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University of New South Wales Law Journal Student Series |
IF ARTICLE 12 OF THE CONVENTION ON THE RIGHTS OF THE CHILD IS TO BE EFFECTIVELY IMPLEMENTED, SHOULD STATE RESTRICTIONS ON VOTING AGE BE REMOVED?
KERRI MANIKA
I INTRODUCTION
The decisions of current democratic institutions are likely to have a lasting impact on the lives of today's children. Global issues such as climate change, and regional issues such as Brexit or the Voice referendum in Australia will have significant impacts, yet children do not have the opportunity to participate in the democratic process to fulfil their right to express their views on matters affecting them.[1] As a large constituency – they are entirely unrepresented in important legal and policy decisions affecting their lives and their future.[2]
Despite being an instrument designed to provide additional protections for children in addition to their fundamental human rights, the Convention on the Rights of the Child (‘CRC’) is silent on one issue which has the consequence of denying children a fundamental right that is available to adults - the right to vote. Nolan[3] describes this as the ‘gap’ in the CRC, others go further to say that not allowing children the vote is a form of discrimination.[4]
In this essay, I will explore the argument that by States imposing minimum age limits on voting, children are being discriminated against and are having their rights restricted, which go against the principles of both the CRC and International Covenant on Civil and Political Rights (‘ICCPR’). I will consider articles within the CRC relevant to child participation, and whether the removal of minimum voting ages is required not only for the full implementation of article 12, but also the CRC.
II CHILDREN'S RIGHT TO BE HEARD AND PARTICIPATE
Child participation, as expressed in article 12, has been identified by the Committee on the Rights of the Child (the Committee) as one of the four guiding principles of CRC, along with the right to non-discrimination, the right to survival and development and the primary consideration of the best interests of the child.[5] article 12 states, ‘[s]tate Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child’.[6] The Committee’s General Comment No. 20 reinforces guidance on article 12 in relation to children's participation, suggesting that ‘[s]tates should ensure that adolescents are involved in the development, implementation and monitoring of all relevant legislation, policies, services and programmes affecting their lives, at school and at the community, local, national and international levels’.[7]
Article 12 makes it very clear that the views of children must be taken seriously, given due respect and attention when decisions are made that affect children and that as children get older, there should be mechanisms and processes in place to facilitate their participation.[8] While article 12 is important as a unique right in itself, it cannot be considered in isolation and must be considered in relation to all other rights within the Convention – in particular, article 2 relating to non-discrimination and article 3, ‘best interests’, are directly related to article 12 when considering the right of the child to freely express their views in matters that affect them.[9]
Lücker-Babel[10] highlights the interesting conflict between articles 12 and 3, being that article 3 is a passive notion and that is usually adults who would define what the best interests of the child would be, while article 12 is dynamic – recognising the right of children to have a say in decisions that closely affect them. Article 3 contrasts the role of the adults as educators and decision makers with the child's increasing autonomy as they get older, and as a result full implementation of article 12 is unlikely if implementation contravenes article 3. Children must have the right to participate in ways that are consistent with both their best interests and their right to freely express their views, yet they are faced with obstacles that prevent them exercising these rights, such as fear of the power that children may gain from such participation and the lack of will on the part of adults to allocate appropriate educational and support resources to encourage children’s participation.[11]
While article 12 relates to children's participation rights, it does not specifically refer to voting, even though the right to vote is considered a foundational human right.[12] Providing children the opportunity to have their voices heard through voting would help to protect not only their rights as children, but their broader human rights.[13] The Convention does not specify any minimum ages for the participation of children and Grover is critical of such omission, stating that the United Nations, international human rights bodies, NGOs and various State parties have ‘obstructed the framing of the minimum voting age question as a basic human rights issue, and rejected the notion of an international minimum voting age’. [14] This failure to frame minimum voting ages as a human rights issue and have a minimum age included in human rights treaties or the CRC, has contributed to a reluctance of States to reduce voting ages and allows young people to continue to be excluded from the political process[15]. This criticism has been echoed by others, and I will explore these criticisms of the CRC more broadly in more detail later in this essay.
