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 and the provisions of the Electoral Acts, when in fact the inconsistency is within the Bill of Rights itself, while the clear intention of the Bill is to affirm 18 years as the minimum voting age.
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.
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’.
The inconsistency lies in the Bill of Rights itself which on the one hand prohibits discrimination on the basis of age from 16 years (ss 19 and 21(1)(i)) but on the other affirms the voting rights in general elections for those aged at least 18 years (s 12). The Judgement proper does not refer to this provision, though its mention by Judge Kós is referred to in the explanation. 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 […].’
There are clearly two ways to resolve this inconsistency: one is to amend s 12 to specify a right to vote at age 16 rather than 18; the other is to amend s 19 and s 21(1)(i) and keep the voting age at 18. While the Judgement proper does not refer to a specific age, the explanation and press release make it clear that its intention is to pave the way for lowering the voting age to 16, and acknowledges no other option.
The 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 only way to resolve this is by lowering the voting age to 16.
3) Parliament’s 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 idea that 18-year-olds vote so therefore 16-year-olds, should too is patent nonsense:
- The Bill of Rights affirmed a minimum voting age of 18. It is pure opportunism to interpret the conflict with the general reference to 16 years in s 21(1) as a requirement to lower the voting age.
- Constitutional changes such as electoral reform should be made only after a well-publicised referendum.
- 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 are 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 Declaration of Inconsistency on the voting age in the Electoral Act 1993 and the Local Electoral Act 2001
Make a submission by 11.59 pm on 15 March 2023 (submissions opened 2 March)
Barbara McKenzie has a PhD in German Literature and was a Mayor candidate for Wellington in the 2022 Local Govt elections. This article was published HERE
HAVE YOUR SAY about A Declaration of Inconsistency on the voting age in the Electoral Act 1993 and the Local Electoral Act 2001
Make a submission by 11.59 pm on 15 March 2023 (submissions opened 2 March)
Barbara McKenzie has a PhD in German Literature and was a Mayor candidate for Wellington in the 2022 Local Govt elections. This article was published HERE
7 comments:
The comment is made,
“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.”
That presumption is incorrect. The Act concerns reporting on an inconsistency…it does not concern the manner in which the inconsistency is revolved if it decides to do anything at all.
When the Bill was passing through Parliament, Minister Kiri Allen stated the following:
“The Bill will amend the New Zealand Bill of Rights Act to:
• require the Attorney-General to notify the House of Representatives of the court’s declaration of inconsistency within six sitting days after the declaration becomes final; and
• require the Minister responsible to present the Government response within six months of the Attorney-General notifying the House.
“The Bill does not set out the process for Parliament to respond to declarations of inconsistency,” Kiri Allan said.
“Instead, the Attorney-General notifying the House of Representatives of the declaration would trigger a Parliamentary process under its Standing Orders.
“The aim of this process is to ensure that declarations of inconsistency are actively considered by the House of Representatives.”
The Parliamentary process would involve:
• a declaration of inconsistency being referred to a select committee;
• the select committee considering and reporting on the declaration within four months; and
• a debate in the House of Representatives on the declaration, the select committee report, and the Government’s response to the declaration.
https://www.beehive.govt.nz/release/new-zealand-bill-rights-declarations-inconsistency-amendment-bill-passes-third-reading#:~:text=A%20'declaration%20of%20inconsistency'%20is,Justice%20Minister%20Kiri%20Allan%20said.
The writer’s logic goes astray when she says:
“Then hypothetically:
4) The same Supreme 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.”
It’s a hypothetical leap to the position where “the Supreme Court could rule that the Electoral Act is now purely rubber stamping” and therefore negates the 75% requirement.
That is a presumption too far and delves into the realm of conspiracy.
Parliament makes the law and it is at their discretion whether they change the voting age or not. They are sovereign and can do anything they like.
The matter will not go back to the court that ruled there was an inconsistency – they have determined the matter and their role ends there.
PM Hipkins has already acknowledged that 75% would not be reached in Parliament, and he has expressed his view that it would be unlikely to succeed in a referendum.
