ALERT DIGEST 7 of 1994

Part 3

TERTIARY EDUCATION (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 27 April 1994 by The Honourable Don Hayward with The Honourable Phil Gude.

3.2

This Bill amends the Tertiary Education Act 1993. More specifically, the purposes of this Bill are to: -

By way of background, the Committee notes the comments made in the Second Reading Speech: -

"Prior to the last election the Coalition made clear its intention of making student union membership voluntary and it is proposed to implement that policy promise through the provisions of this Bill. The provisions are intended to apply to the operations of post-secondary education institutions in Victoria."

3.3

Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.

Clause 3 amends the definition of post-secondary education institutions to include reference to TAFE colleges.

3.4

Clause 4 of the Bill amends section 12 of the Act to insert a new section 12A.

New section 12A sets out the interpretation of the section. "Organisation of students" means any person or body, the object of which is to serve the needs of the students and the constituting documents require that: -

"Student committee" means a committee which is established by a post-secondary education institution and has a membership constituted by a majority of students.

Money is treated as having been made available to an organisation of students if: -

3.5

New section 12B provides that the provisions of the Act apply to the governing body of a post-secondary institution, despite anything in any other Act or document.(see discussion at 3.9 regarding the retrospectivity of this clause)

New section 12C provides that the powers of the governing bodies are not limited. They may: -

3.6 Voluntary Student Unionism

New section 12D provides that the governing body of a post-secondary institution must not require any student or prospective student of the institution to be a member of an organisation of students. This effectively removes any compulsory requirement for students at tertiary institutions to be a member of a student union or association.

The Committee notes the comments in the Second Reading Notes: -

"The fundamental principle underlying this decision is freedom of association. The Government seeks to remove any compulsory requirement for students at our tertiary institutions to be members of a student union or association. No person should be required to join an association against his or her will.

This principle is supported by the right of freedom of association as laid down by the United Nations. The present situation in Victoria's universities and some TAFE colleges does not accord with this principle.

Student unions provide useful services and contribute to the variety and quality of life on the campuses of our colleges and universities. However the Government does not believe students should be compelled to join them. Compulsory student unionism is an abrogation of fundamental rights, the rights of freedom of choice and freedom of association.

The Bill prevents the governing bodies of tertiary institutions from requiring students to join student organisations. It prohibits the compulsory imposition of student fees for membership of student organisations. It does not prevent the collection of compulsory fees for services activities or facilities which the governing body believes to be needed.

The Bill introduces several measures to ensure the intention of the Government is not circumvented. It prevents discrimination against students who elect not to join student organisations and requires that compulsory fees collected can only be passed on to student organisations to provide facilities, services or activities of direct benefit to students or the institution, following a proper competitive tendering process.

This arrangement preserves the capacity of the institutions to provide needed services and places the responsibility for this squarely with the properly constituted governing bodies of the institutions, subject to tendering and audit procedures which are common for public bodies.

The new arrangements will not take effect until the 1995 academic year. During the intervening period, the Government will consult with Vice-Chancellors and College directors about transition arrangements, and will assist where necessary in working out processes to resolve administrative difficulties that might arise.

The Government is confident that the governing bodies and institutional managements will recognise why these steps are being taken and will co-operate to ensure a smooth transition. The Government intends that voluntary unionism will be implemented fully and effectively."

The Committee is of the view that the abolition of compulsory unionism increases rights in that it gives students the freedom to choose whether or not they wish to belong to a union organisation. However, the Committee notes that the University is still entitled to collect a compulsory fee.

3.7 Students who do not join student organisations

New section 12E provides that students who elect not to join student organisations are not liable to penalties, fines or other punishments simply because they have exercised that choice.

3.8 Limitation on powers to spend funds from compulsory non-academic fees

New section 12F provides that the governing body can only spend any money received by way of fees, charges or subscriptions on "providing facilities, services, services or activities of direct benefit to the institution or students at the institution."

Those services and facilities are defined in sub-clause (4) of the section. Sub-section (4) provides that "services or activities of direct benefit to the institution or students at the institution means food services, meeting rooms and facilities, sports and physical recreation facilities and services, childcare facilities and services, counselling, legal, health, housing and employment services or similar facilities, services or activities."

