Education (Freedom of Association) Amendment Bill - Submission to the Education and Science Select Committee [2010] NZHRCSub 7 (31 March 2010)

Last Updated: 28 June 2015

31 March 2010

John Thompson

Clerk of the Committee

Education and Science Select Committee

Parliament Buildings

Wellington

_{Dear John}

THE EDUCATION (FREEDOM OF ASSOCIATION) AMENDMENT BILL

The Human Rights Commission welcomes the opportunity to provide some comments on the Education (Freedom of Association) Amendment Bill. In particular the Commission has analysed whether or not the Bill is necessary to ensure compliance with domestic and international obligations to protect freedom of association. It concludes that the current legislation fulfils these requirements and does not require amendment.

Such an assessment is one component of the human rights approach, an analytical framework adopted internationally when applying human rights standards to domestic provisions. The Commission has looked at three elements (balancing of respective rights, participation, and accountability). In each case the current provisions in sections 229A to 229D of the Education Act 1989 (the Act) better reflect a human rights approach than those proposed in the Bill.

Domestic and International human rights obligations

Section 229A of the Act enables students’ associations to collect compulsory membership fees or for the relevant tertiary institution’s council to collect such fees on its behalf. Supporters of this amendment bill argue that such provisions contravene section 17 of the New Zealand Bill of Rights Act 1990 (BoRA) which guarantees freedom of association. The proposed amendments would make it unlawful for a tertiary institution or students’ association to require students to become association members, pay association fees or pay any other person in lieu of such fees. The Bill therefore is asserting students’ freedom to not associate.

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Freedom of association is fundamentally about the right of individuals to join with others. Often a collective voice is an important way for vulnerable groups to understand and then assert their human rights. When freedom of association is undermined it has significant impacts on the promotion, protection and fulfilment of other rights. For these reasons, the BoRA provisions and the international standards on which they are based, particularly Article 20(2) of the Universal Declaration of Human Rights and Article 22 of the International Covenant on Civil and Political Rights, describe freedom of association as a positive right.

Section 229A(6) in the Education Act 1989 already enables a student to opt-out of being a member of the relevant students’ association on the grounds of conscientious exemption. Thus no student is required to be a member of a students’ association. All exempted students must still pay the equivalent of a student membership fee, which is then passed on to a charity. Under section

229A(5) any student may be exempted from paying membership fees on the grounds of hardship.

In addition, sections 229B and 229C of the Act enable the student body as a whole to remove compulsory association membership and replace it with voluntary membership. Students’ associations must hold a vote on this issue if requested to do so by at least 10 per cent of students enrolled at their institution.

The Commission concludes that the Act does not breach the right to freedom of association contained in section 17 of the BoRA.

A Human Rights Approach

The human rights approach was developed internationally and adapted by the Commission as the basis for its analysis of legislation, policy and practice in New Zealand. Compliance with international and domestic human rights provisions is one essential component. Other steps relevant to this submission are:

Identification of all relevant human rights involved, and a balancing of rights, where necessary prioritising those of the most vulnerable people, to maximise respect for all rights and rights-holders

an emphasis on the participation of individuals and groups in decision-making that affects them

accountability for actions and decisions, which enables individuals and groups to complain about decisions that affect them adversely.

Each of these elements of the human rights approach is considered briefly in turn below.

Balancing of rights prioritising those most vulnerable

Balancing of rights requires comparison of the benefits that arise to students individually and collectively through universally-funded associations against any infringements on the rights of those students who do not want to be a member of their students’ association. Students’ associations provide an extensive range of services and amenities for the student body as a whole. Many of these services are public goods and could not easily be ring-fenced to exclude non-paying students.

Recent Australian government research indicates that voluntary membership there has significantly reduced the level of services and amenities provided to students, and also increased their cost. ¹ Of particular concern from a human rights approach would be the potential impact of voluntary student membership in New Zealand on vulnerable students. Examples would include any reduction in

services and amenities for disabled or international students, or in the assistance that associations provide to students facing hardship.

It is more difficult to quantify the benefits of ensuring individual students have the right to not join their association, particularly as all students have the right to seek an exemption as a conscientious objector. Those who face hardship may also apply to be exempted from paying fees. Some students who have chosen to opt- out of membership may reasonably object to still paying the equivalent of a membership fee, albeit to a charity. However, there is a counter argument that removing any payment for these students would result in free-riding given the difficulties of excluding them from the amenities and services that students’ associations provide.

On balance the Commission considers that the right to freedom of association outweighs the cost attached for those students who exercise their right to not join their students’ association.

Participation

Students' associations play a vital representative role enabling students to participate in the associations’ internal structures (such as student councils), as class representatives, and on governance bodies of tertiary institutions. There is a strong link between freedom of association and the rights to participate in public affairs and to vote. In its General Comment on Article 25 of the International Covenant on Civil and Political Rights the Human Rights Committee has noted “the right to freedom of association, including the right to form and join organizations and associations concerned with political and public affairs, is an essential adjunct to the rights protected by article 25”.

Students’ associations, as the collective voice of their student body, play an important role in ensuring the participation of students in decision-making that affects them. Based on evidence from Australia, it is hard to envisage that this role would be as effective under a system of voluntary membership. However, students themselves have the ability to make that choice between voluntary or universal membership under current legislation.

¹ Department of Education, Employment and Workplace Relations (April 2008) The Impact of Voluntary Student Unionism on Services, Amenities and Representation for Australian Universities. Canberra: Department of Education, Employment and Workplace Relations.

Accountability

Currently students' associations provide accountability mechanisms on two levels. Firstly as incorporated societies they are bound by requirements to hold annual elections, annual general meetings (where membership fees and annual budgets are set) and to have their accounts audited annually. These requirements would not change as a result of the proposals in this Bill.

Secondly students’ associations support students making complaints to their tertiary education institution. This role includes co-coordinating class representative systems and advancing systemic issues through the institution's governance body. If, as evidence suggests, voluntary membership reduced the financial resources of students’ associations, it is doubtful that this role would be resourced sufficiently.

Summary

The Commission considers that sections 229A to 229D of the Education Act 1989 adequately protects the right to freedom of association under section 17 of the Bill of Rights Act 1990.

Having regard to the relevant international human rights standards, the Commission considers that students’ freedom to not associate is protected sufficiently under the current Act.

The human rights approach identifies the positive role current provisions play in protecting freedom of association particularly for the most vulnerable groups of students. In addition, under existing legislation, students’ associations have enabled students to participate in decisions that affect them and to complain about adverse decisions. Given the effectiveness of the Act in protecting and promoting students’ human rights, the Commission considers that any remaining limitations on the freedom to not associate would be justifiable under section 5 of the Bill of Rights Act.

As the Education Act 1989 supports students’ right to freedom of association it

does not require amendment.

_{Yours sincerely}

Dr Judy McGregor

EEO Commissioner