Submission on Education (Freedom of Association) Amendment Bill Doc

8/14/2019 Submission on Education (Freedom of Association) Amendment Bill Doc

1/12

Submission on the Education (Freedom of Association) Amendment Bill 2009

4 February 2010

Jesse Wilson

May it please the Committee:

Introduction

1. I set out below a submission in support of the Education (Freedom of Association) Amendment Bill2009 (Bill). I would like to make an oral submission to the Committee.

2. In summary, I respectfully submit:

(a) The system of compulsory membership of students associations under the Education Act 1989infringes the right of freedom of association under section 17 of the New Zealand Bill of RightsAct 1990 (Bill of Rights).

(b) It is well-established that the justificatory burden under section 5 of the Bill of Rights lies withthose who seek to limit rights and freedoms guaranteed by the Bill of Rights. The courts haveheld that a limitation of an affirmed right or freedom is not demonstrably justified in a free anddemocratic society unless it:

(i) relates to concerns which are pressing and substantial in a free and democratic society;

(ii) is rationally connected to its intended purpose;

(iii) in light of its intended purpose is the least possible impairment of the right; and

(iv) is a proportional response to the concerns.

(c) The compulsory student membership provisions of the Education Act cannot be demonstrablyjustified in terms of the above criteria.

3. This submission is made in my personal capacity only.

Freedom of association

4. Section 17 of the Bill of Rights provides:

Everyone has the right to freedom of association.

5. The right to freedom of association entails the right to choose whether to join an association. As the

Butlers state in their text, The New Zealand Bill of Rights Act: A Commentary:

1

The starting principle unquestionably is that no one can be compelled to join an association.

6. The commentary in Rishworth, Huscroft, Optican, and Mahoneys text, The New Zealand Bill ofRights Act, provides useful guidance on the nature and content of the right to freedom ofassociation. They make two points which are pertinent in the context of the Bill. First, the right tofreedom of association is an individual right:

2

1Butler and Butler, The New Zealand Bill of Rights Act: A Commentary(2005) at paragraph 15.7.10. See also at

paragraph 15.7.9, As stated above, the right to freedom of association encompasses the right not to join an

association.

2Rishworth, Huscroft, Optican, and Mahoney, The New Zealand Bill of Rights Act(2003) at 354.


2/12

2

The right to freedom of association belongs to individuals, not groups; everyonehas the right. The rightmay be asserted by an association on behalf of its members, but this does not change its nature. Inessence, the right establishes a constraint on interference with individuals freedom to form, join, andmaintain associations.

7. Second, while some of the case law and commentary has conceptualised the right to freedom ofassociation as including a positive right to associate and a negative right not to associate, thoseaspects of freedom of association are simply two sides of the same coin:3

The positive/negative dichotomy is misleading, because it suggests that the freedom not to associatedepends upon the existence of a stand-alone right. But the decision not to join an association can becharacterised as an exercise of the right to freedom of association, just as remaining silent may be anexercise of freedom of expression, and choosing to be agnostic is an exercise of freedom of religion.Questions about whether these latter rights include a negative component seldom arise.

8. Moreover, the right to join an association and the right not to be compelled to join an association areboth part of the negativeright of freedom of association, i.e., the right to be free from Stateinterference with the freedom to associate or not.

4

Case law

9. The European Court of Human Rights (ECHR) has recognised that the right to freedom ofassociation includes the right not to join an association. Freedom of association is protected byArticle 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms(Convention), which provides in relevant part:

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.

10. The ECHR has held the right to freedom of association under Article 11:

(a) must be viewed as encompassing a negative right of association;5

and

(b) includes a protection against sanctions (such as the threat of dismissal) being applied in orderto compel someone to join an association contrary to his convictions.

6

11. The relatively recent decision of the ECHR in Srensen and Rasmussen v Denmarkis particularlyrelevant in the context of this Bill.

7That case concerned complaints by two Danish citizens that

closed-shop arrangements contravened their right to freedom of association by requiring them tojoin a union called SiD.

8The first applicant was offered a job as a holiday relief worker in a

company but was informed:9

To obtain the job it is mandatory to be a member of one of the trade unions affiliated to the DanishConfederation of Trade Unions (LO). You will be informed on request of the name of the union.