III CHALLENGES TO THE RIGHT TO BE HEARD AND PARTICIPATION
The minimum voting ages imposed by States is a significant impediment to children’s ability to exercise their right to express their views on matters that affect them. As already mentioned, voting is a foundational right, so why is it that children, irrespective of their capacity, are prevented from exercising this right compared to adults? In this section, I will consider some of the challenges that prevent children exercising this right.
A Tensions between the ICCPR and the CRC
The tensions between full implementation of both the ICCPR and the CRC are evident when considering the different articles in relation to discrimination, and citizens’ right to vote.[16] For example, article 2 of the CRC specifically calls on States not to discriminate against children ‘irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’.[17] article 25 of the ICCPR states that every citizen shall have the right to vote[18], yet children are citizens that do not have such a right by virtue of States imposing minimum voting ages which result in the exclusion of children from a democratic process to which they have a right under the ICCPR. Further to this, article 12 of the CRC outlines the child’s right to express their views in all matters affecting the child – which would include politics.[19] In addition to article 12 and the right to be heard, article 13 of the CRC requires States to ensure children have the right to freedom of expression, and ‘this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers’ with restrictions on this right only ‘for respect of the rights or reputations of others; or for the protection of national security or of public order ... or of public health or morals’.[20] An equivalent to article 25 of the ICCPR was not included in the CRC, as restrictions on the right in relation to children were likely considered ‘not unreasonable’.[21] However, it seems unlikely that the participation of children in the democratic process would be likely to cause issues of national security, damage reputations or threaten public health or morals which are the reasons that permit restriction of this right.[22] Brando and Lundy believe that the reasons for the specific omission of the right to vote in the CRC should have been further explained to remove uncertainty around the rights of children in this area.[23] According to Beckman, the reasons for application of a minimum voting age is to provide stability in the organisation of general elections, so if the age is imposed to ensure a minimum level of political competency, then age can only be an accurate determining factor if it only includes people who are politically competent, and excludes those that are not.[24]
B The Debate around Children’s Participation and Restrictions in the CRC
Binford claims that ‘[t]he most obvious example of the disenfranchisement of children’s political power as an act of blatant age discrimination is the near universal denial of children’s right to vote’.[25] While the CRC recognises the rights of children to freedom of thought, conscience, religion, and assembly and article 12 specifies the right to be heard in judicial and administrative hearings affecting the child, it does not formally recognise any rights of direct political participation. Binford believes this has ‘relegated [young people] to a powerless childhood without security and without promise’.[26]
There are many articles calling for increasing children’s participation in democracy by lowering the voting age.[27] As has been demonstrated in recent democratic activities, for example Brexit in the United Kingdom, the outcome is likely to have been different had the voting age been lower and young people were able to have a say in a matter that is likely to affect them for a longer period than most adults.[28]
The capacity of children to participate in democracy is often raised as an argument (by adults) against lowering the voting age.[29] It is believed that children do not have the maturity to understand politics and the implications of their participation in the democratic process.[30] It could also be argued that this is not unique to children, many adults may also lack such maturity.[31] Interestingly, the CRC itself in article 2.1 specifically prohibits discrimination on the basis of a child's ‘political or other opinion’ which suggests that the convention recognises that children are capable of holding and expressing political opinions, and they must be protected against discrimination based on these.[32]
Those who are opposed to lowering the voting age argue that young people lack maturity, life experience and civic knowledge.[33] Even at the age of 16 or 17, critics say that young people are still too heavily influenced by adults such as teachers and parents, and their ability to vote does not match other responsibilities young people hold as they are still largely dependent economically on adults.[34] In contrast to this argument, children in Australia as young as 10 are deemed capable of criminal responsibility[35] yet they are not deemed capable of having the capacity to understand the importance of political participation. The current minimum voting age of 18 in Australia is not aligned with other activities that also require a level of maturity, capacity and judgement such as driving, entering the defence forces, performing paid work or leaving formal schooling.
