Wed Mar 22

Throwing voting-age legislation onto the ‘policy bonfire’ only delays a debate that has to happen

Written by Claire Breen, Professor of Law, University of Waikato

There might have been pragmatic political reasons behind the government throwing voting-age legislation onto its recent policy bonfire ^[1], but it remains a sadly wasted opportunity.

The announcement reversed former prime minister Jacinda Ardern’s promise ^[2] to introduce legislation to lower the voting age to 16. That was in response to the Supreme Court’s ruling ^[3] last year that the current voting age of 18 was an unjustifiable restriction on the right of 16- and 17-year-olds to be free from age discrimination.

As the court acknowledged, ultimately it is up to parliament or New Zealand voters to decide if and how to respond. But the court’s “declaration of inconsistency” had a bit more constitutional heft due to a recent amendment ^[4] to the Bill of Rights Act.

Along with parliament’s standing orders (its “rules of procedure”), the law change created a procedural pathway requiring parliament to respond to and debate such a declaration within six months. Last year’s introduction of a bill to lower the voting age was a first step ^[5] in that democratic process.

The withdrawal of the bill leaves that process looking uncertain. The immediate reason given was the apparent impossibility of it gaining the 75% super-majority ^[6] the bill needed to pass (the National Party and Act said they would not support the legislation).

Not pushing a doomed bill through an expensive political process when the country faces a cost-of-living crisis was clearly part of the government’s thinking, too. But there will still be a price paid by young New Zealanders denied the right to vote.

Why the U-turn matters

In practical terms, the withdrawal of the bill presents a lost opportunity for public and political debate around the fundamental rights to vote and to be free from discrimination.

Voting is a core democratic right. Deciding who can exercise the right is an intensely political matter on which there is a range of views. But, as the Supreme Court noted, there were strong reasons for issuing the declaration of inconsistency.

Firstly, the case involves a minority group, and the ongoing discrimination means that group’s fundamental rights are afforded less protection. This position was aptly described by the Royal Commission on the Electoral System ^[7] in 1986.

It concluded that the voting age should be lowered, saying “children’s rights are not often the subject of public attention and must therefore be a particular concern of governments and the law” – even if the public was not ready for such change.

Secondly, New Zealand’s legal obligations under the United Nations Convention on the Rights of the Child mean it must implement the child’s right to freely express their views ^[9], taking into account the child’s age and maturity.

This is especially important given the Supreme Court’s consideration of research submitted by the Children’s Commissioner indicating that 16-year-olds have the cognitive capacity to make informed voting choices.

The 1986 royal commission also found it was hard to sustain the argument that children lacked the required competence to exercise their right to vote. Research at the time already showed the social and political world view of 15- or 16-year-olds was similar to that of adults.

A step in the right direction

One brighter note is the government’s promise to introduce legislation to lower the voting age in local body elections. This could be progressed by the sitting of the next parliament, and only requires the support of half of MPs.

There also appears to be greater support ^[11] across the political spectrum for this initiative. And the recent draft report ^[12] of the government’s review of reforming local government recommended the voting age for local elections be 16.

Denying young people the right to vote is based on a perceived need to protect young people, adult voters and representative democracy from naivety or incompetence. Yet by mounting a successful legal challenge all the way to the Supreme Court, young people demonstrated ample maturity and cognitive ability.

The political and public debates to come must be informed by the wide and longstanding body of research that challenges prevailing attitudes opposed to young people gaining the right to vote. And then the law needs to catch up.