Around two hundred potential jurors will have to attend the supreme court on the appointed day, even though they ultimately need only a fraction of them. I know this because the person on the phone said I have a small chance of actually being chosen for the jury. But I have to hang around for two days while they decide. There will be a random ballot and some selection procedure based on visual appearance rather than interview to obtain the jurors required.

Do they really need two hundred people for two days? How about allowing challenges before we turn up?  Many challenges are based on demographic information that is available to the court and does not require the potential jurors attendance. You would just receive a letter that you had been selected as a potential juror, and then challenged, and told to get on with your life.

One also wonders why N=200 are required.  How many should they call? Well, if p is the historical proportion of selected jurors that survive the challenge procedure, and J jurors are required, then N=J/p should just about do it. And if you are worried that this number might be insufficient then you can add in a bit of padding and/or bring in some reserve jurors the next day. Once you assign cost to a potential juror’s day and a cost to a day of court procedure, this is a pretty easy optimisation problem. As it is, we have 200 people lose at least one day which must be valued at around $50,000 or so. But this cost is born by the jurors and their employers, not the court.

So by receiving the letter it looks like I will lose two days at the very least. Is this fair? Well, we might say it is fair if people are chosen randomly.  According to the court:

Potential jurors are randomly selected from the Victorian Electoral Roll. A number of random processes are used throughout the jury selection process in order to produce a representative cross-section of the community. Every person over the age of 18, from all sections of the community have an equal chance of being called upon to do jury service.

I am suspicious about the effectiveness of their sampling. During the first six months of this year, there have been 5 academics (out of about 40) from Melbourne Business School summoned! Unless they are calling tens of thousands of people, there is no way that is “random” in the sense that a pollster would understand it.

The outcome has the appearance of some kind of sequential sampling from a list that has been sorted by geography - like an electoral roll. An extreme example would be to randomly sample phone numbers in consecutive order - just work your way through the phone book and toss a coin for each person to see if you summon them. This is random and it also gives everybody (with a phone) the same chance of being a juror. But the sampling is not independent - you can end up with sets of similar people on the jury. Imagine that you get to the 9349xxxx section of the phone book (which is what MBS phone numbers start with). I wonder how much respect the public will have in the notion of  “a jury of your peers” if these peers end up being a bunch of middle aged business professors!

While the court’s understanding of sampling seems dodgy, some readers might be thinking the same thing about me. I have chosen to report the statistic “5 MBS academics out of 40 in a half year” after the fact. If there were only 1 person summoned then I would not have reported it. This is the same kind of reporting bias that we face in assessing clustering of disease. It would actually be surprising if clustering of some disease did not occur somewhere. But when you see the cluster post hoc, it looks significant.

In my case, such selection/reporting bias would be most problematic if everybody in Australia had a blog and could report such an occurrence. You might then expect such a concentration somewhere in a given (half) year. But only a small proportion of people are bloggers. From the point of view of you gentle readers, the relevant blogging population is those who post at this site. The chance of one of us experiencing such a summons concentration if sampling is truly random is, I would have thought, pretty small. But to answer for sure I would need to know the total number of summons in a year and the numbers on the electoral roll. It may turn out that “5 MBS academics out of 40 in a half year” is consistent with a sensible sampling scheme, but I doubt it.

But there is a much less debatable point about the sampling that I want to make. If I am unlucky, I will be one of those chosen to actually sit in court. I will then be exempt for three years only….after which my name is added to the pool to be randomly sampled. But hold on…the purpose of random sampling is to give everybody an equal chance of being selected. This is desirable to spread the burden evenly and also to make the jury representative. No problem with the aims. But if I have already served once why do I get another chance? Surely I should wait until every eligible person in Victoria has served, before I am punished summoned again.

It seems that the courts have never heard of sampling without replacement.

What is the chance of being called twice I hear you cry? Well, yours truly already served in 2002 as a juror on a murder trial. While it provided me with some interesting stories for dinner parties and probability lectures,  I did lose three weeks of my life, never to be regained. The case was in NSW which, under their rules, exempts me for 8 years. But since the case was in NSW, it has no effect on my eligibility in Victoria. It is a separate jurisdiction. Another example of the our federal system at work.

Now a wise but cynical person once defined a jury to be 

a group of twelve people of average ignorance, chosen to decide who has the best lawyer.

Harsh perhaps, but not indefensibe. Perhaps this might explain why jurors are paid only $36 per day, and why no lunch is provided. That’s correct. The supreme court can not find the spare cash to provide the jury a decent meal. No wonder those 12 guys look so angry.

However, I couldn’t resist sending in the one that follows over the fold to that great journal of crocodilian record the NT News.  It deals with NT crime rates and related issues. Whether they’ll publish it is another matter, it’s rather longer than the norm for the genre, and any substantial editing would render the exercise even more pointless  than it inherently is anyway:

Dear Sir,
 
It isn’t often we see a genuinely useful policy idea amidst all the partisan political rhetoric of the editorial page opinion columns of the Sunday Territorian.  But Peter Murphy’s suggestion that requiring prisoners to complete education and training programs (especially remedial adult literacy) as a condition of obtaining remissions on sentence is an idea worth serious consideration.  Poor education levels are certainly a significant factor causing recidivist offenders to keep committing crimes.
 
Apart from that, however, Murphy’s column repeats a spurious CLP meme that for some reason Henderson government representatives haven’t bothered to correct.  Perhaps they think it would make them look like complacent apologists for crime or some such “spin doctor” rationale.   I refer to the claim that Territory crime rates are rising despite high imprisonment rates. 
 
Murphy at least has the excuse that he’s merely repeating a recent claim to that effect by Criminal Lawyers’ Association president John Lawrence.  Lawrence claimed that although property crime has decreased, bashings, sexual assaults and unlawful killings have increased by 48%.  Unfortunately this claim is somewhere between grossly misleading and totally false.  It relies on the fact that the number of non-sexual assaults is so much higher than all the other categories of violent crime as to give a completely misleading picture if all violent crimes are grouped together.
 
The actual figures for the most recent year 2007 (from NT Department of Justice figures which in turn form the basis of the ABS ones Lawrence used) are as follows.  Since 2002 house break-ins have fallen by 47%; commercial break-ins have fallen by 25%; motor vehicle thefts have fallen by 40%; and sexual assaults have fallen by 8%. 
 
The number of homicide and related offences is relatively small and long term numbers fluctuate sometimes wildly without having any statistical significance.  Nevertheless, in both 2001 and 2002 there were 28 homicides (murder, attempted murder and manslaughter) whereas in 2006 there were 21 and in 2007 there were 22.  Thus, here too there has been a fall of around 20%, although it arguably doesn’t evidence a significant trend.
 
The ONLY offence category that has actually risen at all since 2002 is non-sexual assault (what Murphy calls “bashings”).  They have risen by 41%, however the Department of Justice reports that “increases in assaults largely reflect the impact of operational changes the police have made in the reporting and recording of domestic violence related assaults.”   In other words, the incidence of assaults probably hasn’t really risen much at all, it’s just that police now record domestic violence incidents as crimes where previously they often didn’t.
 
The problem with perpetuating “laura norder” myths like the one that NT crime rates are rising, when in fact almost exactly the opposite is true, is that the misinformation can allow ill-considered policy proposals to be advanced and not subjected to informed debate.  It also allows interstate tourist commentators to paint the NT as a place too dangerous to visit.  One example of the former is the occasional CLP demand for restoration of mandatory sentencing, despite the fact that property crime rates whether coincidentally or otherwise actually rose fairly consistently during the years it was in force. 
 
Another is John Lawrence’s claim that high overall imprisonment rates have manifestly failed to stem increasing crime and that therefore other sentencing options should be tried.  There may be lots of reasons to consider sentencing options other than imprisonment, but trends in crime rates is not one of them.  By that measure tough sentencing and high imprisonment rates have in fact been highly successful.

Online PS - Statistical sources here and here.
 

It’s a little surprising that, outside the RWDB blogs, virtually no attention has so far been paid to the current trial of Canadian right wing pundit Mark Steyn on (effectively) religious vilification proceedings by the British Columbia Human Rights Commission.  Admittedly it’s all happening in far away Canada, but Steyn is a fairly well known figure in Australia and even visited on a speaking tour quite recently.

