Moral Dilemma

Even the stupid deserve our help – here and in Indonesia
Posted By Mirko Bagaric on August 29th, 2005

Assuming that Australian model Michelle Leslie is guilty, there is no doubt that she is a stupid girl for taking a couple of ecstasy tablets with her to a dance party.

The stupidity of Michelle Leslie has, however, been overtaken by the impertinence of the statements by the Prime Minister John Howard that if people get caught with drugs in Asia they shouldn’t expect assistance from the Australian Government.

The Prime Minister declared that ‘it’s beyond belief that any Australian could be so stupid as to carry drugs into any country in Asia’. He goes on, ‘But people have to understand that if they get caught with drugs, they can’t expect the Government to bail them out’. His views are based on the reasoning that foreigners have to follow our laws, and hence we must follow foreign laws when we are abroad.

Despite her stupidity Leslie, and all other Australians that are subject to oppressive sentencing laws around the world, is entitled to expect the government to weigh in as persuasively as it can to assist her. It needs to do this on two fronts. Privately, it must engage in high level diplomatic talks to soften sentences handed out to Australians. Publicly, it must offer funding for Rolls Royce legal representation to minimise the effect of draconian laws on Australians.

There are several reasons why the government has got is so wrong regarding its approach to Australians caught with drugs overseas. First, in terms of being a vehicle for condemnation and punishment, stupidity has its limits. A silly act does not justify the community abdicating its responsibility to assist people in great need. We don’t refuse medical treatment to drunks who walk into the path of cars, obese people who have heart attacks or drug affected drivers who slam into trees.

Similarly, when it comes to the deliberate infliction of pain for stupidity in this country the pain is imposed in controlled doses, roughly commensurate with the level of stupidity. Thus, people who drink drive are normally put off the road for a year or so, and drug takers receive a small fine or if they get an extra grumpy judge and they have prior convictions for drug offences they might get a month or so in jail.

The sentencing of offenders in Australia is driven by a fundamental principle of justice, termed ‘proportionality’. It is the view that the punishment must fit the crime. Excessive punishment is unfair and cannot be tolerated by a society that has claims to moral enlightenment.

While the principle of proportionality might be grey at the edges, it is sufficiently precise to inform us that a year or so in a third world jail (which is what Leslie is likely to receive) grossly outweighs the self-regarding act of popping a few ecstasy tablets on the dance floor.

Moreover, the principle of proportionality is not a culturally relevant, provincial rule. It applies to all governments across all cultures. All people have the right to be free from the infliction of pain. By its very nature, punishment hurts and if you want to deliberately hurt another person you need a justification. This applies no less in Indonesia than it does in Australia.

Thus, the Indonesian government can’t trumpet the tired old ‘when in Rome do as the Romans’ line to justify its oppressive laws. This argument is logically and morally vacuous. All people are entitled to have their fundamental interests at least minimally protected. That’s why we see a slow, but sure, convergence in basal moral principles across the globe. Thus, slavery and discrimination are now almost universally deplored – even in Rome and by Romans.

The related notion of national sovereignty also only gets governments so far nowadays as a means of justifying draconian laws. This principle, once supreme, has been beaten down by the twin forces of globalisation and the human rights movement so that it is now, rightly, only a shadow of its old self.

The fact that a government manages to conquer a territory does not mean that it has the right to treat as it wishes the unfortunate people who find themselves within its borders. This is a lesson that Slobodan Milosevic and Saddam have learned the hard way.

Not only are Indonesian drug laws draconian, but they are dumb – far dumber than Leslie. Executing drug traffickers and putting users in jail for long periods won’t reduce the drug problem.

Wide ranging world-wide empirical studies show that the greatest deterrent to wrongdoing is not the size of the penalty but the perceived risk of detection. Bigger penalties do not lead to more obedience – hence the reason that countries with capital punishment don’t have lower levels of serious crime.

If harsh penalties reduced drug crime, Indonesia would by now be a drug free zone and Australians, especially following the Schapelle Corby saga, would be reluctant to even sip a Nescafe while on their shopping and dancing holiday in Bali.

So where to from here? The Federal Government needs to continually press the Indonesians about their barbaric drugs laws and agitate for sentencing reform in this area. Success in this regard would have the immense additional benefit of saving many local Indonesians, to whom we also owe a responsibility, from draconian sentences.

Simultaneously, we need to provide the best possible legal representation and counselling to the growing list of young Australians rotting in stenchy Indonesian prisons.

Australians caught with drugs while overseas are stupid, but they are no less worthy of our concern and assistance than Australians who through their stupid acts run into other forms of trouble. The minimisation of pain is one of the greatest priorities of a civilised society. This applies even in relation to people who are not within our borders.

