A Report by Opposition Members of the Committee

Higher Education Legislation Amendment Bill 1999
CONTENT

MINORITY REPORT

A Report by Opposition Members of the Committee

Scope of the Minority Report

1.1 This minority report refers only to the contentious elements of the bill related to voluntary student unionism.

The conduct of the inquiry

1.2 Whatever the outcome of this legislation it can be claimed that Parliament has failed to give it the consideration that its importance warrants. The debate in the House of Representatives was severely curtailed and guillotined by the government with 21 members of Parliament deprived of their right to participate in the debate. The limited time allocated for debate of this legislation in the House of Representatives was disproportionate to the impact it will have on universities throughout the country. Nor does it reflect the obvious unease that elements of the Coalition have towards this bill. While dissident members of the Coalition have made their views known to the press, these views have not been aired through the parliamentary process.

1.3 It should also be admitted that this Committee's scrutiny of the bill has been hasty and superficial. No bill previously dealt with by this Committee has aroused so much controversy, or such opposition. In the few short weeks leading to the public hearing the Committee received over 400 submissions and more than 1800 form letters. The larger universities sent multiple submissions, representing the range of functions within these institutions which stand to be effected by this legislation. Yet, despite calls from Opposition senators for hearings to take place on a number of days and in a number of regions, the Committee devoted only one day for a public hearing. The proceedings of that single public hearing generated more heat than light. The hearing itself attracted adverse press comment arising from attempts to discredit witnesses. [1] The Senate has an opportunity to make amends when debate on the bill gets underway.

Ideological overkill

1.4 The Higher Education Legislation Amendment Bill 1999 can with just consideration be described as an attempt to legislate `political correctness' into the affairs of university student government. This is a term which ideologues of the variety which include the Minister for Education, Training and Youth Affairs are accustomed to applying to those of a different political persuasion, but it has never been more aptly applied.

1.5 The stated intentions of the government in introducing this legislation are to give students the right to choose whether or not they wish to belong to a student association, and to give them more choice in the goods and services they purchase at university. It may be presumed that one of the Government's hopes for voluntary student unionism will be the weakening of student activism by denuding the activists of campaign funds and the presumption of mass support for student causes. As well as this, the legislation will apply, or at least extend, the principle of `user pays' and `individual freedom' where before students benefited from cross-subsidised student services, in keeping not only with principles of fairness and equity, but in recognition of the idea of a university as a `community of scholars'.

1.6 Government senators seemed determined to ignore evidence that voluntary student associations already exists. This point is made in the submission from the Australian Vice-Chancellors' Committee which advises that a recent check of its membership confirmed that all member universities provide students with a choice of whether or not to belong to any of their student associations. Understandably, there is some diversity in the methods in which universities provide for this choice. [2]

1.7 The Committee was informed that voluntary student unionism had been the objective of the Australian Liberal Students Federation for some twenty years. [3] The policy appears to find its strongest support in a generation of Coalition members and supporters whose university experiences covered the period from the late 1960's through to the 1980's. This may be cited as an instance of generational political action at work; perhaps a settling of old scores, with the `collateral damage' yet to be felt by generations for whom the obsessions of the `seventies are a boring footnote to history.

Student democracy

1.8 Those who have advocated voluntary student unionism over the years have failed to recognise the success with which students have managed the democratic process. Those processes are little different from those used in other spheres, and the degree of responsibility expected of student leadership is high. If students are unhappy with decisions made by their elected representatives, they have the option of voting them out. This point was made more than a quarter of a century ago by the former Minister for Education, Malcolm Fraser MP. In answer to a question asked in the Senate about the use of SRC funds to bail students arrested in anti-Vietnam war demonstrations, and suggesting government intervention to stop this, Mr Fraser replied:

1.9 This historical reference is made simply to remind the Senate that there was a time when Coalition ministers took their conservatism seriously and displayed some confidence in democratic processes. This process was vindicated over a decade later, as described. Since then, the Australian Liberal Students Federation has been conspicuously unsuccessful in convincing the student body to take up the cause of voluntary student unionism and has resorted, successfully, to having it implemented by heavy handed government action in Western Australia, and is attempting to do the same for all universities through this legislation.

