You're sixteen...

New Zealanders who are aged 16 and 17 may soon be able to vote in their country’s elections, after the Supreme Court ruled that the law requiring voters to be 18 years old is discriminatory.

Since 1990, New Zealand’s uncodified constitution has included the Bill of Rights Act, which sets out the fundamental rights of New Zealand citizens.

The Act can be amended only by referendum or by a vote of 75% of the House of Representatives, so it forms an entrenched part of New Zealand law. Any other law that is inconsistent with the Bill of Rights Act is not invalid for that reason, but a court may make a “declaration of inconsistency”, after which it falls to the government to decide whether the inconsistency should be resolved.

A lobby group agitating for a lower voting age, Make It 16, appealed to the Supreme Court for a declaration of inconsistency, arguing that the Electoral Act 1993 and Local Electoral Act 2001 were inconsistent with the Bill of Rights Act because, by imposing an age requirement of 18 years, they discriminated on the basis of age.

It has to be said that the inconsistency isn’t immediately obvious, because section 12 of the Bill of Rights Act provides that every New Zealand citizen “who is over the age of 18 years has a right to vote in genuine periodic elections of members of the House of Representatives”. Leaving aside the oddness of the language (does New Zealand have any non-genuine elections?), this section appears squarely consistent with the concept of a voting age of 18 – and that was the view reached by the dissenting judge, Kos J.

The majority, however, concentrated on section 19, which provides that “everyone has the right to freedom from discrimination”, as discrimination is defined in the Human Rights Act 1993. That includes a right to freedom from discrimination on the basis of age, for persons who are aged at least 16. The majority found that the provision stating that citizens aged 18 could vote did not carry the meaning that citizens under 18 could not. The reasoning here open to question – if that is not what the section means, what purpose does it serve? – but once the majority had decided that point, it had no option but to declare that the existing laws on voting age were inconsistent with the rights of 16 years olds to be free from discrimination on the basis of age. The New Zealand government is currently considering how to respond to the court’s ruling, and there’s some chance that the voting age will be lowered, so it seems that the chances of Taika Waititi being elected as New Zealand’s next Prime Minister are now marginally higher.

Could something like this happen in Australia? The short answer is no: Australia has nothing resembling a Bill of Rights. The only individual rights enshrined in the Constitution are the right to freedom from acquisition or property except on unjust terms; the right of adults to vote; the right to trial by jury; freedom of religion; and the right to freedom from discrimination on the basis of State residency. Parliament cannot make laws that are inconsistent with those rights. Otherwise, although there are several Commonwealth and State laws that address questions of human rights (such as anti-discrimination legislation), those laws don’t necessarily prevail over other laws which a Parliament might choose to enact.

The longer answer, however, is that human rights laws are becoming increasingly relevant in Australia, and in ways you might not expect. Last week, the Land Court of Queensland delivered a judgment in which it recommended that an application by Waratah Coal for a coal mining lease be refused. One of the grounds for this decision was the Queensland Human Rights Act 2019. The link between coal mining and human rights isn’t immediately obvious, but the President of the Court found that the proposed mine would contribute to global warming, and that this was inconsistent with the protection of various rights set out in the Human Rights Act, including the right to life. Interestingly, one of the rights that was found to be imperilled was – as in New Zealand – discrimination on the basis of age, because the President found that young people would bear a disproportionate burden in dealing with the consequences of climate change.

The mine may yet proceed: the Minister is able to overrule the Land Court’s recommendation. What the Waratah decision demonstrates, however, is the way in which Australian courts are being invited to apply human rights law in novel, and far-reaching, contexts.