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This morning, the Sydney Morning Herald reported a story about a Sydney based hire-car driver who, sick of Uber X drivers, ordered one himself and proceeded to “arrest” him (J. Saulwicjk and M. Power, “Taxi and hire car drivers plot fight back against uberX“, Sydney Morning Herald, 24 November 2014).

Holy disruptive industries, Batman!

Holy disruptive industries, Batman!

The arrest was obviously a manufactured spectacle, with the disgruntled hire-car driver inviting SMH’s reporters to the Star to witness the thing.

The article wasn’t quite clear about what the driver did when the poor Uber X driver arrived. The scant detailing seemed to suggest that:

  1. somehow the hire-car vigilante got the Uber X driver out of his car; and,
  2. somehow the hire-car vigilante got the Uber X driver to stay at the scene, not only until Casino Security arrived, but until the police arrived.

Since the text of the article suggested that this was more than a mere venting of the hire-car driver’s spleen, but an “arrest”, I will assume that the traditional definition of arrest applies, simply, that the Vigilante deprived the Uber X driver of his liberty.

Citizen’s arrest

The SMH stated that it is perfectly legal to undertake a “citizen’s arrest” where you see someone committing an offence.

I don’t think that we should take this statement at face value. Rather, let’s break this down step by step.

The SMH statement seems to be based on S100 of LEPRA, which states:

Section 100 –  Power of other persons to arrest without warrant

(1) A person (other than a police officer) may, without a warrant, arrest a person if:

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

[…]

(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

Section 231 of LEPRA then provides that, in the course of the arrest, the vigilante “may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”.

So, there are a few elements that need be carried out for the vigilante arrest to be within the law:

  1. the arresting person must not be a police officer [✓]
  2. the arrested person must satisfy one of the conditions in sub-s (a)-(c) [?]
  3. the arresting person must take the arrested person to an authorised officer [x]

The first requirement, here is uncontroversial.

… an offence under an Act …

The second is a little more complex. First, it has to be shown that the arrested person was doing something that is an offence under an Act.

There is relevant legislation. There are, here, provisions about who may be a taxi-driver, and what constitutes a hire-car.

That the arrested person does not comply with these requirements is not enough to arrest him or her. The arresting person must show that driving an Uber X is not only breaching a provision of these laws, but that such a breach is an offence under that legislation. This is not plain, and the NSW Government’s jawboning on the issue (despite what the SMH may say) does not make it more of an offence.

Further, even if it is shown that driving in such a manner is an offence, the arresting person must show that a breach was occurring or just occurred. If the Uber X was electronically hailed, but no offence was yet committed (despite the likelihood of the offence occurring), then the arrest is in breach of these provisions of LEPRA.

… an authorised officer …

The third requirement burdens the arresting person with producing the arrested person before an “authorised officer” (see s 3 definition of “authorised officer”). This is not an open-ended category, but is strictly defined, including only a magistrate, registrar or certain Attorney General’s department employees.

This certainly does not include police officers, who were the only persons called after the “arrest,” depriving the arrested person from the right to be “dealt with according to the law”.

This failure brings the whole process outside of the provisions for a “citizen’s arrest” under LEPRA – leaving the hire-car batman (likely) outside of the protections of an arresting person under LEPRA.

… such force as is reasonably necessary …

Even if the arrest is carried out to the letter of the law, our hire-car Batman is still not in the clear. If any force was used in making the arrest, it must have been reasonably necessary.

Here, you can get in trouble even if the crime that the arrested person was detained for was serious. There is not much flexibility here, as vigilantism is discouraged.

Where the “offence” was one of a type that would be ordinarily dissuaded by the issuance of a fine or a court attendance notice, and where a reasonable cop would be very unlikely to arrest someone (e.g. most traffic and licensing offences, and most offences covered by the relevant legislation), then leniency would be even narrower. You are unlikely to get away with anything.

So what?

If our Batman arrests a person improperly, or with greater force than is reasonably necessary, he himself will have committed at least tortious assault and false imprisonment and possibly some crimes as well.

This is a dangerous game (which could lead to the absurd result where one party “citizens arrests” the person who originally tried to “citizens arrest” them for committing crimes in the attempt of an arrest, potentially ad infinitum), and should definitely not have been encouraged by the SMH.

Don’t try this at home, or anywhere – even if you are doing it right, you can get in trouble.

Joke's on you

Joke’s on you

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Working as a Tipstaff in the Supreme Court, I often get called by barristers and their assistants if the Judge is robing for the day’s matter. To clear things up, I present to you the following cheat-sheet, although, remember, if you are ever unsure, feel free to call the chambers of the Judge you are before and the Tipstaff or Associate should be able to help you out. Also note, this is a general guide, some Judges have different robing habits.

M. A. Jinnah in barrister's robes

Warning: robing has the side-effect of making barristers look bad-ass. Public domain, via Wikimedia Commons

Rule of thumb:

For a hearing: robe.

This is the basic rule. From this, most other rules derive. For example, since judgment is an extension of a hearing, you robe for judgment as well.

Second rule of thumb:

Generally, do not robe for a Notice of Motion.

However, there are some exceptions to this second rule, especially when certain “court lists” are involved.

Exception one:

For an appearance before the Duty Judge, Robe.

I believe that this is because, in the Duty List, there may be a situation where, although the case is brought at short notice, the matter may be dealt with as if there was a hearing.

Exception two:

For an appearance in the Probate or Protective Lists, Robe.

This appears to be a matter of tradition.

There’s a summary list after the jump… Continue Reading…

Bitcoin is Property

oatsandsugar —  July 22, 2014 — 2 Comments

Nicholas Mirzai and I recently wrote an article for the Australian Property Law Bulletin:

“The Bitcoin is Property” N Mirzai and J Ottensooser (2014) 29(5) APLB 94

The article discusses whether bitcoin is property, in both common law and following the economic indicia. Further, this article discussed the definition of bitcoin, a bit of international context and some policy ramifications of bitcoin being classified as property.

Bitcoin, bitcoin coin, physical bitcoin, bitcoin photo

Photo by Antana CC-By-NC-SA

Here’s a sneak peek:

Continue Reading…

This essay was written as a take-home exam for States of Emergency, Emergency Powers and Liberal Democracy at Copenhagen University, under Professor Ebrahim Afsah, which received a perfect score (12/12).  The essay was in response to the following question:

Contrast the emergency provisions in the German, Japanese, and United States constitutional order. How would you classify their respective approaches, what would you consider to be the main functional and normative needs answered by the particular instruments, and how would you assess their relative strengths and weaknesses? 