C The Issue of Discrimination
Binford asserts that denying children the right to vote is ‘pure and simple discrimination’.[36] However, Brando and Lundy suggest that age based differential treatment is not inherently wrong –for example, it is legally and socially justifiable to restrict some political and civil freedoms of children to protect them from the harm caused by these freedoms from harm that they may cause themselves.[37] They are, however, concerned with the lack of accountability for the reasons given to restrict rights based on age. Particularly in relation to children, they argue that there is a lack of justification as to why differential treatment may be required and is directed specifically towards children.[38]
Age discrimination usually focused on discrimination against the elderly, rather than children.[39] Although one of the guiding principles of the CRC is non-discrimination – article 2 of the CRC lists factors of discrimination such as race, ethnicity, gender and disability – but not age.[40] Wall describes this age discrimination towards children as ‘adultism’ and proposes the theoretical concept of ‘childism’, fighting ‘children’s systemic discrimination by empowering the otherwise marginalized lived experiences of children and young people in order to transform shared normative structures for all’.[41]
Despite the intention of the international framework of children's rights to be an inclusive framework through which children could expect governments to implement their rights, discrimination has been built into this framework, allowing adults to discriminate against children and restricting children from exercising their rights.[42] Binford echoes the criticism of the CRC and the framework of international human rights as inequitable as children should enjoy all the rights inherent with being human with additional rights and protections of their unique status as children. The concept of ‘evolving capacity’ has been used to justify the restriction of one third of the world’s population from exercising their full political power – based not on an individual child’s capacity to exercise their rights – but rather simple chronological age.[43]
Nolan is critical of the CRC's failure to address this issue, arguing that the exclusion children from democracy has such a significant impact on the realisation of their rights that it ‘poses a serious threat to the implementation of children's civil, political, socio-economic and cultural rights’ and ‘the conceptualisation of children as full citizens’.[44]
Binford demonstrates the lack of representation of children by looking at political spend in the US in 2020. While children comprised 22.1 per cent of the population, only 7.4% of the federal budget was allocated to children’s needs. However, the allocation to the senior population was 40%, even though they only comprise just under 17% of the population.[45] This not only shows the lack of representation for children but the importance of the ability to vote and influence political decisions, and how different things might look if young people under the age of 18 could participate in the democratic process. The legitimacy of outcomes and decisions made by elected representative decision-making bodies in relation to children's rights can be questioned because children are denied the opportunity to participate in democratic decision-making process.[46]
D The Issue of Evolving Capacity
The concept of ‘evolving capacity’ is unique to the CRC and recognises that as children grow and their capabilities develop, they require less protection and have a greater capacity to take responsibility for decisions affecting their lives. [47]
While there has been incredible progress over the last century in terms of recognising the rights of children and the unique protections they require due to their status as children, many of these rights are exercised based upon the individual child’s ‘evolving capacity’ as recognised in articles 5 and 14 of the CRC.[48] The concept of evolving capacity, however, has been ‘used to disenfranchise en masse approximately one third of the world’s population from exercising their full political power based not on an individual child’s capacity to exercise her enfranchisement rights, but rather simple chronological age’.[49] Binford goes so far as to say that this concept has ‘legitimized widespread age discrimination’. Freeman is also critical of the concept suggesting that it positions children as ‘becomings’ rather than ‘beings’.[50]
Wall is a strong supporter of removing age limits on voting and argues that by States imposing a minimum age for voting, it implies some people are capable of voting, and others not.[51] As mentioned earlier in this essay, one of the main arguments against allowing children to vote is that they do not have the capacity to understand what they are voting for. Wall argues that voting competence should be determined not by age or maturity, or understanding of government process, but the ability to ‘participate in political discourse’.[52] The ability of children to participate in such a way is clearly demonstrated by recent movements such as School Strike 4 Climate Change, Black Lives Matter and the pro-democracy movement in Hong Kong.[53] Children’s ability to participate in political discourse relies somewhat on adults providing support systems and making accommodations to facilitate children’s participation. Binford proposes that ‘evolving capacity’ should not be defined as what the child is capable of on their own compared to adults, but their capacity when provided the appropriate support to participate relevant to their stage of childhood.[54]
