Legal Beagle by Graeme Edgeler

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Legal Beagle: The Inexorable Advance

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  • James Green,

    It just really goes without saying

    That seems a strangely weak argument from a lawyer. I thought you might have pointed to precedent or common law. Instead, you're telling me that it's the vibe?
    You'd better get the keys to the Camira so you can move the Torana so that you can get the Commodore VS(M) out of the driveway.

    not least because the Bill of Rights also doesn't explicitly recognise a right to freedom from religion

    So I obviously have no legal training, but umm, isn't that covered in the bit where it says "Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference"

    Dunedin • Since Nov 2006 • 703 posts Report Reply

  • Graeme Edgeler,

    Would this argument still apply if SAs were apolitical?

    And why should public institutions have more or less obligation with regards to the Bill of Rights?

    The Bill of Rights only affects public institutions. Or rather, bodies exercising public powers. If you don't fit the following, the Bill of Rights doesn't restrict you.

    3 Application
    This Bill of Rights applies only to acts done—
    (a) By the legislative, executive, or judicial branches of the government of New Zealand; or
    (b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

    Yes. The argument would still apply if students' associations were apolitical and non-political. It's freedom of association with which I'm primarily concerned. This applies across political and apolitical groupings.

    I'm still trying to locate the point of contention here. So, is your beef not with the tyranny of the majority within the student body, or the fact that an institution makes membership of an organisation a prerequisite, but that the institution has a state mandate to do so?

    It hasn't really got too much to do with the institution. VUW hasn't made membership of VUWSA a prerequisite to study.

    1. We have the right to freedom of association. This is a right recognised in the New Zealand Bill of Rights Act, and which that act recognises may only be reasonably limited to the extent that can be demonstrably justified in a free and democratic society.

    2. Parliament passed a law empowering students in 1999 to decide whether they and future students should be compulsorily made members. That law (or the one passed in 2000 by the then Labour government) allows periodic exercises of that power if enough students ask for it.

    3. Without that law students would have be able to join together and force other people to belong to their students association. I right other organisations do not possess (some - like trades unions until the 1980s? - used to have similar powers)

    I object to that law. To be able to force people to do something (come with you when they're arrested, stay in prison when convicted, join a students' association) you need a power. That power is found in a law. In this case it is a few sections of the Education Act 1989.

    I see no reason why a large organisation called the Victoria University of Wellington Students' Association shouldn't be at the forefront.

    I do. (Swear to god, not just being argumentative for the hell of it.) If they are created through legislation for a specific purpose, and funding is levied for a specific purpose, then it can't fuck around and do something else.

    It's not created specially through legislation for a special purpose. It was created by a bunch of students for whatever purpose they want to give it. It's existence is recognised in legislation that gives them certain powers (in my opinion, unjustifiably so).

    The HRA section 3 objections only apply if SAs are political. If SAs are bound by their constitutions to be apolitical, nobody is losing their political rights. No more than members of charities have their right to make a profit removed.

    Section 3 of the Human Rights Act reads "this Act shall bind the Crown". Also, this isn't (primarily) about political rights, but rights of association - the same right that means the government shouldn't pass laws to allow people to stop you from joining (or force you to join) a trade union, an Automobile Association or a book club.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Graeme Edgeler,

    That seems a strangely weak argument from a lawyer. I thought you might have pointed to precedent or common law. Instead, you're telling me that it's the vibe?

    No. Merely that it was a side-point I didn't particularly feel like delving into in great depth.

    So I obviously have no legal training, but umm, isn't that covered in the bit where it says "Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference"

    It is. But notice how it doesn't say "... the right to adopt or not adopt, or to hold or not hold opinions without interference"? My point was that that doesn't matter. You still have those rights, even though the Bill of Rights doesn't expressly say so.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • James Green,

    Not having a religion or opinion is surely part of freedom of thought and belief?
    Other corollaries seem more explicitly outlined. The right to not be deprived of life v. the right to refuse medical treatment. The freedom of movement explicitly defines the right not to move.

    Dunedin • Since Nov 2006 • 703 posts Report Reply

  • Rich of Observationz,

    When I travel on Stagecoach, Wellington's monopoly bus provider, I don't have a choice about some of the fare going to fund Brian Souter's] homophobic and bigoted political campaigns. When I deal with public organisations like Vodafone or ANZ, I'm forced to help fund the Business Roundtable. If I want to get daily news in paper form, I need to buy a NACT pamphlet.

    Having a student association as part of the "package" of higher education offered by some universities is no different to this. Students have the choice of attending an institution that doesn't include such membership in the package (unlike Wellington bus users, for instance).

    Of course, the agenda behind this is obvious. Right-wing bodies, like the BRT and the newspaper ogligopoly, are fine to extract a compulsory toll from every consumer while any genuinely democratic body that tries to campaign for its members gets suppressed.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Rich of Observationz,

    Oops links. Help! Sub!

