Legal Beagle by Graeme Edgeler

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Legal Beagle: The Inexorable Advance

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  • George Darroch,

    Sometimes those historically of the left have advanced the cause of human freedom, sometimes those of the right. I don't care that Lincoln was a Republican - that he fought against slavery is good enough for me. Much smaller potatoes this time around, but I'm arguing for an idea, not a side.

    If you want that freedom, fight for it. Campaign for students to choose voluntary at VUW (or wherever else takes your fancy).

    But don't campaign for a bill which will force students who have chosen compulsory association membership* to go voluntary against their wishes.

    *Yeah, there will be a minority on the losing side. But that's democracy. If they lose, they can always try again.

    WLG • Since Nov 2006 • 2264 posts Report Reply

  • Jeremy Eade,

    Unions form to correct imbalances. Labour Unions greatly enhanced the voice of labour and helped create a louder more powerful voice for the worker at the great New Zealand bargaining table. It's very difficult to bargain with your boss fairly by yourself for many workers.

    Strong student unions I assume do the same activity. They keep their eye on student health and collect independent feedback.

    They are a tradition of our University arrangement. Collectives are a great way of providing balance.

    auckland • Since Mar 2008 • 1112 posts Report Reply

  • Graeme Edgeler,

    Collectives are a great way of providing balance.

    And workers choose whether to join unions. Why can't students have the same opportunity?

    But don't campaign for a bill which will force students who have chosen compulsory association membership* to go voluntary against their wishes.

    For some reason, you posted this in response to a point I made about slavery, I can but suggest that the same argument applied to such circumstances would be deeply hollow - don't argue for the banning of slavery, argue for the banning of slavery (for the next two years, until the next vote is held) in your city.

    What you propose may be "democracy", but it is not liberal democracy.

    I support section 17 of the New Zealand Bill of Rights Act being there. I think it is a good right. I don't think the limit currently imposed by the Education Act is a reasonable limitation than can be demonstrably justified in a free and democratic society.

    If you disagree, then please:
    1. tell me why the limit is justifiable in a liberal democracy - advising me of the compelling state interest advanced; or
    2. campaign to remove freedom of association from the New Zealand Bill of Rights Act.

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

  • Russell Brown,

    Okay, I've had a glass of wine and a re-read, and I care even less.

    I appreciate you make the argument Graeme, and I think you generally covered the arguments well in the post -- admitting, even, that services would probably degrade if voluntary membership was enforced by legislation.

    But your linking of the issue to other human rights battles does not impress me at all. Comparing this issue to advances which meant people no longer had to live their entire lives in fear, have their life opportunities curtailed or even go to jail is just silly.

    This isn't the "last frontier". For that, try the experience of disabled people. My son was, in theory, guaranteed the right to an education, like every other New Zealand child. It didn't happen -- or rather, the opportunity was not provided in a manner that wouldn't cause unreasonable suffering. We made the right decision in withdrawing him from school, but he was failed, badly.

    You cannot in any conscience compare the above to the right of a bunch of students to be free from having to pay three or four small annual frees to an organisation that provides services (thus supporting my investment as a taxpayer in their education) and advocacy, and for whose leadership they can freely vote.

    It's an interesting discussion. I can see the principle just fine. But in practice? It just seems like an opportunity to grandstand for people who don't have much to actually worry about in their lives.

    Auckland • Since Nov 2006 • 22749 posts Report Reply

  • Keir Leslie,

    Given you don't seem to support compulsory membership of universities why do you (I assume) support compulsory membership of students' associations?

    Oh, no, I do support compulsory university membership, although I feel that currently too much power is vested in the administration with not enough democratic accountability. But fundamentally, a university is an association of scholars. You can't remove association from universities, because that's what they are, and if you don't want to associate with the university, the only recourse you can really have is to not go there.

    So the Student's Association just seems like a specific case of the general principle.

    Since Jul 2008 • 1452 posts Report Reply

  • Paul Campbell,

    But if we do away with student politics where will the nats get their next generation of tested candidates from? Will junior-act wither on the vine if they have nothing to rail against?

    Dunedin • Since Nov 2006 • 2605 posts Report Reply

  • Keith Ng,

    Apologies for jumping very late into the thread.

    Are bodycorps also a fundamental breach of human rights as well?

    During my time in university I worked for one. Membership was automatic for all tenants, a flat fee was levied, and a few cranky old people and a nutter or two were elected to run the thing. The politics were deeply personal and mostly cringeworthy. So, like student politics, but older. (And for extra irony points, Nick Kelly later took over the job.)

    It's a compulsory obligation that's appended to a private arrangement. How is this different from compulsory student unionism?

