Buried within the Supreme Court’s decision, in the dissenting opinion of Judge Stephen Kos, is the fundamental political argument about lowering the voting age to 16.
“Altering voter age is not a neutral political action,” he wrote.
“Whichever direction it goes in is likely to benefit some parties disproportionately.
“That consequence is perfectly fine, but it is one of the reasons voting age is reserved and requires a parliamentary super-majority.”
Thus, the heart of the debate is whether the Court should have considered the matter and whether it is appropriate for the Court to enter into such a potentially partisan political issue.
The Court overturned a Court of Appeal decision and found that having the voting age at 18 conflicted with the New Zealand Bill of Rights Act which prohibits discrimination on the grounds of age.
That decision must now be referred to a Select Committee, which has six months to report back to Parliament.
And Prime Minister Jacinda Ardern yesterday said that would result in a Bill to lower the age coming before Parliament.
“Cabinet has resolved to draft a piece of legislation with a proposal to lower the age of voting for 16 for the whole of Parliament to consider,” she said.
“If supported, it would not take effect for the next general election.”
The Government had already asked the Independent Review of the Electoral System to look at the eligibility age question.
That Bill would require a so-called “super majority” (90 votes) to pass, which means it is unlikely since both National and Act oppose lowering the age.
Alternatively, she could have referred the matter to a referendum which would require only a simple majority of voters to pass.
Ardern knows that on present numbers in the House, a Bill to lower the age would not get 90 votes because ACT and National have already declared their opposition.
Even so, she rejected the alternative referendum idea.
“In a referendum, those who the law affects don’t get to have a say; at least in parliament, we have the provisions in place, and it requires a super-majority,’ she said.
Ardern says she is personally in favour of lowering the age, which puts her in the awkward position of being on the opposite side of the issue to her Government’s Attorney general, David Parker, who argued against lowering the age at the Court.
The Crown Law counsel, representing Parker, argued that a voting age of 18 was consistent with the position taken in the majority of other countries.
It was also consistent with the International Covenant on Civil and Political Rights.
“Moreover, at 18 years, there are certain changes to a person’s legal status and rights, such as no longer being subject to the authority of their parents or guardian, being able to enter and be bound by a contract, and being called for jury services,” the Supreme quoted the Counsel as arguing.
Ardern, however, took a different view, albeit one she expressed with considerable qualification.
“For me, it’s alignment around some of the responsibilities and rights that are already apportioned at these different ages,” she said.
“But look, I accept different politicians will have different views. Mine is one of 120.”
But what may be starting to worry MPs is that for the second time in recent months, the Supreme Court has had no qualms about stepping into the political arena.
Last month, in allowing an appeal on behalf of the late Christchurch Creche worker, Peter Ellis, against his 16 convictions for sexual offending in 1993, the Court agreed that Tikanga could allow a deceased person to appeal.
“The Court is unanimous that Tikanga has been and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant,” its judgement said.
The judgement came even though Judge Christian Whata is currently working on a paper for the Law Commission on Tikanga.
But yesterday’s judgement deals much more directly with the clash between the two realms of the Court and Parliament.
The judgement said the Attorney General had made the point that Parliament had not yet considered lowering the voting age and it should be able to consider the issues before the Court released a decision that potentially skewed public and political debate on the matter.
“In other words, the Court should not pre-emptively enter the debate when the matter is one to be determined not only by Parliament but also the electorate in general,” the judgement said.
But the judges replied that it was not entirely a political issue since it involved fundamental rights.
“Importantly, this case involves the protection of the fundamental rights of a minority group,” it said.
“The minority nature of the group means that the other avenues relied on by the Attorney-General may not be as effective at protecting the rights of this group.
“Further, the United Nations Convention on the Rights of the Child, to which New Zealand is a party, recognises an obligation to “assure to the child who is capable of forming his or her own views the right to express those views freely in matters affecting the child” with the child’s views “being given due weight in accordance” with the child’s age and maturity.”
The judgement said, “we consider we should fulfil our role, which is to declare the law.”
“But in doing so, it must be recognised that there may be other matters Parliament will take into account in ensuring that the position ultimately adopted has the necessary democratic legitimacy,” it said.
The Court’s decision was greeted with some opposition within Parliament.
“The Supreme Court needs to stick to its knitting and quit the judicial activism,” said ACT leader David Seymour.
National’s Justice spokesperson, Paul Goldsmith, was more guarded in his reaction, but reading between his lines, it was clear he did not welcome the Supreme Court intervention.
“Decisions around the voting age, like other electoral laws, are decisions for a democratically accountable Parliament to make,” he said.
“Many aspects of our electoral law are decided by referendum or a super-majority of the Parliament because of their constitutional importance.”
In a way, this debate does not matter because Parliament does not have the votes to lower the voting age.
But it may provoke questions about the role of the Supreme Court.