Saturday, August 31, 2002

Fearless prediction

A late-breaking news story this evening said that Akram Al Masri, the Palestinian asylum seeker who had "volunteered" to go home to Gaza (because his refugee claim had failed and he was going to get deported eventually anyway), had been ordered released for a second time earlier this afternoon by a Federal Court judge! Apparently he had earlier been re-arrested last night pending deportation, after Israel had finally agreed to accept him back.

Although the Federal Court website seems to be down at the moment, I will make a fearless prediction anyway. Justice Merkel's decision will ultimately be found to be legally erroneous, and Al Masri will still be deported. In short terms, the reason for the orginal Federal Court release order 2 weeks ago was that detention could not be supported as being incidental to the Minister's power of deportation, when there was no immediate prospect of any such deportation because no country had then agreed to accept Al Masri. The earlier decision did not throw in doubt either the Minister's deportation power or his power to detain persons pending such deportation. The High Court has repeatedly upheld those powers (see e.g. Chu Kheng Lim).

If, as DIMIA has announced, Israel has now agreed to take Al Masri back, there would appear to be no legal impediment to his re-arrest for deportation purposes, unless there was some aspect of the earlier order that required an application to the court before re-arrest could occur (although such an order would arguably be beyond the court's power in any event). Even if there was some such defect in the re-arrest, it can and no doubt will be speedily remedied, and Al Masri will again be on his way home to Gaza. As with refugee advocates' earlier British consulate stunt with the Baktiari children, this latest episode cannot benefit Al Masri in the long run. It just gives him false hopes that he might somehow be allowed to stay in Australia, and will lead to further distress when those hopes are again dashed.
Boycott Sixty Minutes!!

According to a promo I just saw, Channel Nine's Sixty Minutes program is running an interview tomorrow night with the family of the Sydney multiple gang rapist recently justly sentenced to 55 years imprisonment. Predictably, the offender's family takes the line that their little darling did nothing wrong, and that the girls asked for it (the Peter Hollingworth defence). Now, if you can control your revulsion for a moment, please keep in mind that families of criminal offenders frequently continue to believe in the innocence of their loved one, despite all evidence to the contrary and a jury verdict. I guess it's just human nature. It certainly isn't a phenomenon confined to the Islamic community.

However, we can't extend the same charity and understanding to the Packer Nine network. There are 2 entirely predictable outcomes of screening a program of this sort:

(1) It will cause great distress to the 4 victims and their families, just when they thought they could start putting the dreadful events behind them and begin reconstructing their shattered lives.
(2) It will again inflame racist hatred against Australia's Islamic community amongst the great unwashed who regard Alan Jones, John Laws etc as their arbiters of common sense and decency.

Now, of course, Channel Nine is not screening the interview for the purpose of bringing about these outcomes. It is screening it because it believes (probably rightly) that it will be a ratings winner. But its management knows very well that the above outcomes will occur, and they don't give a stuff. Ratings and the almighty dollar are the only things that count.

I don't believe in censorship, but anyone with any standards of decency at all needs to take some action, however ineffectual, to protest against this utterly immoral act. I intend boycotting Sixty Minutes as a result of this conduct, and I urge others to do likewise. I also intend complaining to the Australian Broadcasting Authority (not that it is likely to do any good - David Flint is a complete waste of space). If anyone can think of any other action that might have any useful outcome, feel free to make a comment below.

Friday, August 30, 2002

Legal philosophy battle of the "cites"

A comment appended by erudite blogger Don Arthur to my recent musing, unoriginally titled "The Constitution as a box of chocolates?", has inspired me to another excursion into legal esoterica. Readers may recall that my previous piece dealt with theoretical approaches to interpreting Australia's Constitution, with particular attention to the influence of American jurisprudential scholar Ronald Dworkin on the dominant interpretative ideology of the current High Court bench, particularly Justice Michael McHugh. Don also simultaneously kindly provided a link to an essay adopting a post-modernist approach to legal interpretative theories when he made the following comment:

"And what's going to happen when judges start reading Derrida?"

The link is to an interesting essay by P.G. Monateri, and I'll return to it later. First, however, Don's observation aroused my curiosity. I wondered how many times post-modernist thought, Derrida and Foucault in particular, had been judicially considered, as against other more "mainstream" jurisprudential scholars including Dworkin, Julius Stone and the Catallaxy Collective's judicial hero Richard Posner. So I got to work and undertook keyword searches for mentions of each of these scholars. To get a comparative benchmark, I did the same exercise for both the High Court of Australia and the US Supreme Court. The results are interesting in themselves, but they also give rise to some rather extended observations on the nature of judicial choice and the factors which may properly guide it. These observations are relevant to the areas of interest of bloggers like Jason Soon, Mark Harrison, John Quiggin, Don Arthur and Tim Dunlop, but others might also be interested (then again, they might not). More ...

Thursday, August 29, 2002

Criminals' right to sue?

Robert Corr takes a predictably leftist view of yesterday's NSW District court decision to award $50 000 in compensation to a teenager who broke into a man's home and was then assaulted by the home owner as he tried to evict him. Mark Harrison (of Catallaxy Collective) adopts an equally predictable rightist position on the same story.

