VSM: the non-conscientious objector

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.

VSM: whose choice?

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.

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

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.