VSM: whose choice?

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In an earlier post I explained why I think that the right to freedom of association in the New Zealand Bill of Rights Act 1990 includes the freedom from compelled association. Some opponents of Sir Roger’s Education (Freedom of Association) Bill have argued that even if that is the case, the current provisions of the Education Act 1989 relating to membership of student associations do not interfere with the right to freedom of association. Two arguments are frequently made:

  1. That there is already freedom of association because students can choose to make student association membership voluntary by holding a referendum. (Chris Hipkins made this argument during the first reading of Sir Roger’s bill. Metiria Turei even went so far as to claim that the Bill infringed the right to freedom of association by taking away the right to have a referendum.)
  2. The right to freedom of association is not fringed because students may seek an exemption from membership of their students’ association. (This argument is made by the Save Our Services group.)

In this post I address both arguments.

The right of freedom of association belongs to the individual

The first argument rests on section 229B of the Education Act 1989. That section allows students at a tertiary institution where membership of the students’ association is compulsory to request the council of that institution to hold a vote on whether membership should remain compulsory. If 10% of students sign a petition requesting a vote, a vote must be held. Section 229C provides that the result of the vote determines whether membership will be compulsory in the following year.

The problem with this argument is that the right to freedom of association belongs to the individual. This is clear from the language of section 17 of the Bill of Rights Act which provides that “everyone has the right to freedom of association”.

The point was also clearly made by Justices La Forest, Sopinka and Gonthier in the Supreme Court of Canada’s decision in Lavigne v Ontario Public Service Employees Union. They explained that:

At the core of the guarantee of freedom of association is the individual’s freedom to choose the path to self-actualization. This is an aspect of the autonomy of the individual. (at322)

(My emphasis.)

The same point was made by Justices Gonthier, Arbour and LeBel in the Supreme Court of Canada’s later decision in R v Advanced Cutting & Coring Ltd (at [175]).

Those who make the argument that freedom of association is recognised by allowing a vote on whether membership should be compulsory, miss this point. They often argue the the mechanism of a referendum is a democratic way of allowing freedom of association. An argument along these lines was made by Jacinda Ardern in the first reading debate.  She said:

This bill is not about choice. Students have choice already, and universities have demonstrated that they are fully able to exercise that choice when and if they require it. I say again that they have learnt the lesson that the system they have is working for them. If they make the choice to have a referendum and they stick with universal student union membership, then that is a collective choice that they have made together. After they have made that collective choice, all of the services that then flow from it benefit that collective, and that choice is still there. That is democracy at work, plain and simple.

This misconceives the very nature of rights contained in bills of rights. Such rights are limits on the power of the majority designed to protect the interests of the minority. In this sense rights are undemocratic. But they reflect a democratically reached consensus that not every issue should be decided on a 50% + 1 basis.

So to this extent, the point made by Jacinda Ardern is correct. A referendum on student association membership is a democratic mechanism. But that is simply another way of saying that it is a mechanism that allows the majority to determine the issue for the minority. The infringement with the rights of the minority is not offset by the fact that the majority of students voted in favour of compulsion. That sort of utilitarian analysis is the antithesis of the rights based approach mandated by the Bill of Rights Act.

The ability to apply for exemption is limited and misses the point

The second defence of CSM rests on the ability to seek an exemption from membership of a students association.Section 229A of the Education Act provides that:

A students association may exempt any student from membership of the association on the grounds of conscientious objection; and, if exempted, the association must pay the student’s membership fee to a charity of its choice.

There are at least two reasons why I believe that the ability to apply for an exemption does not cure any inconsistency with the right to freedom of association.

First, students can only be exempted from membership on the grounds of “conscientious objection”. Students may be opposed to joining a student association for any number of reasons, many of which could not properly be categorised as conscientious objections. And students should not be forced to bring their opposition within any particular category. Freedom of association is a recognition of individual autonomy. The freedom is not limited by the reasons underpinning an individual’s choice.

Second, the conscientious objection provision only provides a means by which a student can opt-out of membership. The student is still compelled to be a member in the first place and to pay a membership fee. In order to terminate the membership the student must actively seek an exemption. The student’s freedom of association is still infringed because there is no initial choice.

That explains why I think that the current regime concerning student union membership is inconsistent with the right to freedom of association.  I see that Jesse has come to a similar conclusion about both these arguments in his submission to the select committee ([19]-[30]). He has also already blogged about why he thinks the infringement with the right to freedom of association is unlikely to be a justified limitation on that right (in terms of section 5 of the Bill of Rights). If I get time I may share my own thoughts on that issue later in the week.

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One Response to “VSM: whose choice?”

  1. VSM: the non-conscientious objector « Today's Dissent Says:

    […] Jono’s post ably summarises why this procedure does not save the regime from inconsistency with the New Zealand Bill of Rights Act 1990. […]

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