Personally, I would want to know a lot more of the facts before I could make up my mind one way or the other. On the one hand, a homeowner is entitled to defend his home and family when it is broken into by an unknown intruder at night. If it was dark and he had no way of knowing whether his intruder was armed, then I think the homeowner was justified in using considerable force. The judge may have failed to comprehend just how confusing and frightening such a situation is in real life. On the other hand, it would not be justified for the owner to bash the intruder repeatedly with a club if the owner knew the intruder was young, unarmed and relatively defenceless. But we don't know whether the homeowner knew any of those things at the time. If he did, his actions are reprehensible and merit censure by an award of damages. However, even then, we still need to know the respective sizes and apparent strength of the 2 parties. If the intruder was a big strong lump of a 16 year old and the homeowner was small, the latter would be justified in taking no chances.

Since both Robert and Mark seem to be judging the case on exactly the same sketchy newspaper reports I have read, neither of them is actually in a position to make a sensible judgment. They are both just cyberspace equivalents of ignorant radio "shockjocks", peddling emotive reaction instead of calm analysis. I woud have expected more from both of them.
And now for (wait for it) neo-liberal poetry!

Do yourself a favour and have a look at Catallaxy Collective member Mark Harrison's haiku and other poems. Whatever else might be said, Mark has a great talent for humorous doggerel. Very enjoyable! Update - For some rather more upmarket poetry with a current international political focus (but no connection with neo-liberal economics), I highly recommend this one by John M Ford reproduced on the Volokh Conspiracy. It's about September 11 and a lot more. Don't assume that my linking it means I'm a "warblogger" (because the poem really isn't about that). But in the run-up to the first anniversary of 9/11, and while debating whether or not Bush's Iraq invasion is supportable, we won't really understand where the American public and politicians are coming from unless we keep in sharp relief the enormity of the events of that day, both in real terms and as ongoing central features of the American psyche. No doubt we'll be reminded ad nauseum as the anniversary approaches, but in the meantime Ford's poem is worth reading. Former Democrat Attorney-General Ramsey Clark today labelled Dubbya's planned invasion as a "war crime", but I suspect that view remains very much a minority one in the US.
Stoned senseless in the tropics

I had always assumed that Darwinians' often eccentric, sometimes bizarre, behaviour could be put down to the extreme tropical humidity and copious quantities of beer that some of our citizens drink (whether for climatic or other reasons). Personally, I prefer a good bottle of red; indeed Darwin's much-loved and recently deceased Lord Mayor George Brown was justly famous for his boast that he could (and did) easily drink 2 bottles of cab sav and still drive home safely.

However, an item on this morning's ABC radio news suggests an entirely different explanation. The story deals with a drug use study by the Australian Institute of Health and Welfare. The version aired in Darwin highlighted the fact that Territory useage of all drugs (including alcohol) was significantly higher than the national average. No doubt this mostly reflects the fact that the NT has a much younger population than the national average. The figures on cannabis useage, however, are particularly noteworthy. While 28% of young Australians use cannabis, the corresponding figure for the Top End is a wopping 48%!

Aboriginal cannabis use (like alcohol) in the Top End is even higher than the rest of the NT population, and contributes far more significantly to social dysfunction than is generally acknowledged. Marihuana plants grow like weeds through much of Arnhemland. As some readers may know (because it is a frequent subject of justified derision on ABC TV's Media Watch program), the local Murdoch rag in the Top End, the Northern Territory News, proudly highlights croc-shock stories on its front page at least once a fortnight if not more often. Despite their predictability, circulation figures jump every time. One example of this genre that will always live in my memory told of a young Aboriginal man who fell asleep on a riverine mudflat after a particularly heavy bonging session, and was eaten by a crocodile. If you're a smoker yourself, make sure you think about this story next time you're stoned. I wonder if you can be sued for inducing paranoid psychosis by use of the written word.
Where are all the Kylies?

Blogger Rob Schaap appended a thoughtful comment (as is his wont) to my disgustingly sexist, shallow piece on the Matildas Australian women's soccer team. "[A]propos nought in particular," Rob observed, "it has suddenly dawned on me that the Australian Republic of Blogistan is very bloke-heavy. Anyone here in Blokistan have a theory to explain this?"

It was a thought that had occurred to me too, in my short sojourn in "Blogistan/Blokistan". There is no shortage of Waynes and Jasons in the ranks of Australian "serious" bloggers, but no Cheryls or Kylies. It isn't even apparent from watching the comments facilities, of the blogs that have them, that blogwatchers include women. Why is it so? Never one to avoid expressing an opinion on a subject on which I'm entirely ignorant, here are my thoughts.

First, I noticed a very similar phenomenon in Internet discussion groups, one of which I have participated in from time to time for about 12 months. I put it down in that milieu to the often combative, competitive, sometimes unpleasant, and somewhat testosterone-driven style of debate. It seems mostly to be about either winning the argument at all costs, or pushing a personal barrow by continually posting on subjects irrespective of the fact that no-one else in the group has any interest in discussing them. Women, at the risk of a degree of sexual stereotying, tend to prefer a more consultative, consensual style of discourse, and find male argumentative techniques a bit tiresome (not to say pointless). Incidentally, I also suspect this is one of the main reasons why women don't thrust themselves forward in greater numbers as political candidates, despite affirmative action targets.

This intuition rather reminds me of parts of that appalling, cliched but astonishingly profitable potboiler "Men are From Mars, Women Are From Venus". However, cliches only achieve cliche-status if there is an element of truth hidden in the populist crap, and so it is with "Mars/Venus". As we scarred veterans of relationships have mostly worked out for ourselves, there is no point in winning an argument with a woman; it just racks up against you in the scoreboard of life and gets thrown back at you next time! Far better to play a dead bat, talk empathically around the subject, say sorry even if you think you were in the right, and move the conversation on subtly when you get the chance.

