Utter contempt

In 2022 the Supreme Court ruled that the current voting age of 18 unlawfully discriminated against 16 year olds, and issued a formal declaration of inconsistency with the NZBORA. The previous government's weak and pathetic response to this was to propose lowering the voting age for local body - not general - elections, with the Electoral (Lowering Voting Age for Local Elections and Polls) Legislation Bill. The bill was passed through its first reading and sent to select committee. Now, before that process has even ended, the new government has thrown it in the bin:

The coalition government has formally dumped plans to lower the voting age to 16 for council elections, something considered by the previous Labour government.

Local Government Minister Simeon Brown said he wrote to the chairperson of the Justice Committee informing him that the government did not intend to support the Electoral (Lowering Voting Age for Local Elections and Polls) Legislation Bill through further parliamentary stages, and requested that the Committee ended consideration of it.

[...]

He said the coalition government would not entertain the previous government's voting age proposal and was withdrawing the bill from any further consideration.

This displays utter contempt for our democracy and for the people who submitted in good faith on this bill. The government tells us that select committees are an opportunity for us to "have our say". For it then to bin the bill before it has been hear sends a clear message that this is a lie, that they have no intention of listening, and that the entire process is a fraud upon democracy. It brings the entire institution of parliament into disrepute (which is technically a contempt). Many of the submitters on this bill are likely to be young people, so it has also sent them a clear message that they have no place in politics, and that pursuing democratic methods of change is a waste of time. That message is both immoral and dangerous.

But beyond the contempt it displays for submitters and democracy, it also displays contempt for the BORA and our constitution. While we formally have Parliamentary sovereignty, if the courts find something is so bad that they issue a formal declaration of inconsistency, then it is the clear obligation of Parliament to fix the law. By throwing out this bill, the government is refusing to let Parliament perform that duty, and committing to an ongoing, unlawful, abuse of the human rights of young New Zealanders. And in doing so, it is once again demonstrating that it is unwilling to properly perform the duty of being the ultimate guardian of our human rights, and that that job should therefore be taken off them and given to someone both willing and able to do it: the courts.

Submit!

The Justice Committee has called for submissions on the Electoral (Lowering Voting Age for Local Elections and Polls) Legislation Bill. Submissions can be made online at the link above, and are due by Friday, 20 October 2023 (the Friday after the election).

The bill would lower the voting age from 18 to 16 for local body elections. This isn't just a good idea - it is also required by the Supreme Court's declaration of inconsistency over the voting age, and an important step towards bringing out electoral laws into compliance with the New Zealand Bill of Rights Act 1990. Its important that Parliament be told that when the courts issue such a declaration, that they need to obey it and amend the law, rather than deliberately continuing to violate human rights.

Labour's electoral review

Labour's "independent" review of the electoral system reported back today. You can read the full thing here, but most of it was basicly a rehash of the 2012 Electoral Commission review, and in response to the same questions, produced mostly the same answers: a lower threshold and removing the one-seat rule. Which gives us the same problem: a less-representative parliament. As someone who wants the most representative Parliament possible, that's not a good outcome. If people are concerned about the unfairness between small parties who win electorates and those who don't, the answer is to lower the threshold so it doesn't matter, not to punish both. But then, I guess I'm not some snobby status quo big-party voter...

The interesting answers are to the questions that weren't asked in 2012. The review has recommended lowering the voting age, and a referendum on a four-year term. The first was a foregone conclusion given the Supreme Court ruling. As for the second, its what the review was set up to recommend. But it is good to see the commitment to a referendum, given Labour's earlier idea that they could just stitch up up a deal with National to impose it by insider fiat. Hopefully the recommendation for a referendum will kill that idea, and it will certainly strengthen the argument that any change without a referendum is fundamentally illegitimate. (If there is a referendum, I will of course be voting against...)

There's also strong recommendations to crack down on political donations, including a cap on individual donations and a ban on donations from companies and other legal entities. The review has listened to the people here: we hate money in the political system, view it as a corrupt influence, and want it limited. Sadly, its the politicians, the people who want all that corrupt money, who will be making the decision.

