Freedom of association to be debated in New Zealand

According to the New Zealand Bill of Rights Act 1990, “Everyone has the right to freedom of association” (section 17). This freedom is reflected in the UN’s Universal Declaration on Human Rights, which says that “No one may be compelled to belong to an association.” However, in New Zealand the Bill of Rights Act has less clout than other statutes. This is because of section 4, which says (in effect) that where another statute law conflicts with the Bill of Rights, that Act, rather than the Bill of Rights, will prevail. However, as section 5, notes, “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

I dislike the existence of section 4. It tells us that the government has the right to overturn first generation human rights. Section 5 is just strange, as it suggests that the abolition of such rights can be consistent with the principles of a free and democratic society. On the contrary, it cannot. All these two clauses do is permit the government to override human rights and freedoms when it sees fit, and fudge the immorality in doing so by insisting that it really is behaving democratically.

Currently the freedom of association is not upheld for all New Zealanders. The reality for most tertiary students is that student association membership is compulsory. As someone with a short history of being involved in raising public awareness on the issue, I’m excited by the fact that Roger Douglas’s Freedom of Association Bill is to be debated and perhaps passed into legislation. See the bill HERE. As explained at the link:

The purpose of this Bill is to uphold students’ right to freedom of association, by ensuring that no student is compelled to join a students association.

Section 17 of the New Zealand Bill of Rights Act 1990 guarantees the right to freedom of association. This right includes the freedom from compelled association. Parliament has an obligation to ensure New Zealand legislation is consistent with the New Zealand Bill of Rights Act and New Zealand’s obligations under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.

This Bill does not seek to damage or limit students associations, but guarantees the right of students to the freedom of association. It will result in students associations being truly representative of the students who voluntarily join them.

Under this Bill, all students would be able to choose whether or not to join a students association. The current Act requires councils to conduct a referendum to decide if all students should be forced to become members of an association, if petitioned by 10% of the students enrolled at the institution. If a majority of voters in a referendum support compulsory membership, then the right to freedom of association for the all remaining students is breached.

This Bill seeks to address the negative consequences stemming from the passing of the Education Amendment Act 2000 and the referenda provisions of the Education (Tertiary Students Association Voluntary Membership) Amendment Act 1997. The current legislation fails to guarantee individual students a satisfactory opportunity to withdraw from associations, and sets the bar too high for those who wish to make membership of a students association voluntary.

Currently, in order to make a student association voluntary (which is, according to the Bill of Rights Act, how it should be in the first place), you, an individual student, need to arrange a massive petition – a petition just to have a vote on the issue! Imagine if someone were to propose a similar hurdle for say, freedom of speech or freedom of religion.

I know from experience that student association executives are frequently very politcally vocal, supporting some parties and policies over others, all the while claiming to speak on behalf of “students,” since all students are members. I have no problem with a union expressing a political point of view, if that union is voluntary. But the requirement to join an orginasiation like this just to get a higher education is frankly a cold war relic (assuming of course, you’re on the other side of the iron curtain). This Bill is an important step in reclaiming basic rights and liberties in New Zealand, and I hope it gains the support it needs.

Glenn Peoples

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10 thoughts on “Freedom of association to be debated in New Zealand

  1. It’s exactly like any private union or association, funded by students and staffed mostly by students and also some full time staff.

    They provide services (although many of these are identical – and no cheaper) to services provided by many retail outlets, and they also provide what they call advocacy for students – especially women or minority groups. They also, in New Zealand at least, have an entrenched reputation as organisations with well defined and very vocal political stances favoring the parties of the left.

    A little bit of gogglinh suggests that Student Associations are equally common in the US, perhaps even moreso, but the Bill of Rights would prevent any of them being compulsory.

  2. Philosophickle – student union, student body, that sort of thing.

    Section 4 does not mean that the government has the right to overturn first generation human rights. You have to read all the sections together as well as understand the case law that guides the interpretation; the process is complex but it is not true that the government can or will or is likely to override human rights and freedoms when it sees fit.