Maybe it's the same in cyberspace. More empathy, consultation and "networking" are needed, and less aggressive dialectic. I wonder if I could leverage this into a fabulously profitable best seller, say "Men Are From Microsoft, Women Are From Sun Oracle"? Hmm. But my subjective perception of Australian blogging is that it already is fairly amiable, respectful and consultative, with a minimum of flaming or general unpleasantness. Moreover, and unlike the email discussion forums, blogwatchers can choose whether to read a particular blog or a piece within it; they don't get inflicted on your email inbox whether you like it or not. So you would think that this is a very female-friendly environment.

So again, why no Cheryls or Kylies? Maybe it's because blogging is such a new phenomenon/technology. Blokes have always been the early adopters of new technology; again it's probably the testosterone-driven desire to conquer new frontiers. Perhaps it's just a matter of waiting until the word spreads and the audience and breadth of participation expand over time Then again, maybe we Australian "serious" bloggers are just boring farts that no-one in their right mind would want anything to do with. What do others think?
Stop the ASIO Bill!! / cont ...

Tim Dunlop notes an article on the ASIO Bill by UNSW's Professor George Williams in today's Age newspaper. Wiiliams says: "If passed, the bill may do more to undermine the long-term health of our democratic system than any threat now posed by terrorism." Williams is right, but his namesake Attorney-General Daryl Williams is up to his usual tricks. He isn't telling the truth (what a surprise!). This is important. Please read it. More ...

Wednesday, August 28, 2002

Tiny Tuvalu goes for gold in Jo'burg

"Our ABC" ran a story this morning titled "Pacific island threatens Australia over global warming". It dealt with a threat to sue Australia and the US by the Tuvalu delegation to the 'Sustainable Development' talkfest currently taking place in Johannesburg, South Africa. Tuvalu is apparently trying to drum up support from other Pacific island nations (not to mention get publicity) to mount a legal action against Australia and the US for refusing to ratify the Kyoto Protocol.

Now I don't intend getting into the formidable legal obstacles that any such action would face. I do, however, want to draw blogwatchers' attention to the fact that this is a long way from the first time Tuvalu has tried publicity stunts of this sort in an attempt to cash in on the global warming theory. Relentless greenhouse sceptic John Daly has detailed Tuvalu's impressive previous record in this regard. Tuvalu appears to see the greenhouse debate as the perfect opportunity to benefit from a 21st century version of the cargo cult. If they jump up and down for long enough gesticulating wildly, to equally wild applause from Greenpeace and the left generally, America or Australia will send a Hercules over and drop large sacks of money. More ...
Don't soak the rich

Tim Dunlop muses about American philanthropy and the reasons for it (culture, ego and tax dodges). Like the good socialist he is, Tim also advocates a hefty inheritance tax:

"Being a lefty, I am of course in favour of soaking the rich wherever possible, especially when they are dead. My reasons for supporting a pretty hefty estate tax, however, are not just yer usual left-inspired redistribution reasons. My concern is with the children of the rich who would inherit all this wealth. As the right has been pointing out to us all for ages now, if you give people something for nothing--like welfare--you breed a terrible dependency that is ultimately debilitating and counter-productive. If this is true of the few miserable bucks handed out to the jobless, the homeless, the spouseless and the hopeless, then it must be so to the power of ten, or even a hundred, in regard to the children of rich kids who, simply by being born into the right family, get all that unearned wealth. In other words, I'm thinking of the children."

Personally, I'm opposed to Tim's idea, but not for the usual boring ideological reasons. I just think it's a hell of a lot more fun watching the tycoons' kids losing it all anyway with no help at all from governments. Who could ever forget the screamingly funny spectacle of "Young Warwick" Fairfax squandering the entire family media empire through a unique and unattractive combination of greed, incompetence and fundamentalist christian hypocrisy?

I'm looking forward with great anticipation to the imminent dismemberment of Australia's other 2 media empires. Judging by the efforts of young Jamie Packer and little Lachlan Murdoch in the OneTel debacle, I'd lay odds that both of them will be on the bones of their pampered backsides within 5 years of Rupert and Kerry shuffling off the mortal coil. In Jamie's case it might even be quicker. A man who spurns the delectable Kate Fischer and then loses the equally lovely (if vacuous) Jodie Meares has got to be seriously brain damaged in my humble opinion.

Tuesday, August 27, 2002

Seasons of mist and mellow fruitfulness

Darwin is currently experiencing its second coolest dry season ever. As of last night, we had enjoyed 83 nights with minimum temperatures of 20 degrees C or below. The last 2 nights were 14 and 16 degrees respectively. It might sound like a complete yawn to all you "southerners" for whom these temperatures would signal a balmy spring or even summer day. But for Darwinians, who have become acclimatised to a range of 24-32 degrees or so, this is doona and bed socks weather, not to mention the extra blanket).

The number of nights under 20 degrees C for an average dry season is just 48, and the coolest dry season on record was in 1976, when they had 92 nights under the magic 20 degrees.

What's the point of all this? Well, first, to glory in the perfect weather, because it won't be too long before we revert to sauna bath conditions day in and day out. The signs are already there. The mango trees are in heavy fruit, and by the time they ripen in late September and induce 'mango madness' in an already fairly eccentric populus, we'll be well into the build-up 'suicide' season. Then there won't be any real relief until the monsoon breaks, usually some time in mid-December. The Weather Bureau is cautioning that we may have a long build-up this year, though, with the monsoon not breaking until mid-January. The reason is the current El Nino phenomenon. Mind you, we shouldn't take the weather gurus too seriously. Last time we had an El Nino (1998) they made a similar prediction, and it turned out to be the wettest wet season ever recorded: 3,300-odd millimetres (130 inches) compared with an average of 1600 (63 inches).

