New Zealand High Court finds the voting age restriction a justified limit on protected rights

Make It 16 Incorporated v Attorney-General [2020] NZHC 2630

Summary

The New Zealand High Court (the Court) upheld the minimum voting age at 18 years as a justified limit on the right to be free from discrimination on the basis of age.  As the Court found the age to be within a range of reasonable alternatives, this decision deferred the question of whether the voting age should be lowered to Parliament to decide.

Facts

Section 12 of the New Zealand Bill of Rights Act 1990 (BORA) guaranteed the right to vote to all New Zealand citizens aged 18 years or older.  This right was reflected in the Electoral Act 1992 and the Local Electoral Act 2001, which, when read together, prescribed 18 years as the minimum age of eligibility to register and vote in general elections and by-elections.  However, section 19 of BORA provided for the right to freedom from discrimination, including discrimination on the basis of age commencing with the age of 16 years.

Make It 16 Incorporated (Make It 16) is an advocacy organisation which campaigns to lower the voting age.  Make It 16 applied to the Court for a declaration that the voting age restriction fixing the minimum age for voting at 18 was inconsistent with the protection from age discrimination in section 19 of the BORA.  A declaration of inconsistency would have confirmed that the provisions were inconsistent with the rights protected by BORA.  However, it would not allow the Court to overrule parliamentary law-making.  Make It 16 recognised that even if a declaration of inconsistency was made, it would ultimately be up to Parliament to decide whether the voting age should be lowered.  A declaration of inconsistency does not oblige the Parliament or government to do anything.

The Attorney-General opposed the making of the declaration and first argued it was not appropriate for the Court  to scrutinise the alleged inconsistency with section 19 as it required an evaluation of a political question and not a legal question; meaning it was a matter for Parliament and not for the courts.  The Attorney-General also submitted that the scope of the declaration of inconsistency remedy may not apply to internal inconsistencies within BORA itself. If the Court did entertain Make It 16's application and analyse the consistency, the Attorney-General submitted that the limit on the section 19 right was demonstrably justified.

Decision

The Court found the minimum voting age of 18 years to be a justified limit on the section 19 right to be free from age discrimination.

The Court first addressed the Attorney-General's opposition on the Court's ability to entertain Make It 16's claim.  This position was rejected by the Court.  As the voting age was entrenched and could not be amended by ordinary processes of Parliament, the matter was not entirely political by nature.  Further, if a declaration of inconsistency was made, the Court would still be incapable of changing the voting age or dictating what Parliament should do.  Therefore the Court determined there would be no interference with parliamentary law making and no interference with the separation of powers.

The Court also rejected the Attorney-General's submission that the jurisdiction to make a declaration of inconsistency did not apply to resolving internal inconsistencies within BORA. The Court noted that the declaration of inconsistency is a developing area of law and the Court should be slow to decline claims relating to fundamental rights.

The Court then proceeded with the substantive analysis of Make It 16's claim.  R v Hansen [2007] NZSC 7 (Hansen) was followed as the leading authority on the application of the interpretive provisions in BORA.

The Hansen methodology required the Court to identify Parliament's intended meaning in the allegedly inconsistent provision and determine whether there was any inconsistency between that meaning and BORA.  If the provision gave rise to an apparent limitation on rights, the Court must examine whether the limitation would be demonstrably justified under section 5 of BORA.  Section 5 provided that the rights and freedoms contained in BORA may be subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Court determined that Parliament's intended meaning in the voting age provisions were inconsistent with the right to be free from age discrimination in BORA.  Turning to the section 5 analysis, the Court considered whether the voting age restriction impaired the section 19 right to be free from discrimination no more than is reasonably necessary for sufficient achievement of its purpose.  The purpose of the voting age provisions, as formulated by the Attorney-General and agreed by the Court, was to "implement the basic democratic principle that all qualified adults should be able to vote".

Noting that the case involved heavy policy content that warranted deference to Parliament, the Court held that the age of 18 was within a range reasonably available to Parliament.  This was demonstrated by reference to the age of 18 being applied as an age distinction between adults and children in domestic and international law, and also used as the minimum voting age in the vast majority of countries around the world.  Its reasonableness was also reinforced by Parliament's clear intention in section 12 of BORA to grant those aged 18 and over the right to vote in elections.

Commentary

The New Zealand High Court decision clarified the Court's ability to scrutinise the validity of policy decisions to be determined by Parliament without impeding on the principle of separation of powers.  The use of a declaration of inconsistency is available to the Court where an enactment is inconsistent with a fundamental human right that is protected under BORA.  While a declaration would not affect the validity of the inconsistent provision, it is an important signal to Parliament that a fundamental human right has been infringed upon in a way that cannot be justified in a free and democratic society.  It would then be up to Parliament to consider the Court's declaration and make substantive policy decisions relevant to the inconsistent provision.

This decision also provides valuable guidance on the Court's methodology when determining the application of interpretative provisions in BORA.  The Court confirms the application of the Hansen precedent over the approach adopted in Mangawhai Ratepayers and Residents Assoc Inc v Kaipara District Council [2015] NZCA 612 (Mangawhai).  In contrast to Hansen, Miller J in Mangawhai incorporated "an overarching weighing process" into the analysis of whether the limitation on the protected right was proportional to its objective.  While the Mangawhai approach may later gain traction, the Court in the current decision saw no need to depart from the analytical framework in Hansen under present circumstances.

The full text of the decision is available here.