And that's the real problem here. We saw it with the 2012 review: the self-interested politicians liked some recommendations, hated others, sought to cherry-pick them for their own advantage, but were (fortunately) deterred by voter expectations from doing so. I see no reason to think that this review will be any different. Which means that some good reforms will go undone - but so will the shit ones (and to be clear, removing the one-seat rule is shit). This afternoon, Chris Hipkins said Labour would be presenting its own ideas on the electoral system pre-election. Which makes you wonder what the point in an "independent" review was if the government is just going to ignore it and push its own solutions anyway. It just seems like another abuse of the public's good faith, and suggests that all of us who submitted to this review wasted our time, again.

Labour chickens out on the voting age again

The Justice Committee has reported back on the declaration of inconsistency on the voting age. Sadly, the recommendations won't surprise anybody: the Labour-majority committee recommended that Parliament immediately lower the voting age for local government, and that it "investigate" lowering it for general elections (while remembering to fix a bunch of entirely fixable issues that this might create). Its a perfect example of how cowardly Labour is: while legislation for the latter can't pass without National's agreement - which National has said they will not give - Labour is too chickenshit even to issue a statement of principle, for fear that someone might object to it. And they're certainly not going to put up legislation and dare National to vote it down and cement themselves as ogres in the eyes of everyone under 18 (alternatively: give them an opportunity to do the right thing, as they eventually did on child-beating). Again, I have to ask: what is the point of a party which won't fight? Which is afraid of its own shadow, or the shadow of its supposed principles?

As for National and ACT, their minority reports make it crystal clear that they hate young people and don't care about New Zealand law or our international commitments. The courts have ruled that refusing to allow young people to vote violates the law by being inconsistent with the Bill of Rights Act. As MP's, the onus is on them to fix that. Their refusal to do so, their simple denial of the court's ruling and their refusal to engage seriously with it is a declaration that they have no intention of doing their job. Which means we should be asking why are we paying them so much, if they won't treat the job with the required seriousness?

More Labour cowardice

When the Supreme Court ruled that Aotearoa's voting age was unjustifiably discriminatory, then-Prime Minister Jacinda Ardern promised to introduce a bill to fix it. Now, Labour looks set to break that promise:

The commitment of former prime minister Jacinda Ardern to introduce a bill to lower the voting age looks likely to be wound back.

While Prime Minister Chris Hipkins is yet to confirm it’s over, comments from officials and Justice Minister Kiritapu Allan on Tuesday indicated it was one of the policies felled in Hipkins’ policy cull.

[...]

Responses form both Allan and Andrew Kibblewhite​, the Secretary for Justice, indicated the Government was backing off from work on the bill entirely, when they were asked about the legislation on Tuesday.

Which is another example of Labour's fundamental cowardice and its lack of any convictions other than that they should be getting the big salaries for being in charge. Meanwhile, come election time, they'll be demanding the services of young volunteers to help them get out the vote. Those volunteers should send Labour a simple message: no work without political representation. And they should go and help a party which supports them, like the Greens, rather than one which simply wishes to exploit them while denying them a voice.

Meanwhile, if you're angry about this and want Parliament to do its job and amend the law to be consistent with the BORA, the Justice Committee is currently holding an inquiry into the declaration of inconsistency. Details on how to submit (and what to say) are here.

Submit!

Last year Parliament passed the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, amending the BORA to establish an absolute bare-minimum regime in response to the courts ruling that they had failed to do their job of protecting human rights and passed legislation inconsistent with the BORA. Shortly afterwards, the Supreme Court ruled that parliament had again failed, by allowing a voting age which was unjustifiably discriminatory. In accordance with the law, Parliament's Justice Committee has now called for submissions on the declaration of inconsistency. The deadline for submissions is Wednesday, 15 March 2023, and they can be made on the Parliamentary website here.

As for what to say, I would suggest urging Parliament to uphold the BORA and lower the voting age. I'd further suggest that this should be the general rule: whenever the courts go to the effort of making a formal declaration of inconsistency, then Parliament should amend the law to be consistent. Doing otherwise - especially on the first real test of the regime - would make it clear that Parliament has no intention of performing its duties under the BORA and is hostile to human rights. It would make it clear that Hilary Calvert was not an aberration, but basicly Parliament's face on human rights. And that in turn is going to strengthen pressure to take the job of these unreliable and untrustworthy "guardians" and give it to the body which has the knowledge, stature and mana to do it properly: the courts.