That brings me to my second point. If we had been in the middle of the second hottest dry season on record instead of the second coolest, I would lay odds that Greenpeace activists would be pumping out alarmist press releases claiming it as proof that runaway global warming was upon us. Of course, it would prove no such thing, any more than the cool weather proves we're about to enter the next Ice Age. Weather patterns vary widely from year to year, and even a run of several hot or cold years is entirely consistent with natural variability. It takes an unequivocal observable trend over a significant time period before you can be confident that what you are seeing is climate change and not just weather.

Which brings me to my third point, and the ulterior motive for this apparently aimless meander through Darwin's weather statistics. When I recently cited the satellite temperature record as evidence which contradicted the global warming scare (because it shows almost no warming), John Quiggin replied with an argument that the duration of that record (23 years) was too short to have any statistical significance. If you ignored the first 5 years of the record, he said, it wasn't much different from the surface record. I countered with the observation ( a reasonable one I thought) that the surface temperature record would show less warming if you ignored the last 5 years (which include the last big El Nino). But that wasn't John's point, as he explained in a later email:

"On the time series, you're just reinforcing my point. With only 20 years [KAP - actually it's 23, but who's counting] of data, small adjustments to the start and end periods change everything. That's why it's a mistake to rely heavily on the satellite data."

However, what John conveniently ignores is that the surface temperature record itself has only been exhibiting a warming trend since 1976: just 27 years. For the 36 years before that it showed a cooling trend. Surely one can't have it both ways. Why does John regard the record showing warming as statistically significant, and the one showing a benign, stable climate as worthless and unreliable? Might it be because one data set reinforces his prejudices, while the other undermines them? Maybe there's a valid point of distinction, but it isn't obvious to me.
Wedging ways

Here is a post I made earlier this morning to a discussion forum. I thought it might be of some interest to blogwatchers:

While I agree with you that the GST was not an example of "wedge politics", the 'Tampa' and 'Pacific solution' saga (or at least the campaign spin given to it) certainly was. In fact, it was a masterpiece of the genre, with Labor being marginalised and forced into an exercise in pale "me too-ism" after earlier looking winners because of the GST backlash. A tenth order issue in policy terms was masterfully elevated in the blink of an eye to central electoral significance. Simultaneously, One Nation voters were lured back to the Coalition by appealing to their xenophobic prejudices, as well as their fear and sense of powerlessness in the face of globalisation. Rob Schaap and Tim Dunlop had a thoughtful piece about the latter phenomenon published in the SMH Web Diary recently. It's more or less an Alvin Toffler 'Future Shock goes feral' hypothesis.

The Coalition's stunt of a couple of years ago, where the government introduced legislation to reverse the effect of the Federal Court's decision in the McBain case (which had struck down Victorian state legislation restricting single and lesbian women from accessing IVF programs) is another good example of wedge politics in action. Howard knew he had no chance of getting a Bill through the Senate which partially repealed the Sex Discrimination Act; his sole purpose was to attempt to provoke tension between the liberal left and Catholic right wings of the Parliamentary Labor Party.

Graham, I am aware from previous discussions that your standard response to accusations of wedge politics directed at the Tories is to assert that Keating's republic referendum and native title initiatives were equally examples of wedge politics directed at the Coalition. Native title legislation, of course, was nothing of the kind. It was a constructive legislative response to a situation of land tenure uncertainty created by the High Court's Mabo decision. Nor do I think it can truthfully be asserted that Keating conducted the debate in a divisive manner (at least by his standards he was positively statesmanlike). The republic referendum is in a slightly different category in that, like Howard's Pacific solution and anti-IVF Bill, a deliberate choice was made to pursue a non-essential issue for reasons that at least included calculations of likely division of opponents. Whether the 'wedging' motive was central or just an added bonus depends on your perspective, I guess.

Nevertheless, I still think there is a crucial distinction to be drawn between John Howard's and Paul Keating's use of wedge politics as a tactic. Whether you are a republican or not, you can't seriously contest that the republic issue is by its nature directed at a constructive end: nation-building and the achievement of the last stage of Australia's evolution as a mature, sovereign liberal democratic state. Howard's actions, on the other hand, were in both cases almost wholly directed at creating, or exacerbating and capitalising on, social divisions. They had little constructive component (and in the IVF situation, none at all). Both strategies were at root divisive and destructive. That is why history will record John Howard as just about Australia's worst prime minister.
Salacious soccer scenes shock senator

The Federal ALP's credulous but politically correct sports spokesperson Senator Kate Lundy reckons Australia's women's soccer team the Matildas were "duped into appearing topless and wearing only flesh-coloured G-strings in a foreign TV commercial"! Did they think the G-strings were new training outfits or something? Come on Kate, get real!

This news may be particularly disturbing for Scott Wickstein, who I'm unreliably informed has links to the Matildas nude calendar somewhere on his blog. Unfortunately I couldn't find them while putting in the hard research yards for this piece, so I've reluctantly been forced to cover for him (so to speak).

I especially enjoyed Senator Lundy's comment that: "It's the essence of these questions that I want included in the inquiry so we can get to the bottom of it." Readers can be assured that I will keep abreast of this vital story. Yes, I know it's juvenile and sexist, but I can live with it.
Frequent Flyers Flying Off?

