The Age reports that torture advocate Mirko Bagaric will no longer be assessing refugee cases
Immigration Minister Amanda Vanstone confirmed that Professor Bagaric would no longer hear appeals to the Refugee Review Tribunal, which deals with many asylum seekers who have suffered torture overseas. However, Professor Bagaric will continue to serve on the Migration Review Tribunal, which deals with non-refugee immigration cases.
But Bagaric presumably didn’t arrive at his repugnant views overnight. From his own writing, it appears he’s a member of the “September 11, 2001 changed everything” school. Given that he held views so radically different from official public policy on this central issue, he ought to have disqualified himself from RRT appeals, or at least advised the Minister of his position. As it is, I would say that any rejection of an appeal by an RRT panel on which Bagaric served is morally, and perhaps legally, suspect.
John Quiggin 
How shameful of this academic, a Professor at that, espousing views and opinions for which, as far as legal matters are concerned, he is highly eligible to comment.
Disgraceful. What next?
Professors of Lingusitics ramping on about international conspiracy theories, and the ‘smoking man’ lurking in the shadowy shadows.
Bagaric alas demonstrates the old maxim ‘a little bit of knowledge can be a very dangerous thing’. He shows an extremely shallow understanding of the moral principles he purports to use to defend his position. His crude maximization of utility principle does not simply require us to torture ‘evil men’ in the ticking bomb example. It also requires us to torture children. Here is the example: Suppose we have the bomber but the bomber will not talk under torture. Suppose we also have the bomber’s two-year old child. If the bomber will not speak under torture, they may speak if we torture their child. If “many lives” are at stake, we are required to torture the child under Bagaric’s formula.
Another way to put it might be that you can take the man out of Croatia but you can’t take Croatia out of the man.
“How shameful of this academic, a Professor at that, espousing views and opinions for which, as far as legal matters are concerned, he is highly eligible to comment.”
So, Elizabeth, it would appear that you are very disappointed that Minister Vanstone failed to support the right of Professor Bagaric to continue express his views without penalty on matters germane to his area of expertise.
I imagine, Elizabeth, that you are nevertheless happy that Professor Bagaric has been spared the indignity of having been deported to Croatia and delivered into the tender mercies of the Franjo Tudjman Hospice for Moribund Ustashi Torturers.
(Please forgive my somewhat inadequate parody of your banal, sarcastic tone.)
There was a Ustashi terrorist called Bagaric convicted in the US in the 1980s of racketeering under the RICO Act, and there was another one who played in the NBA, for the Chicago Bulls. It must be a common Croatian name.
Pr Q’s spendid philosophical elucidation of the justification of torture in the classic case of the “ticking bomb” scenario merits further study in the light of the academic lawyers miserable efforts.
Pr Q implies that torture is wrong in general legal principle, but might be right in particular moral practice if the torturing agent:
– acts fair and reasonably according to the probable facts of the case
– accepts legal responsibility for his actions
– accounts for his actions to proper authority
This puts the onus or burden of proof on the torturer to justify his unlawful actions. The situation is comparable to the problem of civil disobedience where an agent may defy laws in pursuit of higher values.
Pr Q’s argument nicely combines the complementary prescriptions of utilitarianism:
– legally forbids toture for for the institutional rule-utilitarian
– morally permits torture for the individual act-utilitarian
This highlights the Hayekian rationale behind general rule, as opposed to particular act, -based social philosophies. According to Hayek, rules of law are laid down because of our ignorance of the particular facts of time and place needed for successful social inter-action. If everyone, or a global agent for such, was omniscient then agents would not need abstract rules to guide their acts, since they would be aware of all the relevant concrete facts.
Because we are ignorant of particulars (in situations like the way to deal with “ticking bomb” planters) we rely on rights-protective laws rather than power-projective actors. These laws constrain agents from doing their own thing against other agents and prevent the state from doing its own thing against us all.
Tortuous Reasoning II
The debate on the Bagaric/Clarke pro-legalisation of torture article continues today – Monash legal academics Sarah Joseph and Marius Smith respond in The Age, and in the blogosphere Rob Corr, Currency Lad, David Starkoff and Cristy all enter the lists…
For the life of me, I don’t understand what the Professor’s ethnicity (ie Croatian) has to do with the argument, as pushed by Katz see above. A little close to being racist?
