Make it 16 Incorporated v Attorney-General

• Jurisdiction: New Zealand
• Judge: French J
• Judgment Date: 14 December 2021
• Neutral Citation: [2021] NZCA 681
• Docket Number: CA640/2020
• Court: Court of Appeal

Between

Make it 16 Incorporated

Appellant

and

Attorney-General

Respondent

[2021] NZCA 681

Court:

French, Miller and Courtney JJ

CA640/2020

IN THE HIGH COURT OF NEW ZEALAND

I TE KŌTI MATUA O AOTEAROA

Bill of Rights, Human Rights — appeal against a High Court decision which held that while the voting age of 18 years discriminated against 16 and 17 year olds, it was a limitation that was justified — analysis to be adopted in considering whether a limitation was justified — political issue — Electoral Act 1993 — New Zealand Bill of Rights Act 1990

Counsel:

J S McHerron, G K Edgeler, E B Moran and C M McCracken for Appellant

A M Powell, D Jones and A P Lawson for Respondent

The appeal was dismissed.

• A The appellant's application for declarations of inconsistency is declined.

• B The appeal is dismissed.

• C There will be no order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by French J)

Introduction

1 Make It 16 Inc is a lobby group seeking to lower the minimum voting age from 18 years to 16 years. As part of its campaign, Make It 16 issued proceedings in the High Court. It sought a declaration that the provisions of the Electoral Act 1993 and the Local Electoral Act 2001 that set the minimum voting age at 18 are inconsistent with the right to freedom from age discrimination guaranteed under s 19 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).

2 The application for a declaration was unsuccessful. The Judge, Doogue J, held that although setting the voting age at 18 did discriminate against 16 and 17 year olds, it was a limitation on the right against age discrimination that was justified in a free and democratic society. The voting age provisions therefore did not breach the Bill of Rights Act. 1

3 Dissatisfied with that outcome, Make It 16 now appeals.

4 For completeness we note that since the appeal was heard, the Supreme Court has delivered its decision in Fitzgerald v R 2 addressing various aspects of the Bill of Rights Act. We did not consider it impacted on the issues in this appeal and therefore did not consider it necessary to call for further submissions.

The controversy

5 The minimum voting age in New Zealand has been 18 years since 1974 when it was reduced from 20 years. Prior to 1974, it had been 21 years.

6 Under the Electoral Act, generally speaking most citizens as well as permanent residents who have attained the age of 18 are legally entitled to register to vote and once registered are legally entitled to cast a vote in parliamentary elections. The two sections (ss 60 and 74) that create these rights do not specifically refer to the age of 18 years. 3 Section 60 sets out who may vote and references those who are “qualified to be registered as an elector of the district”. Section 74 states that every “adult person” is qualified to be registered as an elector of an electoral district if certain criteria are met. The 18 years comes about because “adult” is defined in s 3 of the Electoral Act as meaning “a person of or over the age of 18 years”.

7 In so far as those three provisions (ss 3, 60 and 74) prescribe 18 years as the minimum age for persons qualified to register as electors or to vote, they are what are called reserved provisions under s 268(1)(e) of the Electoral Act. Having that status means they can only be amended or repealed by a special majority of 75 per cent of all members of the House of Representatives or by a majority vote in a public referendum. 4

8 As its name suggests, the Local Electoral Act regulates the elections to local bodies such as territorial authorities, regional councils, and community boards. Under its provisions, the right to vote in such elections is largely dependent on registration as a parliamentary elector which in turn means the minimum voting age is also 18.

9 The question of whether the voting age should be lowered to 16 years is a contentious one. Over the years, it has been the subject of petitions and Private Members Bills and has been discussed in both a 1986 Royal Commission Report 5 as well as various Parliamentary Committee reports following the general elections in 2011, 2014 and 2017. 6 Since the hearing in this case, the Government has launched what is described as a major review of many aspects of New Zealand's electoral law to be completed by the 2026 general election. The voting age has been identified as one of the matters to be reviewed.