I see from today's Sydney Morning Herald that the Reserve Bank has announced reforms to the regulatory regime governing fees the banks can charge to retailers for credit card transactions (not to mention the interchange fees they charge each other). Seems like a long-overdue measure.

I can't help wondering, though, whether the banks were serious about their negotiating threat to discontinue credit card loyalty incentive schemes if the RBA went ahead with the reforms. We have enough Visa Frequent Flyer points for 2 1/2 return flights to Europe at the moment. I wonder whether we should use them before something happens. Trouble is, you can almost never get a seat anyway. We tried to get tickets to Bali yesterday, and Qantas don't have any Frequent Flyer seats available to there until 29 January. The whole scheme is a joke really, but I still wouldn't like to lose those Europe tickets. And Jason, resist the temptation to do a Coase analysis on it. You don't need an economic analysis to know the banks are bastards!
Let's move on!

Well, I think I've managed to repair my blogger template (in fact I switched to a completely new one, as you may have noticed). My only problem now is that the message text is a bit larger than I would like, and changing the font size in the style sheet doesn't seem to work. Any hints will be gratefully accepted (except obscene ones).

I see Jason Soon has had another go about Coase Theorem, economic analysis etc. He also emailed me this morning, and I replied. Although there is a lot more to say on the subject, I tend to think blogwatchers are likely to get bored to death by an endless argument on economics. I don't want to get accused of a 'cheap shot" again, but they don't call it the dismal science for nothing!. So no more blogs on that topic for a while, although I'm happy to continue the discussion via the commenting function (which you may have noticed is working again - thanks to HaloScan). The same goes for the global warming tennis match with John Quiggin, which has also continued via email. On the blog, it's time to move on!

Monday, August 26, 2002

Guest blogger!

If it's good enough for the Catallaxy mob, I thought, it's good enough for me (a bit like the old joke about Tasmanians and incest). Stuff the transaction costs. Wayne Wood is a friend of mine with strong and passionate views about stem cell research. Like many Australians, he has a very personal reason for it. Wayne's piece was a bit long to post on the blog, so to read it click here. There's also a Gerard Henderson piece on the same subject in today's SMH.
Free will?

When I was writing a piece a few days ago on sentencing (in the wake of Judge Finnane's laudable 55 year rape sentence), I noticed a discussion by Jason Soon and friends which included comments about the existence or otherwise of free will. I ignored the point, because it was a bit of a diversion from my intended subject. But just now I found a good short quote by jurisprudential scholar Hans Kelsen (as reported by Richard Posner):

"And as for whether 'free will' is a presupposition of making a person legally responsible for his violations of the law, Kelsen answers that we can do quite nicely without any concept of free will; it is enough that the threat of sanctions enters into the causal chain that determines a person’s behavior."

Neat, I think. Even a thoroughly deterministic view of human behaviour leaves room for propotionate sentencing. The problem, however, is not determinism as such, but whether the threat of sanctions does in fact ever enter into the causal chain. The research doesn't really demonstrate it.
Greenhouse graph gaffe

Pleased to see John Quiggin accepts that he was wrong about John R. Christy's position on global warming (although I also accept that it was not unreasonable for John to draw the inference he did given the fairly small size of the National of Academy of Sciences group of which Christy was part). However, if John accepts (as he seems to do) that claiming a consensus on the part of a large group like the 2,000 scientists who worked on the IPCC Third Assessment Report is erroneous, why did he make precisely that claim in the pro-Kyoto petition he is circulating? Or did Clive Hamilton write that part?

John makes the rather strange claim that the satellite record (see diagram 1 in Christy's Senate evidence) would show more warming if you ignored the first 5 years of the record! But look at the graph again, John. You can equally make the claim that the surface temperature record would show less warming if you ignored the last 5 years. Moreover, the latter claim would be somewhat more credible, because the last 5 years included the notable anomaly of just about the biggest El Nino effect ever recorded. I mean, really! Twenty-three years can't reasonably be labelled too short a record set to draw valid conclusions, and I don't think the IPCC any longer makes that assertion.

Finally, John, I would also be interested to read a fuller account of Ian Castles' reported work, if you manage to obtain a copy. I gather he is also a Canberra resident, so your chances are probably better than mine. I found some slightly more extensive Internet coverage than the Alan Wood Australian article, but I agree that labelling it 'convincing' without a more extensive report was an overstatement.
Coased out but comfortable

I thought Jason Soon and I had quite a useful discussion about Coase Theorem over the weekend, and even found some common ground. Pity the blog commenting function is cactus at the moment, otherwise Mark Harrison (who took his turn on Catallaxy today) might have realised that I don't regard Coase Theorem as a "theoretical curiosum" (whatever that is - it's not in my Macquarie - "curiosumer and curiosumer!" as Lewis Carroll might have said). In fact I think it's quite a useful framework for comparing a range of policy options; what I object to is the way advocates like Richard Posner and Alex Robson misuse and misapply it (a proposition with which Jason at least seems to agree). But it's a long way from the be-all and end-all of policy analysis. Mark and Stanley Gudgeon (who also weighed into the debate today) remind me of why Paul Keating once famously described John Hewson as a "feral abacus". What a cold, calculating, reductionist, mechanistic little world you guys must live in. I'd suggest that you go and "get a life", but you'd probably demand I spell out the transaction costs for you first.