Pursuant to sub-clause (2), those services and facilities must be contracted out after they have been advertised, written offers have been received and an offer has been accepted, ie: after a competitive tendering process.

The Committee notes that the services and facilities as defined in sub-clause 4 are limited. Whilst all the basic services, facilities and sports recreation services are provided for, the definition excludes a number of university activities including debating, theatre, student newspapers, concerts and associated activities.

The Committee has received a submission from Professor David Pennington, the Vice-Chancellor from the University of Melbourne on 10 May 1994, an extract of which is set out: -

"Tendering may be ineffective in many situations where there is only one appropriate provider such as university Sports Union and sporting clubs and similar bodies which represent the university. Many other functions must, of necessity, be handled through a single internal provider. Section 12A(2)(a), together with Section 12F(2)(b), would oblige the university to operate through the tender process wherever it was providing services to students following consultation with students. This would produce a nonsense in may situations. The university would not be allowed to purchase cricket balls in the event that the cricket team found it faced an unfunded shortage at the time of an inter-university contest without proceeding by the tender process! The legislation would prevent the university from providing direct services and controlling the administration and expenditure of certain student clubs, as we now do, and would place these even more directly in the control of student politicians.

The listing of specific facilities, services or activities in Section 12F, by preventing use of monies as they are now used to support cultural activities , would significantly diminish the quality of university life for many students. The legislation would preclude use of these funds to support orientation functions for Australian and overseas students, would preclude support of the University's Multicultural Week, the Melbourne University Drama Festival. It would prevent support of such activities as debating, mooting, a student library and art gallery, or even support of learning through an open-access computer laboratory in the Student Union, and provision of personal accident insurance for students in respect of their activities in the University. The list would not allow the funds to be used for general support of maintenance of the Student Union building"

The Committee wrote to the Minister to request his response. The Minister responded by way of letter dated 17 May 1994, the contents of which are set out: -

"I refer to your letter of 11 May to the Minister for Tertiary Education and Training, regarding submissions to your committee by Professors Logan and Penington, and Mr Matthew Guy. The Minister has asked me to reply to you on his behalf to advise you of action being taken in regard to concerns expressed by the Vice Chancellors and others, and suggestions for action to address these concerns. Since these matters are still under consideration it is not possible to comment at this time on the issues raised.

Following initial consultation with Vice Chancellors and the TAFE College directors an informal working group has been established with the twin tasks of drawing attention to any difficulties in the proposed legislation and suggesting amendments which might eradicate these. The group has addressed a number of matters and is expected to advise the Minister in time for consideration by the Government of any suggested amendments."

The Committee has also received a submission from Professor M. Logan, the Vice-Chancellor of Monash University on 10 May 1994, an extract of which is set out: -

"I note particularly paragraphs (a)(i) and (a)(iii) of your terms of reference. I believe there are aspects of the Bill which do raise issues of concern falling within those terms of reference.

At the more general level there is a tradition over the centuries of activities which university students, through student organisations, have participated in and which have been covered by non-academic fees charged by the university. Student newspapers, theatrical activities, debating societies, are a few of the many examples that could be made and the fact that they have been a part of student life in a particular way for a very long time means that they could be considered as a right which this Bill seeks to change fundamentally.

Your Committee should also note that there is an argument that the conferred right under constituting legislation in the case of Monash, the Monash University Act 1958, for university to conduct its own affairs will be abrogated if this Bill becomes law. This amounts to a major erosion of a university's rights to run its own affairs."

The Committee wrote to the Minister to request his response. The Minister responded by way of letter dated 17 May 1994 which is set out at pages 19 and 20.

The Committee also received a submission from Mr Matthew Guy, the Chairman of the Victorian Liberal Students' Association on 9 May 1994, an extract of which is set out: -

"While the V.L.S.A. supports the general thrust of the Tertiary Education Act (Amendment) Bill ( "the Bill'), it is concerned that the provisions of the Bill do not go far enough, and that the right of students to free association is not fully protected by this Bill.

Of particular concern to the Association are the provisions of Section 12F(4), in which services, activities or facilities of "direct benefit" to students are defined. Under this section of the Bill, students who attend a post-secondary education institution may continue to be compelled to fund the activities of Sports Unions/Sports and Recreation Associations, or other providers of sports and physical recreation facilities and services.