The Steyn proceedings are extremely disturbing for the future of liberal democracy in Canada, and by extension parts of Australia that have enacted similar “hate speech” laws (e.g. Victoria). Indeed it’s in some respects more disturbing than the not dissimilar proceedings against Australian fundie god-botherers Danny Nalliah and Daniel Scot of Catch the Fire Ministries (the VCAT decision in which was mercifully reversed by the Court of Appeal in any event).  Like Nalliah and Scot, Steyn’s “hate speech” comments dealt with Islam and its more extreme and worrying elements. 

Unlike Nalliah and Scot’s rather bizarre diatribe, Steyn’s words were undeniably part of mainstream political discourse. That such discussion could be prohibited in a supposedly liberal democratic country is quite extraordinary and even frightening.  Personally I agree with most of what Steyn had to say, albeit that I might have expressed it a bit less trenchantly and with a few more qualifiers.  But that really is beside the point.  The whole point of freedom of speech is that one is free to speak, within very broad limits, irrespective of whether others may disagree or be offended.

There was, however, a MSM article about the Steyn case in The Australian today, by its pseudonymous columnist Jack the Insider.  Unfortunately it is replete with both factual and legal errors, both major and minor.  I’m not sure exactly at what institution Jack is an “Insider”, probably the back bar at some Surry Hills pub judging by his Oz photo and the quality of his thinking (or lack of same).

Jack says: “More recently, the Canadians introduced a charter of rights and freedoms, again without constitutional amendment. “  In fact the Canadian Charter was enacted as part of Canada’s Constitution by the Uk Parliament by the Canada Act 1982.

Jack also says: “The charter enshrines freedom of expression but makes no mention of freedom of speech.”  But that’s because “freedom of expression” is a wider term than “freedom of speech”, designed to convey that images and symbolic speech as well as words are covered by the constitutional freedom.

However, the major defect in Jack’s “reasoning” is his claim that the Steyn proceedings are a consequence of Canada’s possessing a bill of rights at all.  The basic premise of Jack’s article is that the Steyn case is a salutary reminder of the dangers for Australia if we had a constitutional bill of rights (or indeed any bill of rights).  In fact if anything the Steyn case is made possible by the fact that the Canadian Charter is a weaker form of bill of rights, at least as to freedom of speech, than its US counterpart, and by the fact that the Canadian Parliament apparently regards other values like protecting racial, religious and other minorities from being offended as more important than free speech.  Hence it has enacted the Human Rights Act (roughly equivalent in its scope and objects to Australian states’ anti-discrimination laws and the federal Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act) under which Steyn is being prosecuted. 

The Canadian Charter rights (including free speech) are expressly qualified by Article 1 in a manner which to a significant extent limits their effectiveness as restraints on the legislature.  Article 1 provides that the Charter ”guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

That seemingly innocent qualifier has been interpreted by the Canadian courts and Human Rights Commission in a manner which makes its constitutional guarantee of free speech almost meaningless, or at least subordinate to a very wide range of other collective rights and interests:

Although freedom of expression is an important fundamental value, we in Canada value just as much the equality rights of all individuals. Equality means a respect for the inherent dignity of all human beings whatever their colour, race, language, sex or religion. Freedom to express one’s idea ceases to be freedom of expression or opinion when it is used to stand in the way of the promotion of equality. Freedom of expression ceases to be a fundamental characteristic of democratic values when it becomes a vehicle for the promotion of hate. (See Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 155, at para. 60)

As a result the Canadian Charter is effectively useless in protecting free speech where that speech sufficiently offends someone because of their colour, race, language, sex or religion!

By contrast, the US Constitution’s First Amendment guarantee of freedom of speech is expressed in unqualified terms and has long been interpreted not to permit any law which abridges free speech unless it is appropriate and adapted (to use the Australian expression) to regulating lewd and obscene language or images, profanity, libel and insulting language only when it amounts to “fighting” words i.e. language likely to provoke immediate violence/serious breach of the peace.  Consequently a ”hate speech” law not dissimilar to the provisions under which Steyn is being pursued was held to be unconstitutional in R.A.V. v. City of St. Paul in 1992. 

However, Australia doesn’t have a bill of rights at all*, neither a strong US-style one nor a weaker (in free speech terms anyway) Canadian one. Consequently there is no constitutional impediment whatever to Australian parliaments enacting laws like the Canadian Human Rights Act under which Mark Steyn is being pursued (subject to the qualification explained below). Indeed, as I observed earlier, there are close parallels between the Steyn proceedings and the Catch the Fire Ministries case in Victoria.

The entire premise of Jack the Insider’s article is therefore fundamentally misconceived. The Steyn case is not the result of Canada having a bill of rights, if anything it’s a result of its having a form of bill that is too weak to provide the effective protection of free speech that its US counterpart does. The Steyn case doesn’t provide a lesson for Australia about what can happen if a country has a bill of rights (as Jack believes), because Steyn-type prosecutions can happen and already have happened in Australia. If anything, the lesson we can draw from the Steyn case is that Australia needs a strong US-style guarantee of freedom of speech rather than a Canadian-style one with weasel words that subordinate free speech to other and potentially freedom-denying values.  It’s more than a bit of a worry when the only discussion in the Australian media of an important legal matter like the Steyn case is the sort of ignorant, incoherent garbage spewed out by Jack the Insider.

*PS Just a quick qualifier. Australia does in fact have a limited implied constitutional freedom of political speech, and several Justices in the recent (2004) decision in Coleman v Power  (namely Justices Gummow, Hayne and Kirby) appeared to favour a strong US-style interpretation whereby a law which incidentally burdened free political communication would only be valid if appropriate and adapted to preventing a real and immediate threat of breach of the peace.  For example, Kirby J said:

It follows that s 7(1)(d) can, and should be, construed so that it conforms to the Lange test as reformulated in this appeal. As so construed, “insulting” words in the context of the Act are those that go beyond words merely causing affront or hurt to personal feelings. They refer to words of an aggravated quality apt to a statute of the present type, to a requirement that the insulting words be expressed “to” the person insulted, and to a legislative setting concerned with public order. They are words intended, or reasonably likely, to provoke unlawful physical retaliation. They are words prone to arouse a physical response, or a risk thereof. They are not words uttered in the course of communication about governmental or political matters, however emotional, upsetting or affronting those words might be when used in such a context.

In such communication, unless the words rise to the level of provoking or arousing physical retaliation or the risk of such (and then invite the application of the second limb of the Lange test) a measure of robust, ardent language and “insult” must be tolerated by the recipient. In Australia, it must be borne for the greater good of free political communication in the representative democracy established by the Constitution.

If that reasoning achieves majority High Court support, and if Steyn’s words were held to be concerning political rather than just religious matters (as I think they are at least in part), then it may well be that Australia’s constitutional system would already prevent a Steyn-type case in this country ¹1. KP: although I note that the Victorian Court of Appeal didn’t think much of a similar argument in Catch the Fire Ministries - I think they’re wrong [↩].  But if that is so, it’s because we already have limited US-style constitutional bill of rights protections. 

Update - Legal Eagle also has an excellent post on the Steyn case, with some useful quotes from the Victorian Court of Appeal’s decision in Catch the Fire Ministries.

As Dave writes:

Wonkers-in-residence might disagree with what you say to government, and not only defend your right to say it, but encourage you to say it.

Posts and comments (apart from the occasional editorial like this one) will usually cover one or more of the following items…

• Notices of government (and departmental inquiries);
• Preliminary musings of Wonkers-in-residence while preparing their own submissions;
• Notice and/or review of particularly interesting submissions as they are made available on government websites
• Reviews of parliamentary (majority and minority) reports once the inquiry has finished, particularly if there is a gross mismatch between the submissions and the report.

Dave is also using the site as a jumping off point for his polite crusade to get governments around Australia to provide RSS feeds for important streams of documents, such as press releases, reports, notices, announcements and the like.

Nominally I am one of the Wonks-in-Residence, but at the moment it’s mostly Dave’s prodigious output that makes it go. We are keen to get a few more Wonks-in-Residence, so if you believe in having input into policy, do drop by.

