Court decisions on voting rights spur constitutional change in New Zealand

Kate McMillan (Te Herenga Waka/Victoria University of Wellington, New Zealand)

Continuing a liberal tradition? 

Aotearoa New Zealand is internationally recognized as having a liberal and inclusive franchise. In 1893 it was the first country in the world to grant full voting rights to women. In 1975 it became the only country in the world to grant full voting rights to non-citizens after one year’s residence. It might be tempting, then, to see the recent judgment by New Zealand’s Supreme Court in favor of Make It 16, a lobby group wishing to see the voting age lowered from 18 to 16, as another episode in this long history of franchise liberality. That would, however, be premature. Parliamentary sovereignty in New Zealand means that the Supreme Court’s decision, while constitutionally significant, does not have the effect of granting 16-year-olds the right to vote.  Only the Parliament has the power to do that, and it seems far from certain – indeed unlikely – that they will, at least in the near-term. The Supreme Court’s decision is, however, part of a fascinating and unfolding story in which recent legal battles concerning the franchise have produced a slight but potentially important shift in the relationship between the judiciary, executive and legislature in New Zealand.

Make It 16’s case and how the courts responded

The minimum voting age in national and local government elections in New Zealand voters is 18, as set out in the Electoral Act 1993 and the Local Election Act 2001. Make It 16’s argument was that the age requirement in these two electoral laws is a form of age discrimination, prohibited under Section 19 of the New Zealand Bill of Rights Act 1990 (hereinafter ‘NZBORA’).

The case had already been through two lower courts, the High Court and Court of Appeal, both of which had declined to issue what the applicants wanted: a formal ‘declaration of inconsistency’ stating that the age requirements in the Electoral Acts were inconsistent with the NZBORA.

In a majority decision issued in November 2022, the Supreme Court rejected the lower Court of Appeal’s argument that “the constitutional nature of the issues meant the Court should not inquire into the question of inconsistency at all” (Courts of New Zealand, 2022). It issued the desired declaration of inconsistency, finding not only that the Attorney-General had failed to meet the Section 5 test (i.e. demonstrating that preventing 16 and 17 year-olds from voting was justified in a democratic society), but also that ruling on the matter was “consistent with its [the Supreme Court’s] role, particularly where fundamental rights are involved” (Courts of New Zealand, 2022).

Growing power of courts via a ‘declaration of inconsistency’

The significance of the Supreme Court’s decision may be seen in light of New Zealand’s constitutional arrangements. Like its former colonial ruler, the United Kingdom, but unlike most former British colonies, New Zealand does not have a written constitution. This means there is no single document outlining the institutions of government and the extent and limits on their power. There is no ‘supreme’ law that can override the decisions of the elected Parliament. Instead, New Zealand’s constitution is to be found in multiple sources. Underlying these constitutional arrangements are the related principles of parliamentary sovereignty and Parliament’s direct accountability to the people.

In 1985, former Minister for Justice Geoffery Palmer argued that New Zealand’s constitution contained too few protections of its citizens’ civil and political rights. In his view, New Zealand needed a Bill of Rights that acted as supreme law, giving courts the ability to declare invalid any legislation that would erode citizens’ rights. Palmer was unable, however, to convince either the public or the Parliament that this partial transfer of power from an elected Parliament to an appointed judiciary was necessary or desirable. Consequently, the NZBORA was passed as an ordinary statute, able to be amended or even abolished by a Parliament that wanted to do so. Parliament was also free to pass legislation inconsistent with the NZBORA, though the Act did contain a requirement that the Attorney-General must let Parliament know if any piece of legislation before the House might undermine the rights protected by the NZBORA. Additionally, in 1993, the Human Rights Review Tribunal was empowered to declare an Act inconsistent with the NZBORA’s Section 19 prohibition on discrimination. It had, however, been unclear for decades whether judges could issue a formal statement that legislation is inconsistent with human rights, and until 2015 no court had ever done so.

