To Make or Not Make It 16
By Daniel Tran
A Critical Breakdown of Make It 16 Inc v Attorney-General
On the 21st of November 2022, the Supreme Court released their judgement on Make It 16 Inc v Attorney-General. The judges declared that the minimum voting age of 18, set by the Electoral Act 1993 and the Local Electoral Act 2001, was inconsistent with the right to be free from discrimination based on age under s 19 of the New Zealand Bill of Rights Act 1990 (NZBORA).[1]
Of the five Supreme Courts deliberating on the issue, the majority (Winkelmann CJ, Glazebrook, O’Regan, Ellen France JJ) allowed the appeal and made a declaration of NZBORA inconsistency.[2] Kos J, the sole dissent, disagreed that the Electoral Act 1993 was inconsistent with NZBORA.[3] However, he agreed with the majority that a declaration on the Local Electoral Act 2001 was appropriate.[4]
The minimum voting age in the Electoral Act 1993 is unique from other provisions due to its entrenched status.[5] To change the voting age in national elections, a supermajority (75%) support in Parliament is needed. This differs from the normal simple majority (50%) as is the case for the Local Electoral Act 2001.
The case itself demonstrates an example of the youth-led political activism that has increased in recent years, with the result of the case having the potential to shift the political and constitutional landscape of New Zealand in the future.
Case Background
The case was brought by Make It 16 Incorporated, a non-partisan youth-led campaign formed out of Youth Parliament in 2019.[6] Their mission is to advocate for the minimum age of voting to be extended to include 16 and 17 year olds.
In their efforts to seek legislative change, Make It 16 sought a declaration of inconsistency, a formal statement by the courts informing the public that a statute is conflicting with the rights preserved within NZBORA.[7] Make It 16’s first efforts in the High Court were unsuccessful.[8] They appealed this to the Court of Appeal, where their claim was successful in determining an inconsistency with NZBORA, but the court declined to make a declaration as they saw it more appropriate for Parliament to make the final decision on the matter.[9] Make it 16 subsequently appealed to the Supreme Court.
Principal Issues
The Supreme Court was faced with four principal issues: [10]
First, whether it was appropriate for the courts to even consider the question of minimum voting age at all. Second, how are ss 12 (electoral rights) and 19 (the right to freedom from discrimination) of NZBORA supposed to interact with one another. The conflict from the two provisions arises in the conflicting specified age range electoral rights applies to. The third issue is whether the inconsistency with NZBORA was a justified limit on the right. Finally, the last issue is whether the courts should make a declaration of said inconsistency.
Appropriate for the Court?
On the first issue, the entirety of the court rejected the Attorney-General’s arguments that the constitutional and entrenched nature of the issue made it inappropriate for the courts to intervene.[11] Citing Attorney-General v Taylor, the court notes that a function of the courts is to make declarations involving fundamental rights.[12] Therefore, the presence of such rights places the issue within the courts’ jurisdiction and opens the door for courts to inquire.[13]
Conflict of s 12 and s 19 of NZBORA
Section 19 provides the right to freedom from discrimination on the grounds outlined in the HRA. Age is one of the prohibited grounds of discrimination and is defined as any differential treatment based on age from 16 years and onwards.[14] Conversely, s 12 of NZBORA outlines electoral rights and explicitly starts its scope of application from the age of 18 years. With the two provisions on face value seemingly contrary to each other, a question is raised on how they should be read together. Both ss 12 and 19 outline fundamental rights crucial to maintaining a free and democratic society. Any conflict between them must be addressed or justified if one prevails over the other. Otherwise, the values which New Zealand as a society holds itself up to are eroded as public powers are used arbitrarily without accountability.
It is on this issue that Kos J deviates from the majority.[15]
The majority of the Supreme Court took the view that s 12 was not a barrier to preventing the minimum age to vote being lowered.[16] Section 12 is instead a guarantee to the right to vote for citizens aged 18 and over.[17] Section 12 prevents the loss of the right to vote by an increase in the minimum age to vote. In such a reading, ss 12 and 19 could co-exist.
Contrary to the majority, Kos J’s view was that ss 12 and 19 created an internal consistency.[18] The specific nature of s 12 would prevail over the general right to freedom of discrimination affirmed in s 19. His argument relies upon the legislative history of the Electoral Act 1993 and the minimum age to vote’s entrenched status.[19] Since the minimum age to vote has been reduced to 18 in 1874, New Zealand has affirmed its status in NZBORA through s 19 and left it uncontested as the constitutionally entrenched minimum age.[20] When NZBORA was later amended in 1993 to include s 19 and freedom from discrimination on grounds of age, the issue of voting and s 12 was not raised and has not been raised until now.[21] If Parliament had intended s 12 and the issue of voting to be affected by s 19, they would have amended s 12.
Furthermore, Kos J disagrees with the majority’s interpretation that s 12 only protects the minimum age from being raised above 18.[22] Section 12 also protects its lowering below 18 years. Altering the minimum age for voting is an inherently political action and will affect political parties disproportionately – changing the political landscape. It is for these reasons that changing the voting age was entrenched in the first place. He therefore disagrees with the majority and argues that Make It 16’s claim on the Electoral Act 1993 should be dismissed.
On the issue of local elections, due to the Local Electoral Act not being entrenched, the Supreme Court were unanimous.[23] They found it was unaffected by s 12 and therefore fully subject to s 19.
Justified Limited?