I’ve been puzzling about international humanitarian interventions lately, in part because my daughter Bec is in the middle of a uni assignment on the subject, but mostly because as I write this Robert Mugabe continues to terrorise and impoverish his own people in Zimbabwe while the equally odious military junta in Burma sits on its collective hands while its people starve and die of rampant but readily preventable diseases in the wake of Cyclone Nargis.  

Why can’t someone intervene and prevent these appalling tragedies happening before our eyes on TV?  The answer is fairly clear: the modern international law embodiment in UN treaties of the pragmatic notion of national sovereignty enshrined in the Peace of Westphalia 1648 together with a lack of any sufficient immediate self-interest in intervening on the part of any capable nation or group of nations.

The Just War doctrine might already provide international legalistic cover for a humanitarian intervention in Burma, and might well do so in Zimbabwe too in due course.  Once the Presidential election run-off occurs and Mugabe intimdates his way back into the Presidency the situation there will demonstrably be one of last resort (one of the necessary elements for Just War that certainly wasn’t present in the case of Bush’s Iraq intervention, even if we generously assume that it could properly be labelled “humanitarian” in the first place).  However, the Just War doctrine contains a Catch 22 at its core.  A war or humanitarian intervention imposed by coercion can only satisfy the Just War doctrine if it flows from a “right intention”:

Force may be used only in a truly just cause and solely for that purpose—correcting a suffered wrong is considered a right intention, while material gain or maintaining economies is not.

However, given the range of costs involved in any such intervention it’s highly unlikely that any nation would ever intervene to mitigate even the worst humanitarian tragedies (like those occurring in Zimbabwe and Burma at present) unless the action coincided at least to some extent with its own national self-interest.  But that would instantly negate reliance on the Just War doctrine.  The only humanitarian intervention I can think of in modern times (other than a UN-approved one) that could arguably be said to conform to the Just War doctrine was that of the NATO countries in Bosnia and then Kosovo in the 1990s, in the face of intractable and disgraceful UN inertia.

Of course, humanitarian intervention approved by the UN would successfully sidestep any such conundrum about international legality.  However, UN approval for intervention in the absence of at least grudging consent by the incumbent regime in the target country (e.g. Sudan in relation to Darfur) is highly unlikely, almost however odious and democratically illegitimate that regime may happen to be.  Tribal autocracies and mafia-like kleptocracies are a significant UN voting bloc, and when you add the votes of less toxic regimes of smaller countries which understandably suspect the motives of the West given its past record of cynical and self-interested behaviour towards weaker nations, and veto-wielding emergent superpowers Russia and China who resent the bullying imperialist pretensions of the US and its close allies, the prospects of ever achieving a Security Council resolution authorising any humanitarian intervention to which the incumbent regime doesn’t agree are very remote. 

For a while it looked like NATO might develop into something resembling a legitimising multi-national grouping that might have had both the will and military and economic strength to undertake humanitarian interventions.  However its unity was spectacularly fractured by the events leading up to Bush’s Iraq invasion.  Moreover, with the benefit of hindsight it was always inevitable that the diverse interests of its member nations would eventually cause a rift once the unifying impetus of the Communist threat was removed.

Similarly, both the willpower and any perceived international legitimacy that the “anglosphere” might once have possessed as a vehicle for humanitarian interventions was smashed by the duplicity and cavalier recklessness of the Bush/Blair/Howard Iraq intervention.

Is there any answer that could feasibly facilitate urgent humanitarian interventions in situations like the current crises in Zimbabwe and Burma?  In the short term I can’t think of one, except perhaps the possibility of a NATO rapprochement between Europe and the US if Obama is elected President.  However an old post I wrote way back in 2004 while reflecting on the aftermath of the Iraq intervention at least contains some relevant thoughts.  I’ve recycled an extract over the fold:

Not before time, the zeitgeist has begun generating discussion about the future role of the United Nations, notions of national sovereignty on which the existing international order is based, and principles that might underpin future humanitarian interventions that challenge existing ideas of sovereignty. Events in Cambodia, Rwanda, Bosnia, Kosovo, East Timor and Iraq have finally caused at least some people to begin reflecting on fundamental underlying issues of principle.

Of course, much of the blogosophere discussion has been a tad superficial. For example, Hugh White opined in the SMH a couple of days ago that the solution to seemingly intractable US problems in Iraq is to cede control to the UN:

The solution: Iraq needs the power of the US and the credibility of the UN. The US must sustain its huge commitment of resources to Iraq, but put the UN unambiguously in charge of the whole operation.

Tim Blair immediately returned fire with a predictable response:

Not mentioned at all by White is a certain $10 BILLION OIL-FOR-FOOD SCANDAL. Presumably the Australian Strategic Policy Institute doesn’t take into account such trifles when determining an organisation’s credibility.

Tim might also have mentioned the UN’s fairly patchy record in administering peacekeeping efforts. It didn’t do too bad a job in East Timor and Cambodia, but Rwanda and Bosnia were both disgraceful fiascoes, and numerous other interventions have been dubious successes at best.

The existence of UN Security Council vetoes for the five permanent members, and the preponderance of undemocratic third world regimes in the General Assembly, all mostly pursuing the narrow self-interest of their ruling cliques most of the time, makes the UN a very imperfect vehicle (at best) for fostering international peace, security and effective protection of human rights.

On the other hand, what reasonable alternative is there than some sort of authoritative internationally-sanctioned basis for humanitarian (pre-emptive defensive) intervention? I don’t accept the standard leftie view of America as the Great Satan whose every action is to be conclusively assumed to be evil. Let’s put aside for a moment the dubious motivations of the neo-cons in the Bush Administration; the dodgy intelligence assessments; the apparent determination of Bush himself to invade Iraq irrespective of WOMD considerations or any connection between Iraq and September 11; the muddled progress towards reconstruction; and the appalling treatment of Iraqi prisoners. Let’s assume that US intentions were predominantly benign. Even if that was true, you can’t seriously deny the general proposition that the US (like any other nation) is prone to hubris, arrogance and incompetence, or that its perceived self-interest often won’t coincide with the interests of others (or the world as a whole, to the extent that’s a meaningful concept).

At the end of the day, abandoning attempts to develop the UN (or some other broad multi-lateral mechanism) as a viable source of international authority, and happily embracing the notion of the US as a trustworthy benevolent world governor, is stupid and short-sighted. It’s simply an aspect of Lord Acton’s old dictum that “Power tends to corrupt, and absolute power corrupts absolutely“. That insight (or rather John Locke’s earlier version of it) formed the basis of the doctrine of separation of powers that underlies the US Constitution, and it’s no less necessary internationally in a 21st century world where the US is arguably the only nation possessing the military and economic muscle to impose its will on other nations. Unless appropriate checks and balances are constructed, we’ll inevitably end up with a malign despotism.

Courting Disaster is a blog I’ve only recently discovered. It’s apparently written by a young Australian lawyer currently undertaking post-graduate studies at Cambridge. He posted a fascinating item yesterday about international law:

You cannot have a society without it beginning to generate law, and you cannot have law without a society. International law, the law of the international community, is the law of a society that refuses to see itself as a community.

It is a society that admits its interdependence, but refuses to admit it has any social contract, that in fact sees “social contract” as an oxymoron. It will accept social but unenforceable aspirations (the Universal Declaration of Human Rights) or contractual relations (WTO trade regimes) but remains wedded to the supposedly total freedom of “state sovereignty”.

It’s a society that refuses to see itself (despite the UN Charter) as having a constitution or separation of powers (the International Court of Justice having basically held that it cannot review decisions of the Security Council to establish whether or not they are legal.)

Here’s a simple, old idea. A true society aims at the good of all its members (Aristotle). If all states really were equal in resources, state sovereignty might be an efficient way of aiming at the common good: states are manageable units that might sensibly look after their local people. Letting such equals contract among each other might bring about a civilised and balanced world.

However, to treat as equal that which is not is a form of injustice. As states are not equal, state sovereignty (as a theory upon which to base a society), therefore, promotes injustice.

The only just form of international society would have to start from the premise of a universal society of mankind, and assume that the underlying principles of international law were its unwritten constitution. (To some extent Kant’s cosmopolitanism might back this, but you really need to look to early international lawyers like Suarez and Wolff.)

On such a view, states would be holding delegated power from universal society to govern individual countries on trust for all mankind.

If people actually believed this, it would be an interesting world.