Labour could ignore popular opinion if it wished (as it has with Three Waters) and it could repeal the entrenchment clause and lower the age by a simple majority in Parliament but it is unlikely to do that and face the furore that would follow.
Make submissions on the proposal by all means but submitting that this is some underhand proposal to have the courts determine this matter would be well off the mark.
Whilst ther must not be discrimination based on race, democracy in its purest froem, where jailbirds, those with IQs of 85, and children, vote, is absurd.As with I suspect very many others it is only in old age that I consider I have a resonable grasp of the issues. I sus0pect that most never acheive that. It is absurd that parties are elcted largely on the tv image of their leaders
To Robert Arthur: Some flights of fancy arose in response to your implication that an intelligence criterion might be imposed for voting.
Such a criterion may well be defensible given that adults at the lowest levels (e.g. a 'mental age' of 3 years old or less) could only vote either randomly or in line with their caregivers' direction, most likely the latter thereby effectively providing those caregivers with more than one vote.
The choice of criterion would need to involve careful consideration if one were concerned about fairness and justification. Intelligence tests measure certain cognitive abilities commonly developed in 'first-world' countries and that are related to academic and life outcomes, but they do not measure all a person's abilities or potential contributions. Someone who grew up isolated from first-world societies may have impressive knowledge and skills regarding hunting for food but would bomb out on most IQ tests. It woulld be important to allow any low-IQ-scoring person an opportunity to demonstrate his/her reasoning and intelligence through tailored testing methods and thereby to secure voting rights.
Your implied IQ cut-off of 85 is still in the 'low normal' range and would rule out about 16% of the population including many people working and paying taxes. That might be a bit elitist.
A cut-off of 69 would remove voting rights for just under 2% of the population whose voting choice, even when not totally resulting from caregivers' direction or advice, would at most be based on one perceived policy or the physical attractiveness of the candidate. Oh right, that's probably true for a large proportion of voters!
An IQ of 100 for anyone over 16 can be compared (loosely but not totally without scientific basis) to the 'mental age' of an average 16-year-old, and anything less than 100 involves a mental age of less than 16, so 100 might be a good criterion according to the reasoning of the 'Make it 16' brigade. However, that would rule out 50% of the population. Might be a bit problematic.
For anyone over 16, an IQ of 62 represents a mental age of approximately 10 years old and that cut-off score would rule out about half of one percent of the population, or 1 person in 500, from voting. That might be adequate but it depends on how much reasoning, awareness, judgement and free choice you believe are required for a worthwhile vote. Many with a mental age of 8 years probably could make a voting choice based on better foundations than many 18-year-olds do. Perhaps a mental age of 6 years (meaning an adult's IQ of 38, involving about 2 in every 100,000 adults) would be better, comparable to that of children most of whom have had a year of schooling training them to think. (Oh sorry, I forgot that schools are now about indoctrination in false beliefs to support fashionable causes, no longer training children to think if that ever was the case.)
This will be a difficult decision. I say let a referendum of 3-year-olds decide.
Considering the avalanche of undemocratic change inflicted on the New Zealand voter by this rogue far left government. There is little doubt the opinion or protest of the public at large will carry little weight when pursuing this electoral change.
Much is at stake next election and any underhanded strategy to have 16 year olds contribute will boost support for the left maybe enough to retain power.
Then all is lost.
The fact that some intended laws will be inconsistent with the Bill of Rights hasn't stopped this or previous governments from blithely ignoring the Bill of Rights and passing those laws anyway, as they are legally allowed to do. So it would be blatantly duplicitous and self-serving for government to be so concerned about compliance with the Bill of Rights on this matter as to make a major constitutional change undemocratically. Unfortunately, duplicitous, self-serving and undemocratic has become par for the course.
My apology, there was an error in my calculations in my earlier post regarding IQ cut-off scores for voting. Maths a bit rusty...
It should have stated: 'For anyone over 16, an IQ of 62...would rule out about half of one percent of the population, or 1 person in 200, from voting.'
The rest of the figures given are correct I'm fairly sure.
Notice to teenagers who want the vote at 16 and 17: Why don't you leave home now while you still know everything?
Kevan
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