Legal Beagle by Graeme Edgeler


The Inexorable Advance

The most recent members' ballot saw Sir Roger Douglas' Education (Freedom of Association) Amendment Bill drawn to receive its first reading debate in some three to five weeks. And the National Government – looking to avoid rocking the boat too much in a first term – stubbed its toe kicking the nearest concrete pillar. They will have to support the bill to select committee, and the fight from there will be vicious.

But this shouldn't even be a political issue: not in New Zealand – a country that prides itself on a better-than-average human rights record. This is a human rights issue: and it's more than a little disconcerting that many of those who stood steadfastly against public opposition to civil unions because human rights should not be subject to majority whim will lead the charge against students' civil liberties here.

In 1999, tertiary institutions throughout the country held referendums over whether their students' associations should remain compulsory, or become voluntary. Individual institutions have held occasional referendums since. It is an improvement, but it is not enough. There is no democratic veto over fundamental human rights.

Proponents of compulsory membership of students' associations liken the role played by students' associations to local government. “You can't opt out of local government – so why should you be able to opt out of student government?” I've always thought that a rather poor analogy. If anything, students' associations are residents' and ratepayers' associations – there to push for accountability from the body to which everyone is forced to pay serious cash (if you want to live in an area/get a tertiary education). All students may benefit, but not more than all ratepayers benefit from having someone with an eye on council excess, or all shareholders benefit from the advocacy of the Shareholders' Association. And, for some, the benefit is fundamentally at odds with their entire philosophy – just as many car-owners feel about the Automobile Association's relentless highways push. Students don't have to attend university, just as you don't need to own an automobile – but wouldn't it be nice to have someone looking out for your interests as a driver?

Students' Associations aren't churches. One can separate churches' spiritual role from their charitable one and get kinda close to a comparison with students' associations' advocacy and welfare roles; but, unfortunately, not close enough to make this argument really easy. Compulsory membership of churches is incongruous to the vast majority, but mandatory membership of students' associations is nearly as outrageous.

Voluntary membership would mean the services offered by Students' Associations will decrease – just as voluntary membership of other organisations throughout society means they can't offer as much, or reach as widely as they'd like (or even as widely as would most benefit society). And not all the services they provided would be offered by the universities or the Government. Compulsorily-subsidised student orientations provide excellent touring opportunities for up-and-coming Kiwi bands – but seem an unlikely recipient of Arts Board funding.

Student Choice and other proponents of voluntary membership offer many other arguments for their position: they can point to fraud, frequent ineptitude, and occasional competence. Different associations have at times – often for years on end – perfected the art of deficit spending. They will say that if students' associations faced the threat of students leaving after such shenanigans, they'd ensure they offered a truly great service.

All of that is a sideshow. Anyone arguing for voluntary membership of students' associations from a free-market perspective is missing the point.

Voluntary membership has nothing to do with quality. Voluntary membership of students' associations (and everything else for that matter) is about freedom. Would global suffering decrease if everyone in NZ was forced to join and give money annually to Amnesty International? Quite possibly; but we don't abandon cherished freedoms to save lives and alleviate suffering in the third world, and we shouldn't do it to to get a couple of good gigs.

It seems that successive governments have looked at some of the good work done by students' associations and decided that it was desirable to keep them around; they played a role and offered services that were thought beneficial – to students, and perhaps the wider community. Unfortunately, it was felt that the best mechanism to fund this important welfare service was a poll tax levied primarily on the impoverished.

When Amnesty International wants to advance the fight against global injustice, they pressure governments to act. A few years back, we saw aid organisations pushing the point 7 campaign calling for countries around the world to meet goal of 0.7% of GDP for foreign aid re-affirmed through the Millennium Development Goals. When the Red Cross wants to provide aid in the aftermath of a natural disaster they ask people around the world to contribute – and they ask governments around the world to contribute. And when the Anglican church wants change to occur to lessen about child poverty in New Zealand, they call on the government to raise family assistance, and help put collectors on the streets.

Amnesty International, the Red Cross and the Anglican Church do not call for membership of their organisations to be made compulsory to enable them to do the work themselves. If someone feels that some of the services students' associations provide are so important that students should not be without them they should make the case to the government to fund either the services, or even fund students' associations directly. Arguing for the government to ensure these services continue in this way is looking at a desired end, and coming up with a means.

The short point is this: if you want to limit a fundamental human right – whether it's freedom of expression or freedom of association – you need a really really good reason. You can point to a swathe of wonderful work undertaken by students' associations; you may be able to point to services that will cease. But this doesn't come nearly close enough.

Every one of those arguments will be an excellent reason to join a students' association. None of them will be a good enough reason reason to force others to join. Proponents of compulsory membership of students' association are trying to limit human rights; they should be able to point to a compelling state interest to be advanced. There isn't one.

I do not pretend that voluntary membership will be a panacea for the ills faced by students' associations, or students, or tertiary education. It is not supposed to be – this isn't about fixing something, it's an expression of human freedom. And freedom has consequences. There is a reason that people through various stages of history have gravitated toward authoritarian leaders. At the cost of some freedom the benefit of strong leadership and centralised power to large sectors of society can be substantial.

People will argue that voluntary membership of students' associations won't save students money – that fees invoices will carry student services levies instead of students' association levies, whereby students will end up paying more, for worse service, over which they will have less control. Such people are missing the point as much as the free-marketeers are. Although the fees cap might get in the way, they're probably right. But we pay more for prisons because we don't have a death penalty. And our justice system is slow, and vastly more expensive, because we afford defendants more rights than they do in more authoritarian jurisdictions: sometimes financial expense is the cost of respect for human rights.

Is the fight over compulsory membership of students' associations the equivalent of the push for equal rights in the 60s and 70s? Frankly, no. On a historical scale it's not a big deal. Even for more recent years it's not a particularly big deal. But that we are fighting over things like this isn't a sad indictment of human rights activism; in New Zealand, it's what's left. The battle for legal equality has been fought and won in this country. Most of the things left to fight over are relatively small, and pretty insignificant. This is just a small next step in the inexorable advance of human liberty.

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