    Given that students can hold a referendum on VSM, I think your concerns break down into two key questions:

    1) Should an institution - especially one that receives significant public funding - be allowed to make membership of a SA a condition of enrolment? What if it was a private institution?

    2) Should a student body have the power to make that decision?

    The first question boils down into what conditions can and cannot be part of private arrangements. I sympathise with you that "You must be a member of the Workers Party" should not be a compulsory condition for enrolment in a publicly funded university. I think it's bloody shameful for political parties (Young Labour in particular) to hijack the resources of student associations for their own agendas.

    But the argument there is not about compulsion, but about the politicisation of a compulsory body. Sure, compulsion makes it easier to politicise something, but the two attributes are still distinct and separable. It's unfair of you to say that because compulsory membership of a political organisation is wrong, therefore compulsory membership of anything is wrong.

    But I think the second question is something more philosophical that you need to consider: What is a university? Is it simply an education provision business? The tradition of a university is that faculty and students are considered a part of the institution itself, rather than production input and customer.

    If that was the case, shouldn't students - as an integral part of a university - be able to make decisions about the conditions for enrolment at that university, within the frameworks of a liberal democratic society?

    (What's allowable within the frameworks of a liberal democratic society? I go back to the bodycorp example...)

    Auckland • Since Nov 2006 • 543 posts Report Reply

  • Graeme Edgeler,

    Comparing this issue to advances which meant people no longer had to live their entire lives in fear, have their life opportunities curtailed or even go to jail is just silly.

    To be honest, I was thinking more of things like equal pay. And then I was saying this even fell well short of that.

    And there was a reason why I tied my comment to the battle for legal equality. I recognise there are a bunch of bigger issues out there - but legislation ain't the answer to a lot of them.

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

  • Graeme Edgeler,

    Keith - the first question revolves more around whether an institution that exercises public power should have that right (see section 3 of the Bill of Rights. And whether Parliament should be granting such bodies that power.

    If that was the case, shouldn't students - as an integral part of a university - be able to make decisions about the conditions for enrolment at that university, within the frameworks of a liberal democratic society?

    I don't see why not. And this is exactly why I support elected student reps on boards throughout the university.

    back to the bodycorp example... How is this different from compulsory student unionism?

    A fundamental difference is the lack of a real state mandate. Also, as a factual matter, your opportunities for avoiding one are much greater. There is only one (real) university in Wellington. There are many more housing options - at the very least, this makes any question of the proportionality of the limit imposed a lot easier to resolve.

    But the argument there is not about compulsion, but about the politicisation of a compulsory body. Sure, compulsion makes it easier to politicise something, but the two attributes are still distinct and separable. It's unfair of you to say that because compulsory membership of a political organisation is wrong, therefore compulsory membership of anything is wrong.

    The problem you get to with this line of argument is that it can lead to one injustice replacing another. An organisation of students (or anyone) should be able to get as political as it wants; and there is no way I want to stand in the way. I want students to be able to collectively unite to push for university action or state action - and I see no reason why a large organisation called the Victoria University of Wellington Students' Association shouldn't be at the forefront.

    If the option is between removing the right of students' associations to be political or removing their right to force others to join them, it's a pretty simple question for me to answer.

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

  • peteremcc,

    Keith,

    You're entire argument boils down to this statement:

    "It's a compulsory obligation that's appended to a private arrangement. How is this different from compulsory student unionism?"

    And it's a very simple answer:

    Private arrangements aren't government funded.

    I have no problem with private universities saying that their students association is compulsory - in fact the bill accounts for this.

    Equally, I'd have no problem with an employer saying they'd only employ staff who are members of a union (however unusual that may be). CSM however, is like a government department saying they will only employ staff who are members of a union - outrageous.

    Wellington • Since Aug 2009 • 8 posts Report Reply

  • Graeme Edgeler,

    if we do away with student politics

    No-one's suggested doing away with student politics.

    At least I'm not. I'm not even you sure you could - I doubt making it a criminal offence could even do that.

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

  • Keir Leslie,

    I have no problem with private universities saying that their students association is compulsory - in fact the bill accounts for this.

    Which would also apply to being a member of the university, which is kind of fundamental to the idea of a university (cf. Cambridge, Bologna, Padua etc), which rather suggests this argument proves too much.

    (& the distinction between public and private in terms of a university is a bit suspicious; is Oxford a public university?)

    Since Jul 2008 • 1452 posts Report Reply

  • Graeme Edgeler,

    And it's a very simple answer:

    Private arrangements aren't government funded.

    Plenty of private arrangements are government funded.