A shortened version of this piece was published in the Daily Telegraph (Sydney) on 25 July 2005.

Should we be able to sue for our growing waistlines?
Posted By Mirko Bagaric on August 20th, 2005

Australians are getting fatter. The problem is so big that the bulge in the average Australian waistline is now being transmitted to the public purse.

Royal Melbourne Hospital earlier this month opened a purpose-built room for patients weighing in at a hefty 350kg to 500kg. The results of a recent study of 3000 people between 1991 and 2003 found that the number of obesity sufferers increased from 8.7 per cent to 14.1 per cent over 12 years (Herald Sun 12/8). At this rate more than 27 per cent of us will be obese by 2013.

It has been forecast that obesity will overtake smoking as the biggest health problem of the decade. Already obesity-related illness kills 17,000 Australians each year and weight related problems cost Australian taxpayers about $3 billion a year.

The obesity epidemic hasn’t alarmed everyone. Burger King’s response is to increase the amount of calories in some of its products, under the pitch ‘have it your way’. While this might bring a smile to our local cosmetic surgeon, it’s bad news for the rest of us.

Clearly a solution is necessary. What is the appropriate response?

The first option is for individual (fat) consumers to launch tobacco style litigation against the ‘nasty’ fast food outlets that made them tuck into the yummy burgers. Sounds outlandish, but it will probably happen. It’s human nature. When we encounter problems there’s a tendency to blame others. Studies show that we accept more responsibility for good deeds and successes than for bad acts and failures.

In the United States two super sized teenagers who developed health problems because they gobbled up too much of the good stuff have already had a crack at McDonalds. The claim that ‘Maccas made me do it’, didn’t cut any ice with the judge. In Pelman v McDonalds, the New York District Court threw out the case on the basis that the teenagers knew the risks involved in eating fast food and the law should not protect people from their over-indulgences. A court in Australia applying the existing law would probably reach a similar conclusion.

Despite this, calls are growing for the government to curtail the fast food industry by making it easier for consumers to sue fast food outlets. Alternatively, one of the items on the agenda at the most recent Australian Institute of Food Science & Technology Annual Convention was a ‘fat tax’ on fast food.

So where to from here?

While the problem is acute, the response must be reflective and grounded in basic principles of justice. The first relevant principle is proportionality – the response must be commensurate with the level of harm caused by the problem.

Personal liberty is also an important consideration. In a market-economy, such as Australia, people should be permitted to make a living from selling products which are not inherently harmful. The right to sell fast food should not be interfered with lightly. Thus, it would be unjust to ban fast food or tax fast food chains out of business.

The notion of personal responsibility also looms large in this debate. Whose fault is the burgeoning waistline of the nation? Responsibility is intricately related to knowledge. Addiction aside, we must take responsibility for the consequences we knowingly bring about.

In a highly literate society such as Australia, we all know that the main variables relevant to weight gain are exercise and food intake. We are aware that overindulging in any food will result in weight gain.

However, there are certain foods that are significantly richer in calories than others. This is not always self-evident. There are thousands of food products and we cannot be assumed to know the calories contained in product. It is too crude simply to assert that pre-prepared meals are worse than home-cooked meals. A takeaway salad sandwich is healthier than home-cooked fries.

Moreover, fast food leaves people with a strong urge to eat again shortly after finishing their meal because it is very quickly broken down by the metabolic system. The fact that it is not apparent that fast food contains so many calories and is very quickly metabolised means that consumers cannot take full responsibility for weight gain.

Balancing these considerations entails that the appropriate regulatory response is to require fast-food companies to provide nutritional information on their products.

The current food labeling standards do not require the application of a nutrition information panel on unpackaged food, or food made and packaged on the premises from which it is sold (as with fast food).

Labeling standards for fast food should take the same form as for packaged food. This requires information on the amount of kilojoules, protein, fat, carbohydrate, sugars and salt, as well as other nutrients, such as fibre, iron, calcium.

This measure best balances the interests of consumers and suppliers. Labeling in this form places extra burdens on the suppliers but they are not oppressive and are proportionate to the magnitude of the obesity problem and properly accommodate the notion of personal responsibility into the equation.

Once that is done, we have ourselves totally to blame if our waistlines continue to bulge – ‘we had it our way’.

Professor Mirko Bagaric, Head of Deakin Law School. This is a summary of an article. ‘Fat and the Law: Who Should Take the Blame?’ published in the Journal of Law and Medicine (with Sharon Erbacher). A version of the above piece was published in the Herald Sun on 16 August 2005.

