Make It 16 Incorporated v Attorney-General - [2021] NZCA 681

Date of Judgment

14 December 2021

Decision

Make It 16 Incorporated v Attorney-General (PDF 261 KB)

Summary

Bill of Rights — Declaration of inconsistency, electoral rights
Human Rights — Age discrimination 

Appeal dismissed. 

The appellant, Make It 16 is a lobby group seeking to lower the voting age from 18 to 16 years.  They issued proceedings in the High Court arguing 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 be free from discrimination on the basis of age guaranteed under s 19 of the New Zealand Bill of Rights Act 1990. 

The High Court 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.  There was therefore no breach of the Bill of Rights Act. 

On appeal, two issues arose for determination. 

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

Section 12 guarantees every New Zealand citizen who is of or over the age of 18 years the right to vote in parliamentary elections. The Attorney-General argued that s 12 collides with s 19 and that s 12 should be interpreted as creating an exception to s 19 or alternatively that s 12 trumps s 19.  Section 12 was thus dispositive of the appeal. 

The High Court Judge agreed with the Attorney-General’s interpretation of s 12 and relied on it to support her conclusion that the limitation on the right against age discrimination was justified.   

HELD:  Section 6 of the Bill of Rights Act which requires a rights consistent interpretation of legislation applies to provisions in the Bill of Rights Act itself.  Read in that light, s 12 does not positively preclude voting by 16 year olds.  It would be a breach of the s 12 right to raise the voting age but not to lower it. There is thus no conflict between s 19 and s 12.   

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 under s 5 of the Bill of Rights Act?

In coming to the conclusion that it was justified, the Judge followed the s 5 Hansen analysis. She identified the purpose of those provisions was “to implement the basic democratic principle that all qualified adults (as opposed to children) should be able to vote” and was satisfied that was a sufficiently important purpose to justify curtailment of the s 19 right.  The Judge was further satisfied that the current voting age was rationally connected with that purpose.  Finding that the voting age provisions satisfied the minimal impairment and proportionality requirements, the Judge explained that where Parliament sets the voting age is a matter of complex issues of morality, social justice, individual responsibility and public welfare and there are valid arguments on both sides of the debate. 

HELD: The answer to the question posed by the second issue must be “no.” 

It is a matter of common sense that some restriction on the voting age is clearly justified.  However under the s 5 analysis the Court’s focus is only on 16 and 17-year-olds because the protected right under s 19 against age discrimination only applies to those aged 16 and over. The High Court Judge was wrong to formulate the purpose of the voting age provisions in such broad terms.  The relevant purpose to be identified is the purpose of the limiting measure which is the limitation on the franchise to those aged 18 years and over.  The purpose of the limitation is to demarcate between those who are considered adults and those who are considered to be children.  That being the case, the Court needed to inquire why Parliament made the choice to exclude 16 and 17-year-olds deeming them to be considered children as opposed to adults.  What is the social advantage of excluding them and if there is one does such an identified benefit outweigh the harm to the protected right? 

Having formulated the purpose so broadly the High Court was unduly deferential to Parliament and the Attorney-General failed to discharge his burden to justify the curtailment of the right.  Simply stating that the issue involves high policy content and that there are genuine arguments on both sides is unsatisfactory.  Examination of the justification for limiting the rights of 16 and 17 year olds was required.  However, the Attorney-General provided no evidence to suggest that 16-year-olds lack either the capacity to vote or independence of thought. The justification could not be consistency with general law as the age of responsibility varies for different purposes under New Zealand law. Nor could consistency with international standards especially in the context of a process of incremental change. 

That left the submission that 18 is within the range of reasonable alternatives.  Having regard to the fact that the right involves a core democratic right, the Court is not persuaded that this purported justification is sufficient to discharge the burden of proof that lies on the Attorney-General.  More was needed. 

Should this Court exercise its discretion to issue Declarations of Inconsistency? Held: no.  It is well established that a declaration is a matter of discretion.  The Court is of the view that it does not need to go further than a finding that on the information before this Court in this case, the Attorney-General has not established the limit is demonstrably justified as required by s 5 of the Bill of Rights.  The Court’s decision rests not on a positive finding that discrimination on grounds of age cannot be justified but rather on a failure to attempt to justify it.  The matter is intensely and quintessentially political involving the democratic process itself. Further the matter is very much in the public arena already including being part of a recently announced review of electoral law.  Given the context, the Court chooses to exercise restraint.