Bills Digest No. 58 2003-04
Higher Education Support Amendment (Abolition of Compulsory Up-front
Student Union Fees) Bill 2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Higher
Education Support Amendment (Abolition of Compulsory Up-front Student
Union Fees) Bill 2003
Date Introduced:
17 September 2003
House:
House of Representatives
Portfolio:
Education, Science and Training
Commencement:
Operating provisions commence at the same time as those in the
Higher Education Support Bill 2003.
To prohibit higher education providers
from requiring students to join associations or to pay fees on enrolment
that do not relate directly to their courses.
This Bill is part of a package designed to establish
the new higher education funding system that was announced in the 2003-04
Budget. The other bills in the package are the Higher Education Support
Bill 2003 and the Higher Education Support (Transitional Provisions and
Consequential Amendments) Bill 2003. This Bill will amend the Higher Education
Support Bill 2003 to insert an additional condition for higher education
providers who wish to receive Commonwealth assistance.
The Government has had a long-standing commitment to
prohibit compulsory student unionism in higher education institutions.
The last attempt to do so was the Higher Education Legislation Amendment
Bill 1999. That Bill was subject to a report by the Senate Employment,
Workplace Relations, Small Business and Education Legislation Committee(1)
and did not progress through the Senate.
Two states have enacted legislation on voluntary student
unionism. The Western Australian Voluntary Membership of Student Guilds
and Associations Act 1994 amended the establishing acts of state universities
so as to prohibit them from:
-
requiring students
to join a student association (or guild) as a condition of enrolment;
and,
-
imposing any fee
that was not directly related to a course of study.
The Victorian Tertiary Education (Amendment) Act 1994
also prohibited state higher education institutions from requiring
students to belong to a student organisation or pay a compulsory membership
fee to such an organisation, but it permitted institutions to collect
amenities and services fees. These fees had to be used for defined activities
of direct benefit to the students at the institution.
The Bill adopts the Western Australian approach.
The principal argument against compulsory student
union membership is that it infringes upon the fundamental right to freedom
of association. This is the argument used by the former WA Government
when introducing its legislation on the subject:
"Australia
is a signatory to three international agreements specifically outlawing
the practice of compulsory association. Article 20 of the United Nations
Universal Declaration of Human Rights states that 'everyone has the right
to freedom of peaceful assembly and association'. Australia
is also a signatory to the International Covenant on Civil and Political
Rights and the International Labor Organisation's convention concerning
freedom of associations. These conventions specifically denounce the practice
of compelling individuals to become members of associations. UN General
Assembly resolution 217(iii) of 10
December 1948, in addressing these statements on human rights,
stipulates that 'every individual and every organ of society should strive
to secure their universal recognition and observance'. Governments have
an obligation to protect the rights and liberties of their citizens. As
legislators, we have an obligation to uphold and defend those rights and
freedoms which have been universally recognised, including the right to
freedom of association."(3)
Opponents of this view argue that compulsory student
union membership does not constitute an infringement of freedom of association
and that this has been confirmed in the courts. In Clark v. The University
of Melbourne (No. 2) the Full Court of the Supreme Court of Victoria held
that the 'essence of the University's powers is that they are powers of
self-government affecting only those who choose to become members by enrolment'
and that 'they cannot touch anyone who does not voluntarily bring himself
within their reach'.(4)
In Harradine v. The University
of Adelaide, the Full Court
of the Supreme Court of South Australia stated:
"The
suggestion that the Universal Declaration of Human Rights is at all relevant
to the issue here is not sound. That Declaration is not part of the domestic
law of South Australia.
In any event CL8 of Statute XXV does not deny the rights in Article 20
to anyone. The Article does not demand that there be no qualification
for entry to a university as a student. Nor does it contemplate a 'union'
at a university. Moreover, no one is compelled to belong to the union.
Membership follows lawful entry to graduate study at the university.
And, of course, membership produced by payment of a fee can be ignored,
never exercised."(5)
The Full Court went on to reject the notion that the
requirement to join a student association was the equivalent of compulsory
unionism:
"The Adelaide
University Union is a body providing services to members of the University.