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Rich of Observationz,

    It was no where near a majority of students.

    If you didn't vote, then you indicated a desire to go along with the majority views of those that did.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Graeme Edgeler,

    Students have the choice of attending an institution that doesn't include such membership in the package

    Unless they go to one, which then changes to compulsory - like Waikato did, and Auckland has (twice?) tried to.

    Having a student association as part of the "package" of higher education offered by some universities is no different to this.

    The fact that there's a law which mandates it is a pretty big difference for me. If they try to pass a law which requires newspapers to be NACT pamphlets we can fight it together.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Sacha,

    what if Student Associations were more like school Boards of Trustees... ? ie. if they were considered a fundamental and essential part of the organisation, rather than some kind of lobby group.

    Perhaps they're more like Parent-Teacher Associations - part of the defined governance arrangements, not very powerful but better than dispersed individual voices. Unless you're a wealthy, connected, powerful individual in which case they probably add no benefit. Oh, look who tends to oppose them being compulsory.

    Isn't there an element of protection against freeloading in compulsory membership, just like some elements of employment law? It's hard to separate out the benefits of advocacy or to prevent everyone being bound by decisions with wide scope.

    I have some sympathy for a focus on governance activities, but I understand the reason for involvement in providing student services stems from a historical lack of interest or application from the universities in doing so. Has that changed?

    Ak • Since May 2008 • 19680 posts Report Reply

  • Graeme Edgeler,

    If you didn't vote, then you indicated a desire to go along with the majority views of those that did.

    It might also indicate that you were 8, and wouldn't attend the university in question for 10 years.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Keir Leslie,

    I would like to see a serious argument that deals with the fact that universities are fundamentally associations & all the arguments against CSM also apply to universities full stop.

    I dunno; it seems to me that there's a conceptual difference about what it means to be at an university.

    I think that if you removed the concept of being a member of a university you would lose quite a bit more than just some dignity. This applies especially to current students; if you've got a BA from Victoria, meh, I don't see that it makes much odds if you are a member of the university or not.

    But if you are getting that BA, I think that it is important that you be a member of the university, that ultimately the association of students is at the heart of the institution. (Again, what were Cambridge, Padua, Bologna originally? Associations of students.)

    And, yes, that means forced association, like you get forced to attend lectures, and forced to sit exams.

    Since Jul 2008 • 1452 posts Report Reply

  • Sacha,

    This isn't the "last frontier". For that, try the experience of disabled people.

    Thank you, Russell.

    This wasn't the last in a long line of human rights battles. The last was some time ago.

    Graeme, I understand the matter of principle that you have outlined clearly as always, but the equivalence doesn't stand. Quit while you're ahead on this one, trust me.

    I don't even work from a human rights perspective. However, unless rights are asserted and enforced - and Russell has given just one example where they demonstrably are not - then you're way off the mark in asserting that other such battles are over, legally or otherwise.

    Here's another one. Blind people still do not have a right to vote independently in elections, nor is anyone forcing the government to do much about it - how about taking that on as a matter of principle?

    Ak • Since May 2008 • 19680 posts Report Reply

  • Graeme Edgeler,

    I would like to see a serious argument that deals with the fact that universities are fundamentally associations & all the arguments against CSM also apply to universities full stop.

    At it's most basic the argument is:

    I want to be a member of Victoria University, why should I be forced to be a member of the Victoria University of Wellington Students' Association?

    This argument doesn't apply in reverse.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Sacha,

    why should I be forced to be a member of the Victoria University of Wellington Students' Association?

    Because I benefit from the actions of the VUWSA including advocacy on behalf of all students as part of the university's governance and service provision arrangements.

    Ak • Since May 2008 • 19680 posts Report Reply

  • Sacha,

    I may have missed something but can someone explain why this Bill is a parliamentary process, not one at university level?

    Doesn't the 1999 law allow the same outcome as the Bill's proponents want?

    Ak • Since May 2008 • 19680 posts Report Reply

  • Keir Leslie,

    But if I want to get a degree from VUW, I have to be a member of VUW. If I want to get a degree from VUW, I also have to be a member of VUWSA*. Why is it legitimate to require one but not the other?

    I don't see that your argument answers that to be honest, but that could just be me not getting it.

    * Bless their little Marxists souls.

    Since Jul 2008 • 1452 posts Report Reply

  • Sacha,

    To save time: I'm setting you up for a slippery slope argument.

    An honest chess player. :)

    Ak • Since May 2008 • 19680 posts Report Reply

  • Graeme Edgeler,

    Graeme, I understand the matter of principle that you have outlined clearly as always, but the equivalence doesn't stand.

    I really wasn't trying for equivalence.

    As I noted in my other piece, I've been thinking about posting this for some while. I've a word document on my desktop with a bunch of half-commenced blog posts in it, with various kernels of ideas floating in there - half a thought here, a nice phrase here. The drawing of the bill from the ballot gave me the impetus to finish this one.

