CHAPTER 1
Background to the legislation
Progress and referral of the bill
1.1 On 31 March 1999, the Senate referred to this Committee for report
the provisions of the Higher Education Legislation Amendment Bill 1999.
The bill had been introduced in the House of Representatives by the Minister
for Education, Training and Youth Affairs, the Hon David Kemp MP, on 11
March 1999, but did not receive its Third Reading in the House until 12
May. On that day the bill was transmitted to the Senate where debate on
a motion for the second reading was adjourned and the resumption of debate
made an order of the day for the first day of the winter sittings, that
being 21 June. [1] Resumption of debate, which
may be brought on earlier than this date, will depend upon the priority
given to the bill in a very tight legislative program scheduled in the
final weeks of this period of sittings.
1.2 In pursuance of its inquiry the Committee received 409 submissions
and in excess of 1800 form letters from organisations and individuals
affected by the proposed legislation. The Committee conducted a public
hearing on 7 May. A list of submissions and witnesses appear in appendices
to this report.
Provisions and objectives of the bill
1.3 The purpose of the bill is to amend the Higher Education Funding
Act 1988 to:
- make voluntary student unionism a condition of Commonwealth grants
to higher education institutions;
- specify how a notice of decision on an application for debt remission
under the Higher Education Contribution Scheme (HECS) is to be made;
- repeal provisions relating to the Student Organisations Support Program;
- recognise the University of the Sunshine Coast as a higher education
institution for the purposes of funding through the Higher Education
Funding Act, and amends the Act to reflect a change for the renamed
James Cook University; and
- corrects a minor drafting error and inserts a new heading to assist
the reading of the Act.
The Committee's consideration of this bill was restricted to the first
and only contentious provision: the introduction of voluntary student
unionism.
1.4 In introducing this bill, the Minister placed its objective within
the broad framework of government policy related to freedom of association
and freedom of choice for all citizens in what they might purchase and
consume. In this respect the bill would serve to protect the rights of
students in the same way as the Workplace Relations Act 1996 was
intended to protect the rights of employees, and should therefore be regarded
as complementary legislation.
1.5 More specifically, the bill would allow students to be free of any
obligation to be represented by any elected body at a university. There
is much that is objectionable in claims made by student unions, guilds
or association that they are a representative voice of students when they
are clearly not. The objection extends beyond the representative nature
or function of student bodies into the whole area of university extra-curricular
activities and services maintained by student bodies. These functions
were based originally on the notion of a communitarian or collectivist
tradition in universities, but that is now increasingly at odds with the
needs and aspirations of contemporary students. This trend has been evident
for some time. It has come under criticism from those students who have
objected to the antics of political fringe groups who have used their
control of student bodies in a number of universities over many years,
to advance particular causes. It has come also from those students who
object to the provision of unnecessary services and activities, and the
provision of subsidised services that could be provided by independent
commercial operators, often at lower cost.
1.6 The objective of amendments to the Act as provided for under Schedules
4 and 5 of the bill will, in summary, allow freedom of choice to students
with regard to those aspects of their university life which extend beyond
their academic program.
Policy on voluntary unionism
1.7 The abolition of compulsory membership of student organisations has
been Coalition policy for a number of years: a policy consistent with
traditional Coalition opposition to compulsory unionism. The roots of
Coalition policy on this issue may be traced to events which have occurred
intermittently at universities since the mid-1960s, involving student
`representative' support for radical fringe elements mostly operating
in foreign countries, many of them allegedly engaged either in terrorist
activities or as front-line supporters of authoritarian regimes. Reference
to this phenomenon was made during debate on the bill in the House of
Representatives by an Opposition speaker:
There is no doubt that in the 1970s the then Australian Union of Students
lost its way. Instead of properly performing its core role as an advocate
for student interests and a provider of student services, it became
hostage to extremist views more interested in international affairs
than domestic education policies. [2]
1.8 While it is fair to say, as this speech went on to say, that services
were maintained during that period, and that this kind of political activity
has declined markedly over the past decade, there has been continued unease
about the representative role of student organisations and their lingering
propensity to engage in political debate on issues beyond the concerns
of the university on the assumption that student opinion is homogenous
and may be harnessed in support of particular causes.
