influence to Canberra is a positively dumb move. These people have one trait that is disproportionately shared by them: their parents were rich. Accordingly, they lack the capacity to understand what is needed to build a fairer and egalitarian prosperous Australia.

Among their main concerns are likely to be faster Internet and stronger privacy laws. When all the important things in life are shored up, there is little else to stress about.

They have lost touch of the fact what people need most is equal access to good health care, education and cheap essential services in the form of shelter, electricity and water and ways of tackling inflation other than discriminating against people with mortgages. All of this is absent in Australia.

If Rudd is truly interested in a better Australia and doesn’t want to get his hands dirty by talking to the miserable sectors of the community, he should just go to any Scandinavian country and see how they do government. There, the worst off live as well as the Australian middle class.

The talkfest will produce nothing of value. So why is Rudd having it? There are only two possibilities.

First, Rudd might actually believe that you can make important decisions via committee consensus. This would make him a genuine dill. Democracy appoints people to leadership roles who have the acumen to lead the way. There is no scope for consulting every step along the way – otherwise nothing gets done. If Rudd lacks the intellect and confidence to stamp his footprint on society, he should resign – now.

The more likely reason for the talkfest is that it is a gimmick aimed simply to elicit support for his policies. It is difficult to criticise a policy which one had direct a role in framing. What Rudd is trying to do is lock in 1,000 of the most influential Australians into supporting policies he has developed. Having succeeded with his first gimmick (Kev07), he is becoming addicted to them and is now going with his second: 1000/10 – 2020.

Either way, it’s all a bit sad – especially for the most miserable in our society.

This was published in the Age on 7 February 2008.

The values we should all be embracing
Posted By Mirko Bagaric on January 21st, 2008

There are some values to which all people and communities should be aspiring. But they aren’t relative. They don’t depend on culture, race or personal preference. And certainly none of the values are to found in the citizen test, which with its 20 per cent failure rate is proving to be roadblock for many worthy people further enriching our opulent country.

The citizen test was a gimmick introduced by the Howard Government in an attempt to shore up desperately needed votes by appealing to the racist sentiments of some voters. The ploy failed because Rudd, well ahead in the polls, played the ‘me-too’ card and refused to give voters an emotive point of difference between him and Howard.

But now that Rudd is in power, it is time he showed leadership and abolished the citizen test, or risk being tainted with the same racist brush as Howard.

The citizen test with its focus on all things Australian costs taxpayers millions of dollars to administer, fuels resentment from applicants who are require to swot up for it and places a cultural gulf between Anglo-Saxons and the more than 4.8 million people in Australia that were born overseas, especially those occupying the 16 per cent of households that don’t speak English at home.

The flip side of preference is discrimination. It can be no other way – it’s a mathematical truth. Unashamedly embracing Aussie ways necessarily requires abdication of non-Australian values. There is no upside to this. It will place a wedge between some migrants and their neighbours.

Of course, things might be different if anyone could identify a sub-set or even single value that is predominately Australian to which we should be aspiring. The best anyone has been able to come up with is mateship and a ‘fair go’.

These dismally fail the made in Australian test. They are coveted in all societies. They simply go by different names. In other places mateship means loyalty. Fair go means ensuring that all people have the opportunity to prosper roughly commensurate with their talent and level of commitment.

Instead of forcing Australian citizenship aspirants to rote learn historical facts about Australia, Rudd should work towards achieving a morally enlightened (culturally irrelevant) mindset within Australia. This would provide a concrete framework around which an entire community can be forged and live harmoniously as a result of a fair allocation of opportunities, benefits and burdens.

Within that framework people would be free to express themselves and engage in any activities or projects of their choosing which did not unfairly interfere with the capacity of others to do likewise. This would result in cultural dilution and enrichment, as opposed to cultural hegemony.

To do this, Rudd needs to broaden the horizons from which he obtains his values inspiration. This would open his mind to a slow, but evident, convergence in the most important value judgments that define individuals and societies. In the twenty first century we are getting closer to unlocking the complete list of objective moral values.

Ethics has been the hot ticket item for philosophers over the past few centuries. They have gone around in a lot of circles, but finally we are getting some convergence regarding the moral principles that apply to all cultures. The list is short, but important: don’t kill or physically harm others; don’t steal or lie and assist others in serious trouble when assistance would immensely help them at no or little inconvenience to oneself.

None of these rules are absolute. The closest thing that we get to an absolute moral principle is that we should pursue the course of action that maximises net flourishing, where each person’s interest counts equally – even those who weren’t ‘lucky’ enough to be born in Australia.

The above rules all focus on what we can’t do, except for the last one, which imposes only modest demands. This means that we are free to do as we wish so long as we don’t break these rules.