We submit that forcing students to financially support a sporting organisation against their will infringes the right to free association. If all students are made "members" of the sporting organisations, then this is simply another form of compulsory student unionism. If students are not made members of these organisations, then they are nonetheless being forced to associate themselves with an organisation (due to their funding of it) of no direct relevance to the educational activities of a post-secondary educational institution.

Just as so-called "conscientious objection" clauses do not protect the human right of free association by forcing students to fund an organisation that they wish to have nothing to with, we submit that permitting university administrations to compel students to fund a sporting organisation against their will may similarly infringe students' rights.

We submit that such provisions in the Bill trespasses unduly upon rights and freedoms, or alternately, makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers.

We ask the Committee to address this concern, and recommend to the Parliament that the phrase "sporting and physical recreation facilities and services" be deleted from Section 12F(4) of the Bill."

The Committee wrote to the Minister to request his response. The Minister responded by way of letter dated 17 May 1994 which is set out at pages 19 and 20.

This draws the debate to the Committee's initial discussions of "What is a right?". The Chairman's introduction to the Annual Report discusses the matter at page ix which is set out: -

Rights

"Section 4D(a) of the Parliamentary Committees Act, introduced by the Premier, uses the words the rights and freedoms of the individual. The use of the word 'rights' and not the word 'human rights' followed the Federal Senate model.

Human rights have generally been argued to include civil and political rights and legal and economic rights. There is much greater division on the status of socio-economic and cultural rights.

At the first meeting of the Committee, the question "what is a right?" was raised and discussed. This discussion and subsequent interpretation was undertaken in the context of a committee made up of 9 individuals from 3 parties with differing philosophical positions. In the end, the Committee resolved to follow the Senate practice in so far as it was relevant and viable.

Support for the Committee's approach is found in the works of academics and philosophers.

"It could be suggested that the only proper of the word rights is in relation to the rights which are recognised by the legal system of a state. Thinking of this kind is behind the view that human rights relate only to the relationship between the individual and the state, not to relations between individuals and corporations. There could be advantage in confining the word "rights" to relationships between individuals and the state, but common usage simply would not allow....(this)"

The legislative charter of the Committee is broad. The word "rights" include natural rights and other moral rights established by the writings of the philosophers, jurists and churchmen. It most certainly includes the positive, empirical category of legal rights - rights whose existence is established by examining existing statutes, codes and decisions comprising the common law of Victoria. There are also internationally acknowledged human rights which can be found in the instruments of international and domestic law."

The Committee notes that the activities referred to earlier will continue but may be more dependent upon funding from those students who actively participate in them. There are arguments as to whether the changes to the Act constitute a loss of rights or are more akin to a loss of service, privilege or expectation. The Committee refers the matter to Parliament for debate to determine whether the changes constitute a loss of rights and if so whether the reduction of rights is undue.

3.9 Retrospectivity

The Committee also received a submission from the Vice-Chancellor of Monash University on 10 May 1994 in respect of the retrospective effect of section 12B(c) of the Bill. The relevant extract is set out: -

"Of more specific importance is the retrospective effect of this Bill as it affects activities and arrangements entered into in good faith by the universities and student bodies. The proposed section 12B(c) takes the very unusual step of empowering the legislation to override "any document whatever" which may be contrary to the Bill. Many student organisations have entered into arrangements for the provision of facilities and services in the past and these arrangements would be continuing but for the Bill. Those arrangements have involved the borrowing of money, contracts for the construction of facilities or purchase of equipment, and contracts for the employment of labour. The student bodies' rights to the flow of income upon which those contracts were based is automatically denied by this Bill unless the organisation is successful in the tendering process.

Other examples are arrangements whereby university supported clubs and their long standing affiliation with sporting associations could be in jeopardy if they are supported in any way by a compulsory fee. At Monash University these arrangements can go back for some years. At Melbourne University they go back very much longer than that. The Bill as written will also retrospectively affect written contracts, arrangements and undertakings which could have commercial contract implications including damages claims for breach of contract and perhaps insurance consequences. All of these effects are potential results of the broad brush retrospective implications of 12B".

The Committee wrote to the Minister to request his response. The Minister responded by way of a letter dated 17 May 1994 which is set out at pages 19 and 20.

