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Petitioner: Make It 16 Incorporated VS Respondent: Attorney-General
Court Name: Supreme Court of New Zealand Judge(s): Glazebrook, O Regan, Ellen France, Winkelmann (C.J), Kos Title: Make It 16 Incorporated vs Attorney-General Case No.: Case No. [2022] NZSC 134 Date of Judgment:2022-11-21 Reported As: 2023 SCMR 426 Result: Appeal allowed
JUDGMENT
Judgment: JUDGMENT OF THE COURT A The appeal is allowed. The decision of the Court of Appeal is set aside. B A declaration is made that the provisions of the Electoral Act 1993 and of the Local Electoral Act 2001 which provide for a minimum voting age of 18 years are inconsistent .with the right in s 19 of the New Zealand Bill of Rights Act 1990 to be free from discrimination on the basis of age; these inconsistencies have not been justified in terms of s 5 of the New Zealand Bill of Rights Act. C Costs are reserved REASONS Para No. Winkelmann C, Glazebrook, O'Regan and Ellen France JJ[1] Kos J [74] WINKELMANN CJ, GLAZEBROOK, O'REGAN AND ELLEN FRANCE JJ (Given by Ellen France J) Table of Contents Para No. Introduction [1] The statutory framework [6] The electoral legislation [7] The Bill of Rights [11]
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The Courts below [15] The High Court [16] The Court of Appeal [19] The positions taken by the parties [23] A role for the Courts? [26] Effect of s 12 [35] A justified limit? [41] Our assessm ent [45] Was the Court Of Appeal right not to make a declaration?[581 Our assessm ent [62] The form of the order [70] Result [71] Costs [73] Introduction [1] The minimum voting age in New Zealand is 18 years. The appellant, Make It 16 Inc, is a group seeking to have the voting age A lowered to 16 years. As part of its advocacy for that legislative change, Make It 16 sought declarations. in the High Court that the provisions setting the minimum Voting age in the Electoral Act 1993 and the Local Electoral Act 2001 are inconsistent with the right to freedom from discrimination on the basis of age which is protected by 19 of the New Zealand Bill of Rights. Act 1990 (the Bill of Rights). "Age" for these purposes is any age commencing with 16 years. [2] This Court in Attorney-General v Taylor confirmed there was jurisdiction to make a declaration that legislation is inconsistent with the Bill of Rights.[1] Subsequently, legislation has been enacted providing for the procedures to be followed in the House of Representatives and by the government of the day in response to such declarations.[2] [3] The High Court declined to make the declarations sought by Make It 16 on the basis that the limit on the freedom from discrimination on the grounds of age in the two Acts was a justified limit under s.5 of the Bill of Rights.[3] The Court of Appeal disagreed that the limit was justified but nonetheless declined to make the declarations.[4] In doing so, the Court referred, amongst other matters, to the political nature of the issue. [4] At issue on this appeal is whether declarations should have been made by the Courts below. As the case has been developed, that raises four principal questions. The first question is whether it is appropriate for the courts to engage in the inquiry which Make It 16 advocates. Relatedly and second, there is a question about the effect of s 12 of the Bill of Rights, which protects the voting rights in general elections for those aged 18 years and older, on the s 19 right to freedom from discrimination on the grounds of age. If inquiry is appropriate, and if s 12 does not override or qualify s 19, the third question is whether the inconsistency with s 19 was justified under s 5. The final question is whether, if the inconsistency has not been justified, the declarations sought should have been made. [5] We address each issue in turn after discussing the statutory scheme and the approach in the Courts below in a little more detail. The statutory framework [6] The current position in terms of voting age is that 18 year olds and over may vote in general elections, local body elections and referenda.[5] 5 Electoral Act 1993, ss 3(1), 60 and 74; Local Electoral -Act 2001, ss 20, 23 and 24; and Citizens Initiated Referenda Act 1993, ss 2, 18 (eligibility to sign an indicative referendum petition), 24, 24A
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and 27. See also Referendums Framework Act 2019, s 13 (repealed on the close of 1 July 2022 by s 3); and New Zealand Public Health and Disability Act 2000. sch 2 el 3 (repealed on 1 July 2022 by s 103(1) of the Pae Ora (Healthy Futures) Act 2022). The electoral legislation [7] The minimum voting age for general elections has gradually been reduced from the starting point of 21 years[6] to, first, 20 years[7] and then, in 1974 to the current age of 18 years.[8] [8] In general terms, the effect of the Electoral Act is that most citizens and permanent residents who have reached the age of 18 are legally entitled to register to vote. Upon registration, persons in this category are eligible to vote. Sections 60 and 74 of the Electoral Act, which establish these rights, do not themselves refer to the age of 18 years.[9] Rather, s 60 states who may vote and. refers to those persons "qualified to be registered as an elector of the district". Under s 74, every "adult person" qualifies for registration if the specified criteria are met. "Adult" is defined as "a person of or over the age of 18 years".[10] [9] The age of 18 for the purposes of voting in a general election cannot be amended or repealed without the support of a 75 per cent majority of the House of Representatives or of .a majority of votes cast in a poll of eligible voters on the General and Maori rolls.[11] The relevant sections are called "reserved" or entrenched provisions.[12] [10] In the Local Electoral Act, eligibility to vote is broadly based on being a parliamentary elector and therefore it also has a minimum voting age of 18.