While the suggestion that a person is only capable of being able to participate in democratic processes from the age of 18 is in line with the CRC’s definition of a child,[55] it reflects the perhaps flawed view that childhood progresses in a linear fashion – from child to young person to adult – and that skills and competencies are gained equally along the way.[56] Not all children progress through childhood in such sequential ways, for example, children who experience political childhoods due to the location or situation in which they are born, who do not experience childhood as a time of innocence and play are likely to have a much greater understanding of political situations in their areas than some adults in others.[57]
This highlights another problem with the generality of minimum voting ages, the competencies of each individual are not equal between each person of the same age. The variation of political maturity and capacity among the voting population continues in people aged above 18 who are eligible to vote, so if the purpose of excluding children is because they are perceived as ‘incompetent’ voters, then adults deemed as such should also be excluded.[58] According to Wood and Munn, democratic systems should be more consistent in applying reasons for excluding people from voting.[59] If lack of maturity or capacity is a reason to stop someone voting, then that reason should apply to all who lack maturity, not just children. If the potential to be heavily influenced by others and constrained from freely expressing their views is a reason to prevent someone from voting, it applies to all who are subject to this sort of influence.[60]
Another argument used for delaying children’s ability to vote until the age of 18 is that enfranchisement brings with it additional burdens and responsibilities, which would result in children having less time for play and free time.[61] Brando refutes this argument, stating that if there is an expectation that all citizens who effectively participate in the electoral process have a duty to spend considerable amounts of time acquiring ‘all necessary information and to deliberate in a fully reasonable and rational way’ then not only would children not have any free time, but neither would anyone else.[62]
E Issue of ‘Best Interests’
Even if children’s free time and play were not affected by political participation, an argument around their ‘best interests’ could claim that by children having the ability to vote that they would lose their political innocence and no longer being shielded from the ‘adult world’.[63] Brando opposes the argument that relies on the innocence of childhood based on a paternalistic understanding of children’s best interests as a reason for preventing children from voting.[64] He believes this argument does not account for children’s own voice and agency in defining what their best interests are, that it inflates the harms that children may experience by voting and it assumes that interference is justified regardless of the individual conditions and capacities of different children.[65]
Brando further expands on this by considering the situation of many children who do not have the option of ‘being shielded from the adult world’.[66] The linear concept of childhood does not apply to these children – they are workers, heads of households, they live on the streets, they are treated differently because of their gender, race or religion, they are concerned about the impact of climate change, social justice or war. For these children who already take on many ‘adult’ responsibilities, preventing them from voting will not change their situations. In his words ‘I do not see how disenfranchisement can be justified based on children’s best interests when children are forced to live in adult worlds, or when they value being political’.[67] Restricting fundamental rights based on the concept of innocence is not objective and fails to take into account the views of the children themselves in relation to their capacity.[68]
Excluding children from voting further exacerbates young people’s vulnerability to human rights abuses when those young people are already part of a marginalised group, such as LGBTQI+ children, children living or working on the streets, without families, refugees or members of an ethnic or religious minority.[69] It is important that these groups have a voice and can participate in decisions that affect them and may go some way to protecting their rights.
Wall proposes that involving children in the democratic process would not in fact ‘adultify’ children or put unnecessary pressure on them to understand politics, but involving them would provide children the opportunity to be considered by elected representatives.[70] The focus of governments would likely change from a short-term focus on what will win them the next election, to focus on longer term issues such as climate change, education and health care as younger people will want to see long term planning in these areas for their futures.[71]
Adults are denying young people the right to vote based on a perception that they need to be protected, and that the democratic process should be protected from naivety or incompetence.[72] Even though children cannot vote, they are able to participate in political campaigns, organize rallies and donate to political parties[73] and as is becoming more common, children in many countries have been successful in mounting legal challenges against governments when they feel that their rights are not being protected and in doing so have demonstrated ample maturity and cognitive ability.[74]
Brando and Lundy agree that the best interests principle is used regularly to justify the restriction of children’s civil and political freedoms in order to protect them from harm.[75] It can also be used to override children’s attempts to operationalise their civil and political rights where such activity is perceived (by adults) to be contrary to their best interests.[76] Despite children having the same rights to freedom of association and assembly as adults, children are prevented from exercising this right because of adults’ concern for the best interests of the child – a reason that is not used to prevent adults exercising the same rights.[77] Brando and Lundy also suggest that ‘the application of such restrictions can constitute unjustified and unjustifiable differential treatment and therefore amount to discrimination’.[78]