German, Japanese and United States emergency provisions

In response to exceptional circumstances, there are, at the most basic level, two different types of response: reacting outside of the usual legal system or acting within the existing legal system – using Ramraj’s terminology, an “accommodative” or “business as usual” (“BAU” approach).[1]  This essay will attempt to classify the German, Japanese and US approaches through the aforementioned frame, hypothesise on the normative and functional needs which these systems service and compare the strengths and weaknesses of each system both theoretically and within its own context.

World War I Army Biplane

Different emergencies require different responses within different contexts

Germany

A classic model of constitutional accommodation of emergency powers

The German system of emergency powers would be classified as an accommodative constitutional model.  It consists of four emergency states: the Verteidigungsfall[2], Spannungsfall[3], internal emergencies[4] and legislative emergencies.[5]  Each of these emergencies was associated with different powers.  This system, further, allows for the combatting of opponents to the liberal democratic order through the idea of “Wehrhafte Demokratie[6]

To understand the normative role played by the emergency provisions in the German Basic Law, an analysis must include a reflection on the history that shaped it.  Following a crushing defeat in the First World War, the Weimar Constitution[7] was enacted in 1919, with strong emergency provisions in obvious response to the security threats of the time.  Notably, the Weimar Constitution provided sweeping powers to the Reich President in an emergency, coupled with an extremely broad definition of an emergency sufficient to trigger such powers.[8]  This provision was abused by the Weimar republic, and eventually allowed republic to become an authoritarian regime.[9]  It is the spectre of such an abuse and domestic and international pressure following defeat in the Second World War that the current constitution was written.[10]  The Basic Law’s reflection on horrors of the Second World War are apparent, with the first thing mentioned being an affirmation of human dignity,[11] and the first Part creating rights inviolable even when an emergency has been declared.[12]  In 1968, amongst a backdrop of growing student unrest, the Bundestag amended the constitution and created a system for emergency powers.[13]  However, this system had learned from the flaws of the Weimar emergency provisions, there were sufficient checks and balances so that it could not, easily, be abused.  Thus, there are two central normative roles played by the German Basic Law.  Firstly, the strong constitutional rights that are non-derogable even in times of emergency serve to reassure the German people, and the international community, that the horrors of the Second World War could not be repeated.  Secondly, the allowance for emergency powers, even powers as controlled and pre-planned as those in the Basic Law, increase Germany’s sovereignty that was denied to the nation in its inception.[14]

The specific powers, and checks on such powers can also be seen as having a functional role in protecting the German constitutional order.  Much like the ancient roman dictatorship model,[15] there were checks on the timeframe allowable for an emergency,[16] limits to the laws that could be made during an emergency (the Basic Law could not be changed or abrogated)[17] and the usual constitutional order must remain intact.[18]  These checks serve the functional role of restricting the possibility of abuse of the emergency system.  Further, during a state of defence, if the legislature is unable to meet, they are replaced by a “Joint Committee” – a group of ministers chosen ahead of time – to take on the duties of the Bundestag and Bundesrat.  Here, there is a functional threat: the inability to pass law because the legislature cannot assemble, and this is solved with a system more liberal than the Roman model: instead of the executive taking over, a smaller legislature takes on the role.  Finally, the German system does allow for the use of the military and the border police internally during internal emergencies,[19] serving the obvious functional role of a physical response to a threat.   Thus, we can see that the German system has an ex ante approach to functional challenges: predicting and defining the scope of such challenges and responding with appropriately limited emergency measures.

The strength of such an ex ante approach would be threefold.  Firstly, the emergency requirements may be discussed ahead of time, during peace: thus, they can be discussed in full, and prove to be more comprehensive and well debated than ex post approaches.  Secondly, the explicit and controlled nature of the emergency provisions lends legitimacy to the constitution, and to the provisions.  Finally, the multi-level system employed by Germany seeks to balance rights with emergency provisions, allows the populace the final say (it allows the right to resist unconstitutional practices) and minimises the extraordinary powers allowed to the different governmental organs.  The weakness of the German approach comes through its rigidity: whilst it has served well so far, there may be a situation which was unaccounted for in the drafting process whereby the current system would limit the government’s ability to respond legally.

Japan and the United States

Two different approaches to the “BAU” emergency response

Both the Japanese and the United States Constitutional systems can roughly be classified as BAU approaches – neither has an explicit system of constitutional emergency powers.  However, both of these systems have found their own way of dealing with emergencies.  The Japanese system uses administrative guidance – “extra legal” orders given to large players in the economy.  The US system uses a mix of constitutional interpretation, legislative and administrative action to allow greater flexibility during an emergency.

The BAU system satisfies an important normative goal: it expresses a commitment to legality and to the rule of law where emergency provisions could potentially jeopardise them.  The Japanese constitution was written by the US after the Second World War, limiting Japan’s sovereignty by disallowing the creation of a military and by not providing for emergency powers.  Unlike Germany, however, Japan made a normative decision not to try and increase sovereignty, but to wholeheartedly adopt the western constitutional system imposed on it.[20]  Thus, the decision not to amend the constitution to allow for such powers serves to underline this commitment.  The US constitution was created at a time of emergency – thus, the ordinary system foreseen in the constitution is deemed to allow for appropriate responses to extraordinary threats within the constitutional system.  However, some flexibility is afforded through the “War Powers” afforded to the executive.[21]  The US commitment to reacting to emergencies within the law is highlighted by the case law on the matter, with the judiciary disallowing the exercise of power outside the areas usually afforded to each organ of government.[22]  This commitment to the constitutional limitation on government power reflects a normative commitment to rights and liberties.  Thus, the Japanese and US system of emergency powers highlight the importance of the rule of law within both countries.

Whilst the Japan and the US do not have constitutional systems for managing emergencies, they are both still subject to extraordinary circumstances.

