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Education (Freedom of Association) Amendment Bill (Consistent) (Sections 6, 14) [2009] NZBORARp 53 (3 September 2009)

Last Updated: 28 April 2020

Education (Freedom of Association) Amendment Bill

3 September 2009

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: EDUCATION (FREEDOM OF ASSOCIATION) AMENDMENT BILL

1. We have considered whether the Education (Freedom of Association) Amendment Bill (“the Bill”), a Member’s Bill in the name of Hon Sir Roger Douglas MP, is consistent with the New Zealand Bill of Rights Act 1990 (“Bill of Rights Act”). The Bill was introduced into the House of Representatives on 20 August 2009 and is

currently awaiting its first reading. We understand that the next Members’ Day is

scheduled for Wednesday, 9 September 2009.

2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act.

In reaching that conclusion, we have considered the consistency of the Bill with the freedom of expression (section 14 of the Bill of Rights Act). Our analysis is set out below.

PURPOSE OF THE BILL

3. The explanatory note states that the purpose of the Bill is to uphold students’ freedom of association as affirmed in section 17 of the Bill of Rights Act. The Bill amends the Education Act 1989 (“the Act”) to enable individual students to choose whether or not to join a students’ association.

4. Clause 6 of the Bill inserts a new section 229 into the Act. New section 229(1) provides that no person may require any student or exert undue influence on any student to:

o become or not become a member of any association of students

• pay any money to any association of students, or to any other person in lieu of such fees.

5. Clause 7 of the Bill repeals sections 229A to 229D of the Act. Those sections require councils to conduct a referendum, if petitioned by 10% of students, to decide if all students will be required (or continue to be required) to be members of a students’ association. If the majority of students support compulsory membership, then individual students must join the association.

POSSIBLE INCONSISTENCY WITH SECTION 14 (FREEDOM OF EXPRESSION)

6. Section 14 of the Bill of Rights Act affirms that everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

7. We have considered whether new section 229(1) limits freedom of expression by restricting the ability of a person to influence students to become or not become a member of any association of students. It is important to note that not all forms of influence, undue or otherwise, will constitute a form of expression. Nevertheless, some forms of influence could fall within the scope of the right.

8. We note that new section 229(1) does not prevent a person from exerting any influence on students to join or not join a students’ association, only influence that would be considered undue. There is therefore a subjective element in the interpretation of which forms of influence are prohibited by the Bill.

9. Section 6 of the Bill of Rights Act requires that, wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in that Act, that meaning shall be preferred to any other meaning. In our view, the interpretation of what constitutes undue influence must be consistent with the freedom of expression. Such an interpretation would allow a wide margin for a person to attempt to persuade students to join or not join an association, provided that it did not amount to undue influence.

10. We have therefore concluded that new section 229(1) does not unduly restrict the freedom of expression as affirmed in section 14 of the Bill of Rights Act.

CONCLUSION

11. This advice has been prepared by the Public Law Group and the Office of Legal Counsel. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Education (Freedom of Association) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with

all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.