Courting Disaster focuses on what I see as a critical aspect of the current dilemma facing international law, at least in its peacekeeping/creation and humanitarian aspects: namely the (arguable) impossibility of a just international order that’s centrally based on the primacy of national sovereignty, and which always subordinates humanitarian principles to sovereignty.

Afterthought - It’s potentially instructive to list and rate humanitarian interventions of recent years.

Successful - Bosnia, Kosovo

Qualified success - Cambodia, East Timor

Failure - Iraq, Somalia, Rwanda

Jury still out - Darfur (early stages)

Both unqualified successes were non UN-sanctioned NATO efforts, both qualified successes were UN multilateral interventions, and 2 of the 3 abject failures were also UN-sanctioned. The interventions in Bosnia, Cambodia, East Timor, Rwanda and Darfur occurred after at least grudging consent from their respective governments of the day, while those in Kosovo and Iraq didn’t, and Somalia didn’t actually have a government in any meaningful sense.  It would be interesting to attempt an analysis of the factors pointing to success or failure from these various experiences, but that’s a subject for the future.

I was more than a little surprised when what I thought was a reasonably uncontroversial item in yesterday’s Missing Link elicited a heated response from frequent Troppo commenter and erudite legal eagle Patrick Fitzgerald.  The item concerned arch-conservative US Supreme Court Justice Antonin Scalia, high priest of “originalism” in constitutional interpretation and a seemingly enthusiastic Dershowitz-style supporter of the virtues of torture as an instrument of US policy.   Here’s the item that drew Patrick’s restrained ire:

For those (like me - KP) who once marvelled at the occasionally bizarre logic of (now retired) arch-conservative High Court Justice Ian Callinan, this note from Hilzoy may give you cause to see him as a veritable beacon of Enlightenment Rationalism by comparison with US Supreme Court Justice Antonin Scalia.

Hilzoy’s post commented on a press interview Justice Scalia recently gave where he commented on torture in apparently approving terms.  However, Patrick asserted, Scalia was merely explaining uncontroversial “settled law” that torture for purposes of interrogation (as opposed to as part of a sentence imposed after a finding of criminal guilt) could not be “cruel and unusual punishment” for the purpose of the Eighth Amendment to the US Constitution.

It was news to me but, not claiming an encyclopedic knowledge of American constitutional law, I thought I’d better check before responding.  In fact, as far as I can see there has never been a US Supreme Court decision holding that torture of a suspect during interrogation cannot be “cruel and unusual punishment” for constitutional purposes.  The closest precedent is a 1976 5/4 majority decision in Ingraham v Wright, which held that corporal punishment administered to school students could not be “cruel and unusual punishment”.  Quite a long way from torture of terrorism suspects in lawful US custody one might think, and on the face of it readily distinguishable if a subsequent Supreme Court bench was so minded.

Nevertheless, at least the wide (and fairly widely accepted) version of the majority ratio decidendi  provides support for Patrick’s position:

[T]he Court explained that the cruel and unusual punishments clause ”circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.”

However, the 4 Minority Justices noted that this was inconsistent with a series of earlier Supreme Court decisions holding that conduct associated with the criminal justice system but not itself constituting the sentence (or formally imposed “punishment”) could nevertheless be ”cruel and unusual punishment” for constitutional purposes:

In Estelle v. Gamble, 429 U.S. 97 (1976), a case decided this Term, the Court held that “deliberate indifference to the medical needs of prisoners” by prison officials constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Such deliberate indifference to a prisoner’s medical needs clearly is not punishment inflicted for the commission of a crime; it is merely misconduct by a prison official. Similarly, the Eighth Circuit has held that whipping a prisoner with a strap in order to maintain discipline is prohibited by the Eighth Amendment. Jackson v. Bishop, 404 F.2d 571 (1968) (Blackmun, J.). See also Knecht v. Gillman, 488 F.2d 1136, 1139-1140 (CA8 1973) (injection of vomit-inducing drugs as part of aversion therapy held to be cruel and unusual); Vann v. Scott, 467 F.2d 1235, 1241241 (CA7 1972) (Stevens, J.) (Eighth Amendment protects runaway children against cruel and inhumane treatment, regardless of whether such treatment is labeled “rehabilitation” or “punishment”).

Despite the apparent breadth of expression of the majority’s ratio, and although I would certainly advise any client that the Ingraham majority position would more than likely be upheld at least by the current conservative SCOTUS majority, there is clearly scope for a future ruling that torture for purposes of interrogation is “cruel and unusual punishment” even if corporal punishment at school isn’t.  As the 4 minority Justices in Ingraham argued:

The Eighth Amendment places a flat prohibition against the infliction of “cruel and unusual punishments.” This reflects a societal judgment that there are some punishments that are so barbaric and inhumane that we will not permit them to be imposed on anyone, no matter how opprobrious the offense. See Robinson v. California, 370 U.S. 660, 676 (1962) (Douglas, J., concurring). If there are some punishments that are so barbaric that they may not be imposed for the commission of crimes, designated by our social system as the most thoroughly reprehensible acts an individual can commit, then, a fortiori, similar punishments may not be imposed on persons for less culpable acts, such as breaches of school discipline. Thus, if it is constitutionally impermissible to cut off someone’s ear for the commission of murder, it must be unconstitutional to cut off a child’s ear for being late to class. Although there were no ears cut off in this case, the record reveals beatings so severe that, if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster.

Nevertheless, the majority holds that the Eighth Amendment “was designed to protect [only] those convicted of crimes,” ante at 664, relying on a vague and inconclusive recitation of the history of the Amendment. Yet the constitutional prohibition is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution. Certainly, the fact that the Framers did not choose to insert the word “criminal” into the language of the Eighth Amendment is strong evidence that the Amendment was designed to prohibit all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed.

No one can deny that spanking of school children is “punishment” under any reasonable reading of the word, for the similarities between spanking in public schools and other forms of punishment are too obvious to ignore. Like other forms of punishment, spanking of school children involves an institutionalized response to the violation of some official rule or regulation proscribing certain conduct and is imposed for the purpose of rehabilitating the offender, deterring the offender and others like him from committing the violation in the future, and inflicting some measure of social retribution for the harm that has been done.

A fortiori with interrogatory torture. Torture bears both punitive and interrogatory facets.  Prisoners are tortured not only to extract information or a confession (in fact it’s a notoriously unreliable method of doing so) but as a punishment for refusing to answer previous questions.  Moreover, torture is much more intimately bound up with the criminal justice process than is corporal punishment of school children. Almost by definition a victim of torture by US authorities will be in lawful custody under suspicion of commission of a crime. There is no less reason to extend the protection of the Eighth Amendment to cover pre-conviction torture during interrogation than there is to extend it to post-conviction “deliberate indifference to the medical needs of prisoners” by prison officials.

Moreover, not only is the Ingraham majority’s textual support for its claim that “punishment” encompasses only the elements of criminal sentencing rather weak (as the minority noted, the Eighth Amendment does not qualify “punishment” by “criminal”), but the historical evidence for such a restricted meaning, so supposedly sacred to the “originalist” Scalia, also appears distinctly dubious  As the minority Justices note, the majority rely on ”a vague and inconclusive recitation of the history of the Amendment”.  They assert that the Eighth Amendment was copied from the UK Bill of Rights 1689 (as it clearly was), that the British only intended to cover judicially imposed criminal punishments and that therefore the US provision should be regarded as having a similarly limited meaning.  While two modern historians are cited as authority for this proposition, the historical events mentioned as justification for the majority view are highly selective. 

As “Gummo Trotsky” noted in a comment in response to Patrick, Justice Scalia’s “originalism” is an extremely artificial species of constructivism, buttressing the subjective preferences of judges with selective appeals to history designed to give them a spurious aura of unchallengeability.  The Ingraham majority’s recitation of relevant historical events makes no mention, for example, of the fact that a central concern of the drafters of the Bill of Rights 1689 was the danger of nefarious acts by “Popish princes”. Freedom of religious worship (at least for Protestants) was a primary motivation.  Moreover, the British in 1689 remained obsessed by the (somewhat exaggerated) horrors of the Spanish Inquisition and its torture of Protestants: 

In order to interrogate the accused, the Inquisition made use of torture, but not in a systematic way. It was applied mainly against those suspected of Judaism and Protestantism, beginning in the 16th century. For example, Lea estimates that between 1575 and 1610 the court of Toledo tortured approximately a third of those processed for heresy. In other periods, the proportions varied remarkably. Torture was always a means to obtain the confession of the accused, not a punishment itself. It was applied without distinction of sex or age, including children and the aged.

