Legal Beagle: The Inexorable Advance
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Graeme, snap.
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Universities are not liberal democracies.
Quite right. I'm not objecting to universities. I'm objecting to sections 229A ~ 229D of the Education Act 1989.
I'd object just as strongly to a law giving the residents of every street the power to decide whether membership of a neighbourhood association should be compulsory for all street residents.
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As I've said at least three or four times in this thread, students already have the option of VSM.
In every university except for Auckland and Otago, they chose to go compulsory. If they want VSM they can vote for it. It's in their hands. This is about taking that choice out of the hands of students.
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So what should the internal functions of universities follow the same restraints as liberal democracies? In particular, why is it for a university to decide what courses are required --- and note that you can't decide that you don't want to associate with the rest of the plonkers in LAWS10* and still get a law degree --- but not for that same university* to decide that all students shall be members of the students' association?
Well, I assume you'll argue that the costs outweigh the benefits of universal membership, but (a) I disagree, and (b) why is that a matter for government, any more than the specific details of what restraints on people's liberty can be imposed in exams?
* Not for parts of that same university, I should say.
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And in my imaginary New Zealand, members of Kauri Street, Tokoroa, get to decide whether they have compulsory membership of the church up the street.
And residents of Wellington, vote on whether people charged with sex crimes in their courts get fair trials.
That cannot be how a (liberal) democracy works.
The rights contained in the Bill of Rights are not collective rights. They are individual rights. If I have to ask someone else's permission, and that permission can be declined, then what we are talking about is not a right in any meaningful sense of the word.
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But that also applies to any restraint a university applies, which you've already admitted can in some cases be legitimate.
I really do think this comes down to whether or not you think students' associations are part of a university, or merely coincidental. I think they are, so I think it is entirely justified to have universal membership, you don't, so you don't.
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In every university except for Auckland and Otago, they chose to go compulsory. If they want VSM they can vote for it. It's in their hands. This is about taking that choice out of the hands of students.
How, George? As Graeme said, the rights guaranteed under the NZBORA are individual rights. Putting those rights to a vote in the case of freedom of association is just as inappropriate as putting the right, say, to freedom from discrimination on the basis of sex, disability, sexual orientation, race etc, to a vote. The point of guaranteed rights is to protect the (often unpopular) minority against the majority who finds it convenient to trample on their rights.
As I said, I think there is a good case to make that CSM is a justified limitation on the right to freedom of association, but that calculation is completely independent of the fact that students voted on it. Making rights dependant upon the will of the majority is completely repugnant.
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Keir - my last post was a response to George's point, rather than yours.
I really do think this comes down to whether or not you think students' associations are part of a university, or merely coincidental. I think they are, so I think it is entirely justified to have universal membership, you don't, so you don't.
I'm not sure there's quite the dichotomy you suggest - 'part of' vs 'merely coincidental' - but that may well be the case. You can't go to a university without being a member of the student body, but I'd argue you could without being a member of a students' association.
It's not about powers - I've indicated I don't have a fundamental human rights objection to other universities that have student-run academic disciplinary systems. But I think it is about membership.
A law giving a committee elected by majority from residents of each street powers to decide where on the road residents cars can be parked would not meet an objection from me on human rights grounds. But a law that would allow a majority of residents in a street to decide whether everyone was a member of an organisation formed for exactly the same purpose would.
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How, George? As Graeme said, the rights guaranteed under the NZBORA are individual rights. Putting those rights to a vote in the case of freedom of association is just as inappropriate as putting the right, say, to freedom from discrimination on the basis of sex, disability, sexual orientation, race etc, to a vote. The point of guaranteed rights is to protect the (often unpopular) minority against the majority who finds it convenient to trample on their rights.
And here, once again, we come to the falacy of pretending there is no conflict of rights. Freedom of association is an important right*, but it is not the only
As I have said upthread, and I did not wish to bore others by repeating myself, students organisations exist to protect the rights of students, to representation, the provision of services, and protection from a more powerful university.These are rights that cannot usually be effectively mandated individually. It is by virtue of encompassing all or the large majority of the student body that these things are possible.
As I said, I think there is a good case to make that CSM is a justified limitation on the right to freedom of association, but that calculation is completely independent of the fact that students voted on it.
At least we're starting to get away from the fallacious free/not-free dichotomy. Students are partly free to non-associate, and a lot of comment seems to ignore this, whether deliberately or not. Again, their are no absolute freedoms or rights. More of one necessarily limits others.
Making rights dependant upon the will of the majority is completely repugnant.
I guess you also find Parliament repugnant? The great majority of laws have rights implications - don't pretend otherwise - and these are determined by the majority.
*Terming something a "right" is simply to say that it is something we think should strongly be protected. Rights are not trumps.
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Again, their are no absolute freedoms or rights. More of one necessarily limits others.
I disagree.
The right not to be subjected to torture is absolute. That someone's not being tortured might mean someone else's right to life is endangered is tough.