Even if minimum voting age is inconsistent with the right to freedom from discrimination under s 19, it could still be legitimized provided it is a reasonable limit that can be justified in a free and democratic society.[24]
In the present case, the question of whether it is a reasonable limit is dependent on the presence of a characteristic of 16–17-year-olds that distinguishes them from 18 years old and which means that they lack the competency to vote. Over history, the ability to vote has been linked with the ownership of certain legal rights (for example in the Middle Ages voting rights were linked with property rights).[25] In modern times, a range of legal rights are bestowed on 16 years old, including the rights to own and drive a car, leave school, pay income tax and marry.[26] As noted by the Royal Commission on the Electoral System, if youth are recognised as maturing earlier, the minimum right to vote should be regularly reviewed to recognised this development. For these reasons, the Supreme Court ruled that the minimum voting age within the Electoral Act 1993 and the Local Electoral Act 2001 was inconsistent with s 19 of NZBORA and not justified.
Declaration
The last issue of the case is whether the court should make a declaration of their findings. The Supreme Court rejected the Attorney-General’s arguments, looked at the fundamental rights and the minority status of the affected parties involved, and concluded that alternative avenues would be less effective.[27] They cited the Royal Commission on the Electoral System’s comments that the issue of minimum voting age should be kept under “regular review” to dismiss any arguments on prematurity.[28]
The Supreme Court subsequently made the declaration of inconsistency. Kos J was against the declaration being made towards the Electoral Act 1993 but supported the declaration on the Local Electoral Act 2001.[29]
Aftermath
Following a declaration of inconsistency, the Attorney-General must notify the House of Representatives within the week and provide a report advising on the Government’s response within 6 months of the declaration being made.[30] While we wait for the Attorney-General’s report and Parliament’s response, reactions to the decision have been widespread.
Upon the declaration, then Prime Minister Jacinda Ardern announced that the Labour party would introduce legislation to lower the voting age for national elections to 16.[31] However, by March 2023 these plans have been scrapped by Prime Minister Chris Hipkins to focus on lower the voting age for local elections.[32]
It is important to note that a declaration is not legally binding. A declaration is only a statement of inconsistency and is intended to draw Parliament attention to said inconsistency. It is still to Parliament to decide upon the legislation in question and act how they deem appropriate. Therefore, Parliament could still choose to not change the voting age if they deem it appropriate.
Across the House and country, the required widespread support to change the entrenched national voting age is not currently present. National Party spokesman Paul Goldsmith stated that they would not be supporting a lower voting age.[33] A public poll on the voting age found that only 21% supported a lower voting age, with 79% against.[34] The same poll also found that support for the voting age change were skewed towards younger demographics between ages 18–24.
The local voting age, on the other hand, seems to have more support for change. Unlike the national voting age, only a simple majority of 50% is needed for amendment. Multiple local councils have endorsed Make It 16’s campaign.[35] Interestingly, the Attorney-General did not attempt to justify the inconsistency with the Local Electoral Act 2001 within the case itself. Whether this represents the Government’s position is speculation at most but does present a possible favourable attitude towards it amendment.
Conclusion
Overall, Make It 16 Inc v Attorney General presents interesting questions on how the courts deal with constitutional issues of entrenched status. In the short term, it looks unlikely that the national voting age will be changed. However, there is political support for a local voting age change. Historically, the national election age has followed local voting age changes, meaning that the campaign for giving 16- and 17-year-olds the right to vote is not over yet. Whatever the future, the efforts of the youths who have brought this campaign to the highest levels of this country’s court must be applauded. The boundaries of youth-led activisms are ever-broadening, and this case offers only a glimpse into the possibilities these youth can offer to New Zealand.
[1] Make It 16 Inc v Attorney-General [2022] NZSC 134.
[2] At [71].
[3] At [74].
[4] At [75].
[5] Electoral Act 1993, at s 268(1)(e) and (2).
[6] “Our Campagin” Make It 16 <www.makeit16.org.nz>.
[7] Olga Ostrovsky and Gilbert/Walker “Declarations of inconsistency under the New Zealand Bill of Rights Act” [2015] NZLJ 283 at 285.
[8] Make It 16 Inc, above n 1, at [18].
[9] At [19]–[22].
[10] At [4].
[11] At [34].
[12] Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [63].
[13] Ngāti Whatua Orakei Trust v Attorney-General [2018] NZSC 84 at [46].
[14] Humans Right Act 1993, s 21(i)(i).
[15] Make It 16 Inc, above n 1, at [74].
[16] At [40].
[17] At [36].
[18] At [74].
[19] At [90]–[92]
[20] At [86]–[88].
[21] At [89].
[22] At [93].
[23] At [95].
[24] New Zealand Bill of Rights Act 1990, s 5.
[25] Report of the Royal Commission on the Electoral System “Towards a Better Democracy” [1986–1987] IX AJHR H3 at [9.8].
[26] At [9.12].
[27] Make It 16 Inc, above n 1, at [67].
[28] Report of the Royal Commission on the Electoral System, above n 27, at [9.14].
[29] Make It 16 Inc, above n 1, at [95].
[30] New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, s 7A.
[31] Anna Whyte “Lowering voting age to 16 likely to fail in Parliament” (21 November 2022) Stuff <www.stuff.co.nz>.
[32] Jamie Ensor “Prime Minister Chris Hipkins abandons plan for legislation to lower voting age for general elections” (13 March 2023) Newshub <www.newshub.co.nz>.
[33] “National says no 'logic' in lowering voting age from 18 to 16” (22 November 2022) RNZ <www.rnz.co.nz>.
[34] Michael Neilson “Lowering the voting age from 18 to 16: Poll reveals what Kiwis think” The New Zealand Herald (online ed, Auckland, 1 December 2022).
[35] Erin Gourley “Hutt City Council fourth in Wellington region to endorse Make It 16's call for lower voting age” (21 December 2022) Stuff <www.stuff.co.nz>.
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