A victory for democracy!

Today, the Supreme Court ruled on the case of Make it 16 Inc v AG, declaring that the law forbidding 16 and 17 year olds from voting was inconsistent with the right to be free from discrimination, and that it had not been justified under the BORA. Its a massive victory for Make It 16, who have fought hard on this issue and pushed it all the way to the Supreme Court, and for the Bill of Rights Act. The government has not been allowed to get away with not bothering to justify discriminatory provisions, or with arguments that it should be immune from scrutiny. Faced with an argument that the voting age was a constitutional issue and that the court should not intervene, the court applied the constitution.

Unfortunately, fixing it will still require a law change, and that law will need a supermajority to pass. The moral and legal argument for change is insurmountable. But it could still not happen because the National Party decides to be dicks and refuses to accept our constitution.

...which will cause further problems. Because this is also going to be the first test of Parliament's new declaration of inconsistency procedures, which were passed earlier in the year. The Attorney-General is going to have to notify the House of the ruling, and the Minister of Justice is going to have to report back on what the government intends to do about it. And if their response is anything other than "immediate and urgent legislation to apply the ruling and allow 16 and 17 year olds to vote in the 2023 election", Parliament is going to be seen to have failed to protect our human rights again, and the pressure is going to go back on to strengthen the pissweak law they passed, take power from the politicians who refuse to do their constitutional duty, and give it to the courts (who clearly will).

Still against a four year term

Newsroom has a piece on Labour's local government review, which will apparently recommend a reduction in the voting age and a move to a four-year term. Which (because of the need for alignment with general election rules) tells us Labour has pre-determined the outcome of its electoral act review as well (of course they did). As for the merits, the same arguments that apply to central government apply to local government on both issues: a lower voting age is good, because young people have interests, and are affected by local government decisions. And a longer term is bad, because it reduces accountability and voter control. Look at your current local government: do you really want them to have another year of impunity before facing the electorate? And if you do, why not just vote for them at the next election, without surrendering control or accountability?

The primary "argument" for longer terms is that they would let government "get more done", either by insulating them from electoral pressure (an explicitly anti-democratic argument) or just by giving them more time to consider policy and bed in change. And it occurs to me that the best argument against this is this Labour government. They were elected with an absolute majority, giving them the power to do anything they wanted. But look at how little they've done. Look at what they've chosen not to do. Can anyone really argue with a straight face that they'd "get more done" if they were less accountable to the electorate? That the real barrier to them acting on inequality or housing or climate change has been lack of time, rather than lack of interest? Really?

Labour didn't rule out a capital gains tax because they lacked time to implement one. They ruled it out because it is not in their class-interest as highly-paid, wealthy property owners. They haven't dragged their feet on climate change because of lack of time - they're doing it to protect the status quo. And they haven't refused to reverse the 1990 benefit cuts or cancel WINZ debt because of lack of time. They've ruled those things out because at the end of the day they don't care and don't want to be seen as being nice to the poors.

Rather than "getting more done", if given a longer term, this government would just sit on its arse collecting its inflated salaries, while making excuses for its political choices and trying to gaslight us into thinking that everything is great. And laughing at us all the while for being fool enough to make them less accountable.

(And on the flip side, if they were a government which did things? Yeah, we want an opportunity to vote that shit out as quickly as possible, because we might not like it. Just think of what Roger Douglas or Ruth Richardson could have done with an extra year... Aren't you glad voters could nobble them when we did?)

As mentioned above, if you like a government and think it deserves more time to implement its policy programme, vote for them at the next election. But don't surrender control or allow them to be less accountable. Because that will lead to worse, less responsive, and more arrogant government, while benefitting no-one but the politicians.

