Legal Beagle: The Inexorable Advance
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National are going to humour Douglas and support it as far as select committee stage, but I doubt they'll have much interest in it after that.
It was their youth wing that generally press-ganged the caucus on this issue; usually it was a pretty average backbencher leading the charge (looking for relevance with the kids having failed with the caucus... sorry...) such as Laws and then Steel (what lauded company Douglas joins and is this what his supporters hoped he contribute to NZ society?)
I've read the thread, it's good to see the discussion mostly pretty reasonable. In the end I can't distinguish the principles from the practice and so am attracted to a long forgotten view in favour of universal membership. The difference being an automatic exemption from membership on application. It was the position VUW adopted in the '90s. Sadly, some (myself included) were a little to zealous in our thinking to apply it elsewhere. I'm sure there'll be well made points arguing universal membership is no different from compulsory, however in practice it did address moral objections.
I might make one other observation having been around this debate at various points in time (including as president of WSU before it went voluntary and president of NZUSA when the Laws bill was introducted) ~ it seems to me that compared with when NZUSA first encountered this issue (circa '91), when it resurfaced in '95/'96 the student population had changed as a result of the experience of user-pays. Simplistically, I observed that many of the newer students were less interested in capital P student politics and hence less inclined to support the status quo.
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The justification for universities is the advancement of knowledge and the dissemination and maintenance thereof by teaching and research; that is also the justification for students' associations.
I could go through a few others if necessary, but the justification for the Victoria University of Wellington Students' Association is also:
1. to secure and maintain adequate state income, welfare and employment support for students.
...
6. to promote discussion and action as appropriate, on issues concerning students as citizens.
Indeed, while "[ensuring] the university provides equity and quality in assessment, teaching, conditions and course access supported by sufficient resources." is there "the advancement of knowledge and the dissemination and maintenance thereof by teaching and research" doesn't really get a look-in.
What you have to now show is either that there is some difference between students' associations and universities that allows one to distinguish them, and I think this will be very hard, because it is my belief that the difference between a body composed of the members of a university and a body composed of the members of a university currently studying at that university is pretty slim.
At it's most basic choosing to attend a university involves choosing to attend a university - it's more of an expression of free association than a limit on it. And choosing to go to a university necessarily involves choosing to be part of other groupings - the group of people studying law, or attending the tutorial in room 212 at 1pm on a Wednesday, and the student body. I'm at a loss to see why being a member of the student body also requires you to be a member of the student body association - an entirely separate organisation.
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Craig, dear god, you just said that calling an actual straight up fucking merchant banker an usurer `had unfortunate anti-semitic connotations' & now you lecture others about Godwin. Do you have no fucking shame?
Keir: I have enough shame that there are certain terms I don't apply to people of Jewish descent -- even if they are 'straight up merchant bankers'. And I'd like to think anyone with the slightest awareness of the way "usurer" has been deployed as a not at all subtle anti-Semitic code for the supposed greed and untrustworthiness of Jews would think twice about the connotations before dropping it in polite company in 2009. Just as I hope people are a little more sensitive about racist and sexist language than they used to be.
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Edge is being Edge. I saw it for several years at law school (and in the years since). You're very rarely wrong about legal issues, Graeme, but you do have a tendency to pedantry around the edges (heh), rather than getting to the heart of the issue.
He's right, of course, in this case. As far as it goes, anyway. CSM is a prima facie breach of the right to freedom of association.
But, you then have to look at whether the limitation of the right is justified in a free and democratic society, to see whether it's actually a breach of the Bill of Rights Act. This, it seems to me, is where the debate should actually happen. There is a genuine argument to happen in this space - are the benefits provided by CSM sufficient to outweight the clear prima facie inconsistency with the right to freedom of association?
Graeme's stirring shit, as is his wont, but he's also copped an awful lot of unfair crap. On its face, CSM is just as much a breach of the right to freedom of association as, for example, banning the labour party. Its both short-sighted an legally incoherent to argue otherwise. Just because most posters here like CSM (myself included, with some serious reservations) doesn't make the compulsion any less odious. So by all means come up with arguments as to why there's a pressing necessity for compulsory unionism, but don't pretend it doesn't at least raise human rights questions.
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1. to secure and maintain adequate state income, welfare and employment support for students...
6. to promote discussion and action as appropriate, on issues concerning students as citizens.
Ahhh, we've got to the nub of the issue, the so-called mission creep of students' associations. Were they simply academic and welfare advocates, and sometimes providers, you'd have no objection, is that right? It's their political, national particularly, activities you object to funding compulsorily? You might want to dig out the NZUSA Independent Review from '87 (I think) or read Grant Robertson's Honors dissertation...
