Make It 16 sets a dangerous precedent
The Supreme Court’s decision on the voting age shows the perils of judicial policy-making
The Bill of Rights Act says that everyone aged 18 and over has the right to vote. The Supreme Court says that setting the voting age at 18 is inconsistent with the Bill of Rights Act. Astute readers may have noticed a contradiction, one that arises out of the Make It 16 decision issued by our highest court late last year. It’s the result of a tangle of legislation and judicial logic which, when unravelled, is a good illustration of why the courts shouldn’t be asked to resolve contentious social and political issues like this.
Let’s start with the legislative tangle, focusing for now on voting for Parliament not local government. The Electoral Act 1993 sets a minimum age of 18 for voting in general elections. Section 12 of the Bill of Rights Act says that qualified voters “of or over the age of 18 years” have the right to vote in Parliamentary elections. However, section 19 of the Bill of Rights Act says that everyone has the right to freedom from discrimination including age-based discrimination, with “age” defined as any age from 16 onwards. The age-based non-discrimination right was actually inserted into the Bill of Rights Act three years after it was first passed, apparently without anyone noticing that this created a contradiction between sections 12 and 19. This contradiction opened up a line of argument for Make It 16, who were seeking a declaration of inconsistency—a formal statement that the voting age of 18 is inconsistent with the fundamental rights and freedoms in the Bill of Rights Act.
A majority of the Supreme Court judges resolved this contradiction with a rather creative interpretation of the Bill of Rights Act. Section 12, they said, only guarantees that the voting age won’t be raised; it doesn’t mean that it can’t be lowered. The majority justified this conclusion by invoking section 6 of the Bill of Rights, which says that wherever possible, “an enactment” should be “given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights”. In other words, section 12’s specification of the voting age should be interpreted in a way that’s consistent with section 19’s prohibition on age discrimination. There are two problems with the majority’s approach.
First, it seems frankly implausible that Parliament would have thought it was creating some sort of sliding scale rather than fixing a specific voting age, especially when you look at the actual legislative history.[1] Only Kos J, writing a sole minority opinion, did this in detail. Disagreeing with the majority’s interpretation, he concluded that Parliament meant to prevent the voting age being raised or lowered because a change in either direction, “is not a neutral political action” but one that will inevitably “benefit some parties disproportionately.” He noted too that the voting age is one of those rare entrenched provisions in the Electoral Act—a provision that requires a super-majority vote of 75 percent of MPs or a majority in a referendum to change—meant to settle the position and end a history of “Parliamentary tinkering with electoral law”.
Second, it’s hard to see how the interpretive direction in section 6 can be used to resolve inconsistencies within the Bill of Rights itself. It’s entirely circular to say that the Bill of Rights Act should be “given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights”. This just begs the true question—what do those rights and freedoms actually say?—and the confusion provides cover for judges to resolve conflicts between rights in a way that fits their preferred view, in this case using section 19 to reinterpret section 12. There’s no reason this logic couldn’t be used to justify the exact opposite approach—using section 12 to reinterpret section 19—but in fact the whole issue is a red herring.
As Kos J said, the real issue is how to resolve the conflict between a specific provision, section 12, and a general one, section 19. Like him, I think the best way to do this is to say that, “the explicit right to vote in parliamentary elections at 18 years, grounded in the constitutionally-entrenched provisions of the Electoral Act and affirmed by s 12 of the Bill of Rights, prevails over the generalised right to freedom from discrimination affirmed by s 19.” Nevertheless, the majority decided that the Electoral Act’s voting age of 18 was inconsistent with the Bill of Rights, and so was the local government voting age (which wasn’t protected by section 12).
Then the majority got into policy-making territory, though to be fair that’s not entirely the court’s fault. The Bill of Rights Act says that rights are subject to “reasonable limits” that are “demonstrably justified in a free and democratic society.” So the courts will only say that a law is inconsistent with the Act if the law creates an unreasonable, unjustified limit on a right. But asking judges to decide what is “reasonable” and “justified” in a “free” and “democratic” society is an intensely value-laden exercise, not a legal one, the kind normally reserved for politics. Judges are clearly sensitive to the perception that they’re straying into politics, and the majority was at pains to stress that it was simply stating what the rights mean.