The inhumanity and hypocrisy of the decision to stop feeding Maria
Posted By Mirko Bagaric on August 13th, 2005

The decision to stop feeding Maria Korp resulted in her withering away and dying of dehydration more than a week after the feeding ceased. This painstaking path to her inevitable demise was excruciating for her family (some of whom did not want the feeding to stop), compounding the tragedy that has already struck them.

If it was correct that Ms Korp should have died, the humane path would have been to end her life quickly with a lethal injection rather than drawing out the death process.

A moral and legal code that allows people to linger in distressing states until their inevitable demise rather than bringing about their immediate death has big cracks. This is especially the case where the patient is conscious and must endure the physical pain of starving to death.

The reason that we don’t take the compassionate path is because we cling to the deluded belief that there is a morally relevant difference between killing and letting die. Ethically, we are just as responsible for the things we can readily prevent as for the consequences we directly cause. We are no less responsible for killing Ms Korp than for failing to save a child drowning in a puddle in order to avoid wetting our shoes.

The hypocrisy associated with the distinction between killing and letting die leads to morally perverse outcomes. The Ms Korp case is one example, on a larger scale it is one of the central reasons why we take ‘short steps’ when it comes to feeding the hungry in distant parts of the world.

Still, there is an even broader lesson to be learned from Ms Korp’s tragedy. The realisation that it would have been more humane to end her life quickly rather than allow her to starve, means that active euthanasia (which is illegal) is preferable to passive euthanasia (which our law permits). This raises the more general issue of whether in fact even active euthanasia is morally sound.

In the context of rational, terminally-ill patients, active euthanasia seems desirable because it can miminise pain and enhance patient autonomy. These reasons underpin the powerful euthanasia catch cry of the ‘right to die’. Not surprisingly polls show that about three quarters of us support euthanasia.

However, in assessing the moral status of any act it is necessary to look beyond the rights of those immediately affected. On doing so, it emerges that the adverse side-effects of legalising euthanasia do not outweigh the potential benefits.

Legalisation carries a significant risk that health professionals will kill patients who have not expressed a wish to die.

One of the few nations where euthanasia is legal is the Netherlands. Two wide-ranging studies in the nineties showed that in a climate where voluntary euthanasia is condoned, abuse is prevalent. There were about 1,000 instances of non-voluntary euthanasia (ie, where death was caused without the patient’s consent) in each study and in the first study 27% per cent of doctors admitted to terminating a patient’s life without request.

Why did this happen? It is certainly not because the Dutch have a compassion deficit – they donate 0.7% of their GDP to the developing world, compared to our stingy 0.28%.

Most probably the reason for the abuse was identified by the House of Lords Select Committee on Medical Ethics. It noted that issues of life and death are not capable of clear definition. Accordingly, it is not possible to frame adequate safeguards against non-voluntary euthanasia were voluntary euthanasia to be legalised.

Moreover, legalising euthanasia carries the risk that it will foster or instil the notion that some lives are less valuable than others.

Deliberate killing in one context potentially cheapens the value of all (or some other) human life. There is no basis for distinguishing between qualitative and quantitative impairments. If we accept that reduced life expectancy is a factor that diminishes the value of life (making it acceptable to kill a person), then the same could be said for other forms of disadvantage which gravely impair a person’s capacity to flourish.

Prohibiting euthanasia will seem insensitive to those desperately seeking a quiet and peaceful exit. However, morality requires that individuals sometimes compromise their interests for the common good. This is an indispensable part of living of in a community.

We need to entrench a culture of life – not erode it. This will enhance all our lives. As indeed it enhanced the existence of those who unfortunately find themselves contemplating euthanasia.

Yet we cannot ignore the pleas of those in pain. The compassionate way to address calls for euthanasia is for an increased level of commitment to the dying. In many cases this means better pain and depression management. People contemplating euthanasia should not be encouraged to do so. They should be told that their life continues to have immense meaning and it would be a tragedy if it was deliberately cut short.

In cases where the patient is not conscious, such as Ms Korp, we should not stop ordinary care (including feeding) until all brain activity has ceased.

After visiting Ms Korp several days after the decision to stop feeding her was made, her second cousin, Maria Vieira, asked: ‘She’s breathing on her own, why deny her food?’ The fact that this question needed to be asked raises serious concerns about the way that some life and death decisions are made in Victoria.

We need to adopt a life-affirming policy.

Professor Mirko Bagaric is the author of Euthanasia, Morality and the Law (with Kumar Amarasekara).
A version of this article was published in the Herald Sun on 8 August 2005.