3.10 Voluntary fees held on trust

New section 12G provides that any money collected by the governing body through voluntary fees, subscriptions or charges to be paid to an organisation of students for voluntary membership or voluntary use of a facility must be held on trust.

The Committee makes no further comment.

3.11 Offence

New section 12H makes it an offence for one person to persuade another to become a member of an organisation by way of threats, deception or intimidation.

The Committee makes no further comment.

3.12 Statement about compulsory fees

New section 12I provides that the governing body must ensure that at the beginning of each academic year that a statement about compulsory non-academic fees is published and freely available. The statement must specify the fees collected and how they were spent. The statement must be audited. This provision re-enacts the old section 7 which is repealed in Clause 5.

The Committee make no further comment.

3.13 Universities not to accept Commonwealth grants

New section 12J provides that universities must not accept any financial assistance from the Commonwealth for the a student organisation as a result of the State preventing or hindering the imposition or collection of fees. The Committee notes the comments in the Second Reading Notes: -

"Regrettably, the Commonwealth Government has legislated to impose financial penalties on States who choose to properly exercise their constitutional responsibility and take action to preserve basic individual freedoms on tertiary campuses which are their responsibility.

It has amended the Commonwealth grants legislation specifically to enable deductions to be made to financial assistance grants to the states, to replace money lost to a student organisation if an organisation is prevented or hindered in imposing fees for the organisation. It has sought to justify this step by claiming the states are attempting to undermine services to students, and to interfere with the administrative responsibility of universities.

It is clear from the provisions of this Bill that this is not so.

The Government does not intend to allow the Commonwealth to interfere in this way. The Victorian Government does not agree that state universities should be used by the Commonwealth as a conduit for funding student organisations at the expense of Victorian taxpayers.

Accordingly a provision is included in the Bill to prevent an institution from receiving funds for transmission to student organisations under these arrangements."

The Committee notes that there is an argument that this provision reduces the autonomy of universities. It reduces their ability to accept funding from the Commonwealth in respect of student organisations and distribute those funds accordingly. The matter also raises constitutional issues as between the State and the Commonwealth. The Committee refers the matter to the Parliament for debate.

3.14 Approval by Minister of universities

Clause 6 amends section 10(1) of the Act. Section 10(1) of the Act provides that an institution, other than a recognised university, must not operate as a university without the approval of the Minister.

The amendment provides that the Minister, may, by Order published in the Government Gazette, approve an institution to operate as part of a university. The Order is subject to being disallowed by the Parliament and must be laid before both Houses of Parliament. Pursuant to sub-section (1) of the clause, the Order is treated as a statutory rule for the purposes of the Subordinate Legislation Act 1962.

The Committee notes that pursuant to sub-section (9) of section 10 of the Act, the decision of the Minister to either grant or revoke an approval may be reviewed by the Administrative Appeals Tribunal. The Committee also notes the comments in the Second Reading Speech: -

"When the Tertiary Education Act was passed last year, provision was made for the first time for formal recognition of the provision of university level programs by institutions other than recognised universities and for such institutions to operate as universities. These provisions were made to increase opportunities for study for Victorian young people and to allow greater diversity in Victoria's education system. The process of approval was intended to be a rigorous one to ensure that the high quality of university education was maintained and that people enrolling in such programs could have full confidence in them..

While the recognition of institutions to operate as universities was to follow a rigorous assessment against generally accepted university recognition it must also be flexible to cover a range of possible circumstances. These might include a major overseas university wishing to provide services in this state. a private university to be established in Victoria, or an existing private teaching institution seeking university status. For this reason, the responsibility for approval was given to the Minister rather than requiring a separate act of Parliament in each instance as has been done for public universities in this country.

However there are still valid reasons for some degree of involvement by Parliament in decisions of this importance and this issue was raised by the Scrutiny of Acts and Regulations Committee last year. Consideration has been given to ways of achieving parliamentary involvement while maintaining the flexibility required. Amendments to the Act achieve this result are now being made. The process will involve an Order by the Minister published in the Government Gazette, followed by tabling in Parliament. By treating the order as a statutory rule under the Subordinate Legislation Act 1962, it will be possible for it to be considered by Parliament with a possibility of being removed."

The Committee makes no further comment.


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