3Rishworth, Huscroft, Optican, and Mahoney at 356.

4See, e.g., Mendessohn v Attorney-General[1999] 2 NZLR 268 at 273 (CA): Rather they affirm freedoms of the

individual which the state is not to breach. The very nature of these rights and freedoms means that they arefreedoms fromstate interference (original emphasis).

5Sigurur A. Sigurjnsson v. Iceland, 30 June 1993, 35, Series A no. 264.

6Young, James and Webster v. the United Kingdom, 13 August 1981, Series A no. 44 at paragraph 57.

7Srensen and Rasmussen v Denmark, 11 January 2006, Applications nos. 52562/99 and 52620/99

8 Specialarbejderforbundet i Danmark (SiD).

9Srensen and Rasmussen v Denmark(supra), paragraph 54.


3/12

3

12. The second applicant was a gardener who was offered a job in a nursery subject to joining a union(again, SiD) in accordance with closed-shop rules. The applicant agreed to join under protest,stating that he did not agree with the unions political views. The applicants brought proceedings onthe basis that the closed-shop rules violated their right to freedom of association under Article 11 ofthe Convention.

13. The closed-shop rules in Denmark were based on the Protection Against Dismissal Due toAssociation Membership Act 1982, which relevantly provided that the protection against dismissalfor failing to join a union does not apply if the employee knew prior to recruitment that it wasmandatory to join a union. This Act was introduced to modify Denmarks previous closed-shop rulesin an attempt to bring Denmark into compliance with the ECHRs decision in Young, James andWebster v. the United Kingdom.

14. The ECHR held:10

The right to form and to join trade unions is a special aspect of freedom of association, and the notion of afreedom implies some measure of freedom of choice as to its exercise. Accordingly, Article 11 of theConvention must also be viewed as encompassing a negative right of association or, put in other words, aright not to be forced to join an association. Although compulsion to join a particular trade union may notalways be contrary to the Convention, a form of such compulsion which, in the circumstances of the case,strikes at the very substance of the freedom of association guaranteed by Article 11, will constitute aninterference with that freedom.

Furthermore, regard must also be had in this context to the fact that the protection of personal opinionsguaranteed by Articles 9 and 10 of the Convention is one of the purposes of the guarantee of freedom ofassociation, and that such protection can only be effectively secured through the guarantee of both apositive and a negative right to freedom of association.

In this connection, the notion of personal autonomy is an important principle underlying the interpretation ofthe Convention guarantees. This notion must therefore be seen as an essential corollary of the individual'sfreedom of choice implicit in Article 11 and confirmation of the importance of the negative aspect of thatprovision. (internal citations omitted)

15. The reference in the third sentence of the passage above to compulsion which strikes at the veryconcept of the right was addressed later in the judgment. The government of Denmark had arguedthat one of the applicants was about to leave his job in any event to start university and, therefore,had suffered insufficient hardship to engage Article 11 of the Convention. The Court rejected thatargument as follows:

11

However, it must be observed that the applicant Srensen was dismissed without notice as a direct resultof his refusal to comply with the requirement to become a member of SID, a requirement which had noconnection with his ability to perform the specific job or his capacity to adapt to the requirements of theworkplace. In the Court's opinion, such a consequence can be considered serious and capable of strikingat the very substance of the freedom of choice inherent in the negative right to freedom of associationprotected by Article 11 of the Convention.

16. In a 1990 decision, the European Commissionof Human Rights (as opposed to the Strasbourg

Court) considered that the words trade union in Article 11 confined the operation of Article 11 toprivate associations and trade unions and, somehow therefore, not to student unions.

12The

Commission was not a court (rather it was a body which decided whether to take a case on anindividuals behalf to the ECHR) and it has subsequently been disestablished. The Commissionsdecision on the Halfonapplication contains a single paragraph of analysis on the point which theCommission regards as decisive (i.e., Article 11 uses the words trade unions) but does notaddress the consideration (which one would think fatal to the Commissions logic) that the reference



12Halfon v United Kingdom, Application No. 16501/90. The Commission repeated this view in M.A. v Sweden,

Application No. 32721/96.


