Sasha Borissenko: Should 16-year-olds be allowed to vote?

OPINION:

It’s trite to think 16-year-olds as only deliberating over what to wear on dreaded mufti days, sneaking in to the family home after curfew, and avoiding peer pressure.

Despite the absence of civics being taught in schools, it’s fantastic to see the labours of campaign group “Make it 16″ come to fruition. And by fruition I mean bringing public consciousness to the fact youths are increasingly more engaged in politics and electoral discourse.

Cue the Supreme Court’s decision to allow an appeal relating to the voting age being inconsistent with the Bill of Rights last week.

Justices Winkelmann, Glazebrook, O’Regan, France, and Kos declared current voting age provisions of the Electoral Act 1993 and the Local Electoral Act 2001 were inconsistent with the right to be free from discrimination on the basis of age as per the Bill of Rights Act. It also found those inconsistencies were not justified.

Let’s look at the case.

For context, the High Court declined to make declarations sought by Make it 16 on the basis the limit on freedom from discrimination was justified. The Court of Appeal disagreed the limit was justified but declined to make a declaration, referring to the political nature of the issue.

The Supreme Court had to determine whether it was appropriate for the courts to engage in the issue, the effect on the Bill of Rights voting and discrimination protections provisions, whether inconsistencies was justified, and whether declarations sought should have been made.

The voting age was reduced from 21 (as of 1852) to 20 in 1970, to the current age of 18 in 1974 by way of a broader update to the legal definition of an adult to a person over 18.

At 16, people can drive, drop out of school, consent to sex and medical procedures, leave home, pay rent, work a fulltime job, and receive minimum wage entitlements, pay taxes and own a firearms licence.

Make it 16 campaigners argued they were just as impacted by the decisions of the Government and will be inheriting the future impacts of those decisions.

As an aside, Make it 16 formed out of Youth Parliament in September 2019 as climate change protests swept around the globe with 16-year-old Greta Thunberg leading the charge.

The timing is apropos seeing as last week the High Court finally released its ruling in favour of the Climate Change Commission in a judicial review case dating back to March. Lawyers for Climate Action New Zealand (a non-profit group of more than 350 lawyers) challenged the calculations and accounting methods the Climate Change Commission used to form its advice to the Government.

Back to the Supreme Court.

The Attorney-General argued the case had constitutional dimensions. Namely, that it was a concern for Parliament or referendum. As Parliament hadn’t considered this, it wasn’t for the court to do so, as it could potentially skew public and political debate.

It was argued age discrimination in this context was justified because 18 years was within the range of reasonable alternatives. Beyond the absurd point, for example voting rights for infants, a lawmaker started to encounter the age where some social responsibility was accepted, the decision read. A line had to be drawn somewhere, and 18 was recognised in most countries (US, Australia, and the United Kingdom, for example).

The legal voting age is 16 in Brazil, Ecuador, Austria, Cuba, Guernsey, Isle of Man, Jersey, Malta, Nicaragua, Scotland, and Argentina. It is 17 in East Timor, Greece, Indonesia, North Korea, South Sudan, and Sudan. Nauru, Taiwan, and Bahrain have a legal voting age of 20, and Oman, Samoa, Tokelau, Tonga, Singapore, Malaysia, Kuwait, Jersey, and Cameroon have a legal voting age of 21.

The Supreme Court was not persuaded it would be premature to make a declaration, citing the 1986 Royal Commission Report on the Electoral System that argued a strong case could be made for reducing the voting age to 16, recommending that Parliament keep the voting age under review. The court also rejected that entertaining the case would undermine its function, instead it involved consideration of the relevant, fundamental, rights - a usual function of the courts.

Citing the UN Convention on the Rights of the Child, to which New Zealand is a party, the case involved the protection of the fundamental rights of a minority group.

“The minority nature of the group means that the other avenues relied on by the Attorney-General may not be as effective at protecting the rights of this group.”

In her final address, Justice France said it was important the public appreciate that what is made is a declaration of inconsistency, not illegality. Parliament is the sole arbiter of the content of legislation; the courts are the sole arbiters of legislative interpretation.

What would be done about any inconsistency would be always a matter for Parliament, she said.

What’s the situation in Parliament?

Now, it’s a matter of getting 75 per cent of parliamentarians on side (90 MPs) with a change to the voting age.

MP Golriz Ghahraman’s member’s bill - the Electoral (Strengthening Democracy) Amendment Bill 2022 - to lower the minimum voting age to 16 was drawn from the ballot but it did not pass its first reading in September this year.

Off the back of the Supreme Court decision, Prime Minister Jacinda Ardern said she was in favour of the change, but her views weren’t reflective of the wider Labour Party. The Government would respond by drafting legislation to lower the voting age to 16 from 18 in local and general elections.

“It is our view that this is an issue best placed to Parliament for everyone to have their say,” she said last week.

To date, 38 Labour MPs and all Green party and Māori party members have indicated they would support a lower age. The nay-sayers include National’s caucus of 33 MPs and ACT’s 10 MPs, who said they were likely to vote against the bill.

“You’ve got to rule the line somewhere, and on balance we think 18 is about right,” National leader Christopher Luxon said.

Tangentially, there have been moves to improve young voter turnout for local and general elections for some time now. Massey University’s Design+Democracy Project designed an interactive programme, On the Fence, to improve political engagement, for example.

At the programme’s inception, project director and senior lecturer Karl Kane said young people (18-24) rejected many aspects of adversarial party politics, with participation rates being consistently around 30 per cent below those aged over 50.

Fantastically, there was a spike in young people voting at the 2020 General Election. Official turnout including all votes was 82.2 per cent, the highest since 1999. A total of 274,076 18-24 year-olds voted in 2020 - an increase of 18.8 per cent since 2017.

Attempting to reduce apathy by incentivising youth to engage in the discourse and then to deny access in the process by drawing an arbitrary line in the sand seems counterintuitive.

It’s as fickle as suggesting lowering the voter age to 17 wouldn’t work because odd numbers aren’t as palatable as their even counterparts.

It also strikes me as fascinating that the decision to change the voting age will be in the hands of those outside this age bracket. Teenagers in Parliament - just imagine! Let’s let the teenyboppers do their thing, I reckon. What’s the worst that could happen?