In Japan, responding to the “oil shock” of the early 1970’s, the government had no constitutionally sound instrument to guarantee oil prices to maintain economic stability.  Thus, the Ministry of Trade and Industry, on behalf of the government, instructed the major oil companies in Japan to ignore the relevant competition law and fix prices at an acceptable rate.[23]  The companies were protected from litigation as long as they disobeyed the competition policy under the advice of the ministry, and without looking to personal profit – the illegality of their action was precluded by the instruction.[24]  Thus, the instructions take on an extra-constitutional quasi-legal role.  This instruction takes the functional role of responding to the crisis despite the normative choice of Japan to be bound strictly by its constitution’s limitations.

In the US, unlike Japan, the executive did attempt to access the limited doctrine of “war powers” in response to the economic crisis of the Great Depression, by analogising the crisis to a war. The Supreme Court stated that the organs of government, even in a time of war, could not exceed their constitutional powers, although the powers could be construed more broadly then in usual circumstances.[25]  Thus, the first of the US’s deviations from a strict BAU approach is revealed: whilst the US’s normative commitment to constitutional integrity forbid exceptional powers, they do allow increased depth of power within existing categories as a functional response to emergencies.  The second deviation is through legislation: there are currently more than 250 emergency laws enacted by different legislative bodies in the US.[26] Finally, administrative and procedural changes, alongside changing common-law requirements regarding criminal offences relating to Terrorism, highlight the third, informal and extra-constitutional response in the US to an emergency.  These three techniques highlight a functional need for exceptional powers in extraordinary circumstances.

The functional need for responses to extraordinary circumstances is met within the Japanese and US iterations of the BAU system – accommodation outside of the text of the constitution.

The Japanese and US systems show their normative commitment to the supremacy and universality of their constitutions.

The Japanese system, further, works extremely well within the cultural and socioeconomic frame of Japan.  Where administrative guidance can work in Japan, where the legal system and its participants look to the purpose, rather than the strict wording of government enactments, it would not work in the US or Germany, where strict formalism is the legal norm.[27]  In the Japanese context, the administrative guidance system allows a low-friction, responsive government power to respond to emergencies.  However, its weakness comes from its ad hoc nature, which reduced the legitimacy of the use of exceptional power.

The strength of the US system comes from the strength of its judiciary.  Whilst vague extraordinary powers would lead to an imbalance of power in many countries, the US judiciary is strong enough to enforce its limitations.  Although there were a few Presidents who believed that their power extended further than they did (e.g. Nixon’s famous statement from his interview by Frost: “Well, when the president does it, that means that it is not illegal”), the judiciary has been quick to limit the actual use of such powers.  Further, the flexibility has allowed a functional response to some threats, although the administrative and procedural approach applied in response to terrorism may have done more harm than good.  This highlights, in effect, the limitations of the US system: the vagueness of the boundaries of legality in states of exception allow for misuse and misunderstanding of the scope of the government.

Conclusion

The German system of emergency provisions is a strictly constitutional system of accomodation.  The Japanese and US systems are different varieties of extra-constitutionally flexible BAU systems.  Whilst the German system might provide more functional certainty, and the Japanese and the US systems might provide more normative currency, each system responds well to its own environment.  The German Basic Law was written under intense international pressure, but grew, with the nation, into a system which allows for emergencies, but in a strictly legalistic way.  The Japanese constitution was imposed on it, and has been largely unmodified, however, the method of its application is uniquely Japanese, with “guidance” being issued formally, and, usually, being followed in a manner that benefits the nation.  The US constitution was created in a time of conflict, and incorporates many powers which would allow a constitutional response to emergencies.  Where the US has been faced by an emegencies, it has responded by an organ of government taking leadership and responding to the situation: usually the executive as checked by the judiciary, but, with the modern threat of terrorism, the response has been within the executive, legislature and judiciary.  It is impossible to assess the strength of these systems outside of their national and historic contexts, but it seems that each system is uniquely adapted, and quite effective, within its own context.

After the jump: Footnotes and Bibliography 

Continue Reading…

This essay was written as a take-home exam for States of Emergency, Emergency Powers and Liberal Democracy at Copenhagen University, under Professor Ebrahim Afsah, which received a perfect score (12/12).  The essay was in response to the following question:

The discourse on emergency provisions is often framed as a trade-off between liberty and security. Do you believe this presumed dichotomy is always accurate? How does the socio- economic condition of a given state and society affect your assessment?

Emergency provisions are the departure from the ordinary constitutional or legal order in response to extraordinary circumstances.[1] A structured system managing emergency powers (constitutional, legislative, judicial, or even merely cultural[2]) allows for flexibility in response to a crisis.  Traditionally, such a system would increase the power of one organ of government,[3] expedite the decision-making system,[4]or reduce civil protections[5] to allow for an effective preventative policing system.  As Ramraj points out: creating a system that allows for States of Emergency not only provides a source of legality for the extraordinary empowerment of states, but also restrains the state by limiting the application and scope of such powers.[6]  However, there has been increasing academic focus on the potential misuse of states of emergency by governments.  As such, there has been a shift in analysis from Emergency powers as a tool to restore constitutional order to a dichotomy: a balancing act between liberty and security.

This essay will analyse this hypothesised dichotomy doubly.  First, this essay will discuss where the idea may hold: liberal democracies, focussing on the US experience with terrorism.  Secondly, this essay will discuss where the idea fails: where non-liberal polities and developing nations implement states of emergency – focussing on the Chinese and East Timorese experiences.

[Assemblage of the Statue of Liberty in Paris.]

Liberty and Security are not always dichotomous, especially in non-liberal polities

Liberal Polities

The United States, terrorism and the trade-off between liberty and security

Since the status quo of liberal democracy is a peaceful society where the rule of law is respected and rights are protected, a focus on preserving these rights is natural.[7]  This essay will discuss the US system, as an example, to show how rights may be infringed by states of emergency, and whether there is a direct relationship between liberty and security.

The US system of emergency provisions is quite complex.  On its face, it seems that there is little scope for emergency powers in the US constitution.[8]  However, in practice, the US judiciary[9] and legislature[10] has allowed emergency provisions in quite a few circumstances.  The cases outlined in the Chesney article[11] outline the convergence of criminal and military legal practice.  On the one hand, pressure has been used successfully to require increasing standards for military detention – arguably an increase in liberty for the captured with a potential decrease in security for the nation.[12]  On the other hand, procedural requirements for civilian, criminal prosecution have decreased.[13]  These decreases include allowing guilt by association[14] as well as increasingly accommodating government requests for secrecy, even to the detriment of the accused.[15]  In the spirit of the American liberal ideology, it began to extend rights to military trials (that more often than not, involve non-nationals). However, in the name of security it reduces protection in the criminal system (which targets domestic crimes, usually involving nationals).  Thus, here, a Liberty-Security analysis highlights an absurd result: liberty is becoming the focus of external efforts, and security the focus of internal efforts, quite the opposite of that which is expected.

