VSM: does freedom of association include the right not to associate?

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Last year, Sir Roger Douglas’ Education (Freedom of Association) Bill was drawn from the members’ bills ballot.  (Incidentally, Sir Roger has been quite lucky with the members’ ballot recently, this week his Minimum Wage (Mitigation of Youth Unemployment) Amendment Bill was drawn from the ballot.) Anyway, the Bill is now before the Education and Science Select Committee and submissions are due by 31 March 2010 (details here). With the deadline for submissions approaching, I thought it might be timely to have a look at the Bill.

What is the Bill about?

The explanatory note to the Bill explains that:

The purpose of this Bill is to uphold students’ rights to freedom of association, by ensuring that no student is compelled to join a students’ association.

In order to understand why this is an issue, it’s necessary to take a step back. Before 1998 membership of student associations at tertiary institutions was compulsory. As a result of amendments to the law in 1998 and 2000 students are allowed to hold a vote to decide whether membership at their institution should be compulsory or voluntary. If 10% of students at a tertiary institution request a vote on the issue, the university is required to conduct a poll. The result of the vote is binding. In this way, if 51% of students at an institution decide to make membership compulsory, they can compel the remaining 49% to join.

Today the majority of student associations at universities are compulsory (Auckland being the major exception). Sir Rogers’ bill would change this, making membership of all student associations voluntary. This is generally called voluntary student membership (VSM).

Why does Sir Roger want to change the current system?

One argument Sir Roger is making in favour of the Bill is that it upholds students’ right to freedom of association, provided for in section 17 of the New Zealand Bill of Rights Act 1990. He says that the current system of compulsory student membership (CSM) breaches that right.

Over a series of posts I want to look at that claim and examine whether Sir Roger is right. I want to answer three questions:

  1. Does the right to freedom of association include the right not to associate?
  2. Does the current model of compulsory student union membership limit the right to freedom of association?
  3. If it does, is that limit justified under the Bill of Rights?

Does the right to freedom of association include the right not to associate?

Section 17 of the Bill of Rights simply provides that:

Everyone has the right to freedom of association.

In essence, the right allows individuals to choose who they associate with.  It might seem obvious that this includes the right to choose not to associate with a particular group and the right not to be forced to join a particular association. However, some people have argued that the right to freedom of association does not include a “negative freedom” or a freedom from compelled association (see for instance the Chen & Palmer opinion provided to the New Zealand Universities Student Association (NZUSA) in May 1997 which was tabled in Parliament on 11 June 1997 and is available from the parliamentary library). In this post I want to explain why I think that view is wrong. I’ll explain why I think the freedom of association includes the right to be free from forced association and in future posts I’ll consider whether the current version of CSM infringes that right and, if so, whether it is a justified limit on it.

Put very simply, the distinction between a “positive freedom” and a “negative freedom” feels like an exercise in semantics to me. If I am free to choose who I associate with, that freedom is equally constrained whether I am forbidden from joining my local squash club or forced to join the local rugby club. Freedom of association is a recognition of individual autonomy. In both cases my autonomy is constrained and it is not clear to me why proponents of the “positive” / “negative” divide think that one type of limit is different from the other.  Professor Huscroft makes this point nicely in Rishworth and others The New Zealand Bill of Rights (2003):

The positive/negative dichotomy is misleading, because it suggests that the freedom not to associate depends upon the existence of a stand-alone right. But the decision not to join an association can be characterised as an exercise of the right to freedom of association, just as remaining silent may be an exercise of freedom of expression, and choosing to be agnostic is an exercise of freedom of religion. (at 356)

This view is supported by the international case law.  Although there might have been some doubt about the position in 1997 when Chen & Palmer provided their opinion to NZUSA, recent cases have cleared up any uncertainty.

In Canada, the Supreme Court has considered the issue on two occasions.  The Court first considered it in a case called Lavigne v Ontario Public Service Employees Union. In that case the judges were split on whether the freedom of association included the freedom not to associate. Justices La Forest, Sopinka and Gonthier found that the right did include the freedom not be forced to associate.  They said that:

Forced association will stifle the individual’s potential for self-fulfillment and realization as surely as voluntary association will develop it. Moreover, society cannot expect meaningful contribution from groups or organizations that are not truly representative of their memberships’ convictions and free choice.  Instead, I can expect that such groups and organizations will, overall, have a negative effect on the development of the larger community.  One need only think of the history of social stagnation in Eastern Europe and of the role played in its development and preservation by officially established “free” trade unions, peace movements and cultural organizations to appreciate the destructive effect forced association can have upon the body politic. Recognition of the freedom of the individual to refrain from association is a necessary counterpart of meaningful association in keeping with democratic ideals. (at 318).