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Well, yea, the purpose of VUWSA is not precisely the same as the purpose of VUW, but all the above would appear to me to be very similar to the purposes of a university,. It isn't identical, but they are close enough that it doesn't seem worth splitting hairs over the distinction. It appears that VUW agrees with me on this one as well, which suggests that maybe Parliament should show some deference. (If you disagree, well then.)
At it's most basic choosing to attend a university involves choosing to attend a university - it's more of an expression of free association than a limit on it.
Very few people say, oh, I want to attend university. They say `I want to get a BA' or `I want to be a doctor'. So that argument's flawed from the beginning.
I'm at a loss to see why being a member of the student body also requires you to be a member of the student body association - an entirely separate organisation.
Because it is my opinion that part of a healthy university is a comprehensive student body association, in exactly the same way that part of a healthy university is the requiring of exams, and justified as a restriction of human rights in exactly the same way.
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In the end I can't distinguish the principles from the practice and so am attracted to a long forgotten view in favour of universal membership. The difference being an automatic exemption from membership on application.
Do that, and my argument goes away.
A box on the enrolment form, or a page on the university website, or a form - name, student ID, signature - you get fill out at the registry office and have your membership fee refunded. That's all I need. I'm reasonably confident that would be enough to qualify as a justified limitation.
It would be enough for me anyway.
I'm pretty sure I wouldn't be using it - I've nothing against collectivism. I was a research assistant for about three months, and I joined AUS - I think there was maybe one other student member (perhaps two?) in the entire law faculty. It's forced collectivism I'm arguing against here.
There will still be arguments over whether that's the best system and whether it's optimal for society, students generally, students at a particular university, etc. - but you can have those arguments with other people.
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Very few people say, oh, I want to attend university. They say `I want to get a BA' or `I want to be a doctor'. So that argument's flawed from the beginning.
I think a hell of a lot of people want to attend university. It's easier to see in somewhere like the US, where people might aspire to "just" attend a Harvard or a Yale. But I very much think that attending a university is a massive draw for a lot on students in New Zealand too.
It appears that VUW agrees with me on this one as well, which suggests that maybe Parliament should show some deference. (If you disagree, well then.)
VUW has no control over VUWSA. The Education Act actively prevents them recognising any other organisation as representing students.
it is my opinion that part of a healthy university is a comprehensive student body association, in exactly the same way that part of a healthy university is the requiring of exams, and justified as a restriction of human rights in exactly the same way.
I think you have distilled our point of difference. Change that to "part of a healthy university is a healthy student body" and I wouldn't disagree. I just think trying to create a healthy student body by mandating membership of a student body association is a step too far, and a step that is unnecessary.
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"What is the compelling state interest to be advanced by giving associations of students the power to compel others to join them?
It's a balance of interests , this balance should provide richer discussions between an adult student body and any organisation that can help that many times "vunerable" juggle of learning important stuff on little resources.
It's a tradition. It worked in the past. Is it working now? If not , why not? Is it money?
Will unions strength suffer under voluntary membership ? yes
Is strength important to a union? It's vital.
Will the demise of union stength effect the bargaining power of the averge student over there student life? Almost certainly.
What freedoms are being gained here and do they match up to what is being lost? -
I think a hell of a lot of people want to attend university. It's easier to see in somewhere like the US, where people might aspire to "just" attend a Harvard or a Yale. But I very much think that attending a university is a massive draw for a lot on students in New Zealand too.
And being part of that is belonging to the Student Association. Your argument is like "I want to join the Army but I will not wear that uniform"
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And being part of that is belonging to the Student Association. Your argument is like "I want to join the Army but I will not wear that uniform"
You are driving in wide circles around the point. The two situations are not equivalent in the slightest. How does the wearing of a uniform infringe on fundamental rights and freedoms protected by the Bill of Rights Act 1990 in the same way that forcing someone to join an association they do not wish to join infringes on the right to freedom of association?
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I just think trying to create a healthy student body by mandating membership of a student body association is a step too far, and a step that is unnecessary.
Suppose I grant this, does it then follow Parliament passing Douglas's bill the best solution to this? I can think of a lot of sort of unjustified restrictions a university could impose on students* that wouldn't be matters for an Act of Parliament, because that would be excessive interference with the universities' freedom to manage their own affairs.
In this case, if a majority of students want out, they can get out; the part of the university directly affected (i.e the student body) has the ability to take that decision. Douglas' bill would deny the university that self-governance. And I don't see why this should be a matter for governmental interference.
* Requiring BFA candidates to take art history courses, etc...
Must rush, plane is leaving, that's a bit muddled and repetitive, but.
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How does the wearing of a uniform infringe on fundamental rights and freedoms protected by the Bill of Rights Act 1990 in the same way that forcing someone to join an association they do not wish to join infringes on the right to freedom of association?