Thus, the US system shows that a Liberty-Security analysis can be interesting.  However, whether the two are dichotomous is not clear, since there is merely a correlation shown.  More importantly, there has been no proof that the decrease in liberty allowed for in the emergency provisions has had any effect on increasing security: in reality, the decrease in legitimacy caused by the provisions outweigh the small gains in possible prosecutions caused by these provisions.

Non-Liberal Polities and Developing Democracies

China and East Timor: assumptions in the liberty-security model

This section will analyse the dichotomy hypothesis from two angles: where there is no government aspiration towards liberalism (China) and where the rule of law is still to be established (East Timor). In both situations, the dichotomy between security and liberty is not central to the population, and the relationship between the two is even more tenuous than in the US.

China has developed a different social contract to that which is standard in liberal polities.  In China, under Mao, China’s fear of resorting back to the lawlessness of the early 1900’s (colonisation by Japan, civil war), the Party ruled with an iron fist, and the populace accepted that.  Even where it wasn’t, any dissent was briskly dealt with, often without any resort to legal authority for such actions.[16] Since the Cultural Revolution, and, especially in the past 30 years, a new social contract has taken the forefront.  Whilst fear in the populace was the motivator before, now, economic growth has allowed the government its power.[17]  Thus, the goal of the government, with the implicit consent of the populace, is maintaining economic growth.  One way it has managed to do this is by instituting rule by law.[18] Whilst, at times, groups of people in China have shown that they value liberty, it seems that it is not the central focus of the populace, or at least of their pragmatic relationship with the current political system.  Thus, if liberty is a secondary goal to economic growth,[19] this essay argues that a Liberty-Security analysis is not the most appropriate measure for China’s use of emergency powers.

In China, a constitutional legalism was put in place primarily for the sake of legitimacy.  However, this essay will argue that the system of emergency powers allowed Chinese constituents their current legal liberties – a situation whereby security and liberty were not dichotomous, but, rather, complementary.  In 1976, the Chinese government uses the army, without legal basis, to establish order.  In 1982, a new constitution was put forth with Emergency Provisions.  Deng Xiaoping used these provisions as opposed to arbitrary rule, as part of a commitment to law.  Thus, whilst during the application of the emergency provisions (such as in the response to the 1989 student protests) liberties may have been sacrificed for the good of the state – but these liberties would not exist if the government did not have the flexibility of emergency provisions to tempt it to rule by law, rather than rule arbitrarily.   Even though China’s aims are not the rule of law, or liberality, there has been further reform to the Emergency Provisions system, with the “Law on Martial Law,” “Emergency Response Law”[20] and the 2004 constitutional amendment increasing the controls on the government. [21] Thus, in the Chinese case, the population was only granted liberties in peace-time, as well as in emergency, because the government felt comfortable granting them because of the availability of emergency provisions.

East Timor was born in conflict,[22] in the shadow of a hostile Indonesia and a long history of colonisation.  The nation, however, had aspirations of constitutionality.[23]  The two times where a state of emergency was declared were in response to existential threats.[24]  The state declared emergency legally.  However, these provisions were also created to minimise the impacts on the liberty of the populace – e.g. a curfew was put in place instead of other more draconian measures to restrict movement.[25] Further, the emergency powers allowed constitutionally were extremely strictly controlled, in order to prevent abuse: time limitations were in place, the Human Rights Ombudsmen could not be closed and other controls were still in place.[26]  Thus, the damage to liberty in the name of security in emergency laws was to be controlled.  In the US, the threats countered by emergency provisions exchange security for liberty within the state system, in a country like East Timor, the threats to the nation are existential.  If the emergency provision fails, the state may fail, and any liberties or aspirations to the rule of law would be jeopardized.

China and East Timor differ significantly from the US, and any analysis of emergency provisions should reflect these differences.  A simple Liberty-Security analysis would fail to reveal the complexity in China’s “legal experiment” or East Timor’s this nascent democracy. In the US, we can judge the Liberty-Security dichotomy in a simple binary system: where the emergency provisions are in force and where they aren’t.  In the case of China, the analysis must be more nuanced:  one must judge the balance between liberty and security on a different binary system, where the emergency powers are in force, or where the government ceases to experiment in legality and returns to a Mao-like arbitrary rule.  Similarly, in East Timor, the analysis must take into the account that without the use of emergency provisions, the state may cease to exist, with any aspirations to liberal democracy, any rights gained so far and any semblance of rule of law going with it.   Without the emergency provisions, rights and protections tangential to the legal order protected by the provisions would disappear: thus, the hypothesis of dichotomy fails in the case of China and East Timor.

Conclusion

The hypothesis of dichotomy is not universal, but may have a limited application

This essay has shown that in liberal democracies such as the US, the hypothesis of dichotomy may hold: emergency provisions do tend to increase security and, at the same time, reduce liberties.  However, even in the case of the US, this analysis proved simplistic – in sacrificing liberties in the name of security, the US may have increased its security threats by losing legitimacy.  Further, in the face of non-liberal polities and aspiring democracies, this dichotomy does not hold except for in the simplest of analyses.  In China, without access to emergency provisions, the government may not have even aspired towards rule by law.  In East Timor, the rule of law may have fallen apart were it not for emergency provisions.  In each case, the liberty and security increase hand in hand, not in the inverse manner proposed by this hypothesis.  This result may be explained by the normative goals of the government and the socioeconomic zeitgeist of the nation applying emergency laws, as well as the magnitude of the threat.  In the US, with a normative underpinning in the rule of law, and a country rich and developed enough to be resilient, the analysis may prove an effective tool for the populace and academia to judge proposed emergency provisions – is the citizen willing to give up this liberty to protect against that security threat?  In China, which lacks such a normative underpinning (instead being focussed on real and tangible increases in output) such an analysis fails to account for the fragility of the government’s attachment to law.  In East Timor, a nation in a fragile socio-economic state – where there is little resilience in the rule of law, such an analysis fails to account for the loss of liberty associated with the loss of the rule of law.