Limiting rights needs justification

If the government wants to violate the Bill of Rights Act, does it need to actually justify it, and what happens if it doesn't? That's basicly the issue in question today in the Supreme Court, where activists of the Make it 16 campaign are challenging the voting age. The current law limiting the right to vote to those over 18 is a prima facie violation of the right to be free from discrimination on the basis of age (which means "any age commencing with the age of 16 years"). But the government, in defending that law, simply didn't bother to make a case that the discrimination is demonstrably justified in a free and democratic society. The Court of Appeal thought that didn't matter, and declined to issue a declaration of inconsistency. But given the structure of our Bill of Rights Act, the onus is surely on the government to prove that limiting rights is justifiable. And while the level of justification required can vary depending on the nature of the question, not providing any at all must surely lead to a conclusion that the limit is arbitrary and unreasonable, and therefore unjustified and inconsistent. And if not, it invites people to draw that same conclusion of the court.

Not that a legal victory will result in a direct change to the law - s4 of the BORA is crystal clear on that. But it will provide a powerful moral argument for change, and put the pressure on Parliament to step up, do its job, and amend the law to be consistent with the BORA. And if Parliament drags its feet or fails to do that, we voters should judge them harshly for it.

An unjustified limitation

Last year, the Make It 16 campaign took the government to court, arguing that the government's restriction of the right to vote to people over 18 was discriminatory and therefore a breach of the Bill of Rights Act. They lost, but only because the judge didn't actually engage with the question and fell back on tradition. Today, the Court of Appeal ruled on the inevitable appeal, and found that the voting age is discriminatory, and that the government had made no effort to justify it to the standard required. However, it declined to issue a formal Declaration of Inconsistency.

(Along the way they also held that the BORA's interpretation clause applies to the BORA itself, which is useful caselaw for the future).

This is a pretty big victory for Make It 16, and it puts the onus squarely on the government to either justify its voting age policy or repeal it (obviously I'd prefer the latter). The obvious vehicle for that is the upcoming electoral law review, though that won't see it fixed until the 2026 election at the earliest. A better path would be for the government to simply accept the ruling and legislate next year, allowing 16- and 17-year-olds to vote in 2023.

The electoral law review

This morning the government announced an "independent" review of electoral law, to look at "changes to the voting age, the three-year Parliamentary term, funding of political parties, overseas voting and Electoral Commission recommendations on MMP". My feelings about this are... complicated.

Firstly, an independent review of the voting age would be a very good thing, and would hopefully lead to a reduction. But linking it implicitly to a four-year term is really making it a shit sandwich, and casts doubt on the whole exercise. The government has made clear its enthusiasm to be less accountable to the people (which is what a four-year term means), so they're basicly saying this "review" will be of the strapped-chicken variety, with the reviewers carefully chosen to produce the outcome they want. As for the Electoral Commission recommendations, we've already had a review of those, so the government throwing them in is basicly a way of putting off doing anything about them (an outcome I don't mind, because those recommendations would make our parliament less representative, but its slimy and dishonest. OTOH Labour originally supported that package, though that was three leaders ago, so this suggests they've changed their mind. Still slimy and dishonest though, because there's obviously something they've changed it to, which they should be up-front about). As for overseas voting, its inclusion in the review is a clear signal that the government doesn't care about the pandemic's disenfranchisement of kiwis trapped overseas.

But then there's the report-back date: "late 2023" according to the government PR, with changes to be implemented for the 2026 election. Which means a) the government is ruling out a referendum on term-length at the 2023 election (and perhaps entirely, something which would be completely illegitimate); and b) they're perfectly happy for young people to be disenfranchised (and political parties to be corrupt) for another five years. "Transformative"? My arse.

Is it worth engaging with such an exercise in bad faith? Well, the presence of the voting age means I will have to - not doing so would betray young people. But the other stuff means I'm not going to feel happy about it. Participation takes time and energy, which is a limited resource. The government demanding it so it can launder its pre-determined policy and say it has had "public consultation" is just abusive. "Consultation" you were always going to ignore isn't (see also: any national security law with an "abbreviated" select committee process).

It is obvious from the above that I do not trust this process, and I do not trust politicians to make these decisions with party and self-interest corrupting the process entirely. So what process would I like to see? IMHO, the only truly independent review would be one carried out by appropriately supported, randomly-selected citizens: a citizen's jury.

