Make it 16 Inc. v Attorney-General

• Jurisdiction: New Zealand
• Judge: Doogue J,Justice Doogue
• Judgment Date: 07 October 2020
• Neutral Citation: [2020] NZHC 2630
• Court: High Court
• Docket Number: CIV-2019-485-000764
• Date: 07 October 2020

UNDER the New Zealand Bill of Rights Act 1990

IN THE MATTER OF declarations that certain provisions of the Electoral Act 1993 and the Local Electoral Act 2001 are inconsistent with s 19 of the New Zealand Bill of Rights Act 1990

Between

Make It 16 Incorporated

Plaintiff

and

Attorney-General

Defendant

[2020] NZHC 2630

Doogue J

CIV-2019-485-000764

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Bill of Rights — application for declaration that the provisions in the Electoral Act 1993 and the Local Electoral Act 2001 fixing the minimum voting age at 18 years for elections and referendums are inconsistent with the right to be free from discrimination based on age under s19 New Zealand Bill of Rights Act 1990 — Human Rights Act 1993

Counsel:

J McHerron, G Edgeler and E Moran for the Plaintiff

A Powell, A Bloomfield and L Dittrich for the Defendant

JUDGMENT OF Doogue J

This judgment was delivered by Justice Doogue on 7 October 2020. pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Introduction	[1]
The application	[1]
What is a declaration of inconsistency?	[8]
Areas of agreement between the parties	[11]
The issues for determination	[12]
The legal framework	[13]
The voting age provisions	[13]
The Electoral Act 1993	[16]
The New Zealand Bill of Rights Act 1990	[18]
First issue: should this Court entertain Make It 16's claim?	[26]
The Attorney-General's submissions	[27]
Make It 16's submissions	[33]
The law	[36]
Discussion	[44]
Second issue: what method of analysis should this Court adopt?	[50]
Make It 16's submissions	[51]
The Attorney-General's submissions	[52]
The law	[54]
The BORA interpretive provisions	[55]
R v Hansen	[57]
Mangawhai Ratepayers and Residents Assoc Inc v Kaipara District Council	[64]
Discussion	[68]
Third issue: should this Court make a declaration of inconsistency?	[71]
Step 1: What was Parliament's intended meaning in the voting age provisions?	[72]
Step 2: Is that meaning apparently inconsistent with a relevant right or freedom?	[73]
Does the inconsistency between ss 12 and 19 preclude a finding that the voting age provisions are apparently inconsistent with a relevant right or freedom?	[74]
Are the voting age provisions inconsistent with s 19 of BORA?	[79]
Step 3: Is the inconsistency a justified limit in terms of s 5?	[89]
Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right in s 19 of BORA?	[93]
Is the limiting measure rationally connected with this purpose?	[96]
Does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?	[97]
Is the limit in due proportion to the importance of the objective?	[110]
Conclusion on s 5 analysis	[113]
Conclusion	[114]
Result	[118]

Introduction

The application

1 The plaintiff, Make It 16 Incorporated (Make It 16), is comprised of a group of people, some of whom are prohibited from voting at elections and referendums because they are not 18 years of age. 1

2 One of Make It 16's objectives is to raise the profile of changing the voting age as an important matter of human rights and significant public interest in New Zealand, including by bringing court proceedings.

3 Universal adult suffrage is a fundamental right, and s 12 of the New Zealand Bill of Rights Act 1990 (BORA) guarantees that right to all New Zealand citizens 18 years or older.

4 Section 19 of BORA provides for the right to freedom from discrimination. In 1993, BORA was amended to incorporate the prohibited grounds of discrimination in s 21 of the Human Rights Act 1993 ( HRA) into s 19 of BORA. One of those prohibited grounds is discrimination on the basis of age, over the age of 16 years. 2

5 The expansion of the prohibited grounds of discrimination in 1993 created an inconsistency between ss 12 and 19 of BORA. There is now a collision between them, because the latter provides for a general right to be free from discrimination on the grounds of age at 16, while the former expressly provides for differential treatment from the age of 18 in the area of electoral rights. The very scope of the right affirmed in s 12 is defined by reference to a ground of discrimination prohibited by s 19.