1.10 In embarking upon this campaign, the Liberal Students Federation and their apparently few supporters are repudiating the legacy of past generations of students, while deriving benefit from it, and ensuring that the future legacy will be seriously diminished. This point was made earlier this year in an article by the Vice-Chancellor of the University of New South Wales, Professor John Niland, who currently fills the Chair of the Australian Vice-Chancellors' Committee:

1.11 Few senators who have had the experience of a university education would deny its importance in determining, at least in some measure, the future course of their lives. For some, it has been absolutely crucial. It escapes the understanding of Opposition members of this Committee that the government should deliberately set out to both further impoverish universities and strike such blows at their traditions as are represented in this legislation.

1.12 Opposition members of the Committee are in total agreement with some profound observations made recently by the newly installed Chancellor of the University of Technology, Sydney, Sir Gerard Brennan. The former Chief Justice referred to the Higher Education Legislation Amendment Bill as unprecedented in its intent to impose government control over university policy. Sir Gerard spoke about the two aspects of university life that would be affected by the bill. The first was to do with student services, where he reminded the government that there was no mothers' committee to run the tuck shop, and no P&F to buy the cricket bats and netballs, and no police to request the ID of students who wanted to run on the oval. If these services could not be provided by students they would have to be provided by universities already hard-pressed for funds.

1.13 More seriously, in the chancellor's view, was the bill's implicit attack on the universities as communities where students, through their clubs and societies engaged in discourse and debate:

1.14 Opposition members of the Committee regret that the bipartisan policy with regard to Commonwealth responsibility for higher education, established under Prime Ministers Chifley and Menzies, has been seriously threatened by this legislation. Whilst recognising the importance of national responsibility for university funding, opposition Senator's believe that the VSU legislation substantially undermines an Australian tradition of university autonomy in the day to day running of their institutions.

Practical implications

1.15 The Opposition members of the Committee have searched in vain through the sparse statements of policy on this bill, for even the smallest hint of appreciation of the practical implications that arise from its implementation. There is no indication of consultations between the government and university administrators. No guidelines that the Committee is aware of have emerged from the Higher Education Division of DETYA. The Government has put universities in an almost impossible position. It has used its powers to impose policies on universities which have not been negotiable, arguing that as autonomous and independent bodies the universities are free to implement these policies in the best way they can. A very large number of submissions to the Committee detail the practical difficulties which the Minister refuses to address, as they are presumably beyond his sphere of responsibility. The most important of these are set out below.

Student services

1.16 Student organisations provide a broad range of services to the university community. A list of services compiled by the Australasian Campus Union Managers Association which are provided by universities around the country are listed in Appendix 3 to this report. The likely impact of the government's legislation on these services is almost certainly not yet grasped by a majority of students, or their parents, or members of the wider community. In time they will grasp the stark facts.

1.17 Proponents of voluntary student unionism demonstrate no understanding of how dependent many students are on the services provided by unions which are now threatened by this legislation. The frequently made claim that student unions provide services analogous to local government services is generally accepted. [7] Many of these services are heavily subsidised, and like welfare services everywhere, would be impossible to maintain unless everyone pays for them. Student service fees are still compulsory under Victorian legislation. The current arrangements recognise that the fair and equitable distribution of services to suit varying needs of students require a set compulsory fee. This is the basis of all taxation and welfare practice.