These are not legal questions; they are questions of social science and policy, and this is not how policy should be made—on the basis of a solitary and uncontested study containing no New Zealand participants, provided by a Commissioner who has been advocating for a lower voting age since at least 2018, supported by the assertion of a mid-ranked academic at an overseas university.
That didn’t stop them going beyond the law to consider some evidence though. Unfortunately, this merely took the form of a single 2020 report from the Children’s Commissioner, out of which the majority referenced a single 2019 study finding that voting represents the kind of “cold”, emotion-free reasoning that apparently reaches maturity during the mid-teen years, and supporting evidence from a Senior Lecturer at a Scottish university that there is “little evidence” to support 18 as the voting age.
These are not legal questions; they are questions of social science and policy, and this is not how policy should be made—on the basis of a solitary and uncontested study containing no New Zealand participants, provided by a Commissioner who has been advocating for a lower voting age since at least 2018, supported by the assertion of a mid-ranked academic at an overseas university. Compare this to the Parliamentary process which, at its best, gathers comprehensive research, puts it through an open and contested process, and offers a measure of transparency via Select Committee deliberations and ultimately accountability to the electorate.
The Attorney-General also played an eyebrow-raising role in all this. First, the Court said he was required to provide positive justification for a voting age of 18—in other words, to offer evidence to support the current position. But the Attorney-General wasn’t able to do this, and so was limited to arguing that 18 is within a range of reasonable possibilities. The Court therefore relied only on the evidence from the Children’s Commissioner, and made the declaration of inconsistency that Make it 16 sought. But the judges said that limiting the voting age to 18 could potentially be justified—it just hadn’t been in this case. Second, and more concerningly, the Attorney-General had also begun his case arguing that section 12 disposed of Make it 16’s case, but abandoned this argument before the case began. Kos J was particularly unimpressed by this, describing it as a “regrettable” choice and noting: “Important questions of public rights before this Court cannot just be resolved by forensic choices made by parties.” It’s difficult to understand why the Attorney-General made this choice—though a cynic might think it had something to do with the fact that the Attorney-General isn’t just a law officer but a member of the Government, the same Government that immediately greeted the Court’s declaration with an announcement that it would introduce legislation to lower the voting age.
For now, opinion seems firmly against changing the voting age but what is changing, in this era of declarations of inconsistency, is the role the courts are playing in political issues. They are ill-suited to this; it’s not ideal that arcane arguments about legal interpretation play such a large role in a case like this. And as this case demonstrates, courts are limited to the issues raised and the evidence supplied by the parties—or not, in the case of the Attorney-General. Whatever his reasons, when a single party’s litigation strategy can have such far-reaching implications it illustrates why issues like this shouldn’t be decided by the courts. To this, someone might object that the courts don’t decide these issues; as Kos J said, a declaration of inconsistency is not a declaration of illegality and “what is to be done about the inconsistency identified is always a matter for Parliament.” While that’s true in theory, it underplays what happens in practice. When our highest court says something is inconsistent with fundamental human rights, that tends to stick in the public consciousness and to motivate political action. Just look at the power to make declarations of inconsistency itself, a power that wasn’t in the Bill of Rights Act and was invented by the courts, to be eventually acknowledged in statute by Parliament. Will the same thing happen with the voting age? Who knows, but with the courts taking this kind of approach, expect to see more cases like this.
[1] This is supported by the approach Parliament took to the citizenship question. The Bill of Rights Act guarantees the right to vote to citizens, while section 74 of the Electoral Act also allows permanent residents to vote. As Kos J noted, this was a design choice specified in the White Paper for the Bill of Rights Act: “This Article is concerned with basic principles and is not designed to entrench the present law in its details. Thus it guarantees the right to vote to New Zealand citizens only, whereas the present law … gives the franchise also to all permanent residents of New Zealand who have lived continuously in New Zealand for one year. That provision will not be affected, and will remain in force unless Parliament decides to change it.” In other words, section 12 apparently embodies quite conscious decisions about where to fix voting rights, even where they are inconsistent with electoral law.
Oh my goodness! One could be forgiven for thinking self-entitlism now trumps politicians making laws and judges enacting them.