The upshot is that we are morally complete and virtuous individuals if we do as we wish so long as our actions do not harm others and we ‘kick in’ to help the needy when this does not set us back much. The government has no basis for expecting more (or less) from any of its citizens.

This ultimate value framework provides ample opportunity for all people in the community, irrespective of their religion or ethnicity, to continue to revel in their cultural practices and customs.

Of course all people should do their best to learn English, for reasons of coordination and participation, but an appeal for non Anglo-Saxon Australians to abdicate their customs which do not violate fundamental moral norms is ill-founded and ultimately destructive to a harmonious and fair community.

Talk of values without tolerance is contradictory – it betrays itself by undermining ethical norms, which are the only values that matter. For a nation which is renowned for its tolerance and progress on matters of social justice, the citizen test is decidedly unAustralian.

This was published in the Courier Mail (Brisbane) on 21 January 2008.

Moral compass continues to be defeated by emotion
Posted By Mirko Bagaric on January 21st, 2008

If ‘yuk’ is the strongest basis that you have for disapproving of a practice, then it’s probably morally permissible. History shows that the degree of moral and social enlightenment of any community correlates almost precisely with the extent to which it is capable of ignoring its collective feelings and emotions in constructing its ethical and social framework.

Fortunately, now and again freak events occur that remind us just how captive we are to our unreflective emotions when it comes to making moral judgments. These events should be used as a catalyst to fine tune our moral compass by tidying up the remaining lose wires which result in judgments and practices that cause suffering to others.

David Alton, a member of Britain’s upper House of Lords, highlighted a case last week where twins who were separated at birth met later in life and married. Incest is a crime and hence they were forced to break up when their true identities were revealed.

The case was raised in the context of a proposed IVF law which would allow children to know the identity of their parents.

Alton described the case as ‘a tragedy for the couple who are involved, a terrible tragedy. Everyone’s hearts will go out to people caught up quite unwittingly in a case of incest of this kind’.

Yes, it is tragedy but not for the reason that Alton suggests. Having formed such a relationship in circumstances where there is no likelihood of coercion or emotional manipulation, it’s a tragedy that loving, mature adults should be forced to separate. Not a single person in the world was harmed by the relationship between the twins.

The issue regarding the moral status of incest is one which is far closer to home than most readers will realise. Most people in western nations regard marrying first cousins as repugnant. Yet, in many cultures it is Plan A on the family planning front. In fact, these marriages are far less likely to end in divorce than your typical western union - more than one third of which end up in the separation once the lust fissles out.

Having said that, being denied the opportunity to marry your sister is hardly cause for much concern. Incest is wrong because the likelihood of emotional manipulation in nearly all cases is significant - ostensible consent is rarely genuine. Moreover, if you can’t find one other person in the world outside your family who loves you enough to marry you, then the world is probably a better place if you remain single.

Yet, there are many pre-reflective judgments that we hold which cause untold suffering in the the world and are in urgent need of revision. The only ‘reason’ that dark-skinned people were slaves and women were treated as chattels was because it ‘felt’ wrong to give equal rights to these people. Homosexuals in many western nations still find it too risky to declare their sexual preference.

The same types of (misguided) feelings continue to cause immense suffering today. The best example relates to the fact that more than 20,000 people die daily of hunger and other readily preventable causes while much of the Western world is gorging itself to ill-health because it has too much food.

There is no rational reason that the lives of our starving non-neighbours are any less important than those of other people who happen to live in our suburb or country. Yet people in all western nations continue to show an overwhelming preference for people within our locale. This is despite the fact that where a person is born has nothing to do with merit or desert – it is pot luck and like all things that are random is morally irrelevant.

The extent of another’s suffering is not measured by our capacity to directly sense it and neither is the scope of our moral duties. Our emotional orientation encourages us to adopt a ‘doorstep phenomenon’, which leads us to believe that proximate suffering matters more than us anonymous, distant suffering.

This is a cause for considerable regret. Fortunately, it doesn’t seem to be an entrenched aspect of our moral wiring.

The generosity displayed by western nations in response to the massive South Asia tsunami three years ago was a striking and welcome departure from our normal level of disinterest towards desperate foreigners.

This event, however, only served to highlight the reality of the door-step principle. Our wallets were forced open by the media bombardment of the tsunami that pushed the tragedy into our living rooms. The tsunami of donations and assistance turned to a trickle once the media re-focused it lens on more ‘pressing matters’, in the form of Britney, Paris and other ‘celebs’.

Thankfully, the occasional fleeting glimpse of starving children on the evening news typically evokes some sense of sympathy or guilt. Unfortunately we are too good at escaping these feelings – we need to be conditioned to hold onto them.

It is only once we abandon the doorstep phenomenon and the tendency to allow our emotion to that trump our intellect on moral issues that we will move towards a fairer world. There’s a chance we can’t do this.