    Just because section 4 makes it clear that the Bill of Rights cannot strike down other Acts does not mean it is completely useless. Section 6 and 5 give the court some power. Section 6 is applied first. Rules or laws that appear at odds with the Bill of Rights must be interpreted or applied in a manner that is consistent with the Bill of Rights. This means that if on reading the rule or law you could conceivably take several plausible meanings out of it you must discard those that would conflict with the Bill of Rights and choose the most compatible reading. If there is no way to read the rule or law in a manner consistent with the Bill of Rights, then section 5 kicks in; you have to try to find a way of minimising the affront to the right or freedom without affronting the law in question. Only when these avenues are exhausted is the court left in the position of having to apply the rule or law but if it is in this position a court can make a statement that makes it clear the law is in breach. This kicks section 7 into gear, the Attorney-General’s duty to report any law to the house of representatives where the opposition and the media will get hold of it even if the government does not care.

    Put this picture into the backdrop of a country that has legally bound itself to uphold international human rights laws and which in addition to its own reporting mechanisms has several non-governmental reporting organisations that will tell on it too.

    While it may seem like a violation is tantamount to receiving a sternly worded letter, being in violation of basic rights and freedoms it is something that successive governments have tried to avoid like the plague. The international and local political fallout from passing a law that violates the bill of rights is not something they generally want to risk and you certainly do not see many attempts – the controversy at those that come close is often huge, the 3 strikes law triggered a section 7 report and this will get taken seriously at select committee/SOP stage if that Bill progresses that far. Mostly the violations seen since the passage of the Bill of Rights Act are rules passed by those exercising public functions (not the state but those acting on behalf of the state) or old laws that no one has fixed yet like the one at hand.

    Getting a light shone on old laws that need fixing is difficult especially if they don’t affect the vast majority and you know only too well how people see student politics, they don’t get the power and influence they wield, they don’t grasp the seriousness of the problem. Then there is the added complication of the current status of referendums making it possible to switch to voluntary coupled with conscientious objection can be read as a justifiable limitation or an attempt to satisfy section 6. Of course our knowledge that the referendums are unworkable and our evidence to this end could disprove that but no one has taken it to court and it has proved difficult to get anyone with the power to bring legislation and those it suited could always argue the other side of the argument. Now that we have a bill on the table it is crucial we demonstrate the seriousness of the problem and the fact that the current state of affairs does not satisfy section 5 so as to motivate the government to act.

  3. Yes, section 6 does say that where a law can be read in a way that is not in conflict with the Bill of rights, then it must be read that way. I’m aware of this, but when I referred to laws that conflict with the BOR, I mean laws that literally cannot be read to marnonise with the BOR, because they are in conflict with it – they are not consistent with it.

    Unfortunately, the existence of the current laws on Student Associations demonstrates that such rights have, in practice, been set aside by legislation. I say that the Bill of Rights needs ammending.

  4. How would you amend the Bill of Rights? Turn it into a constitution? That would take a large majority of parliament, which in our current environment would require some of the opposition to vote with the government. To make that happen can you imagine what would happen to the content of the Bill of Rights?

    Even if you could achieve that and not have it riddled with collective, discrimination and other rubbish ‘rights’ then you’d be handing all the power to the courts instead of the legislature. Given our court structure and method of judicial appointment I would want to see quite a few other Acts amended before I would be happy with that state of affairs.

    Even if we did make all the amendments and turn our constitutional system into a model like the US’ we’d then inherit all the problems they have with activist judges and ivory tower rulings.

    I know it often seems like their system is superior but I am not convinced it is. At least with our system the public get to make submissions and have some say in the shape of law and vote the politicians out of office. I think their constitution is worded better than ours but I am not certain their system is superior.

    You wrote “the existence of the current laws on Student Associations demonstrates that such rights have, in practice, been set aside by legislation.” I dispute this. As I said above, the jurisprudence around BOR interpretation allows a fairly strong argument that CO and referenda amount to justifiable limitations. It is just that you and I are privy to pretty strong evidence to the contrary that enables us to see that legislation as a breach but this evidence has not been presented to a court and to my knowledge no one took it to the UN bodies either. While Labour was in power, as holders of the argument against our position, they were never going to hear it but the opposition did and have hence this bill. The wheels turn slowly but they do turn. I am not sure if this state of affairs had existed in the US that justice would have come any faster even if the route to it was different.

