That means changing it requires a referendum or a 75 per cent majority in the House is needed for it to pass. Seventy-five per cent is 90 MPs (providing everyone shows up), meaning there’s no way to pass a change through Parliament without the backing of National.
By the time Prime Minister Jacinda Ardern announced the Government would draw up and introduce legislation to lower the voting age to 16, it was already clear that any attempt by the Government to change the general election voting age in Parliament would be futile - there simply aren’t the votes for such a bill to succeed.
Success in a referendum is just as unlikely.
A Talbot Mills poll from August found 28 per cent of people supported lowering the age, while 66 per cent were opposed.
It’s worth pausing to consider how we got here.
Following litigation from Arthur Taylor on the voting rights of prisoners, the courts decided they had the right to issue a declaration of inconsistency, meaning they would say Parliament had passed a law that was inconsistent with the Bill of Rights.
This does not mean the courts could strike down that law. In fact, it meant very little until legislation passed in Parliament with unanimous support in August (four years after the Government announced it would legislate) created a regime for the Government to respond to the courts declaring an inconsistency.
The law requires the Attorney-General to notify Parliament of the court’s declaration, and the minister responsible for the area where the inconsistency arose to respond to Parliament within four months.
Separate changes to Parliament’s rules required a declaration to be referred to a select committee and to respond within four months, and a debate on the select committee report, and the Government’s response to that declaration within six months.
One thing that’s important to remember is the way this regime keeps the real power to change the law in Parliament. Democratically elected representatives are still the ones who ultimately wield power - the only change is the courts now have the ability to put something on Parliament’s agenda.
We’re at the beginning of this process - the first time this new regime has ever been used. We have a declaration and the Government and Parliament are about to begin the process of responding. The responsible minister (probably Justice Minister Kiri Allan), will report to Parliament with the Government’s official response to the Court and the Government has decided to double down on the issue by introducing legislation to lower the voting age.
The Government didn’t have to do this, one option it could have chosen would have been to have Allan tell Parliament she was happy with the law as it was and move on. Instead, Labour has decided to harness the momentum of the decision by forcing parties to clarify their positions in the division lobby.
The most likely outcome - the outcome that seems inevitable after National and Act’s responses - is that nothing changes. Polling suggests little appetite to change the voting age, and certainly not the appetite needed to get 90 votes in Parliament.
However, the law doesn’t protect each voting age the same way.
The voting age for local body elections is set out in the Local Electoral Act (which refers back to the Electoral Act). It’s also set at 18, but is not entrenched, meaning it could be changed by a simple majority. That means it’s something Labour could do on its own (the Greens support lowering the voting age across the board and would back this).
There are myriad possibilities for how this would progress through Parliament. Cabinet has resolved to introduce legislation to lower the voting age. It has not decided the form or detail of the bill (or bills - one to lower each voting age, for example).
The legislation the Government introduces could try to change the voting age in both general elections at once.
When the measure to amend the entrenched general election voting age fails at committee stage, the amended bill, changing just the local body election age, could still proceed and pass with a bare majority. The Government could also proceed with two different bills, one for general, the other for local elections.
This puts the ball for lowering the local body election age in the court of Labour’s caucus, which has yet to meet and debate the issue.
If caucus decides that it does support a lower voting age, it could use its majority to lower the local election voting age, even if it fails to win the backing of Act and National to lower the general election voting age.
Labour’s support for lowering the age seems likely.
Unlike in the Cannabis referendum when she would not reveal which way she would vote, Ardern decided to clearly pin her colours to the mast saying she supported a lower voting age. This is a clear signal to caucus which way she’d like them to vote. Labour’s caucus is unlikely to vote to overrule the position of its leader, making it likely that Labour’s 64 votes would swing behind the effort to change the age.
There’s a measure of political cover here too, with the draft review into the Future of Local has recommended reducing the age too. A split voting age is not uncommon. In Scotland 16 year-olds can vote in elections for the Scottish Parliament, but are not allowed to vote in elections for the British Parliament, for example.
