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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