The methods of torture most used by the Inquisition were garrucha, toca and the potro. The application of the garrucha, also known as the strappado, consisted of suspending the criminal from the ceiling by a pulley with weights tied to the ankles, with a series of lifts and drops, during which arms and legs suffered violent pulls and were sometimes dislocated. The toca, also called tortura del agua, consisted of introducing a cloth into the mouth of the victim, and forcing them to ingest water spilled from a jar so that they had impression of drowning (see: waterboarding).

Given that the Bill of Rights 1689 was a product of the fears and concerns of 16th century Protestants, it isn’t entirely implausible that their fears about an imagined Catholic propensity towards torture might have at least partly informed the deliberately vague reference to “cruel and unusual punishment”.

No-one can really be certain in the absence of clear explanations from those who actually wrote and enacted the Bill.  And that’s almost always the problem with constitutional “originalism”.  Although it is certainly an influential approach to constitutional interpretation, especially under Scalia’s patronage, it is also frequently a dubiously reliable guide to meaning.  Indeed the most influential approach to interpretation generally has been legal realism:

Those who are realists about law, and more particularly, courts, think that the kinds of “legal reasons”–appeals to doctrine, precedent, statutory text, and the reasoning by analogy, by which courts bring the doctrine etc. in to contact with the facts of a case–that judges offer in their opinions largely obscure the actual grounds of decision. Legal reasons don’t really explain the decisions; legal reasons are often indeterminate, and equally good legal arguments can be given for very different outcomes. What really explains the decision is the judge’s commitment to non-legal norms (moral, political, economic).

My colleague Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: “Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice.” (For a detailed case in support of this view, see his book on The Warren Court and American Politics [Harvard University Press, 2000].) Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.

As a recently professed enthusiast for the virtues of officially sanctioned torture in interrogation, it is difficult to believe that Scalia’s political and ethical views do not strongly colour his assertions about the scope of ”cruel and unusual punishment”.  Justice Scalia is a clever judicial bully who does not merit Patrick’s deference.   

Previous tatooed breasts scales of justice deep-sixed to avoid bad taste distraction from a post intended to provoke serious discussion …

John Greenfield is a conservative blog commenter who occasionally fulfils a useful function, rather like a canary in a coal mine.  He can always be counted on to trot out a stereotypical Tory response to any issue, but sometimes that reveals basic misunderstandings which might well be shared by other more sophisticated conservatives not so impervious to rational arguments.  So it was with John’s comment about my previous post on charters of rights:

None of the statists has been able to argue why we need a Bill of Rights. I am sorry, but the argument “everyone else has got one” doesn’t wash.

In fact (and leaving aside the fact that I was talking about a legislated charter of rights not a constitutionally entrenched Bill of Rights, a distinction that seemed completely to escape John), the purpose and effect of a charter of rights is almost the exact antithesis of John’s assumption.  it is an “anti-statist” measure designed to limit excessive power of the political arms of government, albeit preserving parliament’s sovereign power to legislate to remove, suspend or limit rights in a democratically acccountable manner whenever governing politicians wish to do so and think they can make a sufficiently persuasive case of necessity to the voting public to avoid being kicked out at the next election. Most libertarians are strong advocates of bills or charters of rights precisely because they limit excessive governmental power and enhance individual freedoms.

The kneejerk opposition to a charter of rights by many conservatively-minded Australians evinces historical and constitutional “deafness”.  The entire edifice of liberal democratic constitutionalism which Australia’s system of governance exemplifies is premised on the need for multiple checks and balances on excessive power.  The principle dates back at least to the 17th century when the British discovered the hard way that anyone with excessive and unchecked power was apt eventually to use it as an instrument of oppression and unfreedom. 

Hence Lord Acton’s dictum “power corrupts …” and John Locke’s 1689 Treatises of Government which elucidated a system of checks and balances, including rudimentary rights protections, later developed by Montesquieu and adopted by the French and American constitutions and subsequently emulated by almost every country in the world including Australia.    Locke was directly influenced by his immediate experience of the oppression of the Stuart kings, civil war, revolution and regicide, republic and Cromwell Lord Protector, Restoration and Glorious Revolution; experiences which taught the indelible lesson that checks and balances are essential to “keep the bastards honest” and that anyone becomes a bastard if given unchecked power.

America and European-influenced constitutional systems thereafter tended to rely on checks and balances provided by a strong separation of powers between legislature, executive and judiciary; (usually) a bicameral parliament; independent judiciary; (sometimes) federal division of power; and a bill of rights enshrining basic individual freedoms.

Britain relied on checks and balances provided by a bicameral parliament; limited constitutional monarchy; executive government responsible to parliament and people via the notion of responsible government; an independent judiciary; and strong common law tradition.

Australia’s Founding Fathers equally believed in checks and balances to protect freedom, but opted for a hybrid mix of American and British-style measures.  Some limited human rights provisions were even enshrined in our Constitution, and the High Court has identified a few others that are necessarily implicit in that system.  However, an 1897-8 Constitutional Convention motion engineered by principal Founding Father Andrew Inglis Clark (who drafted around 80% of the text of the Constitution), and proposing an American-style guarantee of equal protection and due process modelled on the 14th Amendment to the US Constitution, failed by just 23 votes to 19.  Delegates’ reasons appear to have been diverse, but prominently included the perception that basic human rights freedoms would be adequately protected by the accountability of the executive government to parliament under the British doctrine of responsible government, and an unblushing concern that such guarantees would inhibit their own freedom to discriminate against Chinese and Pacific islander residents. 

If we extend our historical gaze through to the present, we see that Britain eventually adopted a charter of rights itself in 1998, partly as an incident of EU membership but also because increasing centralisation of executive power and the progressive reduction in the role of the House of Lords as a check on excessive power made it apparent to many that additional safeguards of basic human rights were needed.

In Australia, we didn’t adopt either a full separation between legislature and executive government or a comprehensive bill of rights.  Moreover, the evolution of our political culture into a system involving rigid and punitive party discipline has meant that the Founding Fathers’ idealistic conception of parliament acting as an effective check on executive power through Ministers being members of it has proven to be an absurd fantasy.  The political executive rules parliament with an iron fist, ensuring a Hobbesian nasty, brutish and short political career for any backbencher who doesn’t toe the line. 

As a result, the political executive government in Australia enjoys unchecked power to an extent unknown in any similar western country including the US and UK.  All of them have some form of bill of rights, and all have functioning systems involving either much more complete separation of executive and legislative powers than us or real responsible government.  In Britain, for example, MPs are free to vote as they wish in parliament without sanction except in the case of a three line whip.

In Australia, by contrast, federalism is almost moribund, party discipline is getting more and more rigid, the powers of political leaders more and more presidential, and their ability to manipulate a mainstream media sector with greater concentration of ownership than just about any comparable nation has been enhanced through increasingly sophisticated spin/media management strategies.

Despite all these factors, I was a moderate bill of rights sceptic until fairly recently.  But the Howard government’s recent Senate majority and its persistently high-handed abuses of power, especially in areas like treatment of asylum seekers and anti-terrorism measures, caused me to re-evaluate.  A recent paper by retired High Court Justice Michael McHugh makes the case in relation to abuses of human rights far more eloquently than I could.  The bastards just aren’t being kept even modestly honest by our current system, and you’d be naive to imagine that Kevin Rudd will be much better in the long run.  Best to grasp the opportunity of a national charter of rights when it’s seemingly on offer early in the reign of a new government while a few of their ideals remain intact. 

I would tend to be fairly conservative in the range of rights and freedoms I would like to see protected, but I’m pretty relaxed about the range of rights covered by the Victorian Charter of Human Rights and Responsibilities Act 2006, with the notable exception of the guarantee of  ”cultural rights” which I oppose for the sorts of reasons canvassed by various people in the comments thread to my previous post. 

