Mirko Bagaric

The right to privacy: appealing, but flawed

The right to privacy is not recognised at common law. However, like many other rights, it has gained increasing prominence and legal recognition since the explosion in rights-based normative discourse following the Second World War. Rights-based moral theories are appealing because their language is individualising; promising to expand the sphere of liberty and protection offered to people. It is therefore not surprising that we as individuals are attracted to such theories – they allow us a vehicle through which we can project our wishes and demands onto the community. While in abstract the right to privacy sounds appealing, it has many potential disadvantages. This article examines the justification for the right to privacy. It argues that either the right is illusory (devoid of an overarching doctrinal rationale) or at its highest the right to privacy is an insignificant right – one which should rarely trump other interests. It follows that there is a need to re-assess the desirability of introducing a separate cause of action protecting privacy interests.

Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity

The principle of proportionality prescribes that the punishment should equal the crime. It is one of the most important principles of sentencing. Yet, despite its widespread acceptance it offers no meaningful guide to sentencing. Hence penalty levels fluctuate greatly between jurisdictions and within jurisdictions. This is because there is no universally agreed criterion for measuring offence seriousness or penalty severity. This article suggests that the appropriate criteria for matching offence seriousness and penalty severity is the level of unhappiness or pain stemming from each of these impositions. Thus, for example, the level of pain meted out to a rape offender should equal the level of pain caused to a rape victim. Emerging scientific studies on human well-being and happiness show that human beings are similarly built in terms of the experiences that are either conducive or inimical to well-being. This commonality provides a strong foundation to be confident to make reasonably accurate predictions concerning the extent to which adverse events, such as being the victim of a criminal offence or subjected to a form of criminal sanction will stifle human flourishing. This will then allow us to match accurately offence seriousness and penalty level.

THE SOLUTION TO THE DILEMMA PRESENTED BY THE GUILTY PLEA DISCOUNT: THE QUALIFIED GUILTY PLEA - `I'm pleading guilty only because of the discount....'

The guilty plea sentencing discount is arguably a triumph of expediency over principle. Strong utilitarian reasons favour providing less severe sentences to defendants who plead guilty. However, an unsavoury by-product of the guilty plea discount is that some innocent people are pressured into pleading guilty. This article suggests that a possible solution to the problems caused by the discount is to permit defendants to enter a ‘qualified guilty plea’. While formally amounting to a guilty of plea, the defendant would be permitted to advance submissions consistent with innocence as part of the plea in mitigation. If the sentencer is persuaded that the defendant had a tenable chance of an acquittal a penalty discount in excess of that available for merely pleading guilty would be conferred.

Migration and Refugee Law: Principles and Practice in Australia Second Edition

Migration and Refugee Law: Principles and Practice in Australia 2nd Edition provides an overview of the legal principles governing the entry of people into Australia. The second edition encompasses legislative amendments and significant judicial decisions to 2007. It is an ideal companion to Migration and Refugee Law in Australia: Cases and Commentary (Cambridge University Press, 2007) – the casebook on this topic. As well as dealing with migration and refugee law today, Migration and Refugee Law: Principles and Practice in Australia 2nd Edition analyses the policy and moral considerations underpinning this area of law. This is especially so in relation to refugee law, which is one of the most divisive social issues of our time. The book suggests proposals for change and how this area of law can be made more coherent and principled. This book is written for all people who have an interest in migration and refugee law, including judicial officers, migration agents (and lawyers) and students.

The Vacuousness of Rights in the Euthenasia Debate

It has been claimed that the arguments for and against euthanasia have not changed in the last 120 years. Throughout this period, two rights claims have been thought to be central to the debate. The right to autonomy is invoked by many euthanasists as the main argument in support of euthanasia. This is often countered by the claim that euthanasia violates the right to life. This article argues that the relevance of these rights claims to the euthanasia debate has been overstated. More generally, it is argued that the bluntness of the rights claims in the context of the euthanasia debate is illustrative of the fact that the concept of rights is an unsuitable device for resolving moral disputes which involve conflicting rights.