4/12

4

to trade unions is preceded by the word including.13

If the Commissions decision on the Halfonapplication makes any sense

14in the context of Article 11, sections 3 and 17 of the New Zealand Bill

of Rights provide no support for the Commissions curious distinction.

17. The leading Canadian decision is R v Advance Cutting and Coring Ltd15

, the Supreme Court ofCanada held:

(a) The right of freedom of association guaranteed by section 2(d) of the Canadian Charter ofRights and Freedoms includes the right to be free from compelled association.

16

(b) Compulsory unionism under the Quebec Act Respecting Labour Relations, Vocational Trainingand Manpower Management in the Construction Industry infringed the rights of employees notto be forced to join a union.

17

(c) By a 5-4 majority, the infringement of the right to freedom of association was justified havingregard to, among other things, the fact that the enactment was uniquely tailored to the Quebecconstruction industry,

18which had suffered from historical problems described by LeBel J

(delivering the judgment of Gonthier, Arbour and LeBel JJ) as follows:19

Violence frequently flared up at construction sites. Work stoppages broke out often anduncontrollably. Abuses like bribery or improper use of union placement systems were rife.

(The majority also placed emphasis on the legislatures margin of appreciation in addressinglabour relations.)

18. The plurality support for the recognition of a negative right against compelled association and theconclusion that the Quebec statute infringed the right to freedom of association are correctconclusions. The majority decision that the infringement was justified is somewhat surprising (and,in certain respects, the majoritys analysis is not easy to follow). On the question of justification, thereasoning of the dissenting judgment delivered by Bastarache on behalf of McLachlin CJ and Major,Bastarache and Binnie JJ is more compelling.

Conscientious objections and referenda

19. It is helpful to address two potential arguments that compulsory membership of studentsassociations does not implicate section 17 of the Bill of Rights:

(a) The Education Act contains a procedure for conscientious objectors to be exempted fromcompulsory membership; and

(b) The Education Act provides a procedure for a referendum on compulsory membership ofstudents associations.

13The nonsense of the Commissions reasoning can be demonstrated by asking whether the positive right to

associate is similarly confined by the words, including the right to form and join trade unions so as to exclude theright to form and join other types of associations.

14It is relevant to highlight the Commissions bizarre conclusion that Article 11, offers protection in respect of

private associations ... but not in respect of public institutions.

15[2001] 3 SCR 209.

16McLachlin CJ, Major, Bastarache and Binnie JJ at paragraph 1, Gonthier, Arbour and LeBel JJ at paragraph 210,

and Iacobucci J at 281.

17McLachlin CJ, Major, Bastarache and Binnie JJ, and Iacobucci J. See also Lavigne v Ontario Public Service

Employees Union[1991] 2 SCR 211 at 318 (La Forest J).

18Gonthier, Arbour and LeBel JJ, Iacobucci J, and LHeureux-Dube J.



5/12

5

20. For the reasons discussed below, both arguments are misconceived.

Conscientious objection

21. Section 229A of the Education Act provides:

(6) A students association may exempt any student from membership of the association on thegrounds of conscientious objection; and, if exempted, the association must pay the student'smembership fee to a charity of its choice.

(7) Every students association must ensure that information about the rights in subsections (5) and(6) is available to students before enrolment, and must make rules for dealing in a fair, timely, andconsistent way with applications for exemption under either subsection.

22. The conscientious objection procedure does not save section 229A from inconsistency with section17 of the Bill of Rights for four reasons. First, the right not to be forced to join an association meansthat a person can choose not to join for any reason. A persons decision not to join a union does notrequire deep moral introspection in order for the law to respect the choice. Citizens choose whetherto join organisations based on a wide range of personal preferences. Their freedom to choose isprotected by section 17 of the Bill of Rights.

23. Second, the right not to be compelled to join an association is patently inconsistent with a systemwhich compels a person to join and then provides an opportunity to apply to the association for anexemption on conscientious grounds.