Why? Because the right to be free from torture is absolute - it is a right that cannot possibly be limited in a way that is demonstrably justifiable in a free and democratic society.
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In every university except for Auckland and Otago, they chose to go compulsory. If they want VSM they can vote for it. It's in their hands. This is about taking that choice out of the hands of students.
Ahem. Auckland and Waikato. Otago won its referendum by 79%.
I'm not sure there's quite the dichotomy you suggest - 'part of' vs 'merely coincidental' - but that may well be the case. You can't go to a university without being a member of the student body, but I'd argue you could without being a member of a students' association.
Certainly 70 or 80 years ago its not even a question you would have asked. Students Associations had a much smaller role then, but their role was somewhat integral to the institution, in much the same way that prefects might be integral to a high school. They were relied on to organise a number of events, they built the university unions around the country, sporting and cultural life etc. At Otago, pre-WWII, for example, it was the students association that applied minor matters of discipline, not the university.
Their political role outside the university is largely a post-WWII experience. Their role in governance and providing a student advocate perspective inside the institution is also much more recent.
It really depends on what you define as a tertiary education. If it's just the lectures, tutorials, labs, workshops etc, then a students association is not integral. That would be a very limited perspective of tertiary education, particularly university education, however. The University of Otago, as much as it disagrees with OUSA over many things, views their role as crucial in the university. Given the 'critic and conscience' and community requirements of being a university, I think that's important to remember.
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"Terming something a "right" is simply to say that it is something we think should strongly be protected. Rights are not trumps."
I actually agree with that statement, but its very much a minority view. The most prominent rights theorists - Dworkin, Rawls etc absolutely see rights as trumps.
I do, however, disagree with your "legitimacy through rights protection" suggestion for why membership of a students association invokes a conflict of rights. I don't think there is any conflict here, in a legal sense. Now, there is a whole nother kettle of fish that we could go on about here about which rights are offered legal protection and which are not (civil and political rights generally are, particularly in an NZ context, and social & economic rights, which might be protected by a students association, are not). But the question it seems to me that Graeme is asking is "Does CSM raise a prima facie issue of a breach of legal rights in New Zealand," and the answer to that question must be "yes."
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You know gutfeeling deregulation in the name of freedom has had some terrible results in other arenas, especially economic.
While it creates a short term buzz of fairness it inevitably opens systems up to abuse and manipulation in the long term when power balances are changed dramatically with no real thought to the long term consequences.
Why can't we respect the strategic tradition of our better laws , weighing the good they do rather than pretend that freedom is at serious challenge here.
Our cities don't have to be changed on pure emotion , especially on the zealot like emotions of our worst finance minister.
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The right not to be subjected to torture is absolute.
I can't think of an exception which proves that the right to torture isn't absolute. That being said, it certainly doesn't make the right to free association absolute, as you've conceded.
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There's this thing called principle. It means that you don't change your general position on something just because its inconvenient at the time. If freedom of association is good for members or religious groups, protest groups, unions, etc, its also good for annoying pubescent right wingers who don't want to be part of students associations.
True, when did I say otherwise. Those pubescent right wingers have every right to protest as much as they like, they can campaign for Voluntary membership the same as I stick to my principles when I don't want to see further eroding of the institutions that covet those freedoms. You can argue till you're blue in the face that there is a legal precedent to claim that those that wish to destroy what little defence we have against oppression but don't try and claim the high ground of principle, it goes far deeper than that.
The European Court of Human Rights is probably the most respected human rights body in the world. It doesn't help your credibility to just dismiss it out of hand.
It neither helps your credibility to claim I dismissed it, I did not. I just pointed out the tortured equivalence of the argument. How can you claim otherwise is beyond comprehension.
The point at which coherent debate can happen is whether or not CSM is a justified limitation on the right to freedom of association. It is legally untenable to argue that it doesn't involve a breach of the right at all.
I would agree that it seems there could be a technical breach of some interpretation of the Bill of Rights. However. The Law, surely, is there to uphold principal not be the principal itself, would you not agree with that?.
Because of a case arising in Iceland, the argument that freedom of association does not include freedom from association is bunk.
That is the sole reliance I place on case.I would say that in the particular case you refer to and under the curcumstances with which the case was brought then an anomaly was illustrated. I cannot see how this precedent could override the basic tenet of Human Rights legislation which is to protect against oppression, not to protect perceived rights of the individual over rights and general good of the majority.
I came to this discussion in good faith and hold no animosity. I just cannot see how you can defend the actions of Douglas and his ilk when you know what the agenda is. -
I can't think of an exception which proves that the right to torture isn't absolute.
That sounds suspiciously like George Bush. Do you want to rephrase that Kyle?.
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That sounds suspiciously like George Bush. Do you want to rephrase that Kyle?.
No, he's not justifying torture, quite the opposite.
Even among those such as myself who view rights as a 'convenient fiction', there are times when we do in fact treat them as absolute, or at least as trumps.