When a senior court finally took the step of issuing a declaration of inconsistency, it did so in relation to the voting rights of prisoners, after a legislation passed in 2010 extended a deprivation of voting rights from those on longer sentences to all prisoners. In the 2015 case Taylor v Attorney General, High Court Judge Heath reasoned that since “voting rights are the most fundamental aspect of a democracy, the Court had a responsibility to all New Zealanders to draw their attention to legislation that is ‘inconsistent with a fundamental right”. The Attorney-General appealed this decision first in the Court of Appeal and then the Supreme Court, arguing that New Zealand courts did not have the power to issue such declarations. Both courts dismissed the Attorney-General’s appeal, asserting the right of senior courts to declare legislation inconsistent with the rights protected by law, without affecting that legislation’s legal validity.

The Government’s response

Following the Taylor case, and declaring itself to have already been sympathetic to a greater level of dialogue between the legislature, executive and judiciary, the Labour Government in August 2022 gave political heft to declarations of inconsistency with the New Zealand Bill of Rights (Declaration  of inconsistency) Amendment Act 2022. In introducing the Bill, Minister of Justice Andrew Little said “for a citizen who is concerned that a piece of legislation has been passed that traduces their basic civil and human rights—something that is then found not only to cut across their rights but also not to be justified in a free and democratic society— merely getting a declaration is not enough. There must be a response”. Accordingly, the amendment imposed two requirements on Parliament following a court’s declaration of inconsistency: the Attorney-General must notify Parliament of any declaration of inconsistency issued by a court within six days and, more importantly, the Government must respond to the declaration, usually within six months of it being brought to the attention of the House.

These were the provisions triggered for the first time in November 2022 when the Supreme Court issued its declaration of inconsistency in respect of the voting age requirements, forcing the Government to consider the question of whether the voting age of 16 is justifiable. Notice of the declaration was tabled in the House on 12 December 2022, setting the clock for the period within which Parliament needs to report back.

Prospects for a lowered voting age

On hearing of the Supreme Court’s decision finding in Make It 16, Prime Minister Jacinda Ardern announced that her Government would draft legislation to lower the voting age to 16. Passing this through Parliament will not be easy, as the parts of the Electoral Act 1993 that set the voting age at 18 for voting in national elections are among the very few electoral provisions considered so important to New Zealand’s democracy that they require a supermajority of 75% of Parliament or 50% support in a public referendum to amend.  The leaders of New Zealand’s main opposition party, the National Party, and ACT, a libertarian party to National’s right, have both said they would oppose lowering the voting age, making it near impossible for the Bill to get sufficient support to pass. If a vote in Parliament fails, citizens could launch a petition to trigger a referendum on the issue, but public polling indicates low levels of public support for the change. 

All is not lost for the Make It 16 campaign. Unlike those in the Electoral Act 1993, voting age provisions in the Local Electoral Act 2001 are not entrenched. A recent draft review of local government recommended the voting age for local government elections be lowered to 16, and found majority support among survey respondents for such a move. Should it choose to, the Government could pass legislation to lower the voting age for local government elections during the current term of parliament, although there has been no indication to date from the Prime Minister that she intends to do so.

Additionally, an Independent Electoral Review that was established by the Minister of Justice in May 2022 to review New Zealand’s parliamentary election settings, including the voting age, is due to report back at the end of 2023. A recommendation from the Review that the voting age should be lowered to 16 will add further support to Make It 16’s campaign. 

If the voting age is lowered to 16, New Zealand’s reputation for a liberal franchise will be refurbished. Even if the age is not lowered, the senior courts’ newfound ability to require Parliament to justify NZBORA-noncompliant legislation might be expected to exert a liberal influence on both the legislative process and political culture more broadly. Prisoners’ voting rights were the driver of this significant constitutional adaptation, and it is quite possible that 16- and 17-year-old wannabe voters will be the beneficiary of it in the not-too-distant future.