Is the NZ Government Planning to Lower the Voting Age Without a Referendum?

Changing the electoral act to allow 16 and 17 year olds to vote is the policy of both the Labour and Green parties.  They could follow the normal procedure for changes to electoral rights, with a referendum followed by a vote in parliament.  The problem for the government parties is that there is widespread public opposition, so a referendum is unlikely to succeed and even if it did, a constitutional change requires 75% support in parliament – with National and Act in opposition it would never get through.

Instead it appears that a more convoluted route to lowering the voting age is being followed through courts and legislation, which may enable the government to bypass both a referendum and the requirement of 75% support in parliament.

The government is relying on a claim of an inconsistency between the Bill of Rights Act 1990 and the provisions of the Electoral Acts, when in fact stated intention of the Bill is to affirm 18 years as the minimum voting age, and any conflict lies within the Human Rights Act 1993, which however defers to the Bill of Rights.

The Supreme Court Judgement

In November 2022  the NZ Supreme Court upheld the appeal of the lobby group Make It 16 and passed down the following Judgement.

‘A declaration is made that the provisions of the Electoral Act 1993 and of the Local Electoral Act 2001 which provide for a minimum voting age of 18 years are inconsistent with the right in s 19 of the New Zealand Bill of Rights Act 1990 to be free from discrimination on the basis of age; these inconsistencies have not been justified in terms of s 5 of the New Zealand Bill of Rights Act.

There is No Conflict Between the NZ Electoral Acts and the Bill of Rights

S 12 of the Bill of Rights Act specifically provides for protection of the voting rights in general elections for  ‘Every New Zealand citizen who is of or over the age of 18 years’.

It could be argued that any legislative discrepancy lies between the Bill of Rights s 12 and s 21(1) of the Human Rights Act 1990 which for all of Part 2 generally prohibits discrimination on the basis of age, being defined from 16 years (the Human Rights Act highlights specific areas where ‘age’ means from 16, but these do not include voting age).

However the Human Rights Act 1993 states:

21 B  Relationship between this Part and other law

(2) Nothing in this Part affects the New Zealand Bill of Rights Act 1990.

Given that the Bill of Rights clearly affirms the voting rights in general elections for those aged at least 18 years, and that there is no clear intent in the Human Rights 1993 to legislate for voting from the age of 16, and furthermore the Human Rights Act clearly states that the Bill of Rights takes precedence in any conflict, what is needed is clarification of the Human Rights Act 1993.

Judge John Kós, in dissent (Judgement, 74):

‘[…] I do not consider the provisions of the Electoral Act 1993, setting a minimum voting age of 18 years in parliamentary elections, are inconsistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights). Rather, I consider the explicit right to vote in parliamentary elections at 18 years, affirmed by s 12 of the Bill of Rights (and prescribed in the Electoral Act), prevails over the generalised right to freedom from discrimination affirmed by s 19 […].’

The Supreme Court Judgement overturned the ruling of the High Court (and before that the Court of Appeal), and is contrary to the opinion of Attorney General David Parker, who argued that the issue was ‘out of the Court’s purview.’  Parker’s view as quoted [27] was:

 ‘First, the argument is that through the entrenched provisions Parliament has set out the process for changing the law in this area. That, as we have seen, requires broad support for change either through a super majority in Parliament or with a referendum of eligible voters. This democratic process should be followed first.  Second, […] Parliament has not yet considered lowering the voting age and it should be able to consider the issues before the Court releases a decision that potentially skews public and political debate on the matter. In other words, the Court should not pre-emptively enter the debate when the matter is one to be determined not only by Parliament but also the electorate in general.’

A Declaration of Inconsistency: Voting age in the Electoral Act 1993 and the Local Electoral Act 2001

Public submissions are now being called for A Declaration of Inconsistency: Voting age in the Electoral Act 1993 and the Local Electoral Act 2001. The associated parliamentary press release claims that the inconsistency is between the Bill of Rights and the two electoral acts: it does not admit that the discrepancy is within the Bill of Rights. It baldly quotes the Judgement of the Supreme Court without advancing a solution in the form of lowering the voting age to 16, but nor does it suggest the more obvious option of clarifying the intent of the Bill of Rights, support for a minimum voting age of 18.

Pursuant to the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, the government must take action within six months of a Declaration, though events might proceed faster.  Presumably this ‘action’ means changing the electoral law.

Five steps by which the voting age might be changed without a referendum or a 75% majority in parliament

1) Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, introduced in 2020, but for some reason not passed until 29 Aug 2022 (Make It 16’s appeal to the Supreme Court commenced 12 July).

2) Supreme Court ‘inconsistency’ ruling, November 2022, with a suggestion that the only way to resolve this is by lowering the voting age to 16, ignoring the clause in the Human Rights Act which gives precedence to the Bill of Rights. 

3) Parliament’s proposed Declaration of Inconsistency: Voting age in the Electoral Act 1993 and the Local Electoral Act 2001

Then hypothetically:

4) The same Supreme Court court rules that changing the electoral act is now purely rubber stamping and therefore doesn’t require a referendum or 75% majority in parliament.

5) Action by Parliament to change electoral law.

The idea that ’18 year olds vote so therefore 16 year olds should too’ is patently nonsense

• The Bill of Rights 1990 affirms a minimum voting age of 18.  It is pure opportunism to interpret the conflict with the very general reference to 16 years in s 21(1) in the Human Rights Act 1993 as a requirement to lower the voting age, when the Human Rights Act makes no specific reference to voting rights, and in any case gives precedence to the Bill of Rights.
• Constitutional changes such as electoral reform should be made only after a well publicised referendum and a super majority in parliament.
• Polls show that the public is adamantly opposed.
• The move shifts the bar of adulthood from 18 to 16, with implications for criminal responsibility, jury service, military service abroad.
• Society accept that rights and responsibilities increase with age as appropriate: from the age of five or six, when children are allowed to walk to school on their own, to eligibility for National Superannuation.  Former MP Barry Brill has submitted:

‘There should be no difference in voting age, the drinking age, the age of contractual capacity, the age for an arms licence, and the age when subject to adult criminal procedures; or military service.

All require a sufficient degree of maturity (on average) to justify a school child being treated as an adult. The issue is essentially a biologic and neurologic question, but I would consider 18 years to be a minimum.’

• There is no reason to believe that modern school children are more mature than those in the past, and therefore equipped to make decisions relating to the running of the country at local or national level.  On the contrary, education levels are plummeting, critical thinking and respect for facts is discouraged, and the school curriculum is focused on Critical Race Theory, grooming for gender transition, and the teaching of questionable claims relating to climate change and New Zealand history.
• It is clear that the only reason for taking this course is self-interest on the part of the parties in government who stand to gain from giving the vote to school children.

MAKE A SUBMISSION BY 15 March 2023

HAVE YOUR SAY about a A Declaration of Inconsistency on the voting age in the Electoral Act 1993 and the Local Electoral Act 2001

Make a submission by 11.59pm on 15 March 2023 (submissions opened 2 March)