Our wiring might be too rigid, meaning that in the end we really are just slaves to our emotions, which we dress up as considered moral stances. If that’s the case we need to accept that as a species we are far less compassionate and principled than most of us believe. In which case, who cares if you dance with your sister.

This was published in the Age (Melbourne) on 20 January 2008

Racism, rule-breaking: but in the end it’s just (marvellous) cricket
Posted By Mirko Bagaric on January 11th, 2008

Doing something bad is always a lot worse than merely saying it and life is a lot easier if you follow the rules. It’s because these two basic tenets have been broken that the test series between Indian and Australia is in turmoil.

It’s outrageous that cricket fans will be denied the opportunity to watch Indian spinner Harbhajan Singh ply his talents in the last two tests for calling Andrew Symonds a monkey – that’s assuming the tests proceeds at all, following the decision of the Indian Cricket Board to suspend the tour pending the outcome of the appeal to Harbhajan’s sentence.

At the same time, Indian officials have no right to be critical of Symonds for not walking when he nicked one through to the keeper while on his way to an unbeaten knock of 160.

No one likes being verbally abused. Racial abuse can be particularly cutting because it is directed at a trait that is defining of an individual’s make-up – a characteristic that cannot be changed.

But as with all things in life, perspective and proportionality can’t be ignored. Australia on the basis of its actions is among the most racist countries in the world. We can talk the talk all we like, but when it comes to showing our true blue colors by reference to what we do in terms of judging and accepting non-Australians, we are morally deficient.

Australian government policy dictates that the ease with which people are allowed to grace our opulent shores is principally determined by one criterion: the accident of a person’s place of birth. We give preferential treatment to people that look and behave like us and place often insurmountable barriers for the rest of the world to come and visit our land.

Thus, potential tourists and students from ‘nice’ western countries are effectively given an automatic right to come to travel to Australia. The only thing that people from places like the US and Western Europe need to do to come to Australia is swan down to their local travel agent and buy a Qantas ticket.

It’s a vastly different for people from ‘povo’ or black-skinned countries. All people from these countries are tagged by our migration department as being inherently unlikely to observe the conditions of their visas (especially how long they are allowed to stay). In order to visit or study in Australia they have to satisfy a number of, often impossible, requirements.

These relate to proving that they have amassed wealth or other resources in their ‘miserable’ country of origin. Thus, a Lebanese national who is socially and economically identical in all respects to a US national will normally be prevented from visiting Australia, while the US national will be welcome with open arms.

It is not because there is anything wrong with people from Africa, the Middle-East or Asia. It is just that the migration department refuses to consider each person on their merits and assumes that a whole race of people is likely to be lying when they state they will not overstay their visas.

The racism got a whole lot uglier recently following the decision to stop taking refugees from Africa.

Now if you had a choice between being called a monkey or (in the case of refugees} being prevented from travelling to the life-saving shores of Australia because of your skin color, which would you prefer?

None of this justifies what Harbhajan said, but it does put the issue into some perspective. Harbhajan should have been dealt with by way of reprimand thereby clearing the way for all Australians to watch his intreguing battle with his new bunny – Rick Ponting, who for the first time in a nearly a decade is having his immense batting skills tested.

And as for the controversy over Symonds not walking, there is a classic case of much ado about nothing. You only need to read the rules of cricket to understand this.

Yes, the rules state that a batsman that is caught is out. But this rule is subordinate to the rule that the final judge of whether or not a batsman is out is the umpire. Hence, Symonds was right to stand his ground and let the umpire make the, albeit factually wrong, decision.

Players, like Adam Gilchrist, who are perpetual ‘walkers’ might think they have the moral high ground. But in fact the opposite is the case. Given the human element involved in adjudicating, baring bias, over a period of time statistically all teams will have as many poor decisions go in their favour as they do go against them.

This is the best way to ensure a rough degree of fairness on the cricket field. Walkers distort this equilibrium in a manner that is detrimental to their team and country.

Of course in life there are more important things than worshipping rules. In the end, consequences matter most. Hence in rare cases it is permissible to break even important rules where this will produce a better outcome. That’s why it is OK to break the speed limit to rush a heart attack victim to hospital.

But cricket is not an activity where consequences matter much. Grown men running around in white outfits hitting and chasing a small red ball do nothing to shape the world in a way that is better than before they started. Cricket produces nothing tangible that helps the human condition. No person is left healthier, warmer or more nourished for having watched a cricket match.

What watching cricket (like all sport) does is give the human condition a much needed escape from the hard realities of life. In this regard, the outcome of a match is secondary to the manner in which the games unfold. None of the magic of the game is lost depending upon who wins or loses.

As spectators we want a contest on the field and for predictability in the manner in which the game is adjudicated. Thereafter, may the best team win.