24. Third, any argument that a conscientious objection procedure cures the problem does not accordwith the ECHR jurisprudence. For example, the closed-shop arrangement in Young, James andWebstercontained a procedure for conscientious objection:

20

The membership requirement did not apply to an existing employee who genuinely objects on grounds ofreligious belief to being a member of any Trade Union whatsoever or on any reasonable grounds to beinga member of a particular Trade Union. The agreement also set out the procedure for applying forexemption on these grounds and provided for applications to be heard by representatives of the employer

and the unions.

25. Fourth, section 229A(6) does not permit successful applicants to have their money returned.Instead, the students association chooses a charity to receive the money. Again, this type ofpractice (which appears to be designed, in part, to reduce the incentive to apply for an exemption) isinconsistent with the right not to be compelled to join a union. The ECHR considered and rejected arelated argument in Srensen and Rasmussen v Denmark:

21

The Government have pointed out that the applicants had the possibility of subscribing to a form of non-political membership of SID or of any other trade union pursuant to the Private Contributions to PoliticalParties and Disclosure of the Accounts of Political Parties Act (see paragraph 21 above). However, it is tobe observed that such non-political membership does not entail any reduction in the payment of themembership fee to the specific trade union. In any event, there is no guarantee that non-political

membership will not give rise to some form of indirect support for the political parties to which the specifictrade union contributes financially.

In these circumstances, the Court concludes that both applicants were compelled to join SID and that thiscompulsion struck at the very substance of the freedom of association guaranteed by Article 11 of theConvention.

Referenda

26. Section 229B of the Education Act provides that a referendum on compulsory membership ofstudents associations may be requested upon the petition of at least 10% of all the studentscurrently enrolled at the institution. Section 229C requires that a Council which receives a request

20Young, James and Webster v the United Kingdom(supra), paragraph 29.

21Srensen and Rasmussen v Denmark(supra), paragraphs 63-64.


6/12

6

under section 229B must conduct a vote of all students at the institution to determine whethermembership should be compulsory.

27. Sections 229B and 229C are no answer to the infringement of section 17 arising from compulsorymembership of students associations. The right not to be compelled to join an association meansthat an individual is free to choose not to join an association. As Rishworth, Huscroft, Optican and

Mahoneys text emphasises, the right to freedom of association belongs to individuals, not groups;everyonehas the right.22

Messrs Young, James, and Webster were free to choose whether to jointhe National Union of Railwaymen or the Transport Salaried Staffs Association irrespective ofwhether a majority of their colleagues would have chosen compulsory unionism in a referendum onthe subject. Messrs Srensen and Rasmussen were likewise free to choose not to join SiD.

28. Rights and freedoms protected by the Bill of Rights protect minorities (including minorities of one) aswell as majorities. As the ECHR noted in Srensen and Rasmussen v Denmark:

23

[W]here the domestic law of a Contracting State permits the conclusion of closed-shop agreementsbetween unions and employers which run counter to the freedom of choice of the individual inherent inArticle 11, the margin of appreciation must be considered reduced. The Court reiterates in this connectionthat, although individual interests must on occasion be subordinated to those of a group, democracy doesnot simply mean that the views of a majority must always prevail: a balance must be achieved whichensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.

29. This reflects a basic conceptual point about the nature of individual rights. As the Hon. JusticeWilliam J. Brennan, explained in his H.L.A. Hart lecture entit led, Why Have A Bill of Rights?, one ofthe purposes of a Bill of Rights is to remove certain rights from the daily joust of politics, to protectminorities and we may all be in the minority at times from the passions or fears of politicalmajorities.

24.

30. A failure to appreciate that the rights guaranteed by the Bill of Rights are individual rights the freeexercise of which does not require majority support is evident in some of the parliamentaryspeeches made in opposition to the Bill.

25

The test for justification

31. Section 5 of the Bill of Rights provides:

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may besubject only to such reasonable limits prescribed by law as can be demonstrably justified in a free anddemocratic society.

32. Once a person establishes that his or her rights under section 17 have been limited, the onus shiftsto the government to justify those limits under section 5. As Richardson J stated in Noort: [T]heonus is on those relying on s 5 to show that the limit is reasonable and can be demonstrably justifiedin a free and democratic society.