Lessons From Big Brother…The Right You Don’t Want: Privacy
Posted By Mirko Bagaric on August 6th, 2005

The shenanigans of the kids on Big Brother have certainly attracted the ire of the self proclaimed moral monitoring groups that ‘inform’ us about television decency standards.

Agree or disagree with the exploits of the latest Big Brother bunch, the fact that they are having so many carefree, ‘sexed-up’ moments in full view of a million peering eyes serves to highlight an important point about the human condition and the unfortunate direction that our moral code is taking us.

History shows us that humans don’t need a strong right to privacy to flourish. Moreover, the suspicion that results from us not sharing information about ourselves might in fact be destructive of a cohesive society.

Despite this, the so called ‘right to privacy’ has blossomed over the past few years. We want to protect every micro detail about ourselves. Privacy Commissioners have sprung up across Australia to make sure that agencies aren’t disclosing little nasty (often true) facts about us.

The entrenchment of a strong right to privacy is regrettable. There are two reasons for this.

First, although not without qualification, the principle that ‘if you have done nothing wrong, you have nothing to fear’ has considerable merit. Privacy is often no more than code for the ‘right to secrecy’ which is destructive of an open and free society.

If there was less privacy criminals would find it harder to plot harmful acts (recall that the London bombers were identified by use of closed circuit television); we would be better placed to make informed investment decisions (no more tiresome ‘commercial in confidence’ conversation stoppers) and know more about the real agendas of our politicians.

Secondly, there is an important paradox that emerges in relation to giving too much ground to the right to privacy. The more tightly certain types of information is guarded, the more entrenched is likely to remain its significance and the prejudice that it can induce. Familiarity and exposure to a particular experience and trait often leads to greater levels of tolerance.

A good example of familiarity leading to greater acceptance is the changed community attitude towards homosexuals. The courage displayed by some high profile people to ‘come out’ over the past decade or so seems to have blazed the trail for many previously closeted homosexuals to do likewise. This has resulted in a discernible dampening down of previously existing widespread homophobic attitudes.

It is not difficult to multiple such examples. Presently, a similar enlightenment seems to be occurring in the context of mental illness. Not along ago, a similar process occurred in relation to HIV/AIDS sufferers.

Wide- ranging recent research into the human condition has shown that as a species we are all pretty much the same in terms of what makes us happy. Things that are important to well-being are liberty, close relationships, good health. Things that don’t make us happy are money (once we are beyond average income) and passive forms of conduct.

This knowledge that we are all similarly wired can only lead to a greater acceptance of each other. Acquisition of this knowledge will be retarded by the Trojan horse that is the right to privacy.

Given that knowledge normally leads to enlightenment, how is that as a community we are consigning ourselves to ignorance and therefore moral and social regression?

The explanation rests in the fact that contemporary moral discourse is built on the notion of ‘rights’. We have an insatiable appetite for rights. They appeal to those of us who have a ‘me, me, me’ approach to moral issues.

This approach is flawed. Buried only slightly beneath such an approach are the inescapable realities that as people we live in communities; communities are merely the sum of a large number of other individuals; and the actions of one person (exercising his or her rights) can have a (negative) effect on the interests of others.

We too often drum up rights without taking into account how they will affect the capacity of others to exercise their rights. Thus, recently we have seen the misguided concern at the Supreme Court ruling that a woman’s right to privacy does not prevent information being released about a termination she had 32 weeks after learning that the child might be born with dwarfism. As a community of course we need to know about the circumstances in which the right to life is being potentially violated – how can such a low order interest such as privacy come even close to trumping the right to life? It can only do so because of the rights fog within which we ‘operate’.

The fog was particularly heavy the morning pictures of ‘Mr Baldy’ were published in the Herald Sun. Some misguided do-gooders were aghast that his privacy was invaded. It obviously hadn’t dawned on them that the number of ‘vigilante’ attacks on pedophiles in Australia is negligible compared to the number of repeat attacks by pedophiles.

We have a right to be informed of foreseeable risks. It is absurd to think that people have a right to have their criminal histories protected. Additionally, notions of personal accountability and responsibility cannot be easily deflected.

The advantages that we as individuals and the community as a whole are likely to derive form an unchecked right to privacy are likely to be outweighed by the benefits from living in an open and transparent society.

Sure we all need a little solitude; a space where we can let our hair down. Property rights already confer this quite well. Thus, others aren’t allowed to peep through our doors or curtains.

But beyond this, there is no need to obsess about controlling what information is revealed about us. We are flawed, but so are the others – that information will unite us.

Mirko Bagaric is the author of Privacy Law in Australia (with Carolyn Doyle). A version of this article was published in the Herald Sun on 26 July 2005.