Australians overseas - and doing drugs

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".

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.

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.

This applies no less in Indonesia than it does in Australia. Therefore 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 basic moral principles across the globe. So 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 Hussein 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 worldwide empirical studies show 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. Instead we see that over 3.2 million Indonesians use illegal drugs.

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 the stench of Indonesian prisons. The list is only likely to grow following the recently announced policy of random drug-testing in Bali.

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.