26

22 Rishworth, Huscroft, Optican, and Mahoney, The New Zealand Bill of Rights Act(supra) at 354 (originalemphasis).


24(1989) 9 Oxford Journal of Legal Studies 425 at 434.

25Hansard (23 September 2009). See, e.g., speech by the Hon Chris Hipkins: It is unnecessary because students

already have choice ... They are allowed to choose a voluntary system by way of referendu m; speech by the HonJacinda Ardern: This bill is not about choice ... If they make the choice to have a referendum and they stick withuniversal student union membership, then that is a collective choice that they have made together ... That isdemocracy at work, plain and simple. The idea of collectivism might be a bit complex for members opposite tograsp, but it works; speech by the Hon Metiria Turei: Students are entitled under the current law to choose how

they organise themselves, and this bill will strip from them their right to choose and their freedom to associate in theway that they thing is most appropriate.

26[1992] 3 NZLR 260 (CA) at 283.


7/12

7

33. The New Zealand courts have followed the approach of the leading decisions of the Supreme Courtof Canada,

27which evaluates the justifications for an impugned limitation under the following

criteria:28

1. The objective of the impugned provision must be of sufficient importance to warrant overriding aconstitutionally protected right or freedom; it must relate to concerns which are pressing andsubstantial in a free and democratic society before it can be characterized as sufficientlyimportant.

2. Assuming that a sufficiently important objective has been established, the means chosen toachieve the objective must pass a proportionality test; that is to say they must:

(a) be rationally connected to the objective and not be arbitrary, unfair or based onirrational considerations;

(b) impair the right or freedom in question as little as possible; and

(c) be such that their effects on the limitation of rights and freedoms are proportional to theobjective.

34. In its recent decision in R v Hansen, the New Zealand Supreme Court endorsed the basic approachof the Supreme Court of Canada

29notwithstanding that the judgments formulated the test in slightly

different language. Tipping J formulated the following criteria:30

(a) does the limiting measure serve a purpose sufficiently important to justify curtailment of the rightor freedom?

(b) (i) is the limiting measure rationally connected with its purpose?

(ii) does the limiting measure impair the right or freedom no more than is reasonablynecessary for sufficient achievement of its purpose?

(iii) is the limit in due proportion to the importance of the objective?

35. In some cases, compelled membership of certain types of organisations may satisfy the standard ofdemonstrable justification under section 5. An example of a regulatory context in which the Ministryof Justice considered that compulsory membership could be justified is contained in the Min istryslegal advice to the Attorney-General on the Financial Service Providers (Registration and DisputeResolution) Bill.

31The advice accurately summarises the general position as follows:

27R v Oakes[1986] 1 SCR 103 (SC) at 138-139 and R v Chaulk[1990] 3 SCR 1303 (SC) at 1335-1336.

28Chaulkat 1335-1336.

29[2007] 3 NZLR 1 (SC) at 28, 33, and 84.

30Hansenat 41. The other Judges formulated the test similarly: see, e.g., Elias CJs judgment at 22: The objective

sought to be achieved by the limiting provision must be of sufficient importance to warrant infringement of afundamental human right. The limitation must be no more than is reasonably necessary to achieve the purpose. Theobjective against which a provision is justified cannot be wider than can be achieved by the limitation of the right.See also McGrath Js judgment at 69. Anderson J formulated the test in language which more closely reflected theChaulkcriteria (at 84-85):

A limitation of an affirmed right or freedom will not be demonstrably justified in a free and democraticsociety unless it:(a) relates to concerns which are pressing and substantial in a free and democratic society; and(b) is rationally connected to its intended purpose; and(c) in light of its intended purpose is the least possible impairment; and(d) is a proportional response to the concerns.

31Consistency with the New Zealand Bill of Rights Act 1990: Financial Service Providers (Registration and Dispute

Resolution) Bill, 16 November 2007 (http://www.justice.govt.nz/policy-and-consultation/legislation/bill-of-rights/financial-service-providers-registration-and-dispute-resolution-bill).


8/12

8

Section 17 of the Bill of Rights Act affirms that everyone has the right to freedom of association. The rightto freedom of association is generally interpreted to include not only a right to establish and enter intoassociation with others, but also a right to refuse or cease to do so.

