VSM: the non-conscientious objector

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The Education Act 1989 provides that a “students association may exempt any student from membership of the association on the grounds of conscientious objection.”  If the association is satisfied of the conscientiousness of the student’s objection, it gives the student’s money to a charity of its own choosing.

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

I’d like to focus on a different aspect: namely, the implausible premise that only “conscientious” objectors may not be compelled to join a students association.  In doing so, I’d like to defend the rights of non-conscientious or unconscientious students to decide whether or not they want to be a member of a student union based on whatever considerations seem salient to them.  Not least among those considerations: whether the student thinks she can spend her money better than the student union (in some cases, this may not be an implausible assumption).

So how did it come to pass that a student should be required to plead her case before an association pursuant to section 229A(6) of the Education Act and, even if successful, should be required to give up her money to charity as the price of relinquishing a membership she never asked for?

The conscientious objection ground to union membership is a throwback to provisions, which used to be relatively widespread in the Western world, providing for unionised “closed shops”.  The closed shop arrangements considered by the European Court of Human Rights from the United Kingdom and Denmark included grounds for an employee to seek an exemption from union membership on conscientious grounds. Similar arrangements existed in Australia.

The rationale of these procedures was to provide narrow grounds (usually invoked for religious reasons) to avoid union membership while locking other workers into the closed union shop arrangements.  As such, the procedure has its basis in a previous legislative era that was hostile to the idea that union membership was a decision for each employee to make.  The requirement to “conscientiously object” from union membership is therefore based on principles that now find little support in New Zealand law and which no longer reflect the practices of modern New Zealand workplaces.

The right to freedom of association entails more than the right to plead one’s case for an exemption to the group which you didn’t want to join in the first place.  As one of the leading New Zealand textbooks says,  “The starting point unquestionably is that no one can be compelled to join an association.”  As the other leading New Zealand Bill of Rights textbook explains, “The right to freedom of association belongs to individuals, not groups; everyone has the right.”  Just like the AA, the local tennis club, or Greenpeace, the decision is yours — and “no thanks” is a perfectly adequate answer.

Accordingly, there is no reason for students to accept the sad sack procedure under section 229A(6) as a substitute for their rights under section 17 of the New Zealand Bill of Rights Act.  The non-conscientious objector should support legislation that puts her back in charge of deciding which associations to join.

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5 Responses to “VSM: the non-conscientious objector”

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

    […] Bill of Rights Act. The non-conscientious objector should support … Read the rest here: VSM: the non-conscientious objector « Today's Dissent Share […]

  2. Michael Appleton Says:

    Jesse/Jono (both of you because you have both posted on the subject): are you opposed to compelled association in all its forms, or is there something about compulsory student association membership which you find particularly troubling? I ask because it seems to me that students associations are not unique in demonstrating state willingness to compel association in pursuit of public policy objectives.

    Off the top of my head, I can think of a few other instances in which the state (whether in New Zealand or another, advanced democracy), in a certain sense, compels association. Example one: if you want to be a lawyer (or doctor or teacher or nurse or physiotherapist), you have to join ‘the bar’ (or its equivalent). Whether this involves passing an exam and/or paying money and/or signing a particular professional ‘oath’, this amounts to a form of compelled association – because perhaps I want to be a lawyer but not be part of the legal fraternity? Example two: certain states market some foods (eg pork or beef) nationally, and levy all producers/sellers of that particular food to pay for the advertising. In my memory serves, the US Supreme Court has turned up several opportunities to strike down such federal programmes as unconstitutional – even though certain individual food producers are being compelled to join in joint marketing efforts. Do you find both of these sorts of compelled association as abhorrent as universal student membership?

    And a related issue: where do you stand on the issue of the state forcing associations to admit members they don’t want to (usually on non-discrimination grounds). This would seem to infringe certain individuals’ right to form associations of their own choosing, without state interference.

  3. Jesse Says:

    Hi Michael,

    It is helpful to look at your questions under the framework provided by the New Zealand Bill of Rights Act. The starting point is whether the restriction engages the right to freedom of association under section 17. If so, that right prevails unless Parliament legislates clearly to the contrary (in which case the inconsistent legislation prevails by virtue of section 4). Section 5 provides that rights and freedoms affirmed by NZBORA “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The courts have developed criteria for assessing whether a particular limit can be demonstrably justified. You can find reference to these principles in Jono’s post.

    As to your examples, the answer is that they have to be considered under established principles. You are right that there are regulatory rationales, for example, which may justify requiring certain types of professional to be a member of an industry body. You might find the Crown Law Office’s advice to the Attorney-General on the Financial Service Providers (Registration and Dispute Resolution) Bill helpful as a discussion of the types of considerations that might justify such requirements. (See here: http://www.justice.govt.nz/policy-and-consultation/legislation/bill-of-rights/financial-service-providers-registration-and-dispute-resolution-bill).

  4. Jonathan Says:

    Michael, further to Jesse’s response, I agree that it is helpful to answer your question with reference to the framework provided by the New Zealand Bill of Rights Act. Your first question asked whether I am “opposed to compelled association in all its forms, or is there something about compulsory student association membership which you find particularly troubling?” My response to that is that I support the right to freedom of association and believe that infringements on it need to be justified on a case by case basis. So I am opposed to compulsory student association membership because I believe it is an infringement on that right which is not justified. I would have to consider other restrictions on an individual basis. Having said that, I think that when an organisation engages in political activities (which most student associations do), being compelled to be a member of that organisation is a more serious infringement than being compelled to be a member of a non-political body.

    As to your examples in your second paragraph, I think that regulation of a profession / providing disciplinary measures might be a sufficient justification for compelling membership. Having said that, there are usually other regulatory mechanisms available which may be preferable to compelled association for that purpose. For example, membership of the New Zealand Law Society is no longer compulsory for lawyers following the passage of the Lawyers and Conveyancers Act 2006, see section 64: http://www.legislation.govt.nz/act/public/2006/0001/latest/DLM365785.html?search=ts_act_lawyers+and+conveyancers+act_resel&p=1#DLM365785.

    As for compulsory membership of trade organisations to levy for national advertising, I would need to know more about how the schemes work. From what you have said my preliminary thoughts are that I would oppose national marketing for other reasons. If national marketing is to take place, however, couldn’t levies be applied directly without forcing producers/sellers to join an organisation?

    On your final point, so long as the associations are purely private and don’t have any state functions, I would be opposed to forcing them to admit members.

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