1.18 A great number of submissions sent to the Committee by individual university unions made this point. To take one aspect of service alone, it is interesting to note how unions are forced to provide services which take account of the relative isolation of campuses. For instance, the University of Western Sydney Macarthur campus provides a free shuttle bus service between the campus and Campbelltown railway station at a cost of $120,000 per year. The Hawkesbury campus of UWS offers the same facility to a station on the western line. [8] The Tasmania University Union fears the impact of the VSU bill will be felt most strongly on the cultural life of the university which the TUU currently supports. If this is reduced then `we cannot expect bright young Tasmanians not to be drawn to the cultural attractions offered in the big mainland cities when very few are offered in their home state.' [9] The regional aquatic centre at Lismore will not proceed if VSU proceeds. The Southern Cross University Union has a one third stake in the project, the other partners being the university and the City of Lismore. [10] This is one of many instances known to the Committee where the impact of VSU will extend into the civic life of regional communities.

1.19 The Minister claims that there is student demand for the delivery of services in a strongly market oriented way and that change would reduce costs for students. There is no evidence of any appreciable dissatisfaction from students in the way services are currently provided. There is evidence to the contrary in the survey conducted by the Education Working Group National Youth Round Table. Only 4 per cent of respondents to the survey question on quality of service rated these as poor. [11] Over 80 per cent rated services satisfactory or better. Importantly the survey showed that only 29% of students supported voluntary student unionism.

1.20 Under the scheme proposed by the Minister, there would be far-reaching consequences for less well-off students because the provision of services to them would not be cost efficient. Without cross-subsidies services like childcare and legal services would cease in most universities. The market is not always the most efficient allocator of resources. Student government, not unlike government at any level, needs to apply `democratic judgement to find a balance between market forces and what is seen as fair and reasonable equity measures that the invisible hand of the market is blind to.' [12]

1.21 As the Flinders University Students Association submission continued: `A university union or guild run solely for profit (as it would under VSU) would not deliver `better services' to students. It will simply deliver far fewer services and only at times and locations when it is profitable to do so.' [13] There is too little space in this report to detail the efforts made by university student union managements in recent times to continually improve the quality and efficiency of services to students. The Australasian Campus Union Managers Association is in the process of developing world `best practice' in student services, an international benchmark which has implications for the competitiveness of Australian universities in a way which the Government appears to have no knowledge of. [14]

1.22 The alleged antipathy for welfare services, which is implicit in the arguments of those supporting voluntary student unionism, finds little support in submissions made to the Committee. The limitations of `user pays' operations was put in a submission from the Tasmanian Chamber of Commerce and Industry:

1.23 Opposition members of the Committee believe that students may face a difficult choice in weighing up the costs of union membership, and may overlook the potentially high cost of remaining outside the union, assuming that a full range of services is available. Students can encounter problems at university they do not anticipate: sexual harassment, accusations of plagiarism, a death in the family necessitating an exam deferral, exploitation by a landlord. It is for the reason that these things only happen to other people that third party motor insurance is compulsory rather than voluntary. [16] A submission from the Catholic Youth Services of the Archdiocese of Adelaide expressed its concern that the likely inability of university unions to provide counselling and related social welfare services to students would have a serious impact on the workload of outside welfare agencies. [17] The ramifications of this legislation are wide.

1.24 The majority report of this Committee gives an impression that student services are required less and less by students: that the modern undergraduate rushes from train to lecture, to the library and back to a lecture before rushing to the train. To proponents of voluntary student unionism the interests of the modern undergraduate are purely academic and vocational. There appears to be no recognition of the need for extra curricula activities or support services.

1.25 James Cook University Union has already drawn up a list of services it will charge non-union members for. [18] A standard welfare consultation will cost non-members $60. A standard academic consultation on HECS advice or an academic appeal will also cost $60. Legal advice will cost $1 a minute and faxes and telephone calls will cost considerably more for non-members. All other services above will be free to members, and a number of other services, like tenancy advice and emergency loans will be available only to members. Opposition members of the Committee commend the James Cook initiative and regret that there appears to be some hesitation by other student union and association leaders to forcefully bring home to students the extent to which they will lose the services that students have taken for granted for several generations should this legislation pass the Senate. In Appendix 4 of this report is a list of student services currently available at each of the three campuses of the Charles Sturt University, with the likely impact of VSU marked against each service.