As expected

Back in August, the Make It 16 campaign went to court to argue that the current voting age is unjustifiably discriminatory and breaches the Bill of Rights Act. As expected, they lost, with the judge deciding that while prima facie discriminatory, it was a justified limitation and within the range of reasonable options for Parliament to choose. But reading the judgement, I'm left with the overwhelming impression that if the voting age were still 20 or 21 (and s12 BORA reflected that), the judge would have made exactly the same decision. And that's because they never bothered to do any assessment of the actual merits of any particular age - in part because the government just gave up on that:

The Attorney-General did not advance any factual arguments about the merits of any particular voting age, but rather submitted that the age of 18 is objectively reasonable.

But the whole point of the case is to ask "is it, though?" And it speaks volumes that when confronted with that question, the government refuses to answer it, and the courts refuse to inquire, and both basicly fall back on tradition: it should be this way because it is this way. Which is awfully 1890's of them.

But it does highlight the underlying truth: if we are to change this law, we need to kick some politicians. Currently the Greens are the only party supporting a lower voting age (Labour, as on everything else, spouting sometime-but-not-now-so-really-never bullshit). So vote accordingly.

The Make It 16 case

The Make It 16 campaign is in court this week, arguing that the voting age is unjustifiably discriminatory and breaches the Bill of Rights Act. I think that is pushing shit uphill - the BORA hard-codes the age-limit (just as it hard codes 16 years as the age over which discrimination is de facto unjustifiable), so they're effectively asking the court to find the BORA inconsistent with itself. But in some ways the point isn't to win, but to make the argument, in one of the most public forums available. And if the court says "yes, its shit, but we can't", then that's a victory because it places implicit pressure on the government to fix it. Not that fixing it is easy: the Electoral Act clauses governing the voting age are entrenched, meaning that reform requires either a 75% majority in Parliament, or a referendum. But I think the government has a moral obligation to make the effort.

The arguments in favour of lowering the voting age are compelling. There is simply no moral argument for excluding people old enough to express their interests from voting, and you cannot call yourself a democrat if you think there is. There are also significant turnout benefits, with a better chance of building a lifelong habit of voting if you start younger. And for those who think that young people are too frivolous, irresponsible or uneducated to vote, maybe they should be looking at Boomers...

Wales makes it 16

Wales has lowered the voting age to 16:

16 and 17 year olds can now officially vote in Wales for Senedd elections.

Votes at 16 & 17 come into force on Monday, as part of the Senedd and Elections (Wales) Act 2020.

Next year’s Senedd elections will be the first in which 16 and 17 year olds and legally resident foreign nationals are allowed to vote in Wales, in a major expansion of the franchise. Around 65,000 16/17s are expected to benefit.

The move is a victory for young people, following campaigning from ERS Cymru and a coalition of youth and civil society campaigners.

Congratulations to the Welsh for recognising that teenagers are equal citizens! But isn't it time New Zealand followed suit?

Challenging the voting age in court

The Make It 16 campaign to lower the voting age is launching this afternoon, and they have already announced plans to challenge the law in court:

The campaign, named "Make it 16" will launch at Parliament on Friday, with plans to take their case to the High Court, testing the rights of 16 and 17-year-olds to be able to vote in elections.

[...]

"If a person is over 16 then it is unlawful for any businesses or organisations to discriminate against them based on their age.

"Politicians ... are allowing discriminatory laws to stay in place and we are going to challenge that through the court system."

The campaign will argue the current voting age of 18 was "unjustified age discrimination" and that the High Court should declare it inconsistent with the Bill of Rights Act.

Which sounds good, but almost certainly doomed to failure. Not because the court will find the age limit to be a "justified limitation" (which would require it to assess the merits and whether this was the minimum necessary intervention), but because it won't even get to that stage. Why not? Because the age-limit is hard-coded into the "electoral rights" clause of the BORA, and its very hard to find the BORA inconsistent with itself.

If we want to solve this, we need to legislate for it. Speaking of which, its the last day to submit on the Electoral Amendment Bill. Have you made a submission yet? While its a reserved provision requiring a referendum or supermajority to change, using your submission to demand a lower voting age is a good way to get politicians to start caring.

Something to go to in Wellington

Make It 16, the youth-led campaign to lower New Zealand's voting age, is holding an official campaign launch at Parliament this Friday from 16:30. If you'd like to attend, you can register using EventBrite here.