IV CRITICISM OF THE CRC AND COMMITTEE
The Convention itself is frequently criticised for being vague in relation to children’s political participation rights and States responsibilities in this area.[79] The lack of any mention of a right to vote and therefore attempting an interpretation of whether such a right exists is challenging, which leaves children – a large proportion of the population – excluded from a key democratic activity and ‘voiceless’.[80] For this reason, Zlotnik Raz and Almog consider that ‘there is much to be desired ... in the purpose of the CRC as a guiding and relevant source for children’s rights in the political context, and for voting in particular’. They call for more progressive and definitive guidance from the Committee to ensure that the CRC remains relevant as a source of guidance for children and educators when discussing children's rights in relation to political rights and participation.[81]
CRC General Comment No. 20 offered further guidance in the area of children’s political participation, stating that ‘parties cannot begin with the assumption that a child is incapable of expressing her or his own views’ and ‘the Committee emphasizes that article 12 imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him’.[82] Considering this guidance, it seems appropriate for children to be given a louder voice in decisions that affect them. However, it has been suggested that the Committee should explicitly acknowledge that children’s development can be supported and advanced if they are empowered to exercise their political rights and participate in democracy, including through voting and that preventing children from participating in the political process may conflict with their best interests.[83]
While article 12 is considered as a positive step in promoting children’s participation rights, Grover is critical of it and does not see it as a substitute for lowering the voting age, which would offer much broader participation.[84] Their rationale for this being that ‘the UN General Assembly considers the right to participate in government via elections as essential for the realisation of other human rights, yet at the same time, age discrimination in the vote as applied to minors ... denies their right to access universal suffrage’.[85] Grover is further critical of the discrimination element of the CRC, suggesting that it permits discrimination based on which particular State the child is located. For example, if national law permits children to enter into marriage or undertake dangerous work, they are not protected under article 2 as a child in that state.[86] By not being able to exercise their rights to influence State laws that permit this and affect them, they are unable to participate in the protection of their own rights. Additionally, there is no mechanism by which individual children or groups of children can raise concerns or violations of their rights under the Convention, so States may not feel it is important to address this issue if there are few adverse consequences for not doing so.[87]
V STATE RESPONSIBILITIES IN RELATION TO ARTICLE 12
Because of the limited enforcement measures in place in relation to the CRC, and the failure of the Committee to lead the way in this space, there is not a strong motivation for states to change their own laws to encourage and include children's democratic participation.[88] This is what Nolan refers to as the ‘gap’ in the Committees jurisprudence that flows on to states actions, or lack of action, in relation to children's democratic participation and calls for the Committee in future considerations of article 12 to move beyond merely acknowledging and condemning children's limited role in democratic decision making to outlining concrete measures that States must take to ensure that children’s democratic citizenship is obtained and protected.[89]
article 4 of the CRC provides for State obligations, ‘States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation’. The CRC provides the legal framework on the human rights of children and States are obliged to undertake all appropriate measures to implement these rights in practice.[90]
In its 2009 General Comment on the Right to Be Heard, the Committee began to focus on sharpening the provision in relation to children in the political context. The Committee recommended that implementation measures by States should include adopting legislation and procedures for hearing children affected ‘directly or indirectly by social, economic or cultural conditions of living in their society’ and it clarified that the right to be heard is linked to civil and political rights, and should be understood broadly.[91] This means it can apply to matters not specifically mentioned in the CRC such as children's political participation.[92] The General Comment No. 12 does address voting, suggesting States should ensure young people are supported in political participation through education as well as identifying and removing any barriers to their participation.[93] The Committee also suggested States should consider lowering the voting age in order to meet their obligations under article 12, as the right to be heard requires that children are involved in a meaningful way in the development of legislation and policy making in matters that affect them .[94]
VI CONSIDERATIONS FOR EFFECTIVE CHILDREN’S PARTICIPATION