[13] The Local Electoral Act provisions are not entrenched. The Bill of Rights [11] The relevant provisions of the Bill of Rights are s 12, dealing with electoral rights, and s 19, which protects the right to freedom from discrimination. [12] Section 12 protects the current minimum voting age in relation to general elections and provides as follows: 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 Representatives. [13] Section 19 reads as follows: 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. [14] The prohibited grounds of discrimination in Part 2 of the Human Rights Act 1993 include age. [14] "Age" is defined in s 21(1)(i) of that Act for these purposes as relevantly encompassing differential treatment based on any age from the age of 16 years. The Courts below [15] We come back later to some of the detail in the reasoning of the Courts below but it is useful to first summarise the approaches taken. The High Court [16] In the High Court, Doogue J rejected the argument for the Attorney-General, an argument which was reprised in this Court, that the Court should decide at the outset to dismiss the application without assessing the competing positions.
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[17] Having engaged in the inquiry, the Judge concluded that there was an apparent inconsistency between the voting age and s 19. The Judge then turned to whether the limit on the right in s.19 was justified. In determining this, the High Court applied the steps set out by Tipping J in R v Hansen. [15] That methodology, in very broad terms, requires the Court to consider whether the objective of the limit is sufficiently important and, if so, the proportionality of the means adopted to achieve that objective. Doogue J concluded that the limit was a reasonable one and so was justified in terms of s 5 of the Bill of Rights. In reaching that view, the Judge said that the purpose of the legislation was "to implement the basic democratic principle that all qualified adults (as opposed to children) should be able to vote" and that there was a rational connection between that objective and setting the minimum voting age at 18.[16] Thee Judge also considered that s 12 of the Bill of Rights signalled that Parliament had considered 18 years was a "reasonable minimum restriction".[17] [18] Doogue J said that New Zealand law draws the line at a number of different ages for various purposes with a range of issues involved. To illustrate the point, she noted the contrast drawn between, for example, the age at which a person is entitled to adult minimum wage rates (16 years) and the age at which a person can serve as a juror (18 years).[18] The conclusion was that drawing the minimum voting age line at 18 was within the range of reasonably available options. The Court of Appeal [19] Reflecting the argument put to it, the Court of Appeal dealt first with the inter-relationship between ss 12 and 19 of the Bill of Rights. The Court concluded that both sections could be read together and each given their full effect. [20] The Court then turned to whether the voting age provisions imposed a reasonable limit on the right to protection from age discrimination. The Court noted that some limit on voting age was justified but disagreed with the approach adopted to this issue by the High Court. In particular, the High Court Judge had stated the purpose "too broadly".[19] The Court of Appeal took the view that the focus under a s.5 Hansen analysis was on the purpose of the limit. In this case, that purpose was "to demarcate between those who are to be considered adults and those who are to be considered children"[20] Accordingly, the question that had to be addressed was why the choice was made, that is, to exclude 16 and 17 year olds from voting. There had to be some social advantage to this and that advantage needed to be a matter outweighing the infringement to the right to be free from discrimination on the basis of age. [21] On the question of why the choice was made, the Court noted there were a number of possible justifications but these were either not raised or did not meet the s 5 test. That left the Court to consider the argument- that the age of 18 was within the range of reasonable alternatives. Because the right at issue involved a core democratic right, the Court was not persuaded that this justification was sufficient to meet the requirements of s 5 either. [22] There was, therefore, a breach of s 19 so the Court turned to whether a declaration of inconsistency should be made. The Court said this was matter of discretion and that restraint in granting relief may be exercised "for reasons of comity among or deference towards" other branches of government.[21] The Court expressed its reasoning for declining to make a declaration of inconsistency in these terms: [62] In this case, we have decided there is no need to go any further than a finding that on the information before this Court in this case, the Attorney-General has not established that the limits on the right of 16 and 17 year olds to be free from age discrimination caused by the voting age provisions are reasonable limits that can be demonstrably justified in a free and democratic society. The decision rests not on a positive finding that discrimination on grounds of age cannot be justified but on what we have held to be a failure to attempt to justify the existing age limit. Further, the issue is very much in the public arena already. It is an intensely and quintessentially