Justice MacLachlin did not think that it was necessary to finally decide this question but she indicated that she was inclined to think that freedom of association included the right not to be compelled to associate:

I am inclined to the view that the interests protected by s 2(d) [the right to freedom of association] goes beyond being free from state-enforced isolation … . In some circumstances, forced association is arguably as dissonant with self-actualization through associational activity as is forced expression.  For example, the compulsion to join the ruling party in order to have any real opportunity of advancement is a hallmark of a totalitarian state.  Such compulsion might well amount to enforced ideological conformity, effectively depriving the individual of the freedom to associate with other groups whose values he or she might prefer.

The three remaining judges disagreed.  They thought that the purpose of freedom of association was simply to “protect the collective pursuit of common goals” (at 252).

That minority view was firmly rejected in a subsequent Supreme Court decision called R v Advanced Cutting & Coring Ltd. In that case eight of the nine judges agreed that freedom of association included the right not be forced to associate.

The European Court of Human Rights has also found that the freedom of association includes the freedom not to be compelled to associate in a number of cases, including in Sigurjónsson v Iceland and in Sørensen and Rasmussen v Denmark.

Those cases are consistent with the basic intuition that I referred to earlier – forced association is as much a limit on individual autonomy as prohibited association. Given the agreement in the international cases on this point, I do not expect the debate surrounding Sir Roger’s bill to focus on this issue. Rather, I expect it to centre on whether the current provisions of the Education Act actually infringe the right not to be forced to join an association and, if they do, whether that infringement is justified.  I’ll endeavour to blog about those issues next week.

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10 Responses to “VSM: does freedom of association include the right not to associate?”

  1. Jesse Says:

    I think that the facts of the Sørensen case are a pretty powerful reminder of how compulsory unionism treated employees (“To obtain the job it is mandatory to be a member of one of the trade unions affiliated to the Danish Confederation of Trade Unions. You will be informed on request of the name of the union.”).

    The ECHR’s earlier decision in Young, James and Webster v United Kingdom also provides some interesting context to these issues.

  2. VSM: Go your own way « Today's Dissent Says:

    […] Go your own way By Jesse Jono’s post on the Education (Freedom of Association) Bill looks at why the right to freedom of association […]

  3. Michael Appleton Says:

    Hi Jono: A genuine question: how do you (given how you concieve of the right to free association) distinguish between the right not to be forced to be a member of a students’ association and the right not to be forced to be a member of a nation-state? I have never really considered the matter, but I suspect it is not a trivial thing to try and have my British and/or New Zealand citizenship revoked…

  4. Jonathan Says:

    Michael, I don’t think that the fact that everyone has to be a member of a nation-state takes the analysis anywhere (if the argument is that this indicates that a right from forced association is not included in the right to freedom of association). The Bill of Rights is premised on the existence of the state and is about the rights that individuals have within the state. Without the existence of a state apparatus it is difficult to see how legally enforceable obligations could even arise.

    Second, if the argument is that assuming there is a right from compelled association, how is a student association different from the nation state, again I don’t think this is a valid comparison for the reasons given above. Even if it was, however, they seem to me to be completely disanalogous. The state is essentially a mechanism for dealing with common problems and an institution that provides a framework for human interaction (be that by providing security, courts, rules etc). A students’ association on the other hand is simply a organisation providing representation and services to its members, such like the AA, a union or the business advocacy group.

    Third, as Stephen pointed out to me in a conversation about this, “but the government does it”, is a bad justification for anything. The government imprisons people but no one would seriously suggest that I can go around locking people up and use that as a justification. The death penalty exists in some states but that doesn’t justify murder. Similarly, I pay taxes to the IRD but that doesn’t mean I can demand that you pay me $150.

  5. Jesse Says:

    Michael, I think that the answer to your question concerns the nature of the New Zealand Bill of Rights.

    NZBORA affirms certain rights and freedoms against interference by the organs of the state, such as Parliament and the Executive. This is in the nature of bills of rights – they are constitutional methods by which the exercise of legislative and executive power is limited in accordance with important rights and freedoms. So being a person who is responsible under the laws of New Zealand and being entitled to the protections of New Zealand laws are just two sides of the same coin.

  6. peteremcc Says:

    I know it might not have much legal weight in NZ law, but the UNUDHR makes it clear what is meant:

    Article 20.

    (1) Everyone has the right to freedom of peaceful assembly and association.
    (2) No one may be compelled to belong to an association.

  7. VSM: whose choice? « Today's Dissent Says:

    […] whose choice? By Jonathan In an earlier post I explained why I think that the right to freedom of association in the New Zealand Bill of Rights […]

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