Ben-Arieh has stated that ‘in order to realize the true citizenship of children, we must encourage child participation. To do so, we need to be creative and devise a variety of participation methods and tools appropriate for different children of different ages’. [95] Binford suggests that children could be given the right to vote but supported to do so in child friendly ways.[96] Lundy’s participation method[97] could be applied to this situation – with creative ways to include ideas from children themselves in how they would like to be engaged in the political process. Binford suggests the creation of ‘child centred systems, positions and institutions that advance children’s interests and facilitate their participation’.[98] There are many examples of processes being adapted to include children and ensure their voices are heard, with creativity (and the political will to uphold child rights) this could be done to ensure children are more equally represented in the political arena on matters that affect them. A recent example is the ‘sick note’ provided by Climate Scientists in Australia for children to use to justify their absence from school in order to participate in climate strikes.[99]
If children are to have their rights as citizens and participants in society recognised, it is important to acknowledge that their participation may take the form of children and young people playing an important part in political struggles or campaigns.[100] Voting is not the only way that children can participate in decision making in areas that involve them, some believe that extending the vote to children would not go far enough to bring about the reform that is needed to address disadvantage and powerlessness children experience as a group.[101] Activities such as protests and legal challenges are important in ensuring that children’s voices are heard on matters that are important to them. Children are already demonstrating their understanding of the political process by challenging governments in their duty of care towards children in relation to climate change.[102]
Other factors beyond lowering the voting age should be considered in terms of fulfilling children’s rights, such as whether welfare rights outweigh political rights and if so, could create an imbalance by denying children who are more vulnerable to opportunity to participate.[103] As Nolan emphasises, just involving children in a process does not mean that their rights have been realised.[104]
Smith suggests that successful involvement of children as active citizens and participants in society, it is essential that there is a move away from ‘a view of children as ‘mini-adults’ in participatory groups that are a carbon copy of adult structures, set up to include an ‘executive board’, a ‘chairperson’, ‘treasurer’ and so on.[105] Children should be the ones establishing the type of organisation and language relevant to them, rather than mirroring adult structures and putting children in equivalent positions.[106] According to Smith, if children’s rights are to be effectively implemented, the parameters confining children’s participation to what adults consider safe or child friendly environments must be lifted. If they are not, then children are being denied their article 12 right to express their views freely in all matters affecting them.[107]
VII EXPERIENCES OF LOWERING THE VOTING AGE
In the 2014 Scottish independence referendum, young people seized the opportunity to vote, with 75 per cent of 16 and 17-year-olds participating.[108] Countries such as Germany, Austria and Cuba have a minimum voting age of 16 and in 2022 the Supreme Court of New Zealand ruled that the restriction of voting rights to people aged 18 and above was an unjustifiable restriction andiscriminatory.[109] The Court recognised that as the case involved children, as a minority group they face ongoing discrimination and as a result their fundamental rights are afforded less protection, but their rights should be a particular focus for governments and the law to comply with New Zealand’s legal obligations under the CRC.[110] The Court acknowledged that voting is a core democratic right, yet deciding who can exercise the right is ‘an intensely political matter on which there are a range of views, and that the general public may not be ready to see a change in the voting age’ and this may be why despite the Supreme Court decision, the current New Zealand Government has put aside introducing legislation to reduce the voting age.[111] Research from Latin American countries who have reduced the voting age to 16 or 17 demonstrates that there is an increase in political trust and that voters who could vote from the age of 16 had more positive attitudes toward democracy.[112]
VIII CONCLUSION
Despite voting being an inherent human right and children having a right to be heard, the exclusion of children under the age of 18 from voting is still considered acceptable by international human rights organisations and States that are party to human rights treaties and conventions.[113] This exclusion of a significant proportion of the population from exercising their political rights means that their needs are not fully met, and their voices may be dismissed by adults who engage the principle of best interests to justify this exclusion.[114] Perhaps like earlier suffrage movements, there would be a benefit to everyone by giving children the ability to vote, as it may lead to a better informed and less disengaged adult population if they do not grow up being told that their voices do not count.[115] If the CRC is to be fully implemented, States have a duty to allow children to have a say on matters that affect them, and removing age barriers to political participation would achieve this. In Binford’s words, ‘let’s stop pretending that denying children the right to vote is anything other than pure and simple age discrimination and instead recognize that children have the right to full political participation, including enfranchisement, and figure out how to facilitate the fulfillment of their full political rights in light of their evolving capacity’.[116]
[1] See generally Andrew Rehfeld, ‘The Child as Democratic Citizen’ (2011) 633(1) The Annals of the American Academy of Political and Social Science 141.
[2] See generally Daniella Zlotnik Raz, & Shulamit Almog, ‘Children’s Political Rights and the UN Convention on the Rights of the Child’ (2023) 2 The International Journal of Children’s Rights 500.
[3] Aoife Nolan, ‘The Child as “Democratic Citizen”: Challenging the “Participation Gap”’ (1998) Public Law 126, 767, 774.