6 Make It 16 seeks a declaration that the provisions in the Electoral Act 1993 and the Local Electoral Act 2001 fixing the minimum voting age at 18 years for general elections, by-elections, District Health Board elections, referendums, and local

elections (the voting age provisions) are inconsistent with the right in s 19 of BORA to be free from discrimination on the basis of the age

7 The Attorney-General opposes the making of the declaration on the following grounds:

• (a) primarily, because it is not appropriate for the Court to scrutinise the alleged inconsistency with s 19; and

• (b) in the alternative, in the event the Court does analyse the inconsistency, the limit on the right in s 19 is demonstrably justified.

What is a declaration of inconsistency?

8 I pause here to note one obvious point at the outset: this Court cannot interpret the voting age provisions in any way to enable those under the age of 18 to vote, and Make It 16 does not ask it to.

9 Make It 16's application is made under the jurisdiction of this Court to declare that legislation is inconsistent with BORA, as affirmed by the Supreme Court in Attorney-General v Taylor. 3 A declaration is a formal statement that an enactment is inconsistent with fundamental human rights protected by BORA.

10 A declaration of inconsistency “provides formal confirmation” of the infringement of a claimant's rights, and is part of the judicial function. 4 It can be a “means of vindicating the right in the sense of marking and upholding the value and importance of the right.” 5 A declaration that legislation is inconsistent with BORA can meet “rule of law concerns about non-vindication of fundamental rights owed by the legislative branch … while observing parliamentary supremacy in law-making.” 6

Areas of agreement between the parties

11 It is common ground between the parties that:

• (a) this Court has jurisdiction to grant a declaration of inconsistency as a stand-alone civil remedy, following Taylor; 7

• (b) any decision about whether, when and how to lower the voting age is for Parliament, whereas the role of the courts is to “declare the true legal position”; 8

• (c) the meaning of the voting age provisions under scrutiny is clear and unambiguous in setting the minimum voting age at 18 years, and no tenable alternative interpretation is available;

• (d) the expansion of the prohibited grounds of discrimination in 1993 created an internal inconsistency in BORA, between ss 12 and 19;

• (e) assuming the voting age provisions are inconsistent with s 19, the onus of proving the justification for the inconsistency under s 5 of BORA (on the balance of probabilities) falls to the Crown; 9 and

• (f) the general approach to BORA analysis is the six-step test summarised by Tipping J in R v Hansen (the Hansen analysis). 10

The issues for determination

12 The following questions must be answered by this Court:

• (a) Should this Court entertain Make It 16's claim?

• (b) If the answer to (a) is yes: what method of analysis should this Court adopt?

• (c) Should this Court make a declaration of inconsistency?

The legal framework

The voting age provisions

13 In their statement of claim, Make It 16 defined two sets of voting provisions:

• (a) the Electoral Act voting provisions in the Electoral Act, contained in ss 60 and 74, and the definition of “adult” in s 3(1); and

• (b) the Local Electoral Act provisions contained in ss 20, 23, and 24 of the Local Electoral Act.

14 The full text of those provisions need not be reproduced here, because it is common ground that the meaning and effect of these provisions is clear and unambiguous. When read together, they prescribe 18 years as the minimum age of eligibility to register and vote in general elections and by-elections under the Electoral Act, District Health Board elections under the New Zealand Public Health and Disability Act 2000, citizens initiated referendums under the Citizens Initiated Referenda Act 1993, and referendums under the Referendums Framework Act 2019.

15 It is also agreed that the local electoral rolls are based on parliamentary electoral rolls, and therefore any change to the age of eligibility under the Electoral Act voting provisions would carry through to the Local Electoral Act voting provisions, without the latter needing separate amendment. That is, the Local Electoral Act voting provisions do not independently prescribe a voting age. The same applies to elections and referendums under the New Zealand Public Health and Disability Act, the Citizens Initiated Referenda Act, and the Referendums Framework Act. In each case electors must be “parliamentary electors” to qualify.

The Electoral Act 1993

16 The Electoral Act 1993 (and its predecessor, the Electoral Act 1956) is a statutory implementation of the principle that there is a right to vote. It sets out the machinery of elections and establishes the system of voter eligibility for general elections. It does not affirm the existence of the right to vote at the age of 18 with controlling effect over the other legislation discussed in [14] above.

17 The Electoral Act voting provisions are among the few basic features of our electoral system that Parliament has entrenched, in s 268 of the Electoral Act, so these provisions cannot be amended or repealed by ordinary processes of...