VSM: Go your own way

Jono’s post on the Education (Freedom of Association) Bill looks at why the right to freedom of association under the New Zealand Bill of Rights Act 1990 includes the right not to be compelled to join an association.

I agree and have made a submission to the Select Committee supporting the Bill and recommending some drafting changes.

Assuming that compulsory student unionism restricts freedom of association, the next question is whether those restrictions can be justified in terms of section 5 of the Bill of Rights (which provides: “subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”).

As far as I can tell, the New Zealand government does not appear to have formally set out a justification for compulsory membership of students associations in terms of section 5 of the Bill of Rights. (Sections 223 – 229 of the Education Act were inserted with effect from 1 January 1991.  No report under section 7 of the Bill of Rights appears to have been made by the Attorney-General in relation to the Education Amendment Act 1990 or the Education Amendment Act 2000.)

Nevertheless, you can get a sense of the basic justifications put forward for compulsory student unionism from the arguments made in opposition to the first reading of the Bill, the arguments identified by the Select Committee’s report on the Tertiary Students Association Voluntary Membership Bill 1998 (during the previous round of reforms), and the public statements by student unions in opposition to the Bill.

The justifications seem to come down to a “representation” rationale and a “services” rationale.  I find them pretty unpersuasive for the reasons set out in my submission:

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

(i) Some students may not wish to be represented by the students association. It is unlikely that mandating unwanted representation of students who are compelled to join an association “relates to concerns which are pressing and substantial in a free and democratic society.” Indeed, to the extent that students associations engage in advocacy on matters of public policy, unwanted representation aggravates the interference with the rights of students who are compelled to be members of those associations. Accordingly, a statutory regime under which people can choose whether to join an association may significantly reduce the frictions caused by students association taking positions on public policy or engaging in controversial activity.

(ii) Compulsory membership is not necessary to provide for the representation of students on the Council of a tertiary institution. Section 171(2)(e)(ii) of the Education Act provides 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 least possible impairment” of an affirmed right consistent with the pursuit of the objective of representation.

(iii) The representation rationale could presumably be advanced in respect of any number of different associations (e.g., all workers in the X industry should be compelled join the Y union because they need to be represented by Y). It is not clear why students associations have a special exemption (and, correspondingly, students bear a special burden) 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 should be required to join a business lobby group to ensure they are “represented” (whether they wish to be so represented or not) or that every person over a certain age should be forced to join a local affiliate of Grey Power. Notwithstanding the absence of compulsion, countless such voluntary associations across all aspects of New Zealand life provide useful representation for their members. The notion that like-minded individuals are somehow unable to pool their energies towards common goals in the absence of compulsion is plainly unfounded. It is not clear why the law should treat students in a different way.

(b) Second, there is a services rationale. The argument appears to run that students associations provide 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 students associations provide services so valuable that no student should be free to decline them satisfies the first limb of the tests under Chaulk (i.e., “The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important”).

(ii) The services rationale fails the “rational connection”, “minimal impairment”, and “proportionality” limbs of the tests under Oakes and Hansen. There is no obvious reason to think that services provided by students associations could not be obtained by students from the university, other associations, or third party providers. The fact that many universities around the world (including some in New Zealand) operate without compulsory membership seems to expose the flaw in the services rationale. (Of course, compulsory membership proponents might still maintain that they simply believe that it would be better if a union provided those services. The short answer is that section 17 of the Bill of Rights protects the right of individual students to demur to the union’s assessment of its own importance.)

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

So I think that the sky won’t fall if the provisions of the Education Act are amended to vindicate the right of each student to freedom of association.  In fact, as in other sectors in which compulsory unionism has been disestablished, I think it likely that student choice will lead to better outcomes for students.  Submissions are due on 31 March (and you can make one here).