Moreover, I agree with many of Graham Young’s sentiments: 

There is a false dichotomy in the general bill of rights debate which is that you have a choice to have a bill or not. You don’t. The choice is whether you have major and minor rights sprinkled around a galaxy of legislation, or whether you collect the most important of them into one piece of legislation and decide the relationship between them, as in which rights are more fundamental than others. A further choice is whether you imbed that document in the constitution, where it can only be changed by a referendum supported by a majority of voters in a majority of states, or in legislation, which can be changed by a simple majority in parliament.

The idea that you can keep laws away from judges is bizarre.

My one quibble with Graham lies in his assertion that charters of rights themselves can feasibly “decide the relationship between them, as in which rights are more fundamental than others”.  Very few charters attempt to do this, certainly neither existing state/territory Australian model does so nor does the UK Human Rights Act 1998.  It’s hard to see how any charter or bill could itself workably enshrine any broad-ranging prioritisation of basic rights and freedoms where they come into conflict (as rights and freedoms often do).  Which protected basic right or freedom should prevail is unavoidably contingent on the particular fact situation in which the conflict arises, and is therefore incapable of being usefully reduced to a statutory formula.

Moreover, I even have doubts whether a court of law is the best place to have conflicts between basic rights and freedoms determined, at least in the first instance.  Such disputes are ones about which reasonable minds can and very frequently do differ.  Moreover, satisfactory resolution may depend on application of a range of professional skills, knowledge and wisdom that judges often don’t possess.  I think we should consider adopting a federal charter of rights that vests first instance basic rights determinations in some independent quasi-judicial tribunal  like the Administrative Appeals Tribunal, which would have its membership suitably augmented by lay members who might be economists, ethicists, psychologists, philosophers or other experts appropriate to resolution of conflicts between the particular basic rights in question in each case.

Incidentally, that would also resolve concerns recently expressed by former High Court Chief Justice Sir Gerard Brennan as to whether there might potentially be a breach of the separation of judicial powers doctrine involved in the power in the Victorian Charter to issue a declaration of inconsistent interpretation where the court deems a law to be unavoidably incompatible with Charter basic rights (albeit that, like Charter architect George Williams, I doubt that this provision breaches separation of powers in any event).

There are lots of issues to be considered before adopting a charter of rights, moreover they’re critically democratically important issues mostly not susceptible to TV soundbites or tabloid newspaper sensationalism.  That’s why I’m laying them out here.  A blog like Troppo is potentially a very effective vehicle for teasing out, arguing and testing questions like this.  

Update - Also see this article by Andrew Lynch.

Albrechtsen claims that a legislative (i.e. not constitutionally entrenched) charter of rights would be a “post-democratic model” which would “vest power to decide major social issues in an unelected group of guardians of the greater good: the judiciary”.

However, Albrechtsen’s claim is hyperbolic to the point of being almost totally fictional.  The very purpose of a legislative charter of rights is to ensure that Parliament remains responsible for law-making and that the courts are not empowered to override the clearly expressed will of Parliament. As with any other legislation, a law enacted after the charter of rights will always prevail provided that it unequivocally expresses an intention to abrogate any of the rights enshrined in the charter. It’s hardly revolutionary to insist that parliaments should be required to express themselves unambiguously if they wish to remove fundamental rights and freedoms; indeed far from being “post-democratic” this concept is a basic aspect of democratic accountability. 

Moreover, it has been the prevailing approach to interpreting statutes since at least shortly after Federation.   In Potter v Minahan in 1907 the High Court observed that it was “in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used”. 

More recently, in Coco v The Queen in 1994 the Court explained that “curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights”.

However, Albrechtsen echoes American UQ academic James Allan in claiming that the Victorian charter’s provisions for “reading down” statutes to conform with charter rights and freedoms is a radical and dangerous extension of this longstanding principle of statutory interpetation.  Allan refers to a couple of fairly “fast and loose” reading down exercises by the UK House of Lords in exercise of that country’s somewhat similar “reading down” provision in its Human Rights Act 1998 which “enabled a court to depart from the unambiguous meaning that a piece of legislation would otherwise bear”.

However, the Victorian Charter was drafted with the British experience in mind, and contains words directed at ensuring that no such result can occur here.  The UK provision reads:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.

The Victorian provision (section 32(1)) reads:

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

The words in bold explicitly reproduce the obligation imposed on courts by the federal Acts Interpretation Act (and similar provisions in all states and territories) requiring judges always to ascertain and give effect to Parliament’s purpose when interpreting legislation.  Thus, and in contrast to the UK provision, the Victorian charter is at most a modest incremental enhancement of human rights protection, adding not much to the long-accepted interpretive practices enunciated in cases like Potter v Minahan and Coco v The Queen.  

Moreover, should some future Mason-style activist High Court bench nevertheless take indecent liberties with these provisions, it would always be open to Parliament to tighten them still further.  Parliament remains the definitive creator of legal rights and duties under a Victorian-style charter of rights system.  The charter is in no sense constitutionally entrenched and can be amended by Parliament just like any other law.

Despite that, Albrechtsen (again echoing James Allan) seeks to obscure that fact by claiming that another mechanism from the Victorian charter, the declaration of inconsistent interpretation, would in some dastardly manner rob Parliament of its will to disagree with the courts:

Relax, say the charter advocates.  A charter of rights is a tame little law, a modest one which will not transfer power from the people. Just look at Britain, they say. Britain has a special provision in its Human Rights Act to ensure parliament is not stripped of power: that there is simply a “dialogue” between the judiciary and parliament. Courts in Britain can only issue a declaration of incompatibility, telling government that a law offends their Human Rights Act. On paper, that’s right. Governments can ignore the courts. However, the political reality is different.

Only a brave government will ignore a declaration of inconsistency from a court. 

But even if it was true that Parliament would seldom simply express disagreement with a court’s declaration of inconsistency, does that mean that Parliament is demonstrating a lack of intestinal fortitude and surrendering to the “imperialist judges”?  Might it not be rather that the system would be working exactly as intended, with Parliament and judiciary effectively engaging in constructive dialogue to find ways of achieving legislative objectives without infringing fundamental human rights any more than absolutely necessary?

In fact we don’t need to look very far to find out how Britain’s analogous mechanism for a judicial “declaration of incompatibility” has been functioning.  As its Parliamentary Joint Committee on Human Rights reports:

The Ministry of Justice reports that between the Human Rights Act coming into force on 2 October 2000 and 23 May 2007 a total of 24 declarations of incompatibility have been made by domestic courts under the Human Rights Act. Of these, 6 were overturned on appeal; 1 remains subject to appeal; 10 have been addressed by new primary legislation; 1 is being addressed by a Bill currently before Parliament; 1 was addressed by remedial order; leaving a total of 5 in which the Government is considering how to remedy the incompatibility.

In other words, there have only been just over 2 unreversed declarations for each year the UK charter has been in operation, and in most of those cases Parliament has proceeded to re-legislate to achieve its objectives in a non-rights infringing manner.  Frightening takeover by an “imperialist judiciary”? Hardly. 

There are arguments both for and against a charter of rights, and we certainly need to have a proper public debate before embracing such a model.  However, Albrechtsen’s straw man hyperbolic nonsense makes little useful contribution to such a debate.  Incidentally, my own view is that a charter would be neither a frightening imposition of an imperialist judiciary nor a magical solution to human rights protection.  At most it would simply provide an additional fairly modest check and balance against overweening political power, an objective entirely consistent with ordinary notions of liberal democratic constitutionalism.  The fact that people like Albrechtsen regard it as radical and anti-democratic says more about them than it does about a charter of rights. 

But to be convincing I think those propositions need to be argued with closely analysed examples. I don’t think Berg’s paper succeeds in doing that.

And while Chris Berg is noticing the downsides of regulation in the lucky country, James “wisdom of crowds” Surowiecki writes that things aren’t so good in the stroppy country either. (I’m talking about the US here where Hillary has just said that the US should leave no option off the table in dealing with Iran and that it could obliterate it if it nuked Israel. I guess she’s just trying to be firm and frank here. One has to do that with these kind of people.)