The learned trial Judge said it is 'not a union of the kind well known
in the industrial and commercial world.' Again His Honour correctly said
'It is the Student's Club providing facilities for eating, sport and other
activities'. Certainly the learned trial Judge was correct in rejecting
the contention that the clause imposes compulsory unionism. No doubt CL8
requires an undergraduate to belong to an association. But membership
is an adjunct of enrolment as an undergraduate."(6)
Critics of these conclusions
could argue that it is irrelevant that an association of students is not
the same as an industrial union, as it is the element of compulsion that
is offensive. This is not mitigated by the fact that "membership
is an adjunct of enrolment" because students may have little or no
practical choice as to where they enrol. Financial and geographical constraints
may require them to attend the nearest institution or the subjects they
wish to study may be offered at only one local university.
Opponents of compulsory student unionism have argued
that it is wrong to require a person to pay fees to a union which may
in turn, make financial contributions to political campaigns which run
contrary to that person's beliefs. This question generated great controversy
in the 1970s, when the Australian Union of Students (AUS) advanced a series
of hard-line pro-PLO resolutions and organised a speaking tour of PLO
students.(7)
Many students were opposed to paying union fees of which
a portion went, through affiliation, to help pay for AUS and its campaigns.
Such students were threatened with expulsion or non-enrolment by a number
of universities. The radicalism of AUS, and the determination of universities
to enforce the payment of affiliation fees, led to action by the Western
Australian and Commonwealth Governments on the issue.
In 1977 in Victoria,
a student challenged Melbourne
University on this issue in
the courts. The judgement of Kaye, J. in the case of Robert
W. Clark v. The University
of Melbourne and Others cast
doubt on the power of the University to make statutes and regulations
governing the levying and collection of fees for purposes other than of
an academic nature. The Melbourne University (Amendment) Act 1978
(Vic) was designed to rectify this situation. The Act provided that the
University could make statutes and regulations fees for non-academic services
and amenities. However, it also stipulated that moneys raised by the University
for the provision of amenities and services were not to be expended by
students' representatives' council unless its governing body had been
elected in an election at which not less than one-quarter of eligible
students voted (ss.17.3). Under ss.17(4) it was the duty of the University
to ensure that money made available to students' organisations is expended
on services and amenities that were of 'direct benefit' to the University.
These provisions (ss.17.3 and 17.4) were repealed in 1981.
The Act also stated
that 'No person shall be required to be a member of any body or organisation
in order to entitle him to be admitted as a student of the University
or to graduate thereat' (ss.43.2).
Some of the responses
of those who dispute the view that compulsory student unionism is undemocratic
and unfair (in that one is forced to make a financial contribution to
policies that one may oppose) are as follows:
-
it is the nature of
democracy that there are winners and losers, and that the taxes (or
fees) of the loser will be spent on the winner's agenda;
-
there is nothing to
prevent one from becoming politically involved in order to change
policies one disagrees with; and
-
students can choose
to attend a university where one can claim conscientious objection
to the payment of fees.
It could also be argued that the political and administrative
structure sustained by compulsory membership and fees provides one of
the few avenues for young people to gain real experience in practical
political economy: the distribution of resources between competing needs,
negotiation and compromise, and campaigning for support. Critics of this
view would argue that it is not the role of universities to be political
nurseries and that it would be more productive if students expressed their
political aspirations through community organisations and affairs.
Even where membership of a student union or guild is
voluntary students may be required to pay an amenities and services fee.
This has been objected to on the grounds that it constitutes a subsidy
for services that the student may not wish to utilise. For example, many
part-time students may never use the Union or sports
facilities, but still have to pay the annual charge. It would not be difficult
to issue cards to those who wish to use such services and are willing
to pay for them. This would prevent 'free-riders'. It has also been argued
that it would be more efficient if services were left to private enterprise,
rather than provided by student organisations with little managerial and
commercial experience.
