Tuesday, July 12, 2022

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.