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political issue involving the democratic process itself and on which there are a range of reasonable views. That being the context, we choose to exercise restraint and decline the application for declarations. The positions taken by the parties [23] The parties adopt starkly different positions. Make It 16 says that the Court of Appeal was right to find that the minimum voting age was not a justified limit on s 19 but was wrong not to make the declarations j sought. The argument is that where there is a breach a declaration should ordinarily follow. [24] The Attorney-General's case is that the Court of Appeal was correct to exercise its discretion against making declarations. Indeed, the submission is that the Court should not have engaged with this inquiry at all but, having done so, should have concluded that the minimum age of 18 years was a justified limit. [25] It is, helpful to deal first with the Attorney-General's argument that this is one of the situations (which he concedes will be rare) in which, for reasons of restraint and comity, the Court should not engage in a Bill of Rights consistency inquiry. A role for the Courts? [26] In developing the submissions on this point, the Attorney-General says that this case has- constitutional dimensions that take the question of consistency out of the Court's purview. The constitutional dimensions relied on are twofold. [27] First, the argument is that through the entrenched provisions Parliament has, set out the process for changing the law in this area That, as we have seen, requires broad support for change either through a super majority in Parliament or with a referendum of eligible voters. This democratic process should be followed first. Second, the Attorney-General makes the related point that Parliament has not yet considered lowering the voting age and it should be able to consider the issues before the Court releases a decision that potentially skews public and political d bate on the matter.[22] In other words, the Court should not pre-emptively enter the debate when the matter is one to be determined not only by P lament but also the electorate in general. [28] We do not see the factors relied on by the Attorney-General as supporting the view that the Court has no role at all in the present case. As Glazebrook and Ellen France JJ said in Taylor, "the making of such a declaration is consistent with the usual function of the courts".[23] To decline to inquire into the issue here would not be consistent with that role, particularly where fundamental rights are involved. As Doogue J said, this is "not by nature an entirely political issue" to be decided only by reason of the fact the voting age was entrenched.[24] Rather, determination of the issue also involves consideration of the relevant, fundamental, rights. [29] In support of the submission this is essentially a "no-go" case for the Court, the Attorney- General relies on the decision of the United Kingdom Supreme Court in Regina (Nicklinson) v Ministry of Justice.[25] The Court in that case was considering, amongst other matters, an application for a declaration under s 4(2) of the Human Rights Act 1998 (UK). That section provides that if the Court is satisfied a provision is incompatible with a right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),[26] it may make a declaration of that incompatibility. [30] In Nicklinson the Court was asked to make a declaration that S 2 of the Suicide Act 1961 (UK), which makes encouraging or assisting a suicide a criminal offence, was contrary to art 8 of the ECHR. Article 8 protects the right to respect for private life. At the time the Court decided this case, Parliament was due to consider the same issues in the context of the Assisted Dying Bill which Lord Falconer had introduced into the House of Lords. A majority of the Court took the view that the issue was within the Court's institutional competence.[27] Among those Judges, a majority determined that it would be premature to grant a declaration and that Parliament should first have the chance
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to consider the issue.[28] We accordingly see Nicklinson as consistent with the view that the factors the Attorney-General advances as to the need for restraint and comity are relevant to the exercise of the discretion to grant a declaration but are not a bar to engaging in any inquiry at all. [31] We add that the submission that the Court's involvement may skew the public debate both undercuts the courts' role in stating the law and overstates the effect of a declaration. A declaration will of course provide a statement of the Court's view of the law but it will ultimately be a matter for Parliament and/or the electorate as to what, if any, response is made to that statement. This view is supported by the recent enactment of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022. Together with the Standing Orders of the House of Representatives, it creates a procedural pathway requiring such a declaration to be responded to by the government and debated by Parliament. The legislation and Standing Orders ensure that declarations are appropriately dealt with in the democratic process. [32] In Regina (Steinfeld) v Secretary of State for International Development the United Kingdom Supreme Court expressed the "salutary" reminder "that a declaration of incompatibility does not oblige the Government or Parliament to do anything"[29] The Court then cited the following passage from Nicklinson:[30] An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court's conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, "This particular piece of legislation is incompatible, now it is for you to decide what to do about it." And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing. [33] The final point to note is that one of the main factors relied on by the Attorney-General for restraint by the courts is inapplicable to local body elections. As we have noted, the local body provisions are not entrenched. [34] In summary, we do not consider the Courts below were incorrect to inquire into the consistency of the minimum voting' age requirements with s 19 in this case. Effect of s 12 [35] It is appropriate at this juncture to address the effect of s 12 of the Bill of Rights. The Attorney- General, in his notice to support the judgment of the Court of Appeal on other grounds, advanced the E proposition that s 12 prevailed over s 19 and created an exception to the protection against age discrimination in s 19. Prior to the hearing the Court was advised that this aspect would not be pursued. We did however hear some argument on whether s 12 effectively covers the ground when the minimum voting age is in issue and, as Kos J takes a different view on the point, we now turn to that question. [36] The legislative history suggests that the question of possible conflict between ss 12 and 19 was not considered when in 1993, some three years after the enactment of the Bill of Rights, the prohibited grounds of discrimination in s 21 of the Human Rights Act were incorporated into s 19.