[4] Brian Gran, ‘The International Framework of Children’s Rights Fosters Discrimination against Young People’ (2023) 36 (2) Harvard Human Rights Journal 315.
[5] Office of the High Commissioner for Human Rights, ‘This is about Our Human Rights: U.S. Youths Win Landmark Climate Case’ (Web Page, 29 August 2023) <https://www.ohchr.org/en/stories/2023/08/about-our-human-rights-us-youths-win-landmark-climate-case>.
[6] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 12.1.
[7] UN Committee on the Rights of the Child (CRC), General Comment No. 12: The Right of the Child to Be Heard, 51st sess, UN Doc CRC/C/GC/12 (20 July 2009).
[8] Dunja Mijatović, ‘Boosting Child and Youth Participation: From Voice to Choice’, Council of Europe (Web Page, 1 July 2021) <https://www.coe.int/be/web/commissioner/-/boosting-child-and-youth-participation-from-voice-to-choice>.
[9] Marie-Françoise Lücker-Babel, ‘The Right of the Child to Express Views and to Be Heard: An Attempt to Interpret Article 12 of the UN Convention on the Rights of the Child’ (1995) 3(3–4) The International Journal of Children’s Rights 391, 393.
[10] Ibid 394.
[11] Ibid 403–4.
[12] International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 25.
[13] Sonja C Grover, Young People’s Human Rights and the Politics of Voting Age (Springer Netherlands, 2011) 149.
[14] Ibid.
[15] Ibid.
[16] John Wall, ‘Children’s Rights and Voting Age Discrimination’ (2023) 36 Harvard Human Rights Journal <https://journals.law.harvard.edu/hrj/2022/11/childrens-rights-and-voting-age-discrimination/>.
[17] Convention on the Rights of the Child (n 6) art 2.
[18] International Convention on Civil and Political Rights (n 12) art 25.
[20] Convention on the Rights of the Child (n 6) art 13
[21] Nico Brando and Laura Lundy, ‘Discrimination and Children’s Right to Freedom of Association and Assembly’ (2023) 36 Harvard Human Rights Journal <https://journals.law.harvard.edu/hrj/2022/12/discrimination-and-childrens-right-to-freedom-of-association-and-assembly/>.
[24] Ludvig Beckman‘Children and the Right to Vote’ in Anca Gheaus, Gideon Calder, Jurgen De Wispelaere (eds), The Routledge Handbook of the Philosophy of Childhood and Children (Routledge, 2019) 384, 386.
[25] Warren Binford, ‘Instituting Children’s Full Political Participation and Representation in the 21st Century United States’ (2023) 36 Harvard Human Rights Journal <https://journals.law.harvard.edu/hrj/2023/07/instituting-childrens-full-political-participation-and-representation-in-the-21st-century-united-states/>.
[26] Ibid.
[27] See, eg, John Wall, Give Children the Vote: On Democratizing Democracy, (Bloomsbury Academic, 2022) and Steven Lecce, ‘Should Democracy Grow up? Children and Voting Rights’ [2009] (4) Intergenerational Justice Review, 133.
[28] Neena Modi ‘A Radical Proposal: To Promote Children’s Wellbeing Give Them the Vote: This Straightforward Change Might Ensure that Child Friendly Policies Get Political Attention’ (2018) 361 BMJ < https://doi.org/10.1136/bmj.k1862>.
[30] Linde Lindkvist, ‘Five Problems with Children’s Participation Rights’ in Rebecca Adami, Anna Kaldal and Margareta Aspán (eds), The Rights of the Child (Brill Nijhoff, 2023) 151, 159.
[31] Bill Browne and Ben Oquist, Representative, Still: The Role of the Senate in Our Democracy (Report, The Australia Institute, March 2021).
[32] Zlotnik et al. (n 2) 505.
[33] Bronwyn E Wood and Nick Munn, ‘How Lowering the Voting Age to 16 Could Save Democracy’, The Conversation (online, 23 March 2018) <http://theconversation.com/how-lowering-the-voting-age-to-16-could-save-democracy-93567> .
[34] Ibid.
[35] Australian Human Rights Commission, The Minimum Age of Criminal Responsibility (Universal Periodic Review, 2020) <https://humanrights.gov.au/sites/default/files/2020-10/australias_minimum_age_of_criminal_responsibility_-_australias_third_upr_2021.pdf>.