36. The Ministry discussed the compulsory membership requirements of the bill in this way:

Under clause 22 of the Bill, the Registrar of Financial Service Providers (the Registrar) must deregister afinancial adviser service provider who has ceased to be a member of an approved professional body(APB). This raises a prima facie issue of inconsistency with section 17 of the Bill of Rights Act because itmakes registration dependent upon a person entering into and continuing association with others.

The obligation for a financial adviser service provider to be a member of an APB stems from theassociated Financial Advisers Bill (clause 9 Prerequisites for performing financial adviser service formember of public). In our advice on that Bill, we conclude that the limit placed on the right to freedom ofassociation by compulsory membership of an APB appears to be justified under section 5 of the Bill ofRights Act.

In reaching that conclusion, we note that compulsory membership of an APB is designed to facilitate themonitoring and enforcement of the professional standards of financial advisers. Such action contributes tothe important aim of promoting consumer confidence in financial advice. We also observe that the bestfeatures of industry self-regulation (including the reinforcement of professional norms, effective industryparticipation in the standards development process, and high levels of self-monitoring) cannot be capturedby a licensing regime without an institution of which licensees are a member.

Compulsory membership not demonstrably justified

37. The New Zealand government does not appear to have formally set out a justification forcompulsory membership in terms of section 5 of the Bill of Rights. Sections 223 229 of theEducation Act were inserted with effect from 1 January 1991. No report under section 7 of the Bill ofRights appears to have been made by the Attorney-General in relation to the Education AmendmentAct 1990 or the Education Amendment Act 2000.

38. It is possible that the compulsory membership system introduced in section 229 simply continuedpractices from the era prior to the Bill of Rights. I am not aware of the historical origins of thesepractices (though they seem to date back at least to the Auckland University College Act 1954).

39. It is necessary to freshly reconsider the justifications for infringements of affirmed rights andfreedoms which pre-date the Bill of Rights. As Bastarache J noted in R v Advance Cutting andCoring Ltd:

32

Proving necessity requires a context based on present realities and circumstances. As such, it would be arare case, in my view, where what was justified in the past when no Charter values were involved would bedeterminative. This is consistent with this Court's decision in Big M Drug Mart, supra, where it was statedthat it is not sufficient to consider the objective of the legislation prior to the coming into force of theCharter.

40. The apparent absence of a formal attempt by the New Zealand government to justify compulsory

membership in terms of section 5 of the Bill of Rights complicates the analysis under section 5.However, it is possible to consider:

(a) the various arguments against voluntary student association membership summarised in theSelect Committees report on the Tertiary Students Association Voluntary Membership Bill;

33

(b) the parliamentary speeches in opposition to the first reading of this Bill;34

and

32R v Advance Cutting and Coring Ltd(supra), paragraph 45.

33Education and Science Committee, 26 March 1998.

34Hansard (23 September 2009). See, e.g., the speeches of the Hon Chris Hipkins, Hon Iain Lees-Galloway, Hon

Metiria Turei, Hon Rahui Katene, and Hon Jacinda Ardern.


9/12

9

(c) the arguments made by press releases issued by some of the students associations in responseto the first reading of this Bill.

35

41. From these sources, it is possible to identify two broad rationales commonly advanced to justifycompulsory membership.

(a) First, there is a representation rationale. The argument appears to run that studentsassociations provide representation to students and, therefore, membership should becompulsory. The problems with this rationale are:

(i) Some students may not wish to be represented by the students association. It isunlikely that mandating unwanted representation of students who are compelled to joinan association relates to concerns which are pressing and substantial in a free anddemocratic society. Indeed, to the extent that students associations engage inadvocacy on matters of public policy, unwanted representation aggravates theinterference with the rights of students who are compelled to be members of thoseassociations. Accordingly, a statutory regime under which people can choose whetherto join an association may significantly reduce the frictions caused by studentsassociation taking positions on public policy or engaging in controversial activity.

(ii) Compulsory membership is not necessary to provide for the representation of studentson the Council of a tertiary institution. Section 171(2)(e)(ii) of the Education Actprovides for the election of student representatives by the students at that institution.Accordingly, it is not clear how compulsory membership can be supported as the leastpossible impairment of an affirmed right consistent with the pursuit of the objective ofrepresentation.