The dichotomy hypothesis may be an important tool, but it is a tool with a scope limited to established liberal democracies with the rule of law and socioeconomic sophistication.  The inverse relationship between liberty and security in emergency provisions may be helpful, but it is by no means universal.

After the jump: Footnotes, Bibliography and Related Articles

Being involved in Australia’s review before the United Nations Committee was definitely an eye opening experience.  After studying Rights of the Child in International Law in Copenhagen, I thought I had a little bit of a grasp of what the Review would be like.  In reality, though, it was much less formal, and much less based on the texts of the Convention on the Rights of the Child and the optional protocols than I thought it would be.  The committee used the convention as a scaffold, but questioned the Australian delegation much more widely.

IMG_5225

The Committee room in Palais Wilson

If I were to summarise the two day review, I would have to say this: Australia has a high standard of living, and of respect for rights, for most children within its borders.  The main issues before the Committee were inadequate data collection (which, perhaps, hid further issues), the inequality of rights protection (especially for at-risk groups, such as children experiencing homelessness, indigenous Australians and those applying for Refugee status), and cultural or semantic issues, such as the division in Australia about the legality of corporal punishment, and the a definition of “slavery” in Australian law which does not satisfy the treaty requirements.

IMG_5273

Members of the Australian Child Rights Taskforce with Committee Member Mauras

However, there are also areas where we should be proud of our country.  Australia’s innovative approach to preventing uptake of cigarettes by children, namely the plain packaging law, whilst being disputed in the World Trade Organisation, was hailed as a radical and important step forward by the Committee on the Rights of the Child.  Further, apparently our legislation regarding sex-tourism is amongst the strongest in the world, with a never-before-seen allowance for deportation for trial of Australians, or persons in Australia, for offenses committed abroad, even if Australia does not have bilateral treaties requiring such extradition.

Jan with Mr Zermatten, Committee Chair

I think the best way to imaging the road forward for Australia would be to look at Ms Mauras’ final words before the Australian delegation, where she listed questions unanswered and areas of improvement:

  • Why have you kept your reservation to Article 37(b)?
    • Australia’s reservation seems only to allow for an exception which is already allowed for within the words of the treaty, namely, imprisoning children and adults together where they are family
  • There is a link between violence and corporal punishment, there needs to be more done, both legally and societally.  What is so difficult about totally banning corporal punishment?
    • There is still, in Australia, the common law defence to assault of “reasonable chastisement” – which allows for corporal punishment
  • What of the over-diagnosis of children of ADHD and other issues?  And the overuse of psychotropic drugs?
    • The gentlemen sitting next to me, from a European NGO, came here especially to hear submissions on this issue, which was largely ignored by the delegation.
  • What about the low rates of breastfeeding?
    • Whilst there is a high incidence of breastfeeding initiation (due to encouragement by hospital staff) the continuation of breastfeeding is too uncommon, and should be encouraged, further, by the government and health services.
  • What of alcoholism in aboriginal communities? How are the root causes being tackled? We were left with a sense that there is lack of understanding of Aboriginal issues, especially regarding “closing the gap” and self determination. And we are concerned about the Northern Territory Intervention.
    • The Australian delegation showed that they understood this to be an issue, and that there are measures being taken to try and improve this, however, the committee specifically criticised the lack of rich data, and highlighted the lack of evidence of the effectiveness of the Northern Territory Intervention.
  • We need more information on education, especially early childhood education, especially in aboriginal communities?
    • Again, another ineffective data collection issue.
  • We need more information on the grey areas in juvenile justice (10-14 and 14-18 year olds)
    • ibid. 
  • What of violations by Australian Companies abroad?
    • This is, perhaps, a new angle for the committee to take.  A delegation from the International Commission of Jurists was hoping to hear more about this.  Whilst the committee flagged this as an issue, and gave examples of breaches, mainly in mining and fisheries, of Child Rights by Australian companies abroad, the issue remained largely unanswered by government.
  • We invite the Australia to sign and ratify Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure,to the CRC.
    • This could be a very important optional protocol, and a central role for the new Children’s Commissioner in Australia.

Thus, whilst most children in Australia have their rights protected, there are still those whose rights are inadequately protected.  Australia could, in the future, do more to improve the lives of these children, and, from the policy statements we heard from the Australian Delegation, the Government is moving in the right direction, and is willing to be a pioneer.  One area Australia, with the help of the committee, could pioneer, would be to help other countries protect their rights, through conditional aid, restrictions on Australian companies abroad, and more.  I left this committee with a much more thorough understanding of Child Rights, and of the issues facing children in Australia, but I also left this meeting thinking that Australia was a world leader, and should continue to be, in the field of child rights.
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An Australian Mission to Geneva intern handing out Government policy summaries to committee members

Thus, binding a country’s export duties will increase confidence in the international market, stabilising prices and increasing foreign direct investment. A multilateral system for export tax binding has not yet been negotiated, but, perhaps now is the time to put in on the international agenda.

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This is a paper in response to the request for reflection on the effects of poverty in the developing world, and the policy solutions proposed that are in place,  written for the UTS Economics elective  “International Economics“.  This paper discusses the effects of poverty on developing nations as well as critically analyse macroeconomic and other international policies that aim to reduce poverty.

.An unemployed fisherman at the camp

A fisherman at a IDP (internally displaced person) camp in Trincomalee, Sri Lanka

Poverty is a problem that affects much of the world directly, and the entire world indirectly.  Whilst the levels of poverty are reducing globally, much of this reduction is in China and India, where there is a growing middle class.  In much of sub-Saharan Africa, poverty is widespread, and it doesn’t look like it is decreasing.  This paper will describe the effects of poverty on the developing world (in Part 1), and describe international policy, economic and otherwise, which attempts to reduce poverty and its impacts (Part 2).

Part 1: Impact of poverty on the developing world

Poverty, where prevalent, is a troubling obstacle for governments and can hinder the growth and development of any society. In its worst form, poverty has had detrimental effects on regions such as Africa, Asia and Latin America. The World Bank (2008) found that while most of the developing world has managed to reduce poverty, the rate in sub-Saharan Africa (the world’s poorest region) has not changed in nearly 25 years. ‘In 2005, half of the population in sub-Saharan Africa was living below the poverty line (about 380 million people)’ (Wroughton 2008, para.12). Famine, high child mortality rates, vulnerability to diseases, lack of infrastructure, poor or non-existent health care and sanitation, malnutrition and corruption are just a few of the major problematic factors that developing nations have contended with due to poverty. These damaging effects have caused greater problems, affecting not just the African, Asian and South American continents, and the rest of the world.