    The idea that we're now fighting over small potatoes (compared to say, equal pay for women) as evidence of the advance of society, rather than the decline of activism, was a thought that came to me maybe six months ago in an on-line discussion (I think here). It's been in my word document ever since. The idea that students in particular aren't activist anymore isn't new; and I think the argument that this might in part be because the big fights that might affect them are over is an intriguingly different take on the matter. We're not going to have conscription again, or another apartheid tour; and the Equal Pay Act isn't going anywhere. etc. etc.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Graeme Edgeler,

    Doesn't the 1999 law allow the same outcome as the Bill's proponents want?

    No. At present, for example, it doesn't allow me to study at Victoria University while choosing not to be a member of VUWSA.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • stephen walker,

    I want to be a member of Victoria University, why should I be forced to be a member of the Victoria University of Wellington Students' Association?

    well, doh.
    why should you be "forced" to abide by any of the regulations of VUW? because you want to be a member of VUW. no "rights" are being trampled by your agreeing to obey VUW's regulations. VUW is a voluntary association, with rules. your freedom is the freedom to join VUW and abide by its rules, or not join.

    Keir wins this match, hands down.

    nagano • Since Nov 2006 • 645 posts Report Reply

  • Amy Gale,

    There are some really good arguments in both directions on this thread. Lots to think about, and I must confess I haven't given compulsory student association membership much thought since I was an undergrad.

    I would say I hadn't given it any thought at all, but when I was in grad school there was an attempt to organise grad students - by the UAW, of all people - at which time my approximate thoughts were "this really is nothing like a NZ student association, why do people make that comparison?". Richard points out that student association fees are more like the US activity fees, and I think that's accurate. It's also accurate (in my experience) to state that nobody seems to complain about them, though this may also be because a couple of hundred dollars is just noise in the overall bill.

    But what I'm left with right now is this: if Roger Douglas is in favour of voluntary membership, there's probably something deeply wrong with it.

    tha Ith • Since May 2007 • 471 posts Report Reply

  • Rich of Observationz,

    I want to be a member of Victoria University, why should I be forced to be a member of the Victoria University of Wellington Students' Association?

    I want to get a bus to Karori. Why should I be forced to subsidise Graham Souter's homophobia?

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Rich of Observationz,

    s/Graham Souter/Brian Souter/p

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • richard,

    I would say I hadn't given it any thought at all, but when I was in grad school there was an attempt to organise grad students - by the UAW, of all people - at which time my approximate thoughts were "this really is nothing like a NZ student association, why do people make that comparison?".

    As a point of clarification, this refers to an effort by graduate Teaching Assistants (ie PhD students who also teach -- and who often have a good deal of responsibility, relative to what one would see in New Zealand) to "organize" -- that is to have a labo[u]r union and engage in collective bargaining with the university.

    It is not really analogous to Students Associations, but would potentially involve all graduate students paying union dues whether they wanted to or not. Heated arguments raged over whether the students were primarily employees who were taught, or students who also happened to teach.

    But it was sometimes instructive to see otherwise liberal (and thus supposedly "pro labor" in the US parlance) academics turn purple over the thought of having to deal with unionized students.

    In the most part the issue has gone away, largely because many US universities substantially improved the pay and conditions for their graduate students -- and at all decent research universities, grad students will get both their fees covered and a stipend (certainly in the sciences, and I think in most humanities disciplines as well), whether they are American or international -- which is a startlingly good deal by New Zealand standards.

    Richard points out that student association fees are more like the US activity fees, and I think that's accurate. It's also accurate (in my experience) to state that nobody seems to complain about them, though this may also be because a couple of hundred dollars is just noise in the overall bill.

    You may hear more grizzling about this at public "schools" (again to use American terminology) where the tuition fees are legislatively capped, but the administration can increase various ancillary fees, and have turned to these as a source of revenue. (Or where add-on fees are used to keep the "headline" number low -- the US really does have a competitive tertiary marketplace, and it is fascinating to watch it in action.)

    But what I'm left with right now is this: if Roger Douglas is in favour of voluntary membership, there's probably something deeply wrong with it.

    Certainly a useful rule of thumb....

    Not looking for New Engla… • Since Nov 2006 • 268 posts Report Reply

  • Rich of Observationz,

    If they try to pass a law which requires newspapers to be NACT pamphlets we can fight it together.

    Classic Tory disingenuousness, the idea that powerful people and bodies can't infringe human rights.

    Newspapers generally are bad business propositions. Only very rich people and companies (or a few well-endowed bodies like the Scott Trust, which doesn't apply in NZ) can afford to run one. Hence there exists as effective a barrier to an NZ newspaper being owned by anyone other than right-wing interests as one were mandated in law.

    Universities are independent bodies, and have historically chosen to have student associations. What this law (and the predecessor requiring ballots, for that matter) is to dictate that they cannot have such associations as part of the package of university membership.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

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