(iii) The representation rationale could presumably be advanced in respect of any numberof different associations (e.g., all workers in the X industry should be compelled join theY union because they need to be represented by Y). It is not clear why studentsassociations have a special exemption (and, correspondingly, students bear a specialburden) from the principle that no one should be forced to join a union.

(iv) One would immediately recognise the absurdity of assertions that all businesses shouldbe required to join a business lobby group to ensure they are represented (whetherthey wish to be so represented or not) or that every person over a certain age should beforced to join a local affiliate of Grey Power. Notwithstanding the absence ofcompulsion, countless such voluntary associations across all aspects of New Zealandlife provide useful representation for their members. The notion that like-mindedindividuals are somehow unable to pool their energies towards common goals in theabsence of compulsion is plainly unfounded. It is not clear why the law should treatstudents in a different way.

(b) Second, there is a services rationale. The argument appears to run that students associationsprovide useful services to students and, therefore, membership should be compulsory. There

are numerous problems with this rationale:

(i) It is not clear how the view of compulsory membership proponents that studentsassociations provide services so valuable that no student should be free to decline themsatisfies the first limb of the tests under Chaulk(i.e., The objective of the impugnedprovision must be of sufficient importance to warrant overriding a constitutionallyprotected right or freedom; it must relate to concerns which are pressing and substantialin a free and democratic society before it can be characterized as sufficientlyimportant).

35 See, e.g., the rationales advanced in the following press releases: New Zealand Union of Students AssociationsInc., Roger Douglas Bill will put students at risk, 23 September 2009; Victoria University Students Association,Douglas bill bad for students, 23 September 2009.


10/12

10

(ii) The services rationale fails the rational connection, minimal impairment, andproportionality limbs of the tests underOakesand Hansen. There is no obviousreason to think that services provided by students associations could not be obtained bystudents from the university, other associations, or third party providers. The fact thatmany universities around the world (including some in New Zealand) operate withoutcompulsory membership seems to expose the flaw in the services rationale. (Of

course, compulsory membership proponents might still maintain that they simply believethat it would be betterif a union provided those services. The short answer is thatsection 17 of the Bill of Rights protects the right of individual students to demur to theunions assessment of its own importance.)

(iii) As with the representation rationale, the services rationale could presumably beadvanced in respect of any number of different associations (e.g., all workers in the Xindustry should be compelled join the Y union because they need the services that onlyY can provide well). Again, there is no obvious reason to think that studentsassociations should be specially privileged (and students should be speciallydisadvantaged) by an exemption from the principle that no one should be forced to joina union.

42. In summary, I consider that the rationales that compulsory unionism is justified in order to providerepresentation and services to students are unavailing. Compelled association is likely toundermine rather than enhance student representation and the effective provision of services. AsLa Forest J observed in Lavigne v Ontario Public Service Employees Union:

36

Forced association will stifle the individual's potential for self-fulfilment and realization as surely asvoluntary association will develop it. Moreover, society cannot expect meaningful contribution from groupsor organizations that are not truly representative of their memberships' convictions and free choice.Instead, it can expect that such groups and organizations will, overall, have a negative effect on thedevelopment of the larger community. One need only think of the history of social stagnation in EasternEurope and of the role played in its development and preservation by officially established "free" tradeunions, peace movements and cultural organizations to appreciate the destructive effect forced associationcan have upon the body politic. Recognition of the freedom of the individual to refrain from association is anecessary counterpart of meaningful association in keeping with democratic ideals.

43. Accordingly, I submit that compulsory membership of students associations cannot be demonstrablyjustified in terms of section 5 of the Bill of Rights. It follows that the provisions of the Education Actshould be amended to vindicate the right of each student to freedom of association.

Drafting considerations

44. As currently drafted, the proposed new section 229 contains a provision that no person, including atertiary institution may exert undue influence on a student to join a students association. I submitthat it would be helpful to tighten this language to reflect the apparent legislative intentions.