Alex Robson also responds with a lot of words, although to what effect I'm not quite sure. I suspect the key to Alex's problem lies in this thought:

"If these contracts are so obviously evil and stupid, as Parish and Gittins both seem to claim, then I fail to see why the government needs to outlaw them. After all, if people like Parish and Gittins can figure out that they are so bad, then I am willing to guess that the rest of the population can as well."

Well, Alex, I'm willing to guess that most of the population are not either economics journalists or academic lawyers. And I don't need to guess (because I know) that most people don't stop to read the fine-print exclusion clauses on the backs of tickets, on the counter at the dry cleaner or parking station, or at the mini golf course or ten pin bowling centre. Maybe they should, but life isn't like that. Moreover, maybe everyone should have expensive life and disability insurance, so they won't need to worry. That would certainly be an "efficient" solution, at least for the insurance industry. Then again, maybe they're not highly paid economists and are flat out paying the rent and grocery bill each week, let alone buying insurance.

Precisely the same error is made in this passage:

"If it is true that the present rule is efficient in all situations, then no waiver contracts will be signed. If, on the other hand, we enforce the wishes of consumers who want to waive their right to sue, then if both parties agree to such waivers, they will, as a matter of definition, both be better off. What is so wrong with that?"

Nothing would be wrong with that if consumers really did meaningfully negotiate and give an informed consent to waive their right to sue. But that doesn't happen in the real world. In most such situations, the notion of a "bargain" in any meaningful sense is just a convenient fiction which masks the reality of unilateral imposition of terms blatantly favourable to the service provider. That is why the TPA presently prohibits the exclusion of duty of care.

Yes, Alex, you're right: "these arguments have nothing to do with economic analysis", or "efficiency", "transaction costs" or any of the other esoteric jargon so beloved of feral abacuses (abaci?). It has everything, however, to do with basic social justice, and that is why these amendments must be defeated in their present form. There are numerous options for attacking the liability insurance premium crisis, but this is just about the worst of them.

Sunday, August 25, 2002

The global warming tennis match continues

John Quiggin has just played a handy volley in answer to my return of his serve on global warming. So it's only fitting that I should respond with a devious cross-court passing shot.

Quiggin concedes that measurements of global temperature taken by satellites (continuously since 1979) fail to match the global mean surface temperature record, when he says "the satellite data now shows a slight warming trend, but not as much as the surface data". However, Quiggin nevertheless tries to create the impression that John R. Christy of the University of Alabama, whom Quiggin rightly describes as the "big expert on satellite measurements of climate", now agrees with the IPCC view that:

"Despite differences in temperature data, strong evidence exists to show that the warming of the Earth's surface is undoubtedly real, and surface temperatures in the past two decades have risen at a rate substantially greater than average for the past 100 years".

The basis for Quiggin's assertion is that Christy was a member of a large-ish panel of experts which published a report containing the above paragraph. This is essentially the same logic that led Quiggin to assert (in the economists' pro-Kyoto petition he is collecting) that the publication of the IPCC Third Assessment Report - Climate Change 2001 represented a consensus warning by all of the 2,000-odd scientists who participated in the various working groups which led to the drafting of that report. Frankly, that is nonsense. The 2,000 scientists included, for example Dr Richard Linzen, who is a very well-known (and very well qualified) greenhouse 'sceptic'. You will see his name listed as one of the participants in the working group which led to chapter 7 of the IPCC report. You will also see Professor Robert Balling listed as one of the participating scientists for the chapter 2 working group (a chapter titled "Observed Climate Variability and Change"). He is also a renowned greenhouse sceptic. Manifestly, neither of them agrees with many of the conclusions contained in the IPCC report, and their mere participation in the working groups cannot (at least honestly) be used as evidence of such an agreement. As Lindzen explained in evidence he gave to the US Senate in May 2001:

"That said, it has become common to deal with the science by referring to the IPCC 'scientific consensus.' Claiming the agreement of thousands of scientists is certainly easier than trying to understand the issue or to respond to scientific questions; it also effectively intimidates most citizens. However, the invocation of the IPCC is more a mantra than a proper reflection on that flawed document. ... Note that almost all reading and coverage of the IPCC is restricted to the highly publicized Summaries for Policymakers which are written by representatives from governments, NGO's and business; the full reports, written by participating scientists, are largely ignored. ... The vast majority of participants played no role in preparing the summary, and were not asked for agreement."

Precisely the same is true of Dr Christy. He does not endorse the statement from the NAS report quoted by John Quiggin, as the following extracts from the evidence he also gave to the US Senate (also in May 2001) clearly show:

"Over the past 22-years various calculations of surface temperature do indeed show a rise between +0.52 and +0.63 F (0.29 and 0.35 C depending on which estimate is used.) This represents about half of the total surface warming since the 19th century. In the troposphere, however, the values, which include the satellite data Dr. Roy Spencer of NASA and I produce, show only a very slight warming between +0.00 and +0.15 F (+0.00 and +0.08 C) a rate less than a third that observed at the surface (Fig. 1). New evidence shown in Figs. 2 and 3 continues to show the remarkable consistency between independent measurements of these upper air temperatures.

Since the last time I testified before this committee, 1998 was above the long term average, but 1999 and 2000 were below. So, rather than seeing a warming over time that increases with altitude as climate models project, we see that in the real world the warming decrease substantially with altitude. ...

It is certainly possible that the inability of the present generation of climate models to reproduce the reality of the past 22+ years may only reflect the fact that the climate experiences large natural variations in the vertical temperature structure over such time periods. By recognizing this however, any attention drawn to the surface temperature rise over the past two decades must also acknowledge the fact that the bulk of the atmospheric mass has not similarly warmed. ...

