Friday, June 22, 2007


While I support Sue Bradford's effort to lower the voting age to 16, unfortunately, it seems she forgot something. That something is s268 of the Electoral Act 1993, which entrenches certain clauses of the Act against amendment or repeal except with the approval of either 75% of Parliament or a referendum. Among the protected clauses are:

Section 74 of this Act, and the definition of the term “adult” in section 3(1) of this Act, and section 60(f) of this Act, so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote

These are of course the exact clauses part 2 of Bradford's bill seeks to amend. So, unless she can get a 75% majority of the House (which in practice means the support of both National and Labour), her bill as it stands is a non-starter.

Fortunately, with the bill not even in the ballot yet, it can be re-written. The obvious change would be to amend it to provide for a referendum (the appropriate provisions can be lifted from the Electoral Referendum Act 1993, or from Keith Locke's Head of State Referenda Bill), with a contingent commencement clause similar to that used in the Electoral Act. This has the sour note of having people voting on other people's voting rights, which is no more acceptable in the case of young persons as it would have been in the case of women, but if its the only way to do it, its the only way to do it.

(Hat tip: Graeme)


I think requiring a referendum is a bad idea, tactically. Referendums are damned if you do, damned if you don't territory - if your bill requires a referendum, you're bothering people and spending public money for something the voters don't care about; if you don't require a referendum, it's because you're scared of public opinion (civil union bill, etc).

I just hope some of Bradford's staffers read this blog.

Posted by Anonymous : 6/22/2007 06:40:00 AM

It's a legal requirement, however:

- what would happen if a Bill had a clause repealing S268 1(e) (which entrenches the voting age)
and also the operative clauses?

Wouldn't parliamentary sovereignty allow this? (because a parliament can't bind its successors).

Posted by Rich : 6/22/2007 10:33:00 AM

Rich is right. One solution is to repeal (or amend) the entrenchment clause (which can be done with a simple majority). There may be some argument that this is constitutionally improper (because the entrenchment has signalled that it's a significant constitutional issue, so legitimacy may call for a bigger majority than usual to change it), but it would be within Parliament's powers. Parliament is not above ignoring constitutional conventions anyway: witness the recent passage of the Supreme Court Act, without referendum, by a narrow majority.

Posted by Anonymous : 6/22/2007 11:04:00 AM

Rich: sure, they could do that - parliament used single entrenchment for a reason. But as someone who takes entrenchment seriously (and wants to see a bit more of it - for example to protect MMP from wreckers like Winston Peters), I'd prefer that Parliament respected the spirit of the thing.

Posted by Idiot/Savant : 6/22/2007 11:07:00 AM

Parliament is not above ignoring constitutional conventions anyway: witness the recent passage of the Supreme Court Act, without referendum, by a narrow majority

What convention is that?

There has never been a referendum on changes to the judicial systems of either NZ or England, so I can't see how a comvention could arise that there needs to be.

Posted by Rich : 6/22/2007 12:26:00 PM

There's no constitutional convention or legal requirement for a referendum. Parliament is sovereign and cannot, as has been pointed out, bind its successors. Entrenchment is nothing more than an exortation for future parliaments to think twice. Perhaps entrenchment should be something more than that, but currently it doesn't really have the prerequisite public awareness to have that form of legitimacy.

The only reason we hear so much about referendums is that it's a lazy way to attack a bill that doesn't have strong popular support, to holler "you need a referendum". I seem to recall Brash actually promising, albeit informally, to hold referendums for all bills that didn't command a lead in the polls. I found the idea of National holding a referendum on tax cuts laughable, and I doubt he would have stuck to it. So, I stand by my point, calling for a referendum is the political equivalent of crack, a cheap hit that proves nothing.

Posted by Anonymous : 6/22/2007 04:26:00 PM

Daedalus: while Parliament purports to be sovereign, and could easily make the required changes by first amending s268, I don't think this is something we should be encouraging them to do. I want politicians to respect the spirit of our constitution, not just its form - otherwise we get the sort of game-playing attitude towards it that you see inthe US, with disastrous consequences.

So, we have to take the entrenchment at face value. And as a 75% majority is unlikely, that means a referendum. As I said, this is morally unpalatable - but if the aim is to provoke a public debate, then it is an excellent way of doing it.

Posted by Idiot/Savant : 6/22/2007 04:40:00 PM

and as a 75% majority is unlikely...

Really? It seems a bit wimpy to surrender before you've even begun to fight - and while any campaign to lower the voting age to 18 would require a hell of a lot of careful work and wouldn't happen overnight, it could happen. And I even think Sue could be a real leader, if she could just avoid the moral self-righteousness and tendency to demonise those with an opposing POV.

Posted by Craig Ranapia : 6/22/2007 04:59:00 PM

Why is a referendum morally unpalatable?

Because the Electoral currently denies 16 and 17 year-olds the right to vote?

The right to vote affirmed in the New Zealand Bill of Rights Act? No.

"Every New Zealand citizen who is of or over the age of 18 years—

(a)Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and

(b)Is qualified for membership of the House of Representatives."