Famine

One definition of poverty is the lack of basic essentials such as food and clean water. Many developing nations such as Ethiopia and Tonga rely on agriculture as their main source of income. However, land is scarce.[1] The statistics of poverty on developing nations are discouraging. The lack of food has meant one in three Africans do not have enough food to eat, and for the majority of these people, chronic malnutrition is a life-threatening fact of everyday life.

‘In the Sudan, 90 of every 1000 children die by the age of 5. In Ethiopia the figure is 164 per 1000, compared with a norm of 4-6 per thousand in industrialized nations. For adults, lack of food and money means lack of health care, made even more dangerous by living conditions marked by lack of clean water and adequate sanitation’ (Adkins 2008, para.2)

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A gardener in a town by Jaffna, Sri Lanka

AIDS/Poverty Cycle

Governments in developing nations have found it challenging to provide proper health facilities to its people. Inadequate infrastructure to support a public health system has intensified the pervasiveness of HIV/AIDS. ‘In 2002, one in four Africans was directly affected by the epidemic. It is estimated that 24.5million of the globally 34.3 million infected reside in region of Sub-Saharan Africa. Whiteside (2002) states that poverty increases the spread of HIV and AIDS which in turn further aggravates the growth in poverty – this is known as the AIDS/Poverty cycle; the increase in consumption needs due to higher medical costs depletes household assets; AIDS can push household incomes down by 80% and thus increase household poverty (pg.313).  In Botswana, a report predicted that the country’s GDP growth would fall from 3.9% a year without AIDS to between 2% and 3.1% a year with AIDS’ (Whiteside, 2002, pg.323).

High Infant Mortality Rates

In a report released by the World Health Organisation (2011), newborn deaths decreased from 4.6 million in 1990 to 3.3 million in 2009. Interestingly, developing nations were found to have a disproportionately high level of child deaths (para.1). The research found that ‘99% of all newborn deaths occurred in developing countries. Countries such as India, Nigeria, Pakistan, China and the Democratic Republic of Congo accounted for more half of them. India alone has more than 900,000 newborn deaths per year, nearly 28% of the global total’ (ABC News 2011, para.4).

Psychological Stress

It is a well-known fact that poverty impacts psychological wellbeing. The World Health Organization (2003) states that ‘no group is immune to mental disorders; however the risk is higher among the poor, homeless and unemployed and uneducated’ (Rojas 2011, pg. 208). The feeling of vulnerability and insecurity has meant that those living in developing countries are under constant psychological stress. Income poverty has exposed many to the bottom of the social ladder, which unfortunately can be detrimental to a person’s self-esteem and for most of the children in Africa: education is limited.

‘On average, 62% of children in Africa do not complete primary school, and in 19 nations the figure is under 50 %. Literacy rates are low. […] As each generation grows up, the lack of education means another opportunity to break the cycle of poverty is lost. Those who do get good educations tend to leave Africa altogether, frustrated by the lack of opportunity to use their skills. Poverty means lack of the resources needed to lift oneself out of poverty’ (Adkins 2008, para.4).

Poor Public Health Infrastructure

Poverty has been a major cause for many vector borne diseases such as malaria, tuberculosis, cholera and typhoid. ‘Malaria is currently one of the most important public health problems of the developing world with around 2.5 million deaths occurring every year, mostly in children (McGuigan et al 2002, pg.12). Prepared by the World Health Organisation, the World Health Report (2008) critically assessed the methods health care was organised, delivered and financed in both the richest and poorest of countries around the world. The findings were both surprising and what was most striking were the inequalities and failures of health outcomes in the countries such as Afghanistan, Mozambique and Somalia. For example, ‘Swaziland is a country that has an average life expectancy of 39 years as opposed to Japan, of 80 years ’ (Schmidt 2010, para.3).

‘In the estimated 136 million women who gave birth in 2008, around 58 million would have received no medical assistance whatsoever during childbirth and the postpartum period. Annual government expenditure on health varied from as little as US$ 20 per person to well over US$ 6000. Globally, with the costs of health care rising and systems for financial protection in disarray, personal expenditures on health has pushed more than 100 million people below the poverty line each year’ (World Health Organisation 2008).

Food Security and Climate Change

The effects of food insecurity are well documented in the developing world. It is commonly accepted that a lack of nutrition at a very early age affects children’s height, intellectual development and hence; low productivity in adults. ‘Malnutrition also increases the susceptibility to infection and with more than 60% of households in North Ghana living below the national poverty line, households spend a much higher proportion of their income on food than households in the rest of the country’ (Cudjoe et al 2010, pg. 296). Thus, climate change will have a big impact as developing nations are more vulnerable to rising world food prices, which have particularly surged for grain products such as maize, a main food staple for countries such as North Ghana.

An older lady cleaning rice outside of her home constructed from UNHCR tarpoulins

An older lady cleaning rice outside of her home constructed from UNHCR tarpaulins

It is clear that the poor are particularly vulnerable to climate change and will suffer disproportionately from its impacts. For example, maize is a major staple crop and often forms the basis of food security in developing countries. This is clearly illustrated by the example of Mexico, where 70% of maize is grown on rain-fed land, by farmers who occupy less than 5 hectares. It is largely regarded as the “peasant crop” and has been repeatedly negatively affected by recent droughts (McGuigan et al 2002, pg.10). In many African countries, agriculture remains the principal economic activity, and agricultural products are the principal source of export trade. However, increased water stress is expected to affect from 75 million to 250 million Africans. Crop yields in some African countries are expected to drop by 50% and it is predicted that the impact on food security and malnutrition will be enormous (World Health Organisation 2008).

Thus, poverty affects the developing world dramatically: in the short term it cripples the population, and in the long term, it creates a cycle of a lack of infrastructure and education which makes it difficult to break out of.