  5. My proposed ammendment is a bit more modest than changing the whole thing into a constitution. I would want to see something done with section (5), which implies that restricting first generation rights can be compatible with a free and democratic scoiety.

    I don’t think either of use can dispute that such rights have been set aside, since freedom of association has been set aside. Nor is it compatible with a free and democratic society to justidy this restriction on the grounds that the right can be voted back into existence by a referendum. As I see it, the full burden of proof rests with those who set the right aside, because they are the ones who must claim that the restriction is justified, and as far as I can see this justification has not been made, either to parliament or to the public.

    The wheels do turn slowly, but they should not have to turn at all (other examples like freedom of speech or freedom of religion would make this more obvious to more people). That the law currently requires people to go through any sort of drawn out process to access rights like this is a disgrace, and if the law is compatible with this (and it is), then the law is at clear fault.

  6. Restrictions of first generation rights can be compatible with a free and just society; your free speech can be restricted by a court if you speaking might endanger someone’s life, your liberty can be restricted if you are convicted of a crime and sent to jail. In a free and democratic society your first generation rights are restricted by other peoples noses.

    Then there are the rights that have positive elements, these especially can be justifiably restricted in a free and compatible society for reasons such cost as they place demands on others. A right to a fair and speedy trial must be provided for you by someone else and there are reasonable limits as to how much can be spent on upholding your first generation right, expert witnesses, access to the latest CSI-type evidence, etc.

    The problem with denying there can be restrictions is that you can take some rights quite far. A line has to be drawn sometimes, particularly in poorer countries; this is why many commentators speak of bills of rights as being aspirational. A baseline is set by which rights must not fall under but above that baseline restrictions can be made as long as they are compatible with a free and democratic society. This line of argument is reflected in New Zealand jurisprudence and the cases that have been decided on s5.

    Do I think the current state of affairs is below the baseline for freedom of association in NZ? Definitely. Do I or did I ever accept that voting to uphold rights is acceptable? No way.

    However, I am aware that there is a reasonable amount of precedent that supports the line of argument that CO and referenda might keep freedom of association above the baseline. That said, I am aware of precedent that denies that too and that this precedent is the direction the rest of the world is heading in.

    Regardless s5 or something like it must remain or else courts will have the power to strike down legislation and you’re back to the appointment an accountability issues.

    You wrote: “freedom of association has been set aside. … the full burden of proof rests with those who set the right aside, because they are the ones who must claim that the restriction is justified, and as far as I can see this justification has not been made, either to parliament or to the public.”

    I agree with you regarding the onus of the burden. However, you must keep in mind what order each law was passed in. Student associations were compulsory long before the NZBORA was passed.

    Now that we have an attorney general who should be amenable to the arguments and a government who should too we can finally do something about this law that is at odds with the NZBORA.

  7. Yes true, I agree that in extreme cases there might be a reasonable restriction on first generation rights, and my earlier comment didn’t acknowledge that.

    However, restricting freedom of association on the grounds of… (something, but the rationale is not clear to me), is not an extreme situation that would justify the restriction of first generation rights.

    However, yes you raise a very good point in noting that the BOR Act was passed when Student Associations were already compulsory. I still think that when the BOR was passed, it generated a burden of proof that needed to be met fairly promptly by proponents of compulsory associations. That burden has never been met (as I hope you’d agree).

    Section 5 permits this, and I think it is too open ended. I do not know how it should be changed, but I think that change should be in the direction of imposing burdens on anyone who would propose a restriction of the rights enumerated.

    What prompted me to start thinking more about section (5) is a case that was required reading in a law paper I’m doing where the judges involved spoke the existence of section (5) meant that they would never question a law that conflicted with the Bill of Rights. It struck me that first generation rights at very least more teeth than they currently have.

    I am open minded about whether transforming the BOR into a constitution would be the best way to go, but it certainly needs more power than it has now (in my humble view).

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