    I have no problem with private universities saying that their students association is compulsory - in fact the bill accounts for this.

    Hardly. The bill makes no mention of private universities. Moreover, it is an amendment to the Education Act - a law which doesn't really provide for private universities in New Zealand.

    And finally, it would make it illegal for any person to require someone to become a member of a students' association. In short, it has exactly the opposite effect you claim it does.

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

  • richard,

    As someone who has spent a substantial fraction of their life in universities of one sort or another, I feel very ambivalent about this topic.

    To the extent that Students" Associations are separately incorporated bodies from their parent universities, by far the strongest argument against compulsory membership is the simple freedom of association argument presented by Graham.

    As a matter of practice, I might be a lot more sanguine about this argument if the people pushing the law change in parliament (who by and large seem to be on the right of the aisle) were consistent in their advocacy of individual freedom (drug decriminalization? gay marriage?) rather than giving the appearance of trying to nobble organizations they perceive as being likely to disagree with them politically. But as Graham would (rightly) respond, freedom is freedom and we should not quibble with something that advances it.

    On the other hand, many US universities have things called something like Student Assemblies with (I believe) universal (and thus compulsory) suffrage among students and some power to spend money raised through "activity fees". In this guise student associations look more like Faculty bodies, whose membership consists of the fulltime teaching staff. The latter mainly deal with the academic offerings of the university but will occasionally express opinions on broader issues, and staff do not have the ability to "opt out" of membership (even if we do opt out of meetings -- I have been to far more faculty meetings as a student representative than I have managed as a faculty member).

    In New Zealand simply rebranding Students Associations as "student assemblies" is probably not going to make anyone happy, or materially change the circumstances in which they operate -- but the force of the freedom of association argument depends mainly on the students associations being separately incorporated bodies from their host universities, and this would seem to be something of an historical accident.

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

  • Graeme Edgeler,

    To the extent that Students' Associations are separately incorporated bodies from their parent universities, by far the strongest argument against compulsory membership is the simple freedom of association argument presented by Graham.

    That's a really interesting point. Seriously.

    Because I don't think I have a great philosophical (or legal) objection to student government. It would be rather odd in a New Zealand context, but a student-run Honor Code (such as that proposed at the University of Virginia by Thomas Jefferson, and in force since 1842) would not raise a "freedom of association" objection from me; and a really comprehensive system like that at Haverford College wouldn't either.

    It may just be that my objection boils down to "something of an historical accident". I don't think it will stop being an objection, but this is certainly an interesting twist.

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

  • Craig Ranapia,

    Okay, I've had a glass of wine and a re-read, and I care even less.

    That's cool Russell -- do hope you'll resist the urge to snarl "fuck off" the next time someone shows up and bitches you for crapping on about boring, irrelevant bullshit like broadcasting policy, gadget geekery and special needs education. You know, there are so many real issues that require attention..

    (thus supporting my investment as a taxpayer in their education)

    And that "STFU, you ungrateful kids" is getting more and more annoying. And I think I've figured out why -- because it's essentially bullshit. I really really hope my taxes are investing in oh... actual education that students' associations have sweet fuck all to do with providing unless they've started hiring and paying academics, funding research, building university infrastructure and setting curricula.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Graeme Edgeler,

    Craig - students associations have a long history in New Zealand in assisting with the provision of university infrastructure. The Student Union Building at VUW was purchased with funds raised over many years by students, as was the gymnasium ('though that has a longer history - going back to the early years of Victoria College...).

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

  • Grace Dalley,

    On the issue of students being impoverished, if Students' Association fees are compulsory, they can be paid by student loan. If they're voluntary, the cost must be met by the student. And in my experience the Students' Association provides benefits to each individual student way out of proportion to the fee.

    And obviously a union can't be funded by govt or by the institution. It has to be independent or it can't decently be an advocate.

    Your church analogy I think is a real stretch. A fundamental human right not to belong to a union?! To me affordable universal access to tertiary education is a fundamental human right, why aren't you fighting for that?

    And look if students hate compulsory membership, then surely they need to organise against it? If they don't, I really struggle to see how they're being oppressed.

    Christchurch • Since Nov 2008 • 138 posts Report Reply

  • George Darroch,

    But as Graham would (rightly) respond, freedom is freedom and we should not quibble with something that advances it.

    In a perfect world, we would not have conflicts of rights*, or conflicts of freedom. But as is quickly evident, we do. And in this case, the right to freedom of association currently exists in a limited form (the student body currently deciding whether to exist as a voluntary organisation). The new law would increase that freedom, and protect that right. But it would lessen the ability to access effective representation and funding, representation and funding which is used to access and protect other rights.

