21 Nov 2022

18yo voting age declared inconsistent, unjustified by Supreme Court

From Midday Report, 12:11 pm on 21 November 2022

The Supreme Court has declared the minimum voting age of 18 years old is unjustifably inconsistent with the New Zealand Bill of Rights Act.

The advocacy group, "Make it 16 Inc" sought judicial declarations that local and national voting age restrictions were inconsistent with the right to be free from age discrimination, as affirmed in the New Zealand Bill of Rights Act.

Despite the verdict - only Parliament can lower the voting age, and the declaration must go to the House within a week for further consideration.

Make it 16 campaign co-director Caeden Tipler spoke to Māni Dunlop about the result.

AFTERNOON ADDITION While this story was going to air, several listeners wrote in with their views on the declaration. One wrote a short essay across multiple messages. Many relied on "logical fallacies" in their arguments (e.g. slippery slopes such as why not just let infants vote!?) while others probably just needed a bit more context. So, in a bid to clear things up here's a bit more on...

 WHAT THE SUPREME COURT DID AND DID NOT DECLARE (judgment available here - external pdf link)

The Court declared its view on the law - that the minimum voting age provisions of the Electoral and Local Electoral Acts were inconsistent with the freedom from age discrimination provisions of the NZ Bill of Rights Act 1990, and those inconsistencies had not been justified.

The Court did not say what the voting age should be. 

Its declaration does not change the law, that would be up to Parliament. And MPs could just choose to provide justification for the age limit. Either way Parliament - and the Government - are required to respond.

The Court said age discrimination is prohibited from 16 years old in New Zealand, so setting the voting age at 18 was inconsistent with the right to freedom from age discrimination and thus needed to be justified. It was not.

Section 5 of the Bill of Rights Act says protected rights and freedoms "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

The government's lawyer, the Attorney-General, declined to argue why the limit was set above the age discrimination threshold; but said the Court should not consider the issue because it was a matter for parliament which was - at the time - conducting its standard post-election review and that Green MP Golriz Ghahraman's members bill which would lower the age was also being considered (it failed at the first reading). 

The Court said: "the [Attorney-General's] submission that the Court's involvement may skew the public debate both undercuts the courts' role in stating the law and overstates the effect of a declaration. A declaration will of course provide a statement of the Court's view of the law but it will ultimately be a matter for Parliament and/or the electorate as to what, if any, response is made to that statement." 

The Court also said the Attorney-General argued "a declaration would be premature where Parliament has expressly postponed any consideration of the question until there is broad democratic support for the change. Further, it is said that the question relates to the constitution of Parliament itself, which lies close to its privilege of exclusive jurisdiction. Reference is also made to the fact that there are other avenues by which the issue can be addressed."

In reply, the Court said "we are not persuaded it would be premature to make a declaration. It is difficult to say that to do so would be premature when the Royal Commission Report in 1986 said that "a strong case" could be made for reducing the voting age to 16 and recommended that Parliament "keep the voting age under review".

Questions? Dissenting opinions? Email us at middayreport@rnz.co.nz