Against these views, the following arguments have
been made:
-
the concern over 'subsidies'
is selective and self-serving. All students benefit from massive subsidies
from the taxpayers (the majority of whom have not had the benefit
of a higher education). Students who enrol in Arts, Economics or Law
are subsidising those undertaking Dentistry and Medicine through HECS.(8)
Thus students who demand 'user-pays' student services should also
be demanding the right to pay tuition fees which cover the full cost
of their courses - as the same principle is involved.
-
There are many campuses
where there is no viable alternative to subsidised union amenities
and services. Campuses can be located far from shops, and franchises
may not be sufficiently profitable (unless subsidised). Many students
are willing to provide voluntary assistance under a union system,
but this would soon cease if such activity was simply increasing the
profits of a private operator.
-
The social recreational
and cultural life of a campus is dependent upon the operations of
student associations. If fees were voluntary, the infrastructure necessary
to support these activities would soon disappear.
This argument was expanded by the administrators of WA
tertiary institutions as follows:
'The wide range of student extra-curricular activity
supported through the amenities and services fee is an important component
in the life and character of each institution. The students are given
real opportunities for constructive co-operative activity, whether in
the administration of the Guild itself, in purposeful representation of
student interests in institutional decision-making, or in the affairs
of affiliated bodies which bring together students from a variety of facilities
and courses and from other institutions throughout Australia.
We repeat our considered view that a change to voluntary fee would reduce
the direct interest of students in Guild and institutional affairs and
would create a climate in which minorities would seek to manipulate the
Guilds to further their own political and other ends.'(9)
The response to these points is that if students do not
wish to provide their own time or money in support of a service or activity,
then it is both paternalistic and authoritarian to compel them to do so.
The fact that three-quarters of the student population in WA have chosen
not to join the guilds could be taken as a rejection of this view by the
students themselves. It might also be argued that if university authorities
regard the activities supported by amenities and services fees as necessary
and important, then they should fund them from their own revenues.
It is often argued that institutions should be left to
determine their own policies on this subject, and that to legislate to
enforce voluntary student unionism is to infringe 'institutional autonomy'
or 'academic freedom'.
The response to this argument is that Parliament is ultimately
responsible for the policies governing publicly funded statutory institutions,
not the administrators of such institutions. In addition, 'freedom of
association' is a far more basic and important right than 'institutional
autonomy'. 'Academic freedom' is concerned with the right of university
staff to organise and define their academic activities; it does not provide
a justification for academics to interfere in the lives of their students
outside this arena.
It has also been argued that an attempt by the Commonwealth
to impose voluntary student unionism would represent an unacceptable extension
of central authority over universities. In response, it could be argued
that the HEFA system has permitted extensive Commonwealth interference
in the internal affairs of universities since 1989.
Schedule 1 inserts proposed new section 19-37 which will
prohibit higher education providers from requiring students enrolling
with the provider to become a member of an association or to pay fees
that do not directly relate to their courses.
-
The report can be obtained from http://www.aph.gov.au/Senate/committee/eet_ctte/vsu/report/contents.htm
-
This section has been taken from the Bills Digest for the Higher
Education Legislation Amendment Bill 1999.
-
WA Legislative Council. Hansard, 12 Aug. 1993:
2381–2.
-
[1979] V.R. 73.
-
Unreported Judgement of the Supreme Court of South
Australia. No. 321 of 1987. Delivered 31
October 1989.
-
Ryan G. et al. Compulsory
Student Unions Australia's
Forgotten Closed Shop, Australian Institute of Public Policy,
1987, p. 52.
-
ibid., pp. 39–44.
-
This is because the HECS payment for Arts, Economics and Law is a
higher proportion of the actual cost of those courses than is the
HECS payment for Medicine and Dentistry. See Department of the Parliamentary
Library Research Note No.54, June 1997, Tuition Fees and University
Funding, Table 1: Fees, HECS and Costs.
-
'Compulsory fees basic to the student system', The West Australian,
18 January 1982.
Dr Kim Jackson
10 November 2003
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