1.9 Politically active students who have broadly supported Coalition
policy over the years, as well as many students who are politically non-aligned,
have resisted moves by student associations to support causes which have
only minority fringe support. In its submission to the Committee, the
Australian Liberal Students Federation (ALSF) claimed that it had opposed
compulsory student unionism for twenty years. [3]
The unrepresentative nature of student associations was emphasised by
representatives of the ALSF at the Committee hearing, who said that a
12 per cent student voter turnout would have to be regarded as exceptional,
and that a 5-7 per cent turnout was more typical. [4]
1.10 Little evidence was presented to the Committee in defence of the
representative nature of students unions. As noted, student unions are
plagued by continually low voter turnout, but even when voter turnout
is exceptionally high - say 15% - the actual voting procedure of some
student unions are often dubious. For example, in previous public hearings,
this Committee had heard from the President of the National Union of Students,
when describing the electoral system for his own organisation that:
They [the delegates] are eligible to have a secret ballot or they are
eligible to allow someone else to fill in those ballot papers for them.
[5]
1.11 Given the lengths that student organisations who are in favour of
retaining the current compulsory regime gave in demonstrating how similar
student unions are to government - where voting is mostly compulsory -
very little consideration was given to adopting the voting techniques
of government. This only reinforced the perception that student organisations
are not interested in actual representation of the aggregate student body,
but are more concerned about maintaining the status quo where a
small handful of students who choose to be politically active control
students' finances. This situation clearly is biased against ordinary
students (the vast majority of students who don't vote, for instance)
who do not have the time or, perhaps, the inclination to get involved.
1.12 Voluntary student unionism is consistent with Government policy
in encouraging universities to be more responsive to student needs. A
number of comfortable and conservative assumptions about university life
and purpose need to be reconsidered. The recent decisions by some universities
to accept full-fee paying students, with government encouragement, requires
a reconsideration of fee structures for the purpose of delineating basic
essential costs and the cost of extra-curricular levies. Universities
will find increasing opposition to compulsory union fees from a clientele
which has little interest in these services or no requirement for them.
This has as much to do with the changing profile of students – more
mature aged and part-time students – as with the careful financial
calculations that students must make to pay for their education, in most
cases regardless of their age or employment status.
1.13 This point was touched upon in evidence given to the Committee at
its public hearing on the current bill by representatives of the Australian
Liberal Students Federation:
The fact is that free time at university is a luxury because there
is also part-time work, study, exams et cetera. I ask the question:
who is going to enjoy the discounts at the bar or the toga parties or
the sports union? Is it the student who has to support himself through
uni with a pat-time job here and there, who is at uni to get a degree,
to get a job, to transcend the poverty cycle that he was unwittingly
born into, or is it the student whose daddy paid for his union fee and
sends him a weekly allowance so that he can `concentrate on his studies'?
Let us be honest with ourselves. This [the CSU levy] is a tax on the
poor to pay for the wealthy's cheap drinks… [6]
Conscientious objection
1.14 According to the Australian Vice-Chancellors' Committee a recent
check around universities has confirmed that all of them provide students
with a choice of whether or not to belong to any of their student organisations.
[7] There is some diversity in the way this
is done. Some allow opt out provisions, usually on receipt of a detailed
written justification. Others still require payment of fees which are
disbursed to student-related purposes or given to charity.
1.15 Evidence given to the Committee by the Australian Liberal Students
Federation is at odds with the advice given in the submission from the
Australian Vice-Chancellors Committee. The Committee heard that conscientious
objection clauses did not apply in all universities and that procedures
were often unfair as in the case where unions made the decision as to
whether to grant conscientious objection status. If this application is
rejected, a student must comply with the decision or risk not graduating.
[8]
1.16 The Committee believes that the current procedures for protecting
the rights of conscientious objectors may be flawed. The Committee views
these provisions as a `token effort' and doubts that very much information
is readily available to students about their rights in this regard. It
certainly does not view the existence of exemption provisions as weakening
the argument for voluntary student unionism. The implementation of voluntary
student unionism will mean that such procedures are redundant, and that
the reasons for students seeking exemption will be addressed in the most
direct and effective way.
Freedom of choice
1.17 Another aspect of the bill, again consistent with the legislative
policy of the Government across a number of portfolios, highlights the
concern of the Government to ensure maximum competition and cost effectiveness
for the benefit of consumers of all goods and services. This Committee
views the provision of many services to students by student associations
and service providers as demonstrating aspects of restrictive trade practices
which have either been legislated away in other areas or have simply withered
away. The perpetuation of these relics receives overdue attention in this
legislation. This point is made in the Minister's speech introducing the
bill in the House of Representatives on 11 March 1999:
This legislation will affect student organisations: that is the intention
of the government. It wants student organisations to have to become
more responsive to students. This inevitably means that they will have
to alter their mix of services and change the way they deliver services….