[T]he most interesting thing about [Paulson's plan for reregulating financial markets] it is something subtler: a push to move from our current system of regulation—often known as “rules-based”—toward a “principles-based” approach. In a rules-based system, lawmakers and regulators try to prescribe in great detail exactly what companies must and must not do to meet their obligations to shareholders and clients. In principles-based systems, which are more common in the U.K. and elsewhere in Europe, regulators worry less about dotted “i”s and crossed “t”s, and instead evaluate companies’ behavior according to broad principles; the U.K.’s Financial Services Authority has eleven such principles, which are often deliberately vague (“A firm must observe proper standards of market conduct”). This approach gives companies more leeway in dealing with investors and customers—not every company needs to follow the same rules on, say, financial reporting—but it also gives regulators more leeway in judging whether a company is really acting in the best interests of shareholders and consumers.

Surowiecki then goes on to make some interesting comments about how American football is rules based and soccer is more principles based. He is in little doubt that principles based is best. I suspect he’s right. But he doesn’t come to grips with one of principles’ principal problems - firms and particularly directors spend a lot of time trying to figure out what their responsibilities are, because under principle based regulation things are both more uncertain and more fluid - more susceptible to judicially perceived changes in social expectations. How far should Australian directors go to address various expectations for instance? It’s often not very clear.

So I think we’re broadly going in the right direction. But like choosing between different variants of capitalism, it’s difficult to be confident of what’s best.

Today’s Herald reports that the NSW Treasury has done its own estimates of the costs of achieving various targets for carbon emissions.

The NSW Treasurer, Michael Costa, said it would cost $430 billion to reduce greenhouse gas emissions by up to 80 per cent as outlined by Ross Garnaut, and the sharp reductions proposed would impose a substantial cost on the economy. The Rudd Government has consistently said its target for 2050 is 60 per cent. The 80 per cent figure was predicated on other nations making similar cuts. In a hard-hitting speech to a business audience last night, Mr Costa said that based on NSW Treasury modelling, the proposed sharp reduction in greenhouse gas emissions would wipe 4 per cent off the size of the Australian economy over the next 20 years. This is significantly larger than the 1 per cent economic impact signalled by earlier reviews such as that by the British economist Sir Nicholas Stern.

Now, Michael Costa’s is not necessarily the most credible voice in this debate. In the first place, he is notorious as the highest ranking global warming denialist in political power. This is not on the basis of any knowledge of the science, as he candidly admits, but rather on the basis that there are power stations and coal mines in his electorate. Secondly, he intends to privatise the electricity sector and wants the prospective owners to be guaranteed carbon credits, which will raise the sale price in a world where commercial prospects for coal-fired power generation are gloomy. He will do anything or say anything — and it wouldn’t surprise me if he candidly admits this as well, in the Brechtian theatre of NSW politics — to persuade people that the burden of mitigation will be onerous.

But setting this aside, what are we supposed to make of these numbers?

Stern stressed that there was a wide range of estimates from different models of the cost of reducing emissions by 60%-75% by 2050; but the one that got the most publicity was ‘1 percent of GDP by 2050′ This implies a reduction in the annual growth rate by a minuscule 0.025 (one fortieth) of a percentage point over the next 42 years, say from 2.5% to 2.475% as illustrated in the table. But the Herald story refers to ‘the next 20 years’.

Supposing for argument’s sake that the NSW Treasury actually meant 4% (four times higher than Stern’s 1%) by 2050 — the same horizon — rather than 2028, then their estimate would in fact be similar to the one in the report of the Allen Consulting Group, which assumed a reduction in the annual growth rate by 0.01%. (There was some pointless controversy about this chez Quiggin a while ago.) Unlike Stern’s, this was an estimate for Australia specifically, and though the costs were higher than that well-publicised Stern figure, they were still surprisingly modest.

But if they really meant 4% by 2028, that implies a reduction in the average annual growth rate of more like 0.2%. In that case, as the table shows, the cumulative losses would indeed amount to about $430 billion. They would, that is, if the discount rate chosen was 2%, which is definitely on the low side, at least by the standards of Treasury modeling. Of course, the only reason to make this calculation is that it seems like a very big number, and presumably Costa thinks he can scare somebody with it. But unless he does a similar calculation with respect to the cost of global warming under Business as Usual, it’s all pretty meaningless.

Perhaps we’ll eventually find out what the scenarios were. I suspect that the reason Costa didn’t supply any details is that the exercise was pretty unsophisticated. But I always wonder whether journalists reporting this kind of thing have any idea what the numbers in their stories mean, or any expectation that the readers will.

These figures are based on the assumption that current GDP is $1000 billion. The growth rate of 2.5% under Business as Usual is just illustrative, based on the long run average, and ignoring the economic costs of the current emissions trajectory.

As I’ve been thinking about all the exigencies of making ‘continuous improvement’ a feature of our regulatory culture and institutions, I read an intriguing and, in such circumstances inspiring essay by Glyn Davis (pdf), cleverly titled “A city of two tales”. He might equally have called it Two cities of two tales, because the essay is a nice rumination on Canberra and Berkeley - in California.

But the heart of the essay (for me anyway) is Glyn’s stumbling upon a church on a walk around Berkeley with the political scientist Aaron Wildavsky. Wildavsky was an adherent of an approach to political science and policy studies which was built on the American philosophical tradition of pragmatism. I’m more familiar with the work of another in a similar mould - Charles Lindblom - who coined the expression ‘disjointed incrementalism’ to describe how policy was and should be. His point was that a ’synoptic’ vision in which all things were considered was always misguided because it was unaware of its own ignorance.

In the spirit of pragmatism - which has deep roots back to Darwinism (one might call the philosophy of pragmatism ‘Darwin comes to epistemology’) - Lindblom argued that policy should evolve in a self guiding process of doing more of what worked, and trying to correct one’s mistakes. In many ways Popper would agree. So would Herbert Simon.

Of course the tradition that this opposes is positivism (in epistemology), wholesale social engineering in social policy and a good deal of the approach of neoclassical economics and the idea of optimising - as opposed for instance to Lindblom’s idea of muddling through with incrementalism or Simon’s of ’satisficing’.

Be that as it may it turns out that the architect Maybeck came from a similar tradition. His architecture looks lovely, but he’s much less well known than other greats of his time, like Sullivan and Burley Griffin and Frank Lloyd Wright. They were probably greater architects but they also had the luck of pioneering ‘modernism’ which then dominated architecture for generations.

Anyway, as the essay explains, Maybeck entered the competition to design Canberra. And his entry was rather remarkable.

He proposed, in truly pragmatic style, that the new capital be established essentially as a temporary and experimental capital with buildings mocked up from plaster and cement and then rebuilt as the city grew and so people were in a position to figure out what was working, what wasn’t and knew more about what they wanted. Pretty amazing I think.

There was a fair bit of this kind of building going on at the time - for world’s fairs and so on. Maybeck built the temporary Palace of Fine Arts for San Francisco’s Panama Pacific International Exhibition of 1915, but of all the temporary buildings, it’s the only one that remains, now (I think) rebuilt of nicer stuff. An old picture and a newer one follow.

Canberra is on the horizon

Canberra should inherit all the past.

International expositions have been used for commercial developments alone.

They have taught us what is possible in a short time, and have proved a stimulus.

Build a temporary city of cement – staff and wood and not to cost more than
3,000,000 pounds sterling.

Build it in two years fully equipped and ready to use in 1920.

Subjected to the test of use as a model city, its mistakes will soon be found out.

Call it a sketch of a city, any part of which can be replaced by something permanent.

Use it a while.

Traffic lines will define themselves, political and commercial needs will appear in their practical forms. To these the permanent can afterwards be made to minister in the most convenient way.

Knowing that the artists and architects will be needed, the coming generations will produce masters equal to the problem.

The City of Canberra will thus develop rationally and beautifully.

Future generations will not have to pay the penalty of haste and lack of foresight.

So there you have it. At a time when we understand these ideas all too well, at a time when the looseness of the internet’s design means that it is engineering for the happy accidents of the future, we can look back on Maybeck as perhaps ahead of his time.

At a time when Firefox 3 is in its fifth beta, we can appreciate Maybeck’s idea of starting off the nation’s capital with Canberra 0.1. I’m not too sure how well these ideas apply to architecture, and I’m not sorry that the Great Walter Burley Griffin won the comp (only to descend into an all too typical Aussie Schemozzle). But Maybeck’s ideas certainly apply in lots of other areas. When the new tax system was put in place in the year 2000 it was all designed up to be the perfect system. It had a Regulatory Impact Statement that was held up as a model of good regulation.