10 Those opposed to lowering the voting age to 16 years argue that 16 year olds lack the maturity, world experience and the necessary independence to vote. They also claim that any move to change the voting age is not supported by the general public as evidenced in a number of opinion polls and the failure to garner large numbers of signatories to the petitions.

11 Countervailing views are that denying the vote to 16 year olds is unjust. It denies them any say in decision making which will directly impact on them in the

future. It is also inconsistent with how 16 year olds are viewed legally for other purposes. New Zealand law considers 16 year olds old enough and responsible enough to be paid the adult minimum wage, 7 have sex, get married, 8 choose to leave school, 9 apply for a firearms licence 10 and adult passport 11 and independently refuse or agree to medical treatment. 12 Proponents of change also point to the progressive lowering of the voting age historically, and the fact that people mature earlier today than before. Proponents further contend that 16 year olds are competent to vote and that granting them the vote will have the added benefit of making voting a lifetime habit. The sky, they say, did not fall in Scotland when the age was lowered to 16 years and indeed the change there is considered a success

12 Lowering the voting age is supported by the Children's Commissioner in a report commissioned by the High Court for the purpose of this proceeding. The Commissioner considered that lowering the age to 16 would be consistent with what studies show regarding the evolving capabilities of children and young people and consistent with the Children's Convention 13 which states that children have the right to inform their own views freely on matters that affect them. 14 The Commissioner recommended that any lowering of the voting age should be accompanied by a comprehensive citizenship education curriculum.

The declarations sought

13 The wording of the two declarations sought is as follows:

The Electoral Act Voting Age Provisions are inconsistent with the right to be free from discrimination on the basis of age affirmed and guaranteed in section 19 of the New Zealand Bill of Rights Act 1990; and

The Local Electoral Act Voting Age Provisions are inconsistent with the right to be free from discrimination on the basis of age affirmed and guaranteed in section 19 of the New Zealand Bill of Rights Act 1990.

Issues on appeal

14 It was common ground that this appeal presents two key issues for determination: 15

• (a) When considering the limits on 16 and 17 year olds voting in parliamentary elections, does s 12 of the Bill of Rights Act create an exception to the right to be free from age discrimination contained in s 19 or can both ss 12 and 19 be given full effect in this context?

• (b) Has the Attorney-General established that the limits on the right of 16 and 17 year olds to be free from age discrimination created by the voting age provisions are reasonable limits that can be demonstrably justified in a free and democratic society:

  • (i) in respect of parliamentary elections?

  • (ii) in respect of non-parliamentary elections?

15 For completeness we record that at the hearing counsel traversed different approaches that may be taken in Bill of Rights Act cases including the conventional six step R v Hansen 16 analysis adopted in the High Court and the approach taken in Mangawhai Ratepayers and Residents Assoc Inc v Kaipara District Council. 17 However, because the two issues for determination by us on appeal are so narrow and specific, it is not necessary for us to engage in any discussion of the merits or otherwise of any particular methodology. This case does not turn on methodology.

16 Turning then to the two issues. As will be apparent, the first issue raises questions about the interaction of two provisions in the Bill of Rights Act itself. Our analysis therefore begins with those two provisions.

The interaction between ss 12 and 19 of the Bill of Rights Act

17 Both ss 12 and 19 are found in pt 2 of the Bill of Rights Act. Part 2 is headed “Civil and political rights”. Section 12 is one of seven sections grouped under a sub-heading entitled “Democratic and civil rights”. Section 19 appears along with one other provision under the sub-heading “Non-discrimination and minority rights”.

18 Section 12 which is limited to parliamentary elections states:

12 Electoral rights

Every New Zealand citizen who is of or over the age of 18 years—

• (a) has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and

• (b) is qualified for membership of the House of Representatives.

19 Section 19 creates what is sometimes termed an equality guarantee. It provides:

19 Freedom from discrimination

• (1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

• (2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.

20 The prohibited grounds of discrimination in the Human Rights Act 1993 include age discrimination. 18 Two important points should be noted. The first is that “age” for the purposes of age...