Again, I don't want to deny that freedom of association is an important right, and I thank Graeme for raising the issue here.
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he's not justifying torture, quite the opposite.
Well, yes I guessed that but the logic of the statement says otherwise.
I can't think of an exception which proves that the right to torture isn't absolute.
There is no exception which proves that the right to torture is not absolute
There is no proof that the right to torture is not absolute
therefore the right to torture is absolute.
Disclaimer, I do not support torture or Rodger Douglas. ;-) -
I don't know, but certainly not because the New Zealand Parliament passed a law giving him the power to require you to fund him.
So, why not repeal the whole of section 16A of the Education Act, so that student association membership becomes a matter for contract between universities and students? That would put universities in the same position as any other business - being able to offer a service on the terms they choose (like Stagecoach do).
Like Kyle says, student unions were compulsory before the state got involved. It's not the law that makes them compulsory (except insofar as it sets out a framework as to when they can or can't be; it's an agreement between university and student association).
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Graeme, why are you referring to a case about Icelandic cabbies when the ECHR has specifically ruled (at least three times) on compulsory student unions and found them to be legal?
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I don't know, but certainly not because the New Zealand Parliament passed a law giving him the power to require you to fund him.
(Third post. I know)
But Souter doesn't need one. He has a monopoly of buses in Wellington as well as receiving state funding (in much the same way as Vic Uni does for its domestic students).
Because no law regulates the disposition of profits from his business, he is able to apply those profits (derived from my bus fare) to homophobic political campaigns in the UK.
It comes back to my point on state and non-state actors: a powerful person or corporate doesn't *need* the backing of law to impinge on human rights.
(I'm not suggesting that it would be practical to prevent any income from NZ consumers being used for political campaigning; simply that student union fees are just one form of such income and should not be treated as a special case).
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Graeme, why are you referring to a case about Icelandic cabbies when the ECHR has specifically ruled (at least three times) on compulsory student unions and found them to be legal?
Because I wasn't using it to bolster my case. I was using it to attack the specious argument that the right to freedom of association didn't include the right to freedom from association. That is all. It is the perfect case to demonstrate that point.
I would note that in one of the cases you refer to the body was found not to even be an association, and in the second I could access, it was found to be a public body, and thus exempt from that article of the ECHR.
It's not the law that makes them compulsory (except insofar as it sets out a framework as to when they can or can't be; it's an agreement between university and student association).
It is now. That universities came to an arrangement with students' association many years before the Bill of Rights Act was even contemplated - let alone in effect - is not a matter I find particularly persuasive.
A number of laws have had to change as a result of our new-found appreciation for human rights - the Lawyers and Conveyancers Act, for example, removed the requirement of lawyers to members of a district law society. The Law Society has regulatory powers, but membership itself is now voluntary. I suspect that wouldn't have been the case if we hadn't passed the Bill of Rights.
So, why not repeal the whole of section 16A of the Education Act, so that student association membership becomes a matter for contract between universities and students? That would put universities in the same position as any other business - being able to offer a service on the terms they choose
Except, as bodies exercising public power, they'd still have to abide by the Bill of Rights. And I'd strongly argue that would include their amendment their enrolment statute to make membership of a students' association compulsory.
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But Souter doesn't need one. He has a monopoly of buses in Wellington as well as receiving state funding (in much the same way as Vic Uni does for its domestic students).
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It comes back to my point on state and non-state actors: a powerful person or corporate doesn't *need* the backing of law to impinge on human rights.
That it is difficult to fight what might be considered human rights violations by one private entity I don't consider a particularly good reason to fight human rights violations by some different public entity.
I should refuse to assert my rights under the Bill of Rights against my government because you have a harder time asserting your rights against some private foreigner? I feel for you, but I don't really see how my giving up this fight would assist yours...
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On the ECHR cases, the common finding in all of them is that article 11 only protects the right to join or not to join *trade* unions and similar bodies, and that a student union is not such a body.
If, as you say, the current Bill of Rights makes it unlawful for a university to require its members to join a student union, why has there been no challenge in the courts?
On the broader question, you create an unbalanced situation where a wealthy, right-wing foreigner has the right to use their NZ customers money to propagandise freely, whilst poorer, left-wing students do not. That is of course the Tory attitude to human rights, but I don't consider it fair or desirable. For me, there are such things as community rights, and the student community have a right to exercise these where they collectively choose to do so.
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If, as you say, the current Bill of Rights makes it unlawful for a university to require its members to join a student union, why has there been no challenge in the courts?
In brief, because section 4 of the Bill of Rights states that the rights enumerated in the Act do not trump other legislation. In other words, we don't have a supreme Bill of Rights. And compulsory student association membership is set out in the Education Act. Thus, the Bill of Rights doesn't help you. That doesn't mean there isn't a breach of the right, it just means that in 1990 Geoff Palmer couldn't get enough support to pass a proper human rights implement.
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