The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.
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This article argues that the disenfranchisement of Australian young people under 18 years of age is not a valid head of disqualification from the franchise. It considers leading Australian cases on the ambit of the franchise, the statutory frameworks regulating voting in Australia, Australia’s obligations at international law, empirical evidence and leading commentaries to evaluate the competing arguments for and against lowering the voting age to 16 or 17 years of age.
Framing this article’s argument are the positive civic experiences of countries such as Austria and Brazil that have lowered their voting age to 16. The article concludes that the Australian franchise should be extended to young people who are 16 and 17 years old, as this gives effect to extant legal child rights (both domestic and international) and would have a positive impact upon young people's participation in Australian civic life.
Enfranchisement and disqualification
The Australian Human Rights Commission considers political participation to be the ‘basis of democracy and a vital part of the enjoyment of all human rights’. The right to vote without discrimination is reflected in the International Covenant on Civil and Political Rights, the International Covenant on the Elimination of Racial Discrimination and the Universal Declaration on Human Rights. The right to vote is one of the ‘most fundamental of all human rights and civil liberties’. Notwithstanding this, in Australia a significant number of individuals are disqualified from this fundamental human right to vote, most notably persons under the age of 18 years and individuals who are incarcerated, with the former being the subject of this article.
Section 93(1)(a) of the Commonwealth Electoral Act 1918 (Cth) (Act) currently provides that only those who have attained the age of 18 years are eligible to vote in Federal elections. This statutory limitation is mirrored in State and Territory legislation and all jurisdictions exempt such limitations from the ambit of unlawful age discrimination. To apply the language used by the High Court in one of the leading franchise cases, Roach v Electoral Commissioner (2007) 233 CLR 162, the key issue therefore is whether disallowing 16 and 17 year olds the vote is a valid head of disqualification from the franchise.
Arguments in favour of lowering the voting age
The overarching position in favour of lowering the voting age to include young people who are currently disenfranchised includes arguments centred around the competence of young people aged 16 and 17 to handle this responsibility, the utility of bringing the right to vote into line with other responsibilities they hold and the benefits of their ability to participate actively in civic and political discourse.
Lowering the voting age to 16 and 17 will bring young people's right to vote into line with other rights they enjoy at that age. From the age of 16 (with some State or Territory specific variations), young people are able to drive, work, consent to sexual activity, participate actively as consumers, have disposable income, make decisions about their education, health and employment and pay taxes in a similar manner to persons over the age of 18.
Enfranchising young people from the age of 16 would allow them to actively participate in matters that significantly affect them. Indeed, one of Australia’s obligations at international law is provided by Article 12(1) of the UN Convention on the Rights of the Child (UCROC), which provides that each child has the right to express his or her views ‘in all matters affecting the child’. As such, proscribing young people from having a voice in key election issues such as taxation, education, health, justice, child protection and employment may not be a reasonable restriction from the franchise. In addition, on this point of the degree of appropriate restrictions, two separate majority judgments in the leading electoral case Rowe v Electoral Commissioner (2010) 243 CLR 1 based their reasoning on a proportionality analysis. This means that Australian law on the point is guided by the concept of whether any restriction on the extent of the franchise is appropriate and adapted.
Although the legislature has limited the ability to vote to individuals above the age of 18, such a limitation does not reflect competence or maturity in all young people. For many young people, competence is achieved much earlier and, as such, exclusion from the franchise may be unreasonable. A criticism of the competence argument is that it places an unreasonable burden on the Australian Electoral Commission in determining whether a young person is competent or incompetent at that age. This article reflects current dialogue in the enfranchisement discussion by recommending that the right to vote for young people should be an ‘opt-in’ process. Such optional, or ‘opt-in’, voting would acknowledge that the political maturity of 16 and 17 year olds would vary significantly, and as advocated for by Robert Ludbrook, this would remove the current electoral disqualification without forcibly enfranchising all 16 and 17 year olds.
Arguments against lowering the voting age
The disqualification of certain groups of people from the Australian franchise was ultimately justified by Gummow, Kirby and Crennan JJ in Roach as being necessary to ‘protect the integrity of the electoral process. This justification underwrites the following arguments against lowering the voting age: that young people do not have sufficient maturity to vote; that the general public do not support lowering the voting age and that young people can be highly apathetic to politics.
A stronger argument against lowering the voting age is the one put forward by Ian McAllister. He argues that lowering the age ‘does not stand up to empirical scrutiny’. His comprehensive Australian modelling finds that extending the vote to 16 and 17 year olds would have ‘likely partisan consequences’. That is, there are distinctive partisan biases inherent in the voting practices of different age groups and lowering the voting age would only exacerbate this, with higher numbers of young people tending to vote for progressive political parties – conservative parties are likely disadvantaged by such a proposal.
However McAllister’s argument is based upon two assumptions: (i) that 16 and 17 year olds’ voting patterns will be similar to 18-19 year olds, and; (ii) that enrolment of 16 and 17 year olds will be similar to 18-19 year olds. The validity of McAllister’s argument therefore turns on whether these assumptions are correct. It is submitted that the second of these assumptions may be an incorrect methodological variable however, because, as argued by George Williams, it is notoriously difficult to get 18 year olds to enrol and vote, in part because this can be a time of great upheaval in their lives. Therefore the number of enrolled 16 and 17 year olds may be significantly higher as they are often in a ‘more stable family environment, and still at school’.
This analysis is mirrored by Richard Berry, who argues that ‘the lives of most 16-17 year olds are markedly different to those aged over 18’. Berry’s analysis is a direct response to McAllister’s modelling that first-time voter turnout will be reduced if the voting age is lowered. To the contrary, empirical research in Austria has shown that first-time voters are more likely to vote if they are 16-17 years old, as opposed to 18-20.
Despite McAllister’s critique, it can be argued that extending the franchise would have positive effects upon the legal status of young people's rights in Australia. It is submitted that the best way to effect this change would be by the method of voluntary (or ‘opt-in’) voting, thereby extending voluntary voting to a class of voters. This would not only enable young Australians to have greater political agency by giving them a voice on serious issues affecting them, but would also empower wider participation in civic life and tangibly incentivise youth participation in the electoral process. It follows that there would be a normative affect upon extant child rights in Australia, because such agency would give increased legitimacy and efficacy to the rights and responsibilities given to children in Australia at international law and under domestic law.
Will Bartlett and Kritika Rampal, Summer Clerks, King & Wood Mallesons.