Home truths about home detention

The Victorian Parliament has recently introduced a Bill which implements home detention as a sentencing option. Home detention is an intuitively appealing reform. The logic behind the proposal seems obvious. Prisons are expensive to run. There are too many offenders in prison. So lets take the cost out of prison by turning the homes of offenders into prisons: classic, user-pays, cost-shifting economics. The level of superficial appeal of the argument in favour of home detention is matched only by the depth of the fallacies underpinning some of the fundamental premises. The most basic of which is the assumption that offenders who are candidates for the new sanction should be in detention (of any kind) in the first place. Further, the narrow objective of reducing imprisonment is misguided. It should not be elevated to a cardinal sentencing objective—otherwise total success could be achieved by simply opening the prison gates. There are also other concerns about the appropriateness of home detention. The degree of pain it inflicts in many cases is questionable and it may also violate the principle that punishment should not be inflicted on the innocent. After examining the arguments for and against home detention, this article suggests the approach that should be adopted to achieve enlightened and meaningful sentencing reform.

The Paradox of Parity in Sentencing in Australia: The Pursuit of Equal Justice That Highlights the Futility of Consistency in Sentencing

Parity in sentencing is the principle that offenders who are parties to a crime should, all things being equal, receive the same penalty. While it is a well-established principle, the reality is that its scope is greatly limited by the largely unfettered nature of the sentencing calculus. Things are rarely equal between offenders due to the large number of variables that current orthodoxy maintains are relevant to sentencing. This makes application of the parity principle unpredictable, resulting in the paradox that parity highlights the unfairness that it is meant to mitigate: inconsistency in sentencing. This article contends that parity will remain an aspiration, as opposed to a concrete principle, until the instinctive synthesis approach to sentencing yields to a more transparent and precise decision-making process. The article focuses on Australian jurisprudence, but the analysis applies to all jurisdictions where sentencing has a considerable discretionary component (including the UK and the USA—apart from the limited circumstances where mandatory sentences apply).

Assisted Suicide Through the Prism of the Right to Life

Part of the reason for the ongoing confusion regarding the status of assisted suicide is the cluttered moral and legal matrix that is normally invoked to evaluate the practice. It results in a calculus that is impossible to coherently unravel, allowing commentators to tenably assert any position. The authors attempt to inject clarity into the debate by focusing on the issue through the lens of the most important interest at stake: the right to life. It is arguable that while there are well-established exceptions to the right to life, they only apply where the right to life is itself at stake (such as self-defence). There is no sound argument for suggesting that the circumstances underpinning suicide constitute another exception to the right to life. Thus, suicide and assisted suicide are unjustifiable. An analysis of the empirical data in jurisdictions where assisted suicide has been legalised suggests that legalisation leads to an increase in assisted suicides. The adverse indirect consequences of the often ostensibly compassionate act of assisted suicide outweigh any supposed benefits from the practice. It follows that assisted suicide should lead to criminal sanctions. At the same time, it is important to acknowledge that, paradoxically, the right to life arguments against assisted suicide mandate greater community measures to eliminate or reduce the causes of suicide.

The Disunity of Employment Law and Sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world. ‘As a matter of principle my view is that once a person has paid their debt to society, as the old expression goes, and done their time, then they should be able to live a normal life.’ Prime Minister, John Howard, commenting on the eligibility of jailed former One Nation leader Pauline Hanson to stand for Parliament at the expiration of her three-year jail term for electoral fraud1 ‘A persons employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem.’

Provocation: The Ongoing Subservience of Principle to Tradition

The defence of provocation has been highly criticised. Most commentators argue that the defence is misguided. There does not appear to be any community pressure to preserve the defence. Despite this, legislatures are reluctant to abolish provocation as a partial defence to murder. This article examines the underlying rationale for the defence. It concludes that the defence is founded on a flawed assumption about human nature—that people are captive to some of their emotional states. It is also argued that the convoluted and confusing (if not confused) test for provocation is evidence of the unsound nature of the defence—it is simply a case of not being able to develop a feasible (and candid) principle for a doctrine that is devoid of a sound justification.