Bill of Rights contortions

Roger Partridge
Insights Newsletter
25 November, 2022

A funny thing happened in the Supreme Court this week. The Court found that the Bill of Rights breached… the Bill of Rights. Only Justice Kos dissented.

The majority decision did not quite put it that way. But perhaps the judges were blind to the implications of their views.

The perplexing case concerned arguments that 16-year-olds should have the right to vote.

The Court’s decision to hear the case was controversial enough.

But its finding that 16-year-olds suffer unjustified discrimination breaching the Bill of Rights has been met with widespread disbelief.

And for good reason.

The Bill of Rights permits justified limits on the freedoms it protects. Few parents would disagree that preventing their 16-year-olds from having a say in controls over the sale of liquor (to take an obvious example) is justified.

But not a majority of the Supreme Court – despite the statute books being jam-packed with restrictions on the freedoms of 16-year-olds. Buying cigarettes, entering binding contracts, enlisting in the armed forces, the list goes on and on. And that’s not to mention parents’ guardianship rights over their children until age 18.

And why voting rights at 16, you might ask? Why not 15 or younger?

The answer to this, at least, is clear. The Human Rights Act prohibits certain types of discriminatory conduct – such as in employment – on grounds including sex, religious belief, race and “age.” The HRA defines age as “any age over 16.” So, 15-year-olds are plum out of luck.

Section 19 of the Bill of Rights extends the HRA by creating a general right to freedom from discrimination.

That raised the principal question facing the Court: Does the Electoral Act discriminate against 16-year-olds by setting the voting age at 18?

At first blush, it does. If 16-year-olds cannot vote when 18-year-olds can, they are being discriminated against, right? 

Well, yes, but not in a way protected by the Bill of Rights.

That is because another section of the Bill of Rights, s12(a), guarantees that every New Zealand citizen aged 18 years or more has the right to vote in Parliamentary elections.

If the judges giving the majority decision are right, then by not guaranteeing the voting rights of 16-year-olds, s12(a) is itself discriminatory.

Of course, the Bill of Rights Act cannot breach itself.

And indeed, it doesn’t. By explicitly referring only to the rights of voters aged over 18, the Bill of Rights makes clear those under 18 do not have voting rights protected by the Bill of Rights.

You don’t need to be a Supreme Court judge to see that.

Indeed, it seems that being a Supreme Court judge is a handicap. Unless you are Justice Kos.

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