[31] That said, as the Court of Appeal observed, the inter-relationship between the two sections raises a question of interpretation which is governed by s 6 of the Bill of Rights.[32] That section is a direction to prefer a Bill of Rights consistent meaning whenever an enactment can be given that meaning. Differing in this respect from Kos J, we see no reason from departing from the plain terms of s 6. Accordingly, we agree with the Court of Appeal that:
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[30] Read in that light, all that s 12 does is guarantee the right of those aged 18 and over to vote. It would be a breach of that right to increase the age from 18 but not a breach were the age to be lowered and the right extended to someone younger. The rights of the 18 year olds and over would not be affected by such an extension. To put it another way, the rights in ss 12 and 19 can co-exist. There is no internal inconsistency. Section 12 does not positively preclude voting by 16 year olds. [37] It is also possible to envisage situations where the threshold in s 12 might clash with another protected right in a way that would very obviously be problematic. For example, initially the franchise for parliamentary elections was limited to adult male property owners. If the right to vote in s 12 was limited in that way, whatever the temporal relationship between the provisions, it is not an attractive proposition to suggest the Courts would not apply s 6 and treat such a limitation on voting rights now as Contrary to s 19 and declare accordingly. [38] We accept that s 12 may provide some support for the proposition that adopting the age of 18 is within the range of reasonably available alternatives. But, for reasons we come to shortly, that is not sufficient to meet the s 5 test here. [39] Finally, we note that the declarations sought by Make It 16 relate to both the Electoral Act and the Local Electoral Act restrictions. Section 12 of the Bill of Rights does not apply to local body elections. [40] We do not see s 12 as a barrier to the relief sought. A justified limit? [41] We turn now to the arguments about s 5 and whether the Court of Appeal was correct to find that the Attorney-General had not established that the limit on the right of 16 and 17 year olds to be free from discrimination created by the voting age provisions was a justified limit. For ease of reference we note that s 5 provides that the protected rights and freedoms may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". [42] As have indicated, Make It 16 supports the conclusion of the Court of Appeal on this aspect. Make It 16 also makes the point that the Attorney-General has not sufficiently identified an objective for the limit on s 19. Make It 16 argues that given the Attorney-General has the onus to show that the limit is a justified one when measured in terms of its objective, the Attorney-General cannot succeed in the argument s 5 is met. [43] The case for the Attorney-General is that the limit here is a justified one if it can be shown that the 18 year minimum voting age is within a range of reasonable alternatives.[33] Anything else is a judicial inquiry into where the franchise should be set. The submission is that 18 years is within the range of reasonable alternatives. [44] In this respect, the Attorney-General argues that, beyond the absurd point, for example voting rights for infants, a lawmaker starts to encounter the age at which some social responsibility is being accepted. Ultimately, therefore, it is clear that the line has to be drawn somewhere. A minimum voting age of 18 is consistent with the position taken in the majority of other countries. Further, as the High Court noted,[34] the current position is consistent with. New Zealand's obligations under art 25 of the International Covenant on Civil and Political Rights. (Article 25 is silent as to a minimum voting age.) Moreover, at 18 years there are certain changes to a person's legal status and rights, such as no longer being subject to the authority of their parents or guardian,[35] being able to enter and be bound by a contract,[36] and being called for jury services.[37] It is said that these features provide support for the view that age 18 is within the range of reasonable alternatives. Our assessment [45] We accept that a limitation on a right may be one that is well recognised either in the relevant international instruments (such as the International Covenant on Civil and Political Rights[38]) or
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common law. In that situation, evidence about the reasonableness of the limit may not be required or may be minimal. By contrast, here, the Attorney-General has to show why 18 was chosen as opposed to 16 or 17 given that the prohibition on discrimination expressly defines the scope of the protection by reference to age 16. The Attorney-General is candid that he has not sought to do that. We appreciate that there may be reasons for not doing so. Given the need for a broad acceptance of the age for the franchise, it may be seen as preferable not to express a view on the point until the process(es) adopted to measure public support for change have been…
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