The suspension of Harbhajan will diminish the contest. Hence in the short term all cricket fans are impoverished. Still, for an activity which produces nothing functional or tangible the controversy is no doubt great for the game!

This was published in the New Zealand Herald on 9 February 2008.

The Hicks control order - a win for common sense
Posted By Mirko Bagaric on December 28th, 2007

The control order slapped on David Hicks by the Federal Court is a win for logic over misplaced libertarian hyperbole.

The conditions imposed on Hicks, in the form of a midnight to 6am curfew and to attend a police station three times a week, are only a tad more severe than those currently being experienced by NRL and AFL footballers.

Moreover, there is nothing new about the concept of control orders. We’ve had them for years. If you hassle an ex-partner or neighbour they can swan down to the local court and control your movements by getting an intervention or restraining order which limits where you can go and who you can communicate with. Detention without trial is a stock in trade risk management practice – that’s why a ‘no vacancy’ sign is often erected at the remand centres across the country.

Thus, control orders are no different in nature to existing investigative and risk management measures. The difference is only one of degree – as is the size of the threat.

Moreover, you get to bounce back from being unfairly placed on a control order but victims of bomb blasts almost never recover.

It is likely that David Hicks has no intention to commit a terrorist act, but given his previous deep association with terrorists it is necessary to err on the side of caution.

The most illuminating point to emerge from the restrictions placed on Hicks is the success of the counter-terrorism laws that have been passed in this country.

Control orders, short term detention without trial and sedition provisions were the previous government’s main response to the terrorist threat. These were passed against howls of protests by civil libertarians who declared that we are losing the war on terrorism because we are giving up our hard won liberties. It was also claimed that the laws were anti-democratic, removed the fundamental rights of Australians and risked converting Australia into a police state.

It is more than two years since these measures were introduced. There is no evidence to support any of the fears raised by libertarian groups.

The only people whose way of life is being threatened by the new laws are potential terrorists. Notably, more than 20 people have been arrested on terrorist related offences.

Only one person, Mohamed Haneef, has been wrongly detained pursuant to the counter-terrorism laws. The fact that he was acquitted shows that the laws are effective. Moreover, over the past two years hundreds of Australians have been remanded in custody for offences that were ultimately acquitted of. This hardly means that we should dismantle the entire criminal law system.

Pragmatically, the only inconveniences that Australians have experienced as result of the increased threat reduction measures since S11 are having to use plastic cutlery on planes; longer lines at airport security; a few academics who have spent an inordinate amount of time going to terrorist related sites on the Internet have had a please explain visit from their friendly local ASIO officer and there’s been a tad more eavesdropping undertaken by security officials.

Oh and of course, Jihad Jack and David Hicks both of whom spent time training in the desert with terrorist groups have been placed under a bit of supervision.

And that’s the sum total of the incursions to our democratically won freedoms as a result of the war on terror. And none of this is any concern to the normal punter, who is pretty good at distinguishing the piffle from the things that matter.

We know that when the stakes and our security are at risk, each person in the community should tolerate a tad of inconvenience to make things safer for the whole of society. That’s why over-worked security staff at airports are invariably greeted with polite tones. They’re a refreshing addition to the landscape. We know that if they are searching us, there’s a fair chance they are snooping around the bad guys as well.

The things that make living in democracy great have nothing to do with trifling matters such as waiting in queues and sweating about the type of cutlery we use. It has everything to do with the capacity to participate in government action and decisions which shape our lives, so far as important human endeavours are concerned.

And there’s a diminishing amount of guess work to be done in this regard. Modern studies in the science of human well-being have gone a long way to mapping the commonalities that all of us share regarding the things that are conducive to our well being. What they’ve found is that the things that matter most are a sense of participation and control, close relationships, good health and the pursuit of challenging projects, such as educational, vocational and sporting pursuits.

Our capacity to engage in these activities has been diminished by exactly zero percent as a result of the government’s response to the terrorism threat.

Yet the issue remains how is it that so many of the supposedly intellectually elite and lawyer groups in the community have failed to see this point.

There is a simple answer. It all relates to moral short-sightedness and a dysfunctional priority sorting gland. Not all restrictions on our freedoms signal the downfall of life as we know it. Living in a community requires a bit of give and take. What’s more, a little giving sometimes leaves more to take, which is exactly what is happening in the case of the government’s counter terrorism response.

The moral blinkering that afflicts civil libertarians stems from the fact that when they are tossing around moral issues, they are unable to see beyond the rights of the person immediately before them. Accordingly, their preparedness to ascribe rights and interests stops with suspects and does not extend to the wider community. It is time they expanded their morally horizons. Things sure become a lot clearer a little higher up the moral mountain.

In the meantime, we get to do pretty much whatever we want – made all the more easier by the fact that measured laws in this country hinder the capacity for deranged fanatics to take away what is really important to us.

This was published in The Australian on 28 December 2007.