And at the end of the day, he is entitled to his position, and coming from his position in academic law circles, surely it must have some credibility! But of course, the posters here tend to not (seriouly) like people who have opposing views. Freedom of speech anyone, or does that only apply to ‘victom industry consultants’!
As to the Profs credibility, Katz and others like you, would you care to reveal your identities so we can test your credentials? I guess not.
1. There is only one person I know who is known by the name of Elizabeth. It isn’t you, is it?
2. My reference to Croatia is a reference to the treatment of the unfortunate Mrs Young (nee Solon) at the hands of the Immigration Department. An unfeeling Immigration Department has mistakenly returned other persons to the land of their ancestors before. (To clarify, this is a practice I deplore, whether the victim be Filipina or Croatian.)
3. If the public are not entitled to comment on the opinions of “experts”, then why publish those opinions in the first place. The very foundation of liberal democracy is the presumption that the public respects the argument rather than defer to the arguer. I trust that you only need reminding of this quality of liberal democracy, Elizabeth.
As a Deakin student, I know both of these people and can honestly say that they are both moral people and fantastic lecturers.
I too find the notion of torture abhorrent, but if you ACTUALLY READ the article they have written, they are not “pro-torture” as the newspapers have blown them up to be. Their article merely acknowledges that there may be occassions where it can be justified, such as in terrorist attack where many lives are at risk. I also believe that both Mirko and Julie would not support torture being used outside extreme cases such as these.
I am studying Migration and Refugee Law and have no doubt that Mirko would have an enormous amount of compassion to victims of torture. I honestly believe that Mirko’s opinion would not have interfered with the refugee claims he has heard over the past years. I think he will be a great loss to the refugee hearings.
I urge all of you who have not read the article to actually become informed before publishing any opinions. I am a humane person and do not support torture, but do not find Mirko and Julie’s article offensive.
Remember, newspaper articles only present you with the author’s opinion – read the article and form your own.
I request that we avoid anything that might be regarded as an ethnic slur. In future I’ll delete anything that I regard as breaching this policy.
Deakin student, the newspaper article was accompanied by an opinion piece from Bagaric and Clarke so we’re not getting a second-hand statement of their views
Deakin Student:
You say: “Their article merely acknowledges that there may be occassions where it [torture] is justified, such as in terrorist attack where many lives are at risk.”
But surely this is a position which is pro-torture! Only if their acticle said there were no such circumstances could your earlier statement be correct: “they are not “pro-tortureâ€?.”
To allow for ANY situation under which torture is justified or potentially justifiable is to be in favour of torture and is consequently morally repugnant.
Bagaric and Clarke seem to be arguing that the end sometimes justifies the means. The problem for those of us with any humanity is that here the means vitiate the ends.
Bagaric ought to have excused himself from case where a asylum seeker was involved in terrorism-related torture, but he thinks that torture is inappropriate in other cases, so he’d be still qualified to deal with non-terrorism-related torture cases.
If I advocate the use of jail in some circumstances, would that disqualify me from judging a asylum seeker that had been jailed unjustly?
jquiggin Says: May 18th, 2005 at 5:39 pm
That sounds about right. Ethnicity, or race, cannot be chosen or modified. And it covers a social, not individual, entity. So it is beyond moral evaluation.
But what about slurs against religious or cultural group identities? Membership of these groups is within the power of individual choice. Is Pr Q fine with slagging off the members of sects, parties etc that have disagreeable views? He has done a bit of it himself in his time, I dont doubt.
What is happening to academic standards at Deakin University? Prof Bagaric may be a prolific writer on law matters, but displays no intellectual rigour, let alone a sense of morality, in his advocacy of torture.
I totally agree with C.McDonald who says that Bagaric – in his formula of using torture only when “many lives” are at stake – would still have to justify the torture of complete innocents, even children, in certain circumstances. Is he OK with that?
Logically also, Prof Bagaric is recommending ignoring international law prohibitions on torture, such as the Convention Against Torture – ratified by Australia in 1989- which states in art. 2 that:
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture”.
With no international law ruling out gross human rights infringements such as state-sponsored torture, is “Professor” Bagaric advocating the law of the jungle? A strange position for a head of law school to take..
Another way to put it might be that you can take the man out of Croatia but you can’t take Croatia out of the man.
Isn’t Natasha Stott-Despoja of partial Croatian background?