If it were not for an exemption for the armed forces the forced wearing of a uniform would be against the Bill of Rights Act 1990. The other point has been covered over and over again, it is "Freedom of Association" not "Freedom FROM Association"
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Steve:
If it were not for an exemption for the armed forces the forced wearing of a uniform would be against the Bill of Rights Act 1990.
Cite? Otherwise I call BS :).
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Suppose I grant this, does it then follow Parliament passing Douglas's bill the best solution to this?
No it doesn't. And it's not something for which I argued.
I want what I see as an unreasonable limitation of the right to freedom of association removed. Feel free to replace it with a reasonably limitation. Paul suggest one earlier. I noted above that that would almost certainly meet my objection.
In this case, if a majority of students want out, they can get out; the part of the university directly affected (i.e the student body) has the ability to take that decision.
The part of the university most affected is the undergraduate who doesn't want to be a member. A liberal democracy is one is which the fundamental rights of minorities are not subject to majority veto.
I don't see why this should be a matter for governmental interference.
I'm prepared to respond to this, but are you really serious? It would be interesting to see what would happen if the express power for student bodies to require membership was removed, and universities were instead able to use general powers to decide for themselves, but I'm not sure it addresses the real question.
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Ahhh, we've got to the nub of the issue, the so-called mission creep of students' associations. Were they simply academic and welfare advocates, and sometimes providers, you'd have no objection, is that right?
No.
I don't care if their sole function is conducting book clubs. It's the forced membership that gets me, not the nature of the organisation that's forcing it.
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The other point has been covered over and over again, it is "Freedom of Association" not "Freedom FROM Association"
Okay - I'll address this directly this time. With precedent even.
The protection of freedom OF association in Article 11(1) of the European Convention on Human Rights is in similar terms to our section 17:
Article 11 – Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
The case of Sigurjonsson v. Iceland is directly on point. The headnote carries the salient facts:
The applicant, an Icelandic national, was a taxi driver resident in Reykjavik. He refused to join an automobile association which, [among other things], protected taxi-cab drivers’ rights. Membership of the association was, under Icelandic law, a prerequisite for acquisition of a taxi-cab driver’s licence. The applicant complained that the subsequent refusal by the relevant authorities to grant him a licence violated his right not to join an association which he claimed was protected by Articles 11, 9, 10 and 13 of the Convention.
By a majority of 8 to 1, the European Court of Human Rights held that Sigurjonsson's rights under Article 11(1) had been breached.
The full decision is available here.
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Thanks, Graeme. I knew that distinction was bunk but couldn't recall the precedent.
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Cite? Otherwise I call BS :).
Grrrrr, pedant.
;-) -
Grrrrr, pedant.
Lawyer with a grad degree. Same thing :P.
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At the time when the applicant was granted a taxicab licence, such licences were governed by the 1970 Law on Motor Vehicles for Public Hire and the 1983 Regulation. The latter was subsequently amended by Regulation no. 293/1985 ("the 1985 Regulation"): the body previously called the "licence issuers" was thereafter to be known as the Committee for Taxicab Supervision (see paragraph 20 below).
In 1989 the 1970 Law and the 1985 Regulation were replaced by the 1989 Law on Motor Vehicles for Public Hire and Regulation no. 308/1989 ("the 1989 Regulation"). The applicant’s original complaint to the Commission was concerned only with the situation after the entry into force of the 1989 legislation on 1 July 1989 .
So. Because of a technicality arising from an amendment in the law in Iceland pertaining to taxi drivers appeared to breach regulations under the European Court of Human Rights we have to let Rodger 1% Douglas dictate the right of students to vote on the status of membership of their Association?.
Feeble excuse for chucking the baby out with the bathwater. -
A liberal democracy is one is which the fundamental rights of minorities are not subject to majority veto.
Universities are not liberal democracies.
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So. Because of a technicality arising from an amendment in the law in Iceland pertaining to taxi drivers appeared to breach regulations under the European Court of Human Rights we have to let Rodger 1% Douglas dictate the right of students to vote on the status of membership of their Association?
No. 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.
One argument put forth by you ("over and over again") has been debunked. It still leaves the question of whether the law currently in place in New Zealand is a reasonable limitation on the right to freedom of association. It's just that the argument that it's not even a limit is much harder to sustain.
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I'm prepared to respond to this, but are you really serious? It would be interesting to see what would happen if the express power for student bodies to require membership was removed, and universities were instead able to use general powers to decide for themselves, but I'm not sure it addresses the real question.
What they did do, well Lincoln Uni were I did the work, was charge a levy for the provision of certain services that the university deemed essential. Membership of the SA could then be voluntary or otherwise, services continued.
I should clarify what I said earlier about granting exemptions, it doesn't necessarily follow that the fee is not still charged - a partial discount could ensure that the dissenting student does not pay for Political activities will still contributing to the cost of various services.
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Gah. Stephen. A few points:
1) 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.
2) 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.
3) 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.
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