Regulating access to services

1.26 In the almost certain event that a minority of students will elect to join student unions in most universities, should this legislation be passed, a vexed issue will arise as to how best to deal with `free-loaders'. It will be a novel situation for a student body to find itself in: literally the end of a `closed shop'. In most cases services will not be able to be offered in such a way as to discriminate between members and non-members. The cost of enforcing exclusion may exceed the revenue to be collected. Yet, if non-members continue to use services of a welfare nature then the cost of providing these services will rise. Student organisations will be under pressure to take a firm line on this issue which may see some animosity aroused within the student community.

1.27 Opposition members noted the highly contentious evidence given to the Committee by the ACT Attorney General, Mr Gary Humphries, in relation to free-loaders which has been relied upon, we note, in the majority report. Photographic identity membership cards, which Mr Humphries advocates, will not solve the problem of free-loaders given the likely relaxed attitude to enforcement. The culture of universities may not be accommodating to their use. In fact, the practical problem of restricting the access of non-members of student organisations to buildings, recreational services and services is likely to prove insoluble in most cases.

International Students

1.28 The Government shows scant concern for the impact of its legislation on students from abroad and Australia's international education market. The student market is highly susceptible to rumour. Having recently repaired our international reputation following widespread accusations of racism resulting from media coverage of One Nation policies, Australian universities might have hoped for clear weather ahead. However, voluntary student unionism is clearly emerging as a new and potentially damaging issue affecting our reputation in the highly competitive education export industry. The view of Opposition members of the Committee is aptly summed up in the following submission extract:

1.29 The Committee heard evidence from a representative of the National Liaison Committee for International Students, Mr Shanton Chang, a student from Malaysia, a country with a large and influential alumni of Australian university graduates. The Committee was advised that there was a strong need for a social support base for international students. [20] Fees for international students are rising, yet the Government appears intent on reducing the level of support services. Opposition members of the Committee shared the concern expressed that this was a situation likely to breed resentment and suspicions of exploitation. It is a potentially embarrassing international relations problem in the making, and Australian universities will be the losers.

Staff losses and unemployment

1.30 The government argues that voluntary student unionism will result in no significant job losses. The evidence provided to the Committee demonstrates that this is far from the case. Universities are large employers. They are labour intensive institutions, dealing as they do with human capital. The implications for employment which are inherent in this legislation are very serious. According to the Australasian Campus Union Managers Association (ACUMA) surveys, more than 5,000 full-time staff are employed in student services, and another 5,000 employed in a part-time capacity. A high proportion of this latter group are students. The proposed legislation threatens more than half of the full-time jobs over 3,000 according to ACUMA as well as a further 2,000 part-time jobs. [21]

1.31 A number of submissions from individual universities put some flesh on the bones of these global figures. For instance, the 2,500 full-time students at the Wagga campus of Charles Sturt University are served by a union currently employing 26 permanent staff and 182 casual staff. Based on the experience of Western Australian universities and estimating that 10 per cent of students would pay the service fee at its current level of $216 per year, revenue from fees would fall from just over $ 1 million to $150,000. Only 2 of the 26 full-time employees would be retained under these circumstances. [22]

Likely disbanding of student organisations

1.32 According to ACUMA many campus service organisations will face insolvency the day the bill is passed. Even those organisations that do not have outstanding debts will have insufficient funds to meet the high costs of redundancy and downsizing. Such organisations will be required by law to cease trading immediately. [23] Older universities have the continuing expense of maintaining expensive infrastructure, but are mostly debt free. Hardest hit will be the smaller regional university unions and those institutions which are relatively new and with outstanding loans for infrastructure. Such an institution is the Wagga campus of Charles Sturt University-Riverina. As the submission from the Rivcoll Union states in stark terms:

1.33 Even large established universities have debt servicing arrangements which are dependent on student fees. Monash University Union, which has spent an average of over $1 million each year for ten years on maintaining its main Clayton facilities, currently has an outstanding capital debt of $3.9 million which must be repaid from the Compulsory Amenities fee. [25]

What is really happening in Western Australia?