But no-one road tested the BAS - effectively the software interface between businesses and the government administering the new system. And it turned out to be a nightmare. Complex regulation like that, just like Firefox, can’t be designed without being prototyped and tested. And on release the process of optimisation should just keep on going.

I’ve not said anything about the Summit here mainly because I don’t think there’s much to say about it until we see more of what it does and doesn’t achieve.  And even if it isn’t a great success I can’t see how it will be a big failure.  It’s an experiment for goodness sake, and if it’s not successful that’s not the worst thing in the world. I’m also going to the Summit and so it will be exciting.

But amid all the punditry and second guessing at which the media and the blogosphere is full, most of it missing the mark IMHO, comes this rumination by Margaret Simons on why she turned down a nomination.  I didn’t turn down my nomination but then I’m not a journalist.  But good on your Margaret.  I salute you and your reasons.  And the moderation and thoughtfulness of your views.

McComas then developed this extraordinary talent of inventing and then impersonating fictitious characters.  It would have been so much easier to just repeat characters he’d already invented.  But he ended up creating 1,800 one off characters.

He gave a lot of the money he earned to charity.  He was, according to John Clarke, a person singularly lacking in malice. He always tried to set and rise to new challenges rather than settle for what he could have done easily.  He deserved all the marvellous things that happened to him - except leukaemia which polished him off just five weeks after diagnosis when he was 52.

Short of Nelson Mandela and the seriously morally courageous, I can’t think of a person I admire more. We should celebrate him even more than we do.  I’ve only heard the second half of the show, but the first half which I will listen to soon no doubt has lavish grabs from the Glanville Williams gig.

As Richard Pratt said at his funeral, if it were up to me, I’d give him a state funeral.

I told him that these rewards were not what an economist would call ‘first best’, but that there would often be situations where they were a good deal better than what policy was actually doing. I suspect energy rewards might be more efficient than MRET for instance. But you’d have to do a lot of work to know - or rather to have an educated, rather than a completely wild guess as to the answer. (And there are lots of areas where, at least assuming some judgement and professional general knowledge, a wild guess won’t be that much worse than an educated guess).

I’ve actually thought about such systems for a long time following my own involvement in arguing that export facilitation in cars (according to which automotive exports earn credits to duty free automotive imports) was an excellent way to liberalise trade in automotive products - and a lot better than what was being proposed by the IAC at the time.

At the same time I raised a bunch of the kinds of objections that most economists would point out about such systems. If you want to subsidise energy saving, subsidise it - tying the savings to more expenditure on energy saving equipment is inefficient both because it will lower the subsidy rate to those who don’t want or need any such equipment (they’re just prepared to put more clothes on when it’s cold) and because you can’t say in advance what is energy saving equipment. (Are jumpers energy saving equipment? Is hot water heating for your pool energy saving equipment? Probably but not if you wouldn’t have put in a pool without it, or if you would have swum in the cold.) Not to mention the transactions costs. But that makes three objections and no-one expects the Spanish Inquisition.

I don’t think Kevin has ever really taken these concerns on board. But he thinks he has. And he’s gone from strenght to strength, (or from my minor quibbles to something more major) depending your perspective. He now believes that he can solve the problems of excessive house prices with specially tagged money. He’ll do the same for health and for public transport. I don’t think he’s right and will only participate beyond this point in the discussion tangentially, if at all. But Kevin wanted to bring his ideas to a wider audience, and I said that subject to my being able to place this disclaimer in the introduction, I was happy to do so.

Perhaps I’m wrong. If I am a lot of problems can be solved a lot more easily than I thought. It reminds me of something the late and lovely Tom Fitzgerald wrote in his Boyer Lectures apropos of Australia’s economists of the 1920s.

What is inspiring . . . is the example of Australian economists who arrived at independent conclusions contrary to the world orthodoxy, who invited criticism from the most eminent upholders of that orthodoxy, and, on being rejected, put their argument in an international forum, to gain ultimately a large measure of acceptance for their initial heresy. Today they are far better remembered and admired by an eminent American economist, the Nobel Prize winner Paul Samuelson, than by any Australian counterparts. . . . Professor Samuelson has recently referred to them as ‘my-down-under-heroes’

Perhaps Kevin will one day become someone’s down under hero. I’ll just keep pressing on trying to find the low hanging fruit within the interstices of orthodox economic ideas. (I think I’ve just mixed a metaphor. Still, as they say in Italy - whatsa metaphor you eh?)

Kevin’s post is below the fold:

A solution to Australian housing affordability

Over Easter I put up a comment on John Quiggin’s blog describing an economic system that is 100% certain to lead to a reduction in greenhouse emissions. This blog entry describes a 100% certain way to reduce house price inflation and make housing in Australia affordable and in the process reduce Australian interest rates and most likely stop inflation getting out of hand

The entry on Quiggin’s blog put the proposition that Emissions Trading was unlikely to lead to a rapid reduction in emissions and the solution to global warming was to find an efficient way to spend the money collected from a surcharge on dirty energy. That is, it is not price that is important but it is how the money collected from the price increase is spent that is important. The idea that “to fix a problem make the price reflect the true cost” does not work in dysfunctional markets. In the case of infrastructure I would say to fix a problem invest in ways to fix it through an efficient market or “to fix an investment problem spend money efficiently”

A major problem facing Australia is housing affordability caused by asset price inflation and market failure in the housing market because we have not built enough dwellings to reduce the price. The following outlines some of the reasons for this dysfunctional market and a way to solve the problem with relatively little pain.

In Australia last year 90% of loans for housing (or about 200billion dollars worth) was used to buy existing dwellings. In other words an enormous amount of money was created that monetised existing houses and did not directly create new houses. The housing affordability problem was caused by house prices increasing because too much money was created to purchase old houses not by a lack of new houses being built. Market theory would have us believe that if the price goes up the market will react to produce more housing. This has not happened. There are at least two main reasons why the market for dwellings is dysfunctional.

The first is that the banks have taken advantage of their privileged position and created too many loans for housing. The banks fall over themselves to lend money because they can hedge their risk by securing the loan against future wages as well as against the value of the house and then they further off load the risk by creating asset backed securities and selling these. Lenders tend not to care that house values are over inflated. Basically this problem is caused by a systematic failure that allows banks to create too much money for a particular asset class while reducing their risk of losing when the bubble bursts.

The second reason is an Australian monopoly - the ability to change land use and to tax land - owned by various governments. Treasuries and elected officials like to see the price of houses and hence land rise because they make monopoly profits on land use changes either directly from the sale of land or indirectly through taxes and charges.

These and other influences on the market means that the dwelling market does not work the way it is supposed to. In other words if price was the solution then we would not have 90% of loans used for existing dwellings. The reasons why asset booms happen can be many but the fact that they can happen at all says that there are systematic problems with the monetary system. I suggest the major reason is the separation of the reason for the creation of money from the money itself. If you can create some money and isolate it from the reason for creation then you have the precondition for an asset bubble. Most bubbles do not matter - who cares if some collectables become inflated in value - but we all care when house prices become too high because the money created from dwelling asset inflation can cause general inflation.

Money is created so that we can exchange goods and services. Money is not created out of thin air - it is created for a reason. The separation of the money from the reason it was created is asking for trouble because money becomes an end in itself. The fact that we now have 10 times the value of a years worth of world’s GDP in derivatives means something is wrong. The fact that every few days the transfer of money between countries equals the value of trade between countries for a whole year means something is wrong. That is, we have created an instrument as a way of transferring value yet the instrument itself becomes the main thing traded. It is difficult to see the purpose or necessity for this if markets in the goods and services the money is meant to serve operated as expected.

Let us look at how people set prices for “real products” and we can see the problems of using price as the only market control mechanism.

If you have a product then you set the price not at what it costs you to produce plus a margin (or its intrinsic value) but the price that you can convince people to buy it. People do all sorts of things to separate prices from the cost of production. A glaring case described above are the banks and they do it through regulation. Other cases of where regulation is used to prevent markets operating well are the markets in gambling and telecommunications. Often the idea of regulation was to stop the gouging of customers and to make sure the financial system operates fairly. The opposite often seems to be the case. For example the banks keep competitors at bay through an infor