When considering information such as indicated above, one finds it difficult to conclude the climate change is occurring in the US and that it is exceedingly difficult to conclude that part of that change might have been caused by human factors. ..."

Feel free to read Dr Christy's evidence for yourself, and then consider whether John Quiggin has fairly characterised his views. Methinks John is playing rather fast and loose with the evidence! BTW, a useful coverage of both the satellite and radiosonde balloon temperature record (which also fails to show a warming pattern) can be found in the evidence of Dr Sallie Baliunas given to the US Senate (in March 2002). That said, it may be that at least part of the difference between John's views and my own is more apparent than real. I am quite prepared to accept the possibility that the earth has warmed to roughly the extent claimed by the IPCC. The IPCC's central finding is that: "The best estimate of global surface temperature change is a 0.6°C increase since the late 19th century with a 95% confidence interval of 0.4 to 0.8°C." The IPCC report states that global mean temperatures have risen by 0.4°C between 1976 and 2000, but actually cooled slightly by 0.2°C between 1940 and 1976. The latter is a phenomenon not consistent with CO2-induced global warming, and which the IPCC report does not satisfactorily explain (it posits the effect of fine airborne aerosol particles as a countervailing cooling factor during that period, but fails to make the case for their existence in quantities any greater than the periods either before or since). The pattern of 20th century climate change is most obviously (and simply) explained by changes in solar activity. As Dr Baliunas states (see the diagram towards the end of her Senate evidence), the 20th century pattern can be acccounted for by such changes. Ockham's Razor suggests we should prefer Dr Balunas's theory to that of the IPCC. Note, however, that Dr Baliunas uses only northern hemisphere records: the global mean record coincides less closely with solar activity patterns than does the northern hemisphere record (although the solar activity pattern still explains the overall trend and direction much better than the IPCC "it's all the fault of human CO2 emissions" approach).

I think the best view is that the modest observed warming in the period 1976-2000 (after a modest cooling over the preceding 36 years) is explained predominantly by solar activity, but with a minor detectable human CO2 influence causing the graph to tilt slightly more steeply than it otherwise would. That view is entirely consistent with the evidence, and suggests at most a very small rise in global temperature between now and the year 2100. Indeed even the IPCC's base (and most likely) senario of a 1.4°C rise is hardly frightening, and does not (on the "precautionary principle") justify extreme Kyoto Protocol-style measures. It is only possible to generate remotely scary scenarios of catastrophic global warming by making patently ridiculous assumptions about likely levels of future economic growth and the like, of the sort Ian Castles recently exposed and convincingly debunked. I agree with John Quiggin that we should take prudent steps to reduce CO2 emissions, I simply disagree on the extent of measures that prudence requires.
The Constitution as a box of chocolates?

In the course of his response to my rant on "law and economics", John Quiggin mused in passing about approaches to the interpretation of law:

"I'm not a big fan of judicial legislation, though I dislike even more the kind of spurious literalism that allowed people like Garfield Barwick to impose their own political views while posing as conservatives. I prefer an 'original intent' approach to the interpretation of the law, with sensible modification in the light of changing social and technological conditions."

I presume John mostly has in mind Barwick's "literalist" interpretation of the old section 260 (from memory) of the Income Tax Assessment Act (the principal tax avoidance provision at the time). Barwick's interpretation was in reality a blatantly political exercise, masquerading as "literal interpretation" while ignoring the manifest intention of the legislators. He succeeded in effectively gutting the ITAA, and is fondly remembered by many accountants as the father of Australia's tax avoidance industry of the late 1970s and early 80s ('bottom of the harbour' schemes etc). Judges almost always have "leeways of choice" in the decisions they make, as one of my intellectual heroes Julius Stone put it, and the fiction of 'literalism' merely serves to disguise the fact that choices are being made.

As John Quiggin observes, an 'original intent' approach accords far more comfortably with democratic principles and the rule of law. The destructive 'literalist' efforts of Barwick and others led the Federal Parliament in the early 1980s to enact amendments to the Acts Interpretation Act, whose effect is to mandate the 'original intent' requirement that John advocates (see section 15AA). The section is mirrored in all states and territories. As a result, judges today, in theory at least, are no longer able to "do a Barwick" and thwart the intention of Parliament by adopting an idiosyncratic approach to interpreting ordinary laws.

There is one arena, however, where the question of approaches to interpretation ('original intent' , 'literalism' etc) remains a live issue in Australia, and that is constitutional law. It is a live issue for the simple reason that it is not at all obvious in practice how one goes about applying an 'original intent' approach to a document like the Commonwealth Constitution. With ordinary legislation it's relatively easy. You just look at the responsible Minister's second reading speech and, if necessary, the commitee stages of the parliamentary debate. However, there was no single person or entity responsible for drafting the Constitution. It was a product of a number of Conventions held through the 1890s and attended by hundreds of delegates. There was no single guiding mind to whose 'intent' we can look for inspiration where the words themselves are ambiguous. The quality of the debate was patchy at best, and many provisions attracted almost no debate. Even where a delegate did express a clear view of what he thought a particular provision meant, how can we know whether his (and I'm not being sexist here, there were no female delegates at any of the conventions) intention was shared by others? Jeremy Kirk makes this point well:

"Rarely, in assemblies of any size, will a majority of speakers express clear views. It would be very rare for most of the winning majority on any particular question to have spoken, let alone an overall majority of the assembly derived just from the winning majority. The Convention Debates are no exception in this regard. Collective intent can then only be gathered by assuming that the silent members agreed with the comments of the leading proponents. Ascertaining group intent from individual statements not expressly endorsed by the group is inherently speculative and may often be wrong. This problem represents one of the main reasons that the courts have long been wary of taking account of extrinsic materials."