    Experience overseas shows that in many cases these rights are weakened by forced voluntarisation. There may be a way of protecting them, but you'd have to demonstrate how that would be done.

    Graeme should by all means argue a case from rights. But to claim that freedom of association is the only right at play here is simplistic at best.

    *Bentham called rights "nonsense on stilts", with good reason. Calling something a right is simply our way of saying we think it is important.

    WLG • Since Nov 2006 • 2264 posts Report Reply

  • Russell Brown,

    That's cool Russell -- do hope you'll resist the urge to snarl "fuck off" the next time someone shows up and bitches you for crapping on about boring, irrelevant bullshit like broadcasting policy, gadget geekery and special needs education. You know, there are so many real issues that require attention..

    Don't get me wrong -- I'm actually enjoying the discussion. But placing student association membership as the last stake in a line of human rights battles was a rhetorical device crying out for a tart response.

    And that "STFU, you ungrateful kids" is getting more and more annoying.

    That was just me exploring my enlightened self-interest!

    Auckland • Since Nov 2006 • 22749 posts Report Reply

  • James Green,

    Reconstituting students' associations into a different role, is, unfortunately, as problematic as making them compulsory.

    I was thinking more along the lines of making them into a straight governance body. In some respects similar to what happened to most of the health professions a few years back. The compulsory membership associations and societies were advocates, service providers, and also involved in the governance of the profession. The statutory/governance role was split out, leaving the other as a voluntary professional organisation. In the context of a university, this could leave a student council, democratically elected to provide governance etc. (possibly some services), and then the advocacy bit is separate and voluntary.

    In unrelated news, I'm interested that the New Zealand Bill of Rights it simply says "Everyone has the right to freedom of association". In some expositions of freedom of association, it is simply that a person is not limited with whom they associate with; in others there is also a freedom to not associate. Given that the Bill of Rights is entirely silent on that, where is the source of the freedom to not associate?

    Dunedin • Since Nov 2006 • 703 posts Report Reply

  • James Green,

    Are bodycorps also a fundamental breach of human rights as well?

    And, inadvertently, we're back to the argument about whether a person should be free to leave a university, because universities are themselves bodies corporate.

    Dunedin • Since Nov 2006 • 703 posts Report Reply

  • Keith Ng,

    Keith - the first question revolves more around whether an institution that exercises public power should have that right (see section 3 of the Bill of Rights. And whether Parliament should be granting such bodies that power.

    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?

    I don't see why not. And this is exactly why I support elected student reps on boards throughout the university.

    A fundamental difference is the lack of a real state mandate.

    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?

    The problem you get to with this line of argument is that it can lead to one injustice replacing another. An organisation of students (or anyone) should be able to get as political as it wants; and there is no way I want to stand in the way. I want students to be able to collectively unite to push for university action or state action - and 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.

    If the option is between removing the right of students' associations to be political or removing their right to force others to join them...

    It's not. I think the point needs to be remade: 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.

    Auckland • Since Nov 2006 • 543 posts Report Reply

  • Keith Ng,

    Private arrangements aren't government funded.

    I have no problem with private universities saying that their students association is compulsory - in fact the bill accounts for this.

    Equally, I'd have no problem with an employer saying they'd only employ staff who are members of a union (however unusual that may be). CSM however, is like a government department saying they will only employ staff who are members of a union - outrageous.

    Is compulsory membership a form of political discrimination? If so, why is it okay for one and not the other?

    (To save time: I'm setting you up for a slippery slope argument. Naturally, the second you say that political discrimination is okay, but only for the private sector, I'll pounce on you with race and gender, which I trust you'll wear like a *real* libertarian. But then, just to be a dick, I'll demand to know why can't *the state* discriminate on race, gender, as well as politics.)

    Auckland • Since Nov 2006 • 543 posts Report Reply

  • Graeme Edgeler,

    placing student association membership as the last stake in a line of human rights battles was a rhetorical device crying out for a tart response.

    That was the exact (well maybe not exact) opposite of my intention.

    This wasn't the last in a long line of human rights battles. The last was some time ago. This was one of little things left over after human rights were triumphant.

    In unrelated news, I'm interested that the New Zealand Bill of Rights it simply says "Everyone has the right to freedom of association". In some expositions of freedom of association, it is simply that a person is not limited with whom they associate with; in others there is also a freedom to not associate. Given that the Bill of Rights is entirely silent on that, where is the source of the freedom to not associate?

    It just really goes without saying. Not least because this is a pretty dangerous argument; not least because the Bill of Rights also doesn't explicitly recognise a right to freedom from religion. Trust me. We have that too.

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

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