Part 2 – Current policy initiatives to reduce world poverty

Poverty in the world today

It is important, when considering how to reduce poverty on a global scale, to note that there have been several success stories – some countries have broken out of the poverty cycle and transitioned into being “MDCs” –more developed countries.  Countries as diverse as Ireland, South Korea, Japan and Taiwan have stepped out of absolute poverty into global economic powerhouses (Kinealy, 1995, 722, MacFarquhar et al., 1991, Kleiner, 2001, Maddison, 2003). However, there is still a large proportion of the world that lives in poverty, with (at 2005) an estimated 40% of the world’s population living on less than $2 USD PPP per day, and almost 90% of the world’s population living on less than $10 per day (IMF, 2010).[2]  Further, whilst countries like China and India have burgeoning middle classes, there are still many nations in the world that are not even on a track to reducing poverty, particularly in sub-Saharan Africa. Thus, it is important in evaluating the initiatives used today to observe their success or failure, obviously accounting for the differences in the nations they are applied to.

This section will critically analyse three areas of poverty-reduction policy: 1. Macroeconomic policies (Kemp and Kojima, 1985, Menzies, 2000, Menzies, 2008, Ben-David et al., 1999) 2.  Other economic and social policies (Counts, 2008, Escalante, 2007, Kiva, 2011) 3.  Legal policies to promote good governance (Minogue, 2008, Bardhan, 2006).  Within the limitations of this paper, it is impossible to exhaustively analyze all poverty reduction frameworks, or even to list them.  Thus, this paper will analyze several policy frames in each category through the lenses of feasibility and effectiveness.

Macroeconomic policy initiatives

Macroeconomic policy initiatives tend to look at poverty as a national or macroeconomic issue, and seek to improve national economic trends as a means to reducing poverty.

Tied aid

Tied aid is money given from a donor country to a beneficiary country under conditions, usually that the money be spent on goods from the donating country.  More than 58% of international official aid is tied (OECD, 2006, Part 1), thus, the motivations behind and the costs of tying aid must be analyzed.

Kemp and Kojima (1985, p721) enunciate the paradox succinctly:

“International transfers necessarily harm the donor and benefit the recipient [… However, where] donors require that aid be spent in a manner not close to the preferences of the recipient […] there is the possibility that aid perversely leaves the donor better off.”[3]

However, that is not to say that there are no reasons for tied aid to exist.  The motivations of tied aid are primarily self-interested: that is, the donor country receives back some of the money, and is thus less affected by the donation.  However, aid may be tied to further benefit the recipient economy whereby the recipient does not have the expertise to manage such funds.  This may actually benefit the recipient, since, in essence, the beneficiary nation is receiving both aid and economic advice.  Further, that a nation may “tie” its aid to stimulate its own exports: the USA offers many nations aid to fuel its own exports (primarily in the arms and infrastructure sectors (Hartung, 1999)).  Thus, it may be seen to be positive since it stimulates aid where there might not be any, through incentives for the donor nation.

The efficacy of tied aid, and its benefits, are severely limited. When tied aid is given, there is no benefit of purchasing power parity (heretofore “PPP”) in the developing country: since it must buy from the donor country, it must pay the prices of the donor country.   To give the example of Sri Lanka,[4] 100 million dollars of aid would be worth more than 227 million dollars of aid tied to the USA (WolframAlpha, 2011).  This is just taking into account PPP.  Further, the donor country is receiving the “multiplier effect” of the cash injection: the beneficiary country spends money in the donor country, stimulating employment and consumption in the donor country rather than the beneficiary country.  Thus, tied aid is significantly less effective to beneficiary nations and untied aid would prove more effective in reducing poverty (although it would be less politically popular).

Debt Forgiveness

The developing world currently owes more than 2.7 trillion USD in debts, this translates to $25 in debt repayment for each dollar of aid received by the developing world (Shah, 2010, WorldBank, 2008).  Further, many of these countries cannot even service the interest on the debt, thus their debt continues to grow: this is referred to as irredeemable debt.  Thus, reduction or restructuring of third world debt is paramount to reducing poverty, since highly indebted poor countries (HIPCs) spend their taxes on repayments, rather than infrastructure improvements domestically.  Since 1956, the Paris Club[5] has worked in rescheduling third world debt, but until the 1990’s, the net present value of the debt remained unaffected by these restructurings, instead of forgiving debt, the debt was just delayed (Menzies, 2000, p5).

detangling threads in the loom

Untangling third world debt

However, since 1996 the Paris Club (alongside the IMF and the World Bank) have been restructuring loans, in a manner that reduces their net present value, on a case by case basis.  For example, the Paris Club (in the 2000’s) wrote off all OECD debt to Iraq after the war and suspended Southeast Asian debt repayments after the Boxing Day Tsunami.  Perhaps the Paris Club’s most significant achievement was its 2005 agreement with Nigeria which helped the country pay off $30 billion in debt (ParisClub, 2005b).  This “ad-hoc” write-off of Nigeria’s national debt provides a clear view of the mechanics of debt forgiveness, the motivations behind it and its effects on creditor/debtor nations.

The agreement wrote off $18 billion of Nigeria’s debt, which would have otherwise been irredeemable.  In exchange, Nigeria repaid the remaining $12 billion, and instituted some economic reform in line with the IMF’s suggestions.  This write-off was funded by two different parties: firstly, the creditor nations agreed voluntarily to write off some of the debt; secondly, the Millennium Fund,[6] and the HIPC trust fund agreed to compensate creditor nation’s write-offs, amounting to $6 billion (ParisClub, 2005a).

The creditor countries, as well as Nigeria, were pleased with this result for the following reasons.  The creditor countries were allowed an exit from a loan that would have otherwise been redeemable, extracting $18 billion (after Nigeria’s repayment and the Paris Club’s compensation) from a $30 billion loan.  Further, they were able to reform Nigeria’s economy somewhat, allowing the creditor nations greater access to Nigeria’s market. The debtor country, Nigeria, was able to offload its debt, allowing future governments greater flexibility in their budgeting and expenditure decisions.

Whilst there is the argument that writing off debts to poor countries would disincintivise loans to the third world, that the creditor nations are compensated in IMF and other funds (10 million ounces of gold[7] were to be sold to fund debt relief by the G-7 (Menzies, 2000, p5)), and that the creditors may use this as a stimulus to reform the recipient economy shows that debt forgiveness may benefit the creditor nation too.[8]  Furthermore, it may be more effective than aid, since money that would otherwise have been transferred to the creditor nations would be invested by the debtor nation, where the multiplier effect would increase the benefit to the recipient nation.  Thus, debt relief remains one of the more effective means of poverty reduction on a macroeconomic scale, and the HIPC and J2K models of debt forgiveness may, if followed through to completion, severely dent international poverty.

