Case Brief: Make It 16 Incorporated v Attorney-General [2022] NZSC 134

December 12, 2023

Summary

The Supreme Court granted Make It 16’s appeal for a declaration that the minimum voting age was inconsistent with the right to freedom from discrimination under the New Zealand Bill of Rights Act 1990 (“NZBORA”).

Background

Make It 16 is a lobby group seeking to lower the minimum voting age from 18 to 16. The group argued the minimum age of 18 set by the Electoral Act 1993 and Local Electoral Act 2001 was inconsistent with the right to freedom from discrimination on the basis of age. The Court of Appeal accepted that minimum age was unjustified, but declined to make a formal declaration to that effect due to the political nature of the issue.

Make It 16appealed the decision to the Supreme Court.

The Case

Is the minimum voting age of 18 justified?

While rights under NZBORA can be limited, they may only be done so when demonstrably justified in a free and democratic society. NZBORA also requires that where possible, laws must be interpreted in a manner consistent with these rights.

Section 12 of NZBORA states that every New Zealand citizen over the age of 18 years has the right to vote in parliamentary elections. However, section 19 of NZBORA protects against discrimination on a list of grounds, including on the basis of age. Under the Human Rights Act 1993, the protection against age-based discrimination expressly begins at 16.

The Supreme Court acknowledged that section 12 may provide support for adopting a voting age of 18, but it was not sufficient to justify the exclusion of 16 and 17 year-olds from voting. While the section prescribed the right to vote for those over 18, it did not expressly exclude the possibility of younger voters.

The Attorney-General did not provide evidence to support a voting age of 18. The Court noted that the evidence before it instead supported the proposition that 16 and 17 year olds were sufficiently competent to vote. The majority held the Court of Appeal was therefore correct to conclude that the limitation to the right to freedom from discrimination had not been justified.

Kós J, dissenting, disagreed that the provisions of the Electoral Act were inconsistent with NZBORA, as the voting age reflected a clear Parliamentary intent. His honour stated that section 12 expressly provided a voting age of 18, and its specificity prevailed over the general anti-discrimination provision under NZBORA. Had Parliament intended to alter the voting age in accordance with NZBORA, it would have done so when it passed the Electoral Act in 1993. However, his honour agreed with the majority that the voting age within the Local Electoral Act was inconsistent. This was because the voting provision within NZBORA only applied to parliamentary elections.

Should the Court grant a declaration of inconsistency?

Where a law is inconsistent with a right contained within NZBORA, the court may use its discretion to make a formal declaration to that effect.

The Court was not persuaded by the Attorney-General that it would be premature to make a declaration. The Court noted the Royal Commission Report in 1986 which stated that “a strong case” could be made for a voting age of 16, and recommended the voting age remain under review. The Court also held that the issue was not sufficiently complex as to be beyond its institutional competence.

There were a number of factors which strongly supported the making of a declaration:

-         The case involved the protection of fundamental human rights of a minority group;

-         The minority nature meant that other avenues such as parliamentary inquiries and public-initiated referenda may not be as effective in protecting the rights of the group;

-         New Zealand is a party to the United Nations Convention on the Rights of the Child, which recognises an obligation to assure children capable of forming their own views the right to freely express those views in matters which affect them; and

-         The age of 16 is specified in New Zealand’s relevant anti-discrimination laws, a feature which separates it from other countries.

The Supreme Court held that a declaration was appropriate, and the Court of Appeal erred in declining to grant the remedy.

Result

The Supreme Court allowed the appeal.

The Court made a declaration that the provisions of the Electoral Act and Local Electoral Act setting a minimum voting age of 18 were inconsistent with the right to freedom from discrimination on the basis of age, and had not been justified.

The Court took care to formulate its declaration in a manner which acknowledged the possibility that further evidence could justify a voting age of 18.

In late 2022, the Labour Government announced plans to introduce a bill on lowering the voting age. Such a bill would require a 75 percent majority in Parliament to pass. In early 2023, the Government announced that the bill will not be progressed but then introduced a bill Electoral (Lowering Voting Age for Local Elections and Polls) Legislation Bill in August 2023. This bill made it to Select Committee, but in January 2024 the new coalition government announced the withdrawal of the bill.

For further information on this case or similar issues, please contact Director, Brigitte Morten.

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