New Zealand Supreme Court finds laws setting voting age at 18 are discriminatory on the basis of age
Make It 16 Incorporated v Attorney-General [2022] NZSC 134
Summary
On appeal, the New Zealand Supreme Court has found that laws setting the voting age for New Zealanders at 18 are inconsistent with the right to freedom from discrimination on the basis of age, as set out in the New Zealand Bill of Rights Act 1990 (NZ) (Bill of Rights). Accordingly, a majority of the Court granted the appeal and made a declaration of inconsistency.
Facts
The current minimum voting age in New Zealand is 18 years. Make It 16 Incorporated (Make It 16) is a group seeking to have the voting age lowered to 16 years.
Proceedings in the High Court
As part of its advocacy for legislative change, Make It 16 sought declarations from the New Zealand High Court that legislation setting the minimum voting age in New Zealand at 18 is inconsistent with the right to freedom from discrimination on the basis of age (section 19, Bill of Rights). “Age” for the purpose of the Bill of Rights means 16 or older.
The High Court declined to make the declarations sought by Make It 16, finding that the laws were justified in setting the voting age at 18. The Court came to this decision based on the test from R V Hansen [2007] NZSC 7, which required the Court to consider whether the objective of the limit is sufficiently important and, if so, if the limit is proportionate to the objective.
Appeal to the Court of Appeal
The Court of Appeal disagreed that the age limit imposed by the relevant voting laws was justified, but nonetheless declined to make the declarations sought by Make It 16 because of the political nature of the issue.
Appeal to the Supreme Court
Make It 16 subsequently appealed to the Supreme Court on the basis that the lower Courts should have made the declarations that it sought. The Supreme Court considered the following questions on appeal:
Is it appropriate for the Courts to engage with what is, by its nature, a political issue?
What is the effect of section 12 of the Bill of Rights, which protects voting rights in elections for those aged 18 and above?
Is any inconsistency with the right to freedom from discrimination on the basis of age justified?
If the answer to question [3] is no, should the Court make the declaration sought?
Decision
Per Chief Justice Winkelmann, and Justices Glazebrook, O’Regan and Ellen France (Justice Kos dissenting)
The relevant provisions in the Bill of Rights are section 12, which provides that every New Zealand citizen over the age of 18 has a right to vote, and section 19, which protects the right to freedom from discrimination on the basis of age.
Question 1: Is it appropriate for the Court to engage with political issues?
In relation to the first question, the Attorney-General contended that this case had constitutional dimensions that take the question of consistency out of the Court’s purview, and that the question should instead be determined by Parliament and through established democratic process.
In rejecting this argument, the Court relied on Attorney-General v Taylor [2018] NZSC 104, a case in which the Supreme Court found that the Court has jurisdiction to make declarations that legislation is inconsistent with the Bill of Rights. Further, the Court noted that although a declaration would provide a statement of the Court’s view on the law, any change in the law would still be a matter for Parliament and/or the electorate as required under the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 (NZ).
Question 2: What is the impact of section 12 of the Bill of Rights?
The Court found that all section 12 does is guarantee the right of those aged 18 and above to vote, and that section 12 does not “cover the field” in regards to the voting age. Therefore, section 12 does not preclude voting by those under 18.
Question 3: Is any inconsistency with the right to freedom from discrimination on the basis of age justified?
Section 5 of the Bill of Rights provides that 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”. The Court considered the question as to whether the 18-year minimum voting age was a reasonable limit, and ultimately found that the Attorney-General had not demonstrated that setting the age limit at 18 was justified because of the lack of evidence that was presented.
The Court further noted, however that:
The position in this respect differs from comparable jurisdictions, including Australia, as discrimination on the basis of age is prohibited but is not defined by reference to a specific age.
The age limit of 18 could later be held to be justified, if further evidence in support was provided.
Question 4: Should the Court make the declaration sought?
The Court found that, in this case, it was appropriate to make the declaration sought on the basis that the case involved the protection of the fundamental rights of right of a minority group in circumstances where Parliamentary and electoral processes alone may not be effective in protecting the rights of the minority group. Further, the Court referred to New Zealand’s obligations to “assure to the child who is capable of forming his or her own views the right to express those views freely in matters affecting the child” as set out in the UN Convention on the Rights of the Child. The fact that the age of 16 is specified in New Zealand anti-discrimination legislation was found to require a specific focus on provisions discriminating against those aged 16 and 17.
Commentary
While the decision of the New Zealand Supreme Court is a step in the right direction in terms of achieving the right to vote for 16 and 17-year-olds in New Zealand, the Court’s decision is just the beginning. For the voting age to be lowered, legislation will still need to be drafted and put to a vote in Parliament where it would need to achieve a “super majority” (75% of all MPs), or the matter alternatively may be put to a referendum. This path is far from certain, as the New Zealand National Party, the country’s largest opposition, does not support the proposed change.
Further, as a large part of the Court’s analysis in this case relied upon “age” for the purpose of the Bill of Rights being 16, achieving a similar outcome in Australia, where the protection from discrimination based on age is not defined by reference to a particular age, is likely to be a challenge. With this said, this case has significance beyond any legal precedent it has set, and we have already seen evidence that it has renewed efforts to lower the voting age in Australia.
Author: Samantha Marsh, Secondee Lawyer (HRLC)