A matter of consistency

When people suggest lowering the voting age, others argue that the young are too uneducated or silly to exercise the duties of citizenship. Australian John Quiggin has just blown that argument out of the water:

Looking at the array of ignorant and vindictive old men attacking Greta Thunberg and other young climate activists, the case for lowering the voting age is just about unanswerable. Anything that could be urged in justification of stopping 16 year olds, as a group, from voting, is equally applicable to those over 60 (a group to which I belong). Over 60 voters are, on average, poorly educated (the school leaving age in Australia was 15 when they went through and I assume similar in most places), and more likely to hold a wide range of false beliefs (notably in relation to climate change).

Worse, as voters the over 60s have ceased to act, if they ever did, as wise elders seeking the best for the future. Rather (on average) they vote in a frivolous and irresponsible way, forming the support base for loudmouthed bigots and clowns... Substantively, they respond to unrealistic appeals to nostalgia, wanting to Make America Great Again, and restore the glories of the British Empire, while dismissing concerns about the future. If my age cohort were to be assessed on the criteria applied to 16 year olds, we would be disenfranchised en masse.

Democracies don't do that, of course. Regardless of their poor education, stupidity, and irresponsibility, old people still have interests and those interests need to be represented. So rather than taking the vote off old people, we should instead extend it to 16 year olds. Its a simple matter of consistency.

Make it 16

Something I missed: not only did Youth MPs declare a climate emergency; they also launched a campaign to lower the voting age to 16:

Youth Parliament week in Parliament has seen the establishment of Make it 16, a campaign to lower the voting age in New Zealand.

“Make it 16 is a non-partisan, youth-led campaign advocating for more people’s voices to count in our democracy” says Oli Morphew, age 14, National Spokesperson for Make it 16. “We welcome anyone who wants a fairer and stronger democracy to join our campaign”.

Youth MPs representing all parliamentary parties have signed on to Make it 16.

As I noted earlier in the week, I find the arguments for a lower voting age compelling. Its basic democracy: teenagers have interests, they're clearly capable of expressing them, and so they should be able to vote. I look forward to seeing where this campaign goes, and to supporting it in future.

You can read more about the campaign on The Spinoff.

We should lower the voting age

The Youth Parliament is being held this week, and some of the youth MPs are campaigning for a lower voting age:

Molly Doyle, 17, is one Youth MP who wants this to change. She is part of a non-partisan campaign run by youth seeking to lower the voting age in Aotearoa.

"Our democracy is based on one person, one vote,” Molly said.

“People who are 16 can work full-time, consent to sex, drive, and own guns. They should also be able to vote."

I find the argument for a lower voting age compelling, and its even more compelling now, with climate change threatening young people's futures. Scotland has done the right thing. So has Austria. We should too. And I'm looking forward to seeing where this youth-led campaign goes.

Meanwhile, you'd expect a supposedly future-focused, transformative government to be supportive of this. Sadly, that seems to be too much to expect. Because at the end of the day, Labour is about preserving existing power structures - not overturning them.

Time to lower the voting age

Children's Commissioner Andrew Becroft raised the issue of a lower voting age at Parliament yesterday, arguing that it would lead to stronger citizenship and improved policy:

Judge Andrew Becroft mooted the proposal at Parliament on Wednesday, when he appeared in front of the MPs on the Social Services Select Committee and said those teens would be "up for the responsibility".

"I'm calling for a genuine discussion," he said.

"All that I have seen about our democratic system, shows that those that are least involved and invested in it are our young. The lowest voting turnout is the 18-29 age group, we've got to do better.

"I think provided it went hand-in-hand at good civics education, with a commitment to teach about the operation of Government, how kids can be involved, what voting means, everything I've seen indicates that 16 and 17-year-olds will be up for that responsibility."

This is an issue I have long supported, and I would love to see progress in this area. The basic moral argument for a lower voting age is unassailable - young people have interests, and those interests should count equally with everyone else's. Denying them a direct voice and pretending they are represented by their parents leads to policy outcomes which favour the old over the young - policies like destroying the climate, running deficits to pay for tax cuts, and introducing student loans. Becroft is absolutely right that those policies would change if political parties had to appeal to those presently excluded.

But perhaps that's what they're afraid of?