Yesterday OUSA amended passed amendments to their constitution brought about because of the passage of the Voluntary Student Membership bill.
This isn't surprising - most students' associations around the country have been doing the same thing to ensure they comply with the new Education (Freedom of Association) Amendment Act.
But OUSA have tried to be tricky, and ended up just making themselves look like idiots. Complete and utter idiots.
One of OUSA's amendments is as follows:
"Member" or "member" means:
(a) a student at the University who has not opted out of membership by way of notice in writing
Basically OUSA are trying to amend their constitution to make membership of OUSA opt-out. Students would 'become members' upon enrolling and be required to inform OUSA that they don't wish to be members to be let out.
Of course, s229A of the Education (Freedom of Association) Amendment Act says:
Membership of students associations voluntary
No student or prospective student at an institution is required to be a member of a students association.
An Otago student has quizzed various members of OUSA's Constitutional Review Committee, to try and find out what OUSA are thinking and their responses indicate that this amendment is a deliberate attempt to circumvent the intention of the law and create an opt-out membership system.
Some quotes from committee members include:
"Basically they've adopted an opt-out model via the constitution for the purposes of having a mandate. They're not requiring anyone to be a member of OUSA, you can pull out, so they're not breaking the law. I found this very strange, but I spoke to the legal mind who gave it to them, and it's quite convincing as to whether they can do it - though I'm sure it will piss VSMers off."
"They're not requiring someone to be a member, people can opt out at any stage. So it's not a breach of the VSM law which says you can't be required to be a member, nor coerced to be a member. And it's not illegal to point to a group of people and say "you're all members of my incorporated society". Several rate payer associations already do it - including the Dunedin one. Basically OUSA is following the Ratepayers model - they represent all people within a group, but those people can opt out of membership and still use all the services etc."
"It's certainly against the intent of the law that was passed. It will be a legal test to see whether it's actually against the law. The advice comes from the law school, and while it wriggles around the law, I'm not sure it breaches it ... It's the model that UCSA has used for over a decade successfully, and I'm not sure if the new legislation prevents it - because it uses the term 'required', and they'll use the opt-out with no loss of services to say that there are no requirements for you to be a member."
"It's really playing VSM at its own game. The membership becomes irrelevant in terms of cost or what you can access. The only reasons to not be a member are philosophical ones ... It's also going to help them achieve the contract they want from the university, as there's no question of people being denied access to student services through membership. Whether or not it will fly in terms of public relations is another question of course."
"I don't see a contradiction. You are a member by default, you're not required to be a member however, so you can opt out of membership at any time. Required to be a member would mean entirely that - you have to be a member of the students association while attending the institution. No doubt there will be a legal challenge, but OUSA is hopefully following my advice and looking to Wellington for some decent advice here and avoiding the honorary solicitors. The distinction between being a member and not being a member is entirely philosophical, as there's little practical difference between the two."
"I said that the argument is that they're not required to be members because they can opt out with no penalty at all. There certainly isn't anything illegal about an incorporated society making a whole bunch of people members of their society without their consent - lots of organisations do this in NZ already. It's not my construing, it's OUSA and several high powered lawyers. This hasn't come from me. I think it's an interesting solution, whether or not it's legally right I have no idea about - you can go argue with professor geddis if you want. Morally I definitely agree it's dodgy and certainly goes against the intent of parliament."
So OUSA's entire plan for their operation in a VSM environment operates on the assumption that if students are allowed to leave OUSA then they are not requied to be a member.
I see where they're going with this - the law says that students must not be required to be a member, not that they must not be required to join.
The problem for OUSA is required does not mean required to remain, it means required. At any time. Ever.
Whichever law student gave them this idea should probably drop out and try studying for a BA instead and whichever lawyer wrote these amendments for OUSA should probably look for a new job.
As if OUSA's idiotic interpretation of the word required wasn't bad enough, they've completely disregarded this section of the Education (Freedom of Association) Amendment Act:
229B Undue influence
A person must not exert undue influence on any student or prospective student with intent to make that student or prospective student—
(a) become or remain a member of a students association; or
(b) cease to be a member of a students association; or
(c) not become a member of a students association.
I'm not a lawyer, but I'm pretty sure that telling people they are automatically a member of your organisation when they sign their enrolment form would count as exerting undue influence on someone to become a member of a students association.
OUSA do seem to be aware of this problem though as another constitutional amendment said:
The Association will not at any time exercise undue influence in encouraging students at the University to remain members. Therefore, the Association will not restrict the privileges and rights of membership to members only.
Sorry OUSA, but saying in your constitution that you wont exercise undue influence over students doesn't mean that you aren't, or exempt you from any law that prevents you from doing so.
We suspect OUSA is about to become the laughing stock of the education sector, and no doubt be hearing from the Otago University Council, the Education Minister, the Registrar of Incorporated Societies and the Charities Commission in the very near future.