Make It Consistent

In New Zealand, as in many jurisdictions, the law specifies certain minimum age limits for acts such as getting married (16 years), enlisting in the armed forces (17 years), purchasing alcohol (18 years), entering contracts (18 years) and so on. One particular age limit, that relating to voting (18 years), has recently come under scrutiny as a result of the advocacy efforts of Make It 16, a group campaigning for the extension of the franchise to 16 and 17 year olds in New Zealand. As part of its campaign, Make It 16 commenced litigation, which eventually culminated in the New Zealand Supreme Court declaring in Make It 16 v Attorney-General that the legislated minimum voting age was inconsistent with the right to be free from discrimination, and that the inconsistency had not been justified. Given the subject matter concerned and the novelty of the declaration jurisdiction, the result is somewhat surprising. However, in keeping with New Zealand’s political constitution, the issue ultimately remains one for Parliament.

Procedural history

Make It 16 sought declarations that the provisions specifying the minimum voting age for general and local elections in the Electoral Act 1993 and Local Electoral Act 2001¹⁾ were inconsistent with s 19 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), which guarantees the right to freedom from discrimination on various grounds including age, with age defined as any age commencing from 16.²⁾

At first instance, the High Court declined to grant the declarations sought. It considered that while the voting age provisions appeared to be inconsistent with s 19 of the Bill of Rights, the limit on the right was reasonable and justified for the purposes of s 5 of the Bill of Rights.³⁾ Make It 16  appealed to the Court of Appeal, which held that the Attorney-General had not provided sufficient justification for the purposes of s 5, but declined to grant the declarations for reasons of comity and deference.

The Supreme Court’s decision

Having earlier granted leave to appeal on whether the Court of Appeal was correct to dismiss the appeal, the Supreme Court delivered its decision on 21 November 2022. It allowed the appeal by majority (Winkelmann CJ, Glazebrook, O’Regan and Ellen France JJ)⁴⁾ in respect of the Electoral Act provisions and unanimously in respect of the Local Electoral Act provisions, and issued the declarations sought.

The majority’s reasoning revolved around four main issues. The first was whether this was a matter the courts ought to be looking into at all, with the Attorney-General arguing that “for reasons of restraint and comity, the Court should not engage in a Bill of Rights consistency inquiry” (at [25]). The notion that the voting age is a political matter that ought to be determined through political processes was something of a leitmotif in the Attorney-General’s submissions, but it did not persuade the Court given that fundamental rights were implicated (at [28]).

Second was the effect of s 12 of the Bill of Rights, which provides that every citizen aged 18 and over has the right to vote in parliamentary elections, and how to reconcile its apparent conflict with s 19 in respect of those aged 16 to 17. The majority explained away the apparent conflict by stating that increasing the voting age from 18 would violate s 12, but lowering the voting age to 16 would not (at [36]). By contrast, Kós J, in his partial dissent, considered that the right to vote in parliamentary elections at 18, stipulated in both the Electoral Act and s 12 of the Bill of Rights, prevailed over the general right to be free from discrimination under s 19 (at [74]). To my mind, Kós J offers the more convincing account of the relationship between the Electoral Act and the relevant Bill of Rights provisions, particularly given that discrimination based on age was incorporated by reference into s 19 in 1993 (at [89]–[94]).⁵⁾ Unfortunately, the majority does not address Kós J’s judgment in much detail, possibly because the Attorney-General, for whatever reason, chose not to pursue this line of argument in the Supreme Court (at [35]).

Under the prevailing judicial approach to s 19, whereby discrimination is defined in largely neutral terms,⁶⁾ matters of justification are dealt with at the s 5 stage rather than at the definitional stage.⁷⁾ With the High Court having earlier concluded that the voting age provisions were inconsistent with s 19, the focus shifted to s 5. Accordingly, the third issue was whether the Court of Appeal had correctly found that the Attorney-General had failed to establish that the legal provisions specifying the voting age were reasonable and justified limits on the right of 16 and 17 year olds to be free from discrimination under s 19 (at [41]).