[38] Ibid.
[40] Ibid.
[41] Ibid.
[47] Gerison Lansdown, The Evolving Capacities of the Child (Report, 2005) 11.
[49] Ibid.
[50] Michael Freeman, A Magna Carta for Children?: Rethinking Children’s Rights (Cambridge University Press, 2020) 87.
[52] Ibid.
[53] UNICEF Australia, Five Child Activists You Need to Know (Web Page) <https://www.unicef.org.au/stories/five-child-activists-you-need-to-know>.
[56] Anne-Marie Smith, ‘The Children of Loxicha, Mexico: Exploring Ideas of Childhood and the Rules of Participation’ (2007) 17 (2) Children, Youth and Environments, 33, 36.
[57] Ibid.
[60] Ibid.
[61] Ludvig Beckman, The Frontiers of Democracy: The Right to Vote and its Limits (Palgrave Macmillan, 2009) 114, discussed in Nico Brando, ‘Is Child Disenfranchisement Justified?’ (2023) 26(5) Critical Review of International Social and Political Philosophy 635, 640.
[62] Nico Brando, ‘Is Child Disenfranchisement Justified?’ (2023) 26(5) Critical Review of International Social and Political Philosophy 635.
[63] Ibid 640.
[64] Ibid 642.
[65] Ibid.
[66] Ibid.
[67] Ibid.
[68] Ibid 641.
[71] Ibid.
[72] Claire Breen, ‘Throwing Voting-Age Legislation onto the “Policy Bonfire” Only Delays a Debate that Has to Happen’, The Conversation (online, 22 March 2023) <http://theconversation.com/throwing-voting-age-legislation-onto-the-policy-bonfire-only-delays-a-debate-that-has-to-happen-201754> .
[74] Breen (n 72) and Minister for the Environment v Sharma [2022] FCAFC 35.
[78] Ibid.
[79] See, eg, Grover (n 13); Zlotnik Raz and Almog (n 2).
[80] Zlotnik Raz and Almog (n 2) 502.
[81] Ibid.
[82] UN Committee on the Rights of the Child (CRC), General Comment No. 20 on the Implementation of the Rights of the Child during Adolescence, UN Doc CRC/C/GC/20 (6 December 2016).
[83] Zlotnik Raz and Almog (n 2) 507.
[85] Ibid.
[86] Ibid 151.
[87] Ibid.
[89] Ibid.
[90] Zlotnik Raz and Almog (n 2) 511.
[91] CRC (n 7) 12.
[92] Zlotnik Raz and Almog (n 2) 511.
[93] Ibid.
[94] Ibid.
[95] Asher Ben-Arieh, ‘Social Policy and the Changing Concept of Child Well-Being. The Role of International Studies and Children as Active Participants’ (2014) 60 (4) Zeitschrift für Pädagogik 569, 571.
[97] Laura Lundy, ‘“Voice” is not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33(6) British Educational Research Journal 927.
[99] Tiffanie Turnbull, ‘School Strike 4 Climate: Australian Students Use “sick note” to Demand Climate Action’, BBC News (online, 17 November 2023) <https://www.bbc.com/news/world-australia-67447253>.
[102] Michael Slezak and Penny Timms, ‘Children’s Climate Change Case Overturned on Appeal as Federal Court Dismisses Government’s “Duty of Care”’, ABC News (online, 16 March 2022) <https://www.abc.net.au/news/2022-03-15/federal-court-judgement-on-climate-change-government-doc/100909214>.
[106] Ibid.
[107] Ibid.
[108] Emma Brant ‘Scottish Referendum: How First Vote Went for 16/17-year-olds’ 2014, BBC News (online, 19 September 2014) <https://www.bbc.com/news/newsbeat-29279384>.
[110] Ibid.
[111] Ibid.
[112] Constanza Sanhueza Petrarca, ‘Does Voting at a Younger Age Have an Effect on Satisfaction with Democracy and Political Trust? Evidence from Latin America’ in Jan Eichhorn and Johannes Bergh (eds), Lowering the Voting Age to 16 : Learning From Real Experiences Worldwide (Palgrave Macmillan, 2020) 103, 118.
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