1.34 According to Government sources, the experience of universities under voluntary student unionism enacted under state legislation, is a vindication of everything that this bill intends. The Minister informed the House of Representatives that the sports union at the University of Western Australia now had more money than it had ever had. [26] This is a good example of very selective argument. The general situation in which student guilds find themselves is best described as parlous. According to information provided to the Committee by the Australian Vice-Chancellors' Committee (AVCC), [27] student guild membership has fallen dramatically, as the following figures indicate:

1.35 What the Minister has not revealed is the extent to which the universities have had to step in to provide financial assistance to the guilds to ensure the maintenance of a basic level of student services. In the case of some services the university has taken over the role of direct administration. The expense of this is borne by the universities, resulting in reduced funding for core academic programs like teaching and research. The Acting Vice-Chancellor of Edith Cowan University advised the Committee that in 1998 the university provided $100,000 to the Guild to support a limited range of representational, social and cultural activities and the orientation program. [28] While this put pressure on funding for its academic program, the university saw no alternative to this expenditure if the university was to remain competitive locally, nationally, and internationally.

1.36 One example of the catastrophic fall in guild incomes provided to the Committee is that of Curtin University Guild which has seen income drop from $3 million to $100,000. The registrar of the University of Western Australia has been reported as saying that the Guild of that university is in danger of falling into terminal decline, with static membership, exhausted reserves and reducing services. He called this a heavy price to pay for the Government's exaggerated fear of student radicalism. [29] Services no longer provided by university guilds in Western Australia include, personal advocacy for students appealing against university decisions; childcare services; cheap meals and recreational facilities; sports services; and student loans.

1.37 It is little wonder that university authorities are both angry and puzzled by the intentions of the Government in this legislation. There appears to be an almost anarchic impulse to the bill. Here is legislation that will throw university finances – already at full-stretch – into chaos. The AVCC submission asserts:

1.38 Opposition members of the Committee look at Western Australia and see the damage that may lie ahead for higher education. The puzzle is why the legislation has been allowed to proceed so far.

Legal and Constitutional issues

1.39 A number of submissions have raised questions about the constitutional validity of legislation which, on the face of it, appears to blunder into the legislative jurisdiction of state governments. While Opposition members of the Committee claim no particular authority or insight into matters of constitutional law, which are properly matters for the courts, there does remain the obligation on the Senate (the House having failed in this regard) to consider whether the legislation has been drafted with sufficient regard for constitutional proprieties. That is, while the Senate does not attempt any sort of legal judgement, it should ensure as far as possible that the legislation is, prima facie, unlikely to be torn up in the High Court. The Opposition members of the Committee believe, on balance, that the Higher Education Legislation Amendment Bill 1999 fails this test.

1.40 The Committee has read the legal advice sought by the Australian Vice-Chancellors' Committee from Minter Ellison, with particular reference to the issue of parliament's incidental or inherent legislative powers with respect to the use of executive power. The Commonwealth appears to have taken the view over many years, regardless of the political complexion of the government, that its powers will always override state powers, but this has not always found favour with the High Court. It is at least arguable that the attempt by the Commonwealth to legislate in such a way as to regulate the affairs of a university, established under a state act with powers to conduct its affairs autonomously, would be considered by a majority of the High Court to be acting beyond its powers.

1.41 The Senate should be advised that the Committee heard evidence that a High Court challenge would be anticipated should the bill be passed by the Senate. It would not be the first time that the High Court has had to step in to adjudicate contentious constitutional issues following a failure of the Parliament to carefully consider the constitutional ramifications of legislation. The Senate has an obligation to carefully consider the constitutional basis of VSU legislation in far more depth than it would appear that the Government has.