In American constitutional law, 'original intent' has been far more influential, largely because there is a consensus that the Federalist Papers, a series of documents produced by key drafters of the US Constitution, including James Maddison and Thomas Jefferson, does provide a faithful representation of the intentions of the Founding Fathers (yes, they were all blokes as well).

The principal drafters of Australia's Constitution included Alfred Deakin, Andrew Inglis Clark (the Tasmanian Attorney-General) and Sir Samuel Griffith (the first Chief Justice of the High Court). None of them has commanded the sort of venerable authority attached by the Americans to Maddison and Jefferson. Indeed Griffith's global view about the meaning of the Constitution was overthrown by the High Court in the Engineers' Case in 1920, not long after Griffith himself retired from the Bench. So much for original intent!

In fact, until 1988 the prevailing High Court view was that, although their quest was (supposedly) for 'original intent', it was not permissible even to look at the records of the Convention Debates to find out if any such intention was apparent! In 1988 the Court revised this somewhat bizarre rule, but it remains the case that the Debates are utilised in a quite narrow fashion. The High Court's current approach largely coincides with the view of American jurisprudential scholar Ronald Dworkin, as explained in Freedom's Law ((1996) at 10):

"[C]onstitutional interpretation must begin in what the framers said, and, just as our judgment about what friends and strangers say relies on specific information about them and the context in which they speak, so does our understanding of what the framers said. History is therefore plainly relevant. But only in a particular way. We turn to history to answer the question of what they intended to say, not the different question of what other intentions they had. We have no need to decide what they expected to happen, or hoped would happen, in consequence of their having said what they did, for example; their purpose, in that sense, is not part of our study. That is a crucial distinction".

High Court Justice Michael McHugh reflected this Dworkinian approach in the following passage from a recent decision (which also effectively endorses John Quiggin's observation about 'sensible modification in the light of changing social and technological conditions'):

" Nevertheless, even when we see meaning in a constitutional provision which our predecessors did not see, the search is always for the objective intention of the makers of the Constitution. A commitment to discerning the intention of the makers of the Constitution, in the same way as a court searches for the intention of the legislature in enacting an ordinary statute, does not equate with a Constitution suspended in time. Our Constitution is constructed in such a way that most of its concepts and purposes are stated at a sufficient level of abstraction or generality to enable it to be infused with the current understanding of those concepts and purposes. This is consistent with the notion that our Constitution was intended to be an enduring document able to apply to emerging circumstances while retaining its essential integrity. The Constitution was addressed to posterity as well as to those living at the time of its enactment. Those who framed and enacted the Constitution knew that the meaning of the document would have to be deduced by later generations as well as their contemporaries. This Court has not accepted that the makers' actual intentions are decisive, and I see no reason why we should regard the understandings of the immediate audience as decisive."

In the same decision (Eastman), McHugh also quoted with approval the following observations by Samuel Popkin about statutory interpretation generally:

"The simple act of thinking about the meaning of statutory language in this broader context - which the judge must do - requires judgment about how the text should interact with its past and future. That is why, despite its being an obvious fiction, the judge when engaged in statutory interpretation is unable to do without the concept of legislative intent. Intent is matched with text as an essential aspect of statutory meaning, not because the judge has any confidence that legislative intent is knowable, but because 'intent' (or 'will') captures the idea that choices must be made in order to apply a text to facts. Legislative intent is a useful judicial construct because the judge is required to make the choices that best express the statutory text's meaning."

Finally,Justice McHugh (who, as you may have guessed by now, is the Court's principal explicator of the dominant interpretative ideology) explained the conundrum of 'original intent' in even starker terms in another recent decision:

"What is decisive is that, with perhaps only two exceptions, the Court has never hesitated to apply particular words and phrases to facts and circumstances that were or may have been outside the contemplation of the makers of the Constitution. That is because, with the striking exception of s 92 - which has an historical meaning - the words of the Constitution, for the most part, describe concepts and purposes that are stated at a sufficiently high level of abstraction to enable events and matters falling within the current understanding of those concepts and purposes to be taken into account. In the words of an earlier work of Professor Dworkin, the Constitution draws a distinction between concepts and conceptions. That being so, once we have identified the concepts, express and implied, that the makers of our Constitution intended to apply, we can give effect to the present day conceptions of those concepts."

The bottom line is that the majority of Australia's High Court (though certainly not Justice Michael Kirby) agrees with John Quiggin that 'original intent' is the correct approach. However, as the above collection of quotes shows, they have left themselves (probably necessarily) an awful lot of 'wiggle room'. You see, lawyers and economists are equally good at coining concepts that explain much less than it may seem at first glance. 'Original intent' ranks right up there with Coase Theorem in that respect. 'Law and economics', you may think, are fitting bedfellows. In both disciplines, as Forrest Gump famously observed, "you never know what you're gonna get".

For readers interested in finding out more about the delightfully esoteric (but nevertheless critically important) subject of constitutional interpretation, I recommend Kirk, J "Constitutional Interpretation and a Theory of Evolutionary Originalism" Federal Law Review, Volume 27 No. 3 (1999). For a slightly more prosaic view, you might also read a set of my lecture notes published on my Australian Public Law website.

Finally, I am indebted to American post-modern constitutional scholar Jack Balkin for the title to this piece.