Posted by Graeme Edgeler : 6/22/2007 05:38:00 PM

On a tangential note: Haven't you always thought it ironic that America - the nation that likes to think itself as being so democratic in nature - places age, birth and residency restrictions on key office holders. I mean, why do you need to be older than 35 years old to be president. This disenfranchises a significant chunk of the electorate from holding this office. They can vote for it - but not actually run for it. Nice that you can run for Senate five years earlier than president at 30 years old and, wonderfully, you can run for a House of Reps sinecure at only 25. Nice. Craziness. The more you know about the American constitutional arrangements the more you realise that their claim to democratic superiority over the rest of the World is laughable.

Posted by Anonymous : 6/22/2007 10:25:00 PM

I'm surprised that you say parliament 'purports' to be sovereign. Who would you say is sovereign instead? The only answer I can think of that's compatible with liberal democratic practice is the people, but if the people are sovereign they exercise their sovereignty through parliament.

But to get back to the topic on hand, I can see where you're going Idiot, but I think the idea that the current parliament can overrule previous parliaments, and that future parliaments can overrule the current parliament, is pretty fundamental to the operation of a parliamentary democracy. Undoing entrenchments isn't some sort of American style jiggery pokery - you could in fact argue that entrenchments themselves are, since they have no basis in any part of the unwritten constitution, they originate in the exact sort of partisan political maneuvering that you're trying to avoid.

If we really did have a political system that privileged large historical majorities over smaller present majorities, we would find ourselves struggling with the legacy of the previous electoral system, which was designed to produce disproportionately large majorities and thus made entrenchment easier than it is nowadays.

The idea that existing laws can be reviewed and changed is fundamental to the operation of parliamentary democracy. A government with a large majority should not, in my opinion, cast a long shadow that may well cripple successive governments. In my opinion an election is all the referendum that's needed. But I guess we'll have to agree to disagree.

I certainly hope this bill goes through, by referendum, majority, de-entrenching clause or whatever.

Posted by Anonymous : 6/22/2007 11:26:00 PM

Craig: well, National has said they're against it, which seems to settle it on the supermajority front. OTOH, Bradford's bill has at least got people talking about the idea, and quite positively too looking at various newspaper editorials, so I guess they might change their minds.

Graeme: because generally speaking I think things like electoral rights shouldn't be dependent on the grace and favour of others. Otherwse you get the situation in Switzerland, where women were forbidden to vote until 1971, because the decision was in the hands of men.

Daedalus: I'd say that the people are sovereign, and that if Parliament can't (or won't) bind its successors, then we bloody well can. In chains, at the bottom of a deep dark hole if necessary.

Like you, I want this bill to pass. But I think there's a right way and a wrong way to do it. Trying to unravel entrenchment would be improper (within Parliament's power, just as the Foreshore and Seabed Act was, but still improper), and I would rather wait to do it properly than have it done in a way which ran roughshod over one of the few constitutional protections we have (and one which I would like to see extended).

That, and I think the chances of getting a majority to subvert the entrenchment clause are even lower than the odds of a supermajority. For all their flaws, our politicians still have more concern for the constitutional niceties than you do.

As for the more general point, I'm quite a fan of the open constitution used in most Westminster systems, and not really seeking a US style straitjacket. At the same time, we could do with a few more safeguards, notably around the BORA and MMP. It is still too easy for malignant politicians to fuck with some things (witness the hundred MP bill, or National's musings about changing the electoral system back for partisan advantage), and I'd rather they had at least a tissue of a roadblock in place to make them stop and think (and to warn us that they are crossing a red line and its time to start de-electing the fuckers) before doing so.

Posted by Idiot/Savant : 6/23/2007 01:16:00 AM

Hmm, Idiot, I did intend to agree to disagree but I've got to at least register my point of view on several points you've made.

First of all I would vigorously dispute that the concept of an entrenchment clause is in any way constitutional. Entrenchment is not mentioned in any of the various documents that form New Zealand's constitution. It's an ad hoc parliamentary procedure that is arguably against the spirit of parliamentary democracy.

Secondly, I find it strange that you say that 'we can' bind parliament - we, I presume, being the electorate of New Zealand as separate from their elected representatives. I presume you're not referring to an entrenchment clause when you refer to 'us' binding them, since these clauses are enacted by parliamentarians like any other part of an act. I agree that the electorate should and can bind parliament - if they do something we don't like, we vote them the hell out. That's a far more effective way to bind them than any other instrument.

I think you also need to realise that the removal of an entrenchment is not unprecedented. Although I admit I am struggling to think of examples - it's a long time since I did this bit at University - I was under the clear impression that entrenchment clauses are often struck down.

That being said if you are comfortable with parliament binding its successors and you do feel entrenchment is a good way to do this, it seems to me that you should be attempting to raise public awareness of the existence of entrenchments and the need to entrench certain key bills. You mentioned the Bill of Rights Act and the Electoral Act - what about the Act setting up the Waitangi Commission? The Constitution Act? What about the very Act we are discussing - should it be entrenched, to prevent the Nats (or whoever, I still don't have a sense as to where the parties will fall on this one) from disenfranchising 16 and 17 year olds in 2008 should they have a majority?

And while we're on the subject, what's your feeling on the way votes of conscience would interact with entrenchment clauses?

Posted by Anonymous : 6/23/2007 04:13:00 AM


So have I got this correct?

We need to ban pies at school because young people don't have the common sense to make good choices for their own lunch but you think it's a good idea to allow them to participate in choosing a Govt?

Posted by Anonymous : 6/24/2007 11:44:00 AM