Names can be deceiving. While many Kiwis might assume that our supreme court is in fact supreme – able to strike down laws and change the country – it is not. Like the UK, parliament in New Zealand is supreme. Even if the courts decide parliament’s laws disagree with the Bill of Rights Act, the democratic body is able to tell the court to stick to complex tax cases, thanks. Nothing handcuffs parliament, nothing is above it.
Yet the supreme court was recently handed new power to force issues on to the agenda of parliament, and has almost immediately used it to blow up the long-running debate about youth voting, exposing the silly positions of most involved.
This is done through a “declaration of inconsistency” – basically the court noting that a law is inconsistent with New Zealand’s two human and civil rights acts. The court has only recently found itself making these declarations. Three months ago, the government passed a law setting out how parliament would respond when these declarations were made. It guaranteed that the inconsistency would be discussed, but not necessarily remedied.
Earlier this week the supreme court made use of this power and ruled in favour of Make It 16, a group campaigning for the voting age to be moved from 18 to 16 – arguing that young people’s right to vote had been breached without good cause.
While Make It 16 should be congratulated on their victory, it kind of won by default. The Crown failed to make any substantive argument for keeping the status quo, other than it was the status quo, and the courts shouldn’t be considering the matter anyway.
The Crown didn’t put up a good argument for the voting age to be 18 because there is not a good argument for the voting age to be 18. It is an entirely arbitrary age – just as 20 and 21 were in the past.
As David Runciman has long argued, the arguments that are typically raised against the young voting could equally be applied to the old. Mental competence? The risk of cognitive decline grows considerably as one ages. Contribution of taxes? The old rarely work and generally pull down plenty of state aid.
But of course, removing the vote from elderly people would be barbaric. We got rid of these sorts of mental competence or tax-paying tests long ago, recognising as we do that the right to vote is not earned but born into.
You could see this lack of a good argument in the responses to the news by various politicians. Prime minister Jacinda Ardern, who has generally refused to state a position on the matter – other than gesturing towards civics education – said she personally agreed younger people should be able to vote and announced an intention to introduce a bill to change the law.
The two main opposition parties offered silly responses that don’t hold up to scrutiny. National’s justice spokesperson Paul Goldsmith said the law had been fine for over a century (it actually last changed in 1974) and then spent most of his press release talking about youth crime instead. ACT leader David Seymour leaned into the assumed political gain for the left in young people voting, saying New Zealand didn’t need 120,000 more voters who don’t pay tax but want more spending. (Any 16- or 17-year-old who has a job or buys any good or service in New Zealand does in fact pay tax, but never mind.)
While he got the dates wrong, Goldsmith’s overall point about not seeing a need to change the law is the closest thing to a good argument for the status quo. You admit that 18 is arbitrary – but hey, it’s what we’ve got. Change is always a risk. This is itself the main weakness of Make It 16’s argument – because 16 is just as arbitrary at 18. Wherever you draw it, you are just drawing a line. That’s why Runciman thinks the voting age shouldn’t be 16 – but six.
The court’s intervention pushed this issue on to parliament’s agenda, immediately forcing all of the parties to actually state a position. But the idea itself was dead on arrival. The section of the electoral law that deals with the voting age is “entrenched” – meaning our rickety constitution demands that 75% of parliament needs to vote for change, or a referendum.
A referendum would be doomed (polls suggest almost no adults support lowering the age), and while National emerged from the last election weakened, the party still holds 27.5% of the seats in the house, meaning any reform that doesn’t have National onboard is doomed.
So in this battle, parliament emerges victorious – even if, ironically, it ends up being a minority of parliament. But the supreme court is clearly quite happy to use this new power for very contentious issues. This won’t be the last time it intervenes.
