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Australians overseas - and doing drugs

By Mirko Bagaric - posted Friday, 23 September 2005


If Australian model Michelle Leslie did take a couple of ecstasy tablets to a dance party in Bali, there is no doubt that she is a stupid woman for doing so.

The alleged stupidity of 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 went on, "But people have to understand that if they get caught with drugs, they can't expect the government to bail them out".

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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 alleged stupidity, Leslie, and all other Australians who 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 it so wrong regarding its approach to Australians allegedly 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 parked 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 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.

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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 could 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 specific, 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.

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First published in The Courier-Mail on August 30, 2005.



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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is the author of 20 books and over 100 refereed scholarly articles. He is not connected with any political party or other interest group. He is the author of Australian Human Rights Law (forthcoming). Mirko is the author of Being Happy and Dealing with Moral Dilemmas.

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