45. For the purposes of redrafting the provision, it may be helpful to have regard to the followingprinciples:

(a) The freedom not to join an association requires that a student should not be subject topunishment or otherwise penalised by the relevant tertiary institution. For example, it would beinconsistent with section 17 of the Bill of Rights for a tertiary institution to impose punitivemeasures on students who do not join a students association or to link membership to astudents association with the ability to enjoy services paid for by the tertiary institution.

(b) It would be inconsistent with the right to freedom of association for a tertiary institution to requirestudents who do not join the students association to pay a special fee designed to remove thefinancial incentive not to join the students association or to pay that amount of money to acharity. Proposed new subsection 229(1)(b) appears to be designed to prevent such practices.

36[1991] 2 SCR 211 (SC).


11/12

11

(c) There is no reason that students associations should not be free to exercise all of their rightsunder the general law to attempt to persuade students to join. Accordingly, the Bill should bemodified to clarify its scope. For example, students associations might restrict events orservices run and paid for by the association to members of the association (or charge apremium rate to non-members). This is unobjectionable.

(d) The proposed new subsection 229(2) prohibiting anyone from doing an act which, conflicts withthe sprit and intent of this section, can be tightened. I respectfully submit that if the provision isessentially intended to operate as an anti-avoidance provision then its language should reflectstandard anti-avoidance provisions.

37

46. It may be helpful to have regard to the relevant legislative counterpart in Australia, which is theHigher Education Support Amendment (Abolition of Compulsory Up-Front Student Union Fees) Act2005 (Cth). The relevant part of that Amendment Act introduced a new section 19-37 into theHigher Education Support Act 2003. Section 19-37 provides:

19-37 Requiring membership of certain organisations or payment of certain amounts

(1) A higher education provider must not:

(a) require a person to be or to become a member of an organisation of students, or ofstudents and other persons; or

(b) require a person enrolled with, or seeking to enrol with, the provider to pay to theprovider or any other entity an amount in respect of an organisation of students, or ofstudents and other persons;

unless the person has chosen to be or to become a member of the organisation.

(2) A higher education provider must not require a person enrolled with, or seeking to enrol with,the provider to pay to the provider or any other entity an amount for the provision to studentsof an amenity, facility or service that is not of an academic nature, unless the person haschosen to use the amenity, facility or service.

(3) Subsection (2) does not apply to an amount that the higher education provider requires theperson to pay if the amount is for goods or services that:

(a) are essential for the course of study in which the person is enrolled or seeking to enrol;and

(b) the person has the choice of acquiring from, but does not acquire from, a supplier otherthan the higher education provider; and

(c) either:

(i) are goods that become the property of the person that are not intended to beconsumed during the course of study; or

(ii) consist of food, transport or accommodation associated with provision of fieldtrips in connection with the course of study.

47. The Amendment Act also introduced section 33-37, which provided for the reduction of grants tohigher education providers which breached section 19-37.

48. The Australian legislation is somewhat prescriptive in relation to the fees which universities maycharge students for various goods and services. The purpose of this Bill does not requirerestrictions on levies for services commonly provided by New Zealand universities and it would beunwise (and unnecessary) to create indirect constraints on the ability of universities to raise fundsfor, say, student accommodation or sports teams. The focus of the Bill should be confined to

37See, e.g., section 43 of the Overseas Investment Act 2005; section 137 of the Residential Tenancies Act 1986.


12/12

12

vindicating the right to freedom of association by disestablishing compulsory membership ofstudents unions.

49. Accordingly, I respectfully submit that clause 6 of the Bill should be redrafted to read:

229 Voluntary membership of students associations

(1) No person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies may

(a) require a student to become or not become a member of any association ofstudents;

(b) require a student to pay any money to any association of students, or to anyother person in lieu of fees payable to a students association; or

(c) impose any penalty or sanction on, or discriminate against, a student whochooses not to become a member of any association of students.

(2) No person or body of persons may take any action with the purpose or likely effect ofdefeating, evading, or circumventing the operation of subsection (1).

50. Please contact me if the Committee or the Committee Secretariat has any queries in relation to theabove.

Jesse Wilson

Documents

Submission on Education (Freedom of Association) Amendment Bill Doc