Conclusion

1.42 The Government has promoted this legislation as overdue empowering of the student body as a whole: as a provision which will allow students to both disassociate themselves from student political activity and issues they feel uncomfortable with, or indifferent to. The Government fails to recognise, as events over the past decade illustrate, that student political movements have seen the same volatility as state and national political trends. The Opposition takes the view, as have past Coalition leading figures, that democratic processes bring the best results in the end.

1.43 The Opposition is at odds with the Government on the more philosophical issues about what constitutes good student representation and government; a second issue of great concern to students and others is the more tangible issue of student services. On this score, the Opposition sees no practical justification for this bill. It has looked in vain for any argument from the Government which attempts to do so. The practical effects on student services appear not to have been properly considered, even though the evidence is overwhelming that these services would suffer considerable damage. The consequences of its passage would be chaotic and hugely expensive for a sector which is still reeling from budget cuts over successive years. One thing is very clear: universities could not afford to stand by and see student services decline to a point where the entire university, including its academic program, would suffer damage to its reputation. Funds would be made available to student services, but at the expense of the academic program.

1.44 The university sector will be greatly relieved should this legislation fail to pass the Senate. So also should Coalition members with universities in their electorates which will not then face the task of retrenching staff and reassuring local creditors and suppliers whose interests appear not to have been considered in the policy development of this bill. The universities have been put to a great deal of anxiety in their contemplation and contingency planning arising from the Higher Education Legislation Amendment Bill 1999. It is up to the Senate to relieve the higher education sector of this additional burden.

Recommendations

1.45 Opposition senators on the Committee recommend that the Senate amend this bill to remove those sections giving effect to Voluntary Student Unionism. Opposition senators also recommend that the bill be amended to retain the discretion of the Federal Government to provide financial assistance to student organisations affected by VSU legislation which is enacted by State governments.

Kim Carr
Deputy Chair

 

Trish Crossin

 

Footnotes

[1] Alan Ramsey, `Unacceptable behaviour', Sydney Morning Herald, 15 March 1999, p.45

[2] Submission No. 89, Australian Vice-Chancellors' Committee, p.5.

[3] Hansard, Canberra, 7 May 1999, p.78

[4] Hansard (Senate), 10 December 1971, p.2758

[5] John Niland, `Voluntary campus fees won't tax minds', Sydney Morning Herald, 21 January 1999, p.15

[6] Sir Gerard Brennan, `Vitality under threat', The Australian, 24 March 1999

[7] Submission No. 170, City of Greater Bendigo

[8] Submission No. 85, University of Western Sydney

[9] Submission No. 126, Tasmania University Union, p.5

[10] Submission No. 155. Southern Cross University Union, p.4

[11] Submission No. 264, Education Working Group, National Youth Round Table, p.24

[12] Submission No. 150, Students' Association of Flinders University, p.21

[13] ibid. p.22

[14] Submission No. 159, Australasian Campus Union Managers Association, p.4

[15] Submission No.56, Tasmanian Chamber of Commerce and Industry

[16] Submission No.150, Students' Association of Flinders University, p.20

[17] Submission No. 95, Catholic Youth Services, Archdiocese of Adelaide

[18] Submission No.216, James Cook University Union, Appendix 2

[19] Submission No. 73, Sydney University Postgraduate Representative Association, p.11

[20] Hansard, Canberra, 7 May 1999, p.75

[21] Submission No.159, Australasian Campus Union Managers Association, p.7

[22] Submission No. 103, Rivcoll Union Inc

[23] Submission No. 159, Australasian Campus Union Managers Association, p.7

[24] Submission No. 103, Rivcoll Union Inc

[25] Submission No. 260, Monash Unicom Pty Ltd, p.4

[26] Hansard (Representatives), 12 May 1999, p. 4245

[27] Submission No. 89, Australian Vice-Chancellors' Committee, p.7

[28] Submission No. 69, Edith Cowan University, p.3

[29] Submission No. 219, National Union of Students, p.24

[30] Submission No. 89 Australian Vice-Chancellors' Committee, p.8