Giving students choice will also improve the quality of services offered
on campus. When campus organisations cannot take their customers for
granted they will have to provide a better service, or they will lose
their customers. The introduction of competition to other parts of the
economy has seen service levels improve considerably. We can expect
the same on campus. [9]
1.18 In summary, the Committee recognises the significance of the Government's
identification of the need for winds of change to ventilate our universities,
not only in terms of flexible enrolments and academic programs, but in
other matters affecting student choice, including voluntary student unionism.
State and Commonwealth legislation
1.19 This legislation should be seen as the culmination of moves made
over the past five years to implement voluntary student unionism. Two
states have already enacted such legislation. In 1994 the Victorian parliament
enacted legislation to prohibit universities in that state from requiring
students to belong to a student organisation or pay a compulsory fee to
that organisation, but it permitted universities to collect compulsory
amenities and services fees. Informal discussions held with student associations
in Victoria by the Department of Education, Training and Youth Affairs
(DETYA) indicates that student membership since the passage of this legislation
has remained reasonably consistent. [10]
1.20 Much more far-reaching legislation was passed by the Western Australian
parliament in the same year, not only making student guild membership
voluntary, but prohibiting universities from charging any fees unrelated
to the academic program of the university. According to figures supplied
by DETYA, the legislation has had a significant impact on student membership
of student guilds in Western Australia [11],
but reports of the demise of some guilds, in particular those at the multi-campus
Edith Cowan University, were denied by representatives of the ALSF who
reported to the Committee that representational and other services, including
shops and taverns were still in business at Edith Cowan. [12]
1.21 In 1994 the Commonwealth legislated to provide student organisations
with direct financial support in cases where state legislation prohibited
universities from levying compulsory fees. A complementary amendment to
the States Grants (General Purposes) Act provided for these amounts to
be deducted from the total grants intended for universities in that state,
effectively neutralising the state legislation.
1.22 It may be observed that the differing legislation between these
two states owes something to the differing structures of student bodies
in the two states. In Victoria, the representative bodies for students
have a separate existence to those bodies which provide services like
food and beverages, recreation, entertainment, health, childcare and study
support. They are both established under university by-laws. In Western
Australia the Guild of Undergraduates is established for each university
by statute. The guilds function as both representative organisations and
as service providers. The Western Australian legislative model is, however,
much more in tune with the government's policy of addressing freedom of
choice issues across a wider spectrum of university affairs.
1.23 At the Commonwealth level, the Coalition's first attempt to implement
policy with regard to voluntary student unionism came with the introduction
of the Higher Education Funding Amendment Bill (No.2) 1996. This bill
sought to repeal sections of the Higher Education Funding Act 1988
which provided Commonwealth supplementary payments – known as student
organisation support – to universities in Western Australia whose
guilds were no longer able to receive compulsory levies, as a consequence
of state legislation previously referred to. The Western Australian parliament
had anticipated the 1994 Commonwealth legislation by providing in its
own legislation a prohibition against universities accepting Commonwealth
funds in defiance of state laws. The Attorney General advised, however,
of the likelihood of Commonwealth law prevailing in this matter. [13]
The government proceeded to its repeal legislation even though, for all
practical purposes, the legislation was inoperable from the time the Coalition
was first elected.
1.24 The Higher Education Funding Amendment Bill (No.2) 1996 was introduced
in the Senate and was referred to this Committee on 22 August 1996. It
was reported on in October. The bill was not proceeded with in the Senate.
The current bill also seeks to amend the Higher Education Funding Act
and the States Grants (General Purposes) Act 1994 to remove provisions
relating to student organisations support.
Footnotes
[1] Journals of the Senate, No.41, 12
May 1999, p.851
[2] Hansard, (Representatives), 11 May
1999, p.4143
[3] Submission No.151, Australian Liberal Students
Federation, p.4
[4] Hansard, Canberra, 7 May 1999, p.81
[5] Varghese, J. Hansard, Employment,
Workplace Relations, Small Business and Education References Committee;
inquiry into the GST and A New Tax System, 03-03-1999, p. 702
[6] Hansard, Canberra, 7 May 1999, pp.78-79
[7] Submission No. 89, Australian Vice-Chancellors'
Committee, p.5
[8] Hansard, Canberra, 7 May 1999, p.79
[9] Hansard (Representatives), 11 March
1999, p.3224
[10] Submission No. 135, Department of Education,
Training and Youth Affairs, p.5
[11] ibid, Attachment A
[12] Hansard, Canberra, 7 May 1999,
p.80
[13] Submission No. 135, Department of Education,
Training and Youth Affairs, p.4