Tariff reduction

Where countries or economic blocs (most significantly, the European Union) protect domestic production via tariffs and subsidies and ask the IMF/World Bank to require developing nations to open up to free trade, there is a risk that trade would become unbalanced.  Developed nations would be able to export inefficient subsidized goods, and developing nations would not be able to compete with tariffs.  Winters (Ben-David et al., 1999, Part 3, p47) highlights the connection between trade policies, with unbalanced tariffs/subsidies affecting exchange rates and domestic prices in developing countries.  A reduction in developed world tariffs/subsidies would allow developing countries a new market, potentially increasing their exports and, thus, their GDP’s.

Figure 1: Tariff Reduction

However, it is a little bit more complicated when it comes to reducing the tariffs of a developing nation.  Figure 1 shows the effect of opening up a developing country to trade:[9] prices of the goods decrease (from Pe to P1), and the good becomes more affordable.  This makes the good more accessible to the populace: consumption increases from Qe to Q2 (in the case of food, it would reduce hunger within the country).

However, domestic production decreases (from Qe to Q1).  Thus, for the people manufacturing the good that is now imported (or imported more cheaply), most of whom are peasant farmers who are not able to compete with economies of scale, poverty will increase or persist because of unemployment, at least in the short term.  Further, where a country produces a good efficiently, and the bulk of the goods are exported,[10] the manufacturers of the exported good in the developing nation will receive more money in return for their goods, but domestic prices will rise, reducing consumption (this can be especially dangerous with regards to food).

Taiwan has shown the ability of a nation to benefit from trade (moving from agriculture to simply transformed manufactured goods to high value added manufactured goods whilst increasing the GDP per capita and HDI consistently), this movement to free trade must be done carefully so as not to shock the economy of the developing nation with increasing prices or decreasing incomes.  This tariff reduction unlikely to occur however, since reduction in protectionism is extremely politically unpopular, especially in Europe and the United States, where agriculture is cultural and highly subsidised.

Other economic and social policies

Apart from macroeconomic tools, countries and NGO’s are also working on reducing poverty by acting on a microeconomic level.  Some of the largest issues to developing nations are lack of infrastructure, education (the development of human capital), high transaction costs and social issues.

Whilst governments mostly fund the infrastructural work, often aid is given in the form of engineering/advisory services.  This infrastructure (in the form of roads, electricity grids, clean water, etc.) is critical to the development of a nation: the development of such infrastructure fast-tracks the nation’s economic development (Counts, 2008).

The public and private sectors have worked together to improve education, and increased literacy and tertiary education within a nation leads directly to increased economic growth, since the resource “labor” is improved (Escalante, 2007).  Further, education leads to increased participation amongst the women of a population (this effect is especially visible in Sri Lanka, where female participation is much higher than neighboring India, correlating with Sri Lanka’s more developed education system).

Transaction costs, lack of accessibility to credit/capital and social issues are all dealt with on a microeconomic level.  Here, microfinance providers and social businesses work with NGO’s to provide sustainable funds to poverty-stricken areas, whilst maintaining the profit motive (and the dignity of the beneficiary), increasing the effectiveness of the funds (Kiva, 2011).  Further, global and national for-profit organizations, including banks, are working to reduce transaction costs,[11] making banking, saving and loans more accessible to poor persons in developing nations (Mukherjee, 2008).

A taylor from Mannar who moved to get married in Trincomalee, now running his business out of the IDP camp in Mutthur

A tailor who purchased his industrial sewing machine with a micro-finance loan

Whilst these microeconomic/social methods of poverty reduction have huge returns, they are also extremely skill and labor intensive: requiring professionals to audit/oversee their implementation.  Potentially, however, the profit motive, especially in microfinance, may stimulate skilled labor/first-world non-humanitarian interest in these methods of poverty reduction.

Legal policies to promote good governance

Without good governance, namely in the form of positive regulatory governance and a lack of corruption, (which can only be secured by an effective political and judicial system),[12] any economic growth is stunted (Minogue, 2008, Bardhan, 2006).  In Indonesia and the Philippines alone, their leaders (in the second half of the 1900’s) embezzled more than 25 billion USD.  This does not account, at all, for the costs of corruption on a microeconomic scale.  Whilst it is outside of the scope of this paper to discuss the manner in which regime change or judicial reform may be implemented, they remain highly effective methods of reducing poverty and increasing the quality of life of the citizens of poor nations: a most effective building block to development (Grindle, 2002).

Conclusion

Poverty continues to very much affect the developing world, causing deaths in the millions from starvation and disease.  Eliminating poverty may be impossible in the short term, but its effects on the people of developing nations may be reduced, especially when a concerted threefold approach (macro – especially trade and debt relief, macro and legal) is taken to poverty reduction.  Whilst it is plain that this will aid the developing world, it may, too, economically benefit the donors, the creditors forgiving debt and those investors who are game enough to invest in developing countries.  By reducing poverty, new markets open up to first-world companies, new labor pools, new ideas and thinkers.  Whilst the short-term effects of poverty reduction may be relative harm to the donors, the long term benefits to the world at large starkly outweigh these costs.

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I wrote this essay for “Constitutional Law” in my second year of university (spring semester, 2010).

Abstract

This paper will seek to define the right to vote; discuss how this right is enacted, through jurisprudential and practical frames; as well as conclude on the manner in which the rights might best be bolstered. This paper concludes that the current implied right to vote, when supplemented with Australia’s international treaty obligations, proves sufficient in protecting the voting rights of Australians.

Vrouwenkiesrecht / Votes for women

Even though Australia has a strong democracy, the right to vote is only tenuously protected by the constitution; suffrage, the "weight" of each vote and many other factors are still determined by parliament.

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Law Societies have their problems. But they also allow for education, leadership, charity and fun at university.

There is no question that students enjoy the socials, the revues, the competitions. What we need to do is make sure that everyone knows that the services are available. We need to encourage voting and perhaps reform the societal electoral process. As long as the societies keep their focus on their peers, they’ll do good. The politics will sort itself out eventually.

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