The Attorney-General argued that 18 years fell within the range of reasonable alternatives, bearing in mind that 18 was consistent with the voting age in many other countries as well as other age limits under New Zealand law (at [43]–[44]). However, and significantly, the Attorney-General chose not to specifically address the question of why the age limit was set at 18, rather than 16 or 17:

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. … Whatever the merits of the approach adopted, the result is that we are not persuaded the limit has been justified on the material before us. (at [45])

As a result, the majority held that the Court of Appeal had been correct in finding that the limit on s 19 had not been justified. To be clear, the majority stressed that its conclusion was because of an absence of evidence, and that it was open to the possibility that the limit could subsequently be justified (at [57]).

Finally, the majority considered whether the Court of Appeal had rightly declined to issue a declaration of inconsistency. The Attorney-General argued that the Court of Appeal had exercised proper restraint, because a declaration would be premature in circumstances where there was not yet broad support for lowering the voting age, that the matter was properly one for Parliament itself, and that there were other avenues for effecting change (at [59]–[60]). Given the long gestation and relative infancy of the jurisdiction to issue declarations of inconsistency,⁸⁾ one might have expected the Court to be receptive to arguments based on prudential concerns. But none of these arguments persuaded the majority to stay its hand. The case was not of such complexity that relative institutional competence mattered. Further, in the majority’s view, the case concerned the fundamental rights of a minority group, which meant that the other (primarily political) avenues for effecting change referred to by the Attorney-General might be less effective in securing those rights (at [66]–[67]). The majority seemed to take particular relish in responding to the argument that a declaration would be premature:

Further, we are not persuaded it would be premature to make a declaration. It is difficult to say that to do so would be premature when the Royal Commission Report in 1986 said that “a strong case” could be made for reducing the voting age to 16 and recommended that Parliament “keep the voting age under review”. (at [65])

Consequently, the majority made a declaration that the Electoral Act and the Local Electoral Act  provisions specifying a minimum voting age of 18 were inconsistent with the right in s 19 of the Bill of Rights to be free from discrimination on the basis of age, and that these inconsistencies had not been justified in terms of s 5 (at [72]).

What’s next?

In the wake of the Supreme Court’s decision, some resorted to the language of judicial activism—judges intruding on matters that they ought not to—while certain media outlets and politicians over-exuberantly characterised the decision as the Court saying 16 and 17 year olds have the right to vote. As discussed above, however, the terms of the Court’s declaration of inconsistency are more narrow and technical. Moreover, the legal effect of a declaration is much less dramatic than these reactions would suggest. A declaration reflects the Court’s view as to how a right applies in a particular context. But it does not affect the status of the impugned law. As the Court emphasised, only Parliament can change the content of legislation, meaning that the question of how to respond to the Court’s declaration is entirely a matter for Parliament (at [31] and [97]).

Indeed, until recently, there was no obligation on the part of the political branches to respond to a declaration of inconsistency in any way whatsoever. However, with the recent enactment of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, the legislative response to the Supreme Court’s earlier decision establishing the jurisdiction to issue declarations of inconsistency, a declaration cannot simply be ignored. As the majority observes in Make it 16, this amendment to the Bill of Rights, supplemented by revisions to the Standing Orders of the House of Representatives, “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”. (at [31])

In any case, the Supreme Court’s decision spurred an immediate political response, with the government already indicating that legislation will be drafted to lower the voting age to 16—although if enacted, it would not be in time for the next general election in 2023. However, this proposed reform is complicated by the provision in the Electoral Act specifying 18 as the minimum age for voting in general elections being one of a handful of what are known as reserved provisions, which can only be repealed or amended by either a 75% parliamentary supermajority or a majority vote in a referendum. In keeping with this, the lowering of the voting age in the past—from 21 to 20 in 1969, and from 20 to 18 in 1974—was unanimously agreed to in Parliament.⁹⁾

With the main political opposition party having expressed the view that the current voting age is appropriate, the government lacks sufficient support to reach the 75% threshold, meaning that it is most likely that the voting age for general elections will remain where it is for now. The provisions in the Local Electoral Act specifying the minimum voting age for local elections, on the other hand, can be amended by a simple majority, and so reform here does not require bipartisan support. It is probable that the voting age for local elections will be lowered in time for the next local elections in three years.

More broadly speaking, Make It 16 provides a further illustration of the potential potency of declarations of inconsistency, now augmented by the recent amendment to the Bill of Rights, as a means of shifting political discourse and furthering law reform goals.