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The common good trumping individual rights

By Mirko Bagaric - posted Tuesday, 6 February 2007

In times of crisis, individual rights nearly always yield to the common good. That’s why no one should be surprised that the Beattie State Government bypassed normal channels and ignored the advice of the Director of Public Prosecutions to not charge Senior Sergeant Chris Hurley for the death of Palm Island man Mulrunji.

The decision to ignore the advice of the state’s most senior criminal law officer and refer the matter to Sir Laurence Street, who recommended charging Hurley, is an almost unprecedented departure from firmly entrenched protocols regarding the laying of criminal charges.

Proceeding with manslaughter charges against Hurley is viewed by the Queensland Police Union as a gross violation of Hurley’s right to be treated with due process and a capitulation by the government to Indigenous groups who protested against the DPP decision to clear Hurley.


So incensed is the Queensland Police Union at the political interference, that police are now planning to march on Parliament House.

Complaints by the Queensland Police that Hurley has been singled out for special mistreatment by the government are well founded, but there are valuable insights that the community can obtain for this unfolding drama regarding the moral and political framework in which important decisions are made.

The Hurley case closely resembles a moral dilemma which has bemused philosophy students for decades. Australian philosopher H.J. McCloskey framed the dilemma as follows:

“Suppose a sheriff were faced with the choice of either framing a negro for a rape which had aroused white hostility to negroes (this negro believed to be guilty) and thus preventing serious anti-negro riots which would probably lead to loss of life, or of allowing the riots to occur”. What should the sheriff do?

Presented with this problem in abstract, most people say the sherriff should uphold the due process rights of the colored man even if it results in large scale violence. But classroom ethics and real life often diverge.

Accountability and pragmatism often sharpen one’s moral focus and history shows that when, as a community, we find ourselves between a rock and hard place and have to make a choice between individual interests and the collective good, we nearly always favour the collective good. And this is the way it ought to be.


Ultimately, human lives and tangible interests must trump grand, but empty, notions such as “individual rights”. A moral code which elevates individual rights and worships abstract notions above the common good is bankrupt and has no scope for application beyond the realms of fiction, where important rights never clash. The reality is that sometimes rights do clash. When they do, the least horrible thing to do is that which causes the least amount of harm.

A real-life case which is similar to the Hurley matter is the infamous video taped police beating of Rodney King in Los Angeles in March 1991. The four police who beat King were acquitted of any wrongdoing under state law. Riots ensued, resulting in widespread looting, damage to property, and dozens of deaths.

Shortly afterwards, the US Federal government announced the almost unprecedented step that the policemen, who were found innocent of the alleged crime, were to be tried on federal civil rights charges regarding the beating. They were duly found guilty, despite the double jeopardy involved.

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A version of this article was first published in The Courier-Mail on February 2, 2007.

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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 dean of law at Swinburne University and author of Australian Human Rights Law.

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