Shan Pearson December 13 2022 Supreme Court finds setting voting age at 18 inconsistent with Bill of Rights Act Wilson Harle | Litigation - New Zealand Shan Pearson Litigation IntroductionBackgroundHigh CourtCourt of AppealSupreme CourtCommentIntroductionThe goal of Make it 16 Inc is to have the voting age in New Zealand lowered from 18 to 16 years. In Make It 16 Inc v Attorney-General,(1) it sought to advance that objective by applying for declarations that provisions setting the minimum voting age at 18 in the Electoral Act 1993 (in respect of general elections) and the Local Electoral Act 2001 (in respect of local body elections) were inconsistent with the right to freedom from discrimination on the basis of age – a right protected by section 19 of the New Zealand Bill of Rights Act 1990 (Bill of Rights).BackgroundThe provisions of the Electoral Act setting the minimum age to vote in a general election are "reserved" or entrenched – unable to be amended or repealed without the support of a 75% majority of the House of Representatives or of a majority of votes cast in a referendum.(2) The provisions in the Local Electoral Act, relating to the voting age in local body elections, are not entrenched.(3)Four provisions of the Bill of Rights were of key relevance:Section 19 protects the right to freedom from discrimination on the basis of age. "Age" is defined as encompassing discrimination based on any age from 16 years. This position differs from comparable jurisdictions where "age" is undefined for this purpose.(4)Section 12 protects the current minimum voting age of 18 in general elections.Section 5 provides that the rights and freedoms in the Bill of Rights may be subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.Section 6 provides that, wherever an enactment can be given a meaning that is consistent with the Bill of Rights, that meaning is to be preferred.High CourtThe High Court declined to make the declarations, holding that, although setting the voting age at 18 appeared inconsistent with section 19, it was a justified limitation, pursuant to section 5. The Court applied the methodology previously approved by the Supreme Court in R v Hansen,(5) requiring consideration of whether the objective of the limit was sufficiently important and, if so, the proportionality of the means adopted to achieve the objective.(6) The purpose of the legislation was held to be implementation of the basic democratic principle that all qualified adults (rather than children) should be able to vote. There was a logical connection between that objective and setting the minimum voting age at 18 and section 12 of the Bill of Rights signalled that Parliament viewed limiting the right to vote to those aged 18 and over to be a "reasonable minimum restriction".(7)Court of AppealThe Court of Appeal addressed the relationship between sections 12 and 19. Applying a rights-friendly construction, pursuant to section 6, both provisions were read together to conclude that section 12 guaranteed the right of those aged 18 and over to vote, but did not preclude extending the voting age to someone younger.(8) Considering the limitation on rights analysis, using principles in R v Hansen, the focus should be on the purpose of the limit on the right, not the purpose of the legislation, which was to define the minimum voting age. Accordingly, the social advantage of excluding 16- and 17-year-old persons from voting needed to outweigh the right to be free from discrimination on the basis of age.(9) Although the attorney-general had not been able to show sufficient justification for limiting the "core democratic right" at issue,(10) discretion was exercised against the grant of declarations for reasons of comity or deference to other branches of government – the issue being described as "intensely and quintessentially" a political one best left for Parliament.(11)Supreme CourtThe Supreme Court allowed the appeal by a majority of 4-1 in respect of the provisions of the Electoral Act and unanimously in relation to the Local Electoral Act. It declared that setting the minimum voting age at 18 was inconsistent with section 19, and that the inconsistency was unjustified in terms of section 5.Role of courtsThe attorney-general argued that, in respect of general elections, it was premature for the Court to engage in a consistency inquiry in circumstances where a democratic process for changing the law was already provided, requiring either a super majority in Parliament or a referendum of voters, when neither process had been engaged.(12) Declarations would pre-empt the democratic process and risk skewing the public debate.The Supreme Court concluded that the making of a declaration was consistent with the usual function of the courts, and was appropriate where consideration of fundamental rights was involved. While the need for restraint and comity were relevant to the exercise of the discretion to grant a declaration, they did not bar the courts from engaging in inquiry on the issue. The contrary argument undercut the courts' role and overstated the effect of a declaration, which was simply a statement of the judicial view of the law. Parliament would determine how to respond to that statement, as set out in the recent New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 and Standing Orders of the House of Representatives.Impact of section 12Although by the time of the hearing the attorney-general had abandoned the argument that section 12 prevailed over section 19 and created an exception to the protection against age discrimination in section 19,(13) the issue was addressed on the limited argument advanced and resulted in the 4-1 division.The majority read sections 12 and 19 together in a rights consistent way, pursuant to sections 6, interpreting section 12 as guaranteeing only the right of those aged 18 and over to vote so the voting age could be lowered but not increased.Kós J disagreed with the majority's view that section 6 could resolve a conflict within the Bill of Rights itself. Rather, section 6 was concerned with interpretation of primary legislation (here the Electoral Act). He considered the majority's construction of section 12 to be too narrow when the legislative history was examined, with the entrenched provisions in the Electoral Act not merely protecting against diminution of voter qualification, but also against enlargement of voter qualification. Against that background and applying the principle that general provisions do not derogate from specific ones,(14) he held that the express right to vote in general elections at 18, affirmed by section 12, prevailed over the general right to freedom from discrimination affirmed by section 19.Inconsistency a justified limit?The limit was held not to be justified. The Supreme Court rejected the submission that setting the minimum voting age at 18 was within a range of reasonable alternatives, was consistent with the position taken in most other countries and reflected changes to a person's legal status and rights upon reaching that age. It had not been shown why 18 was the minimum voting age, when the prohibition on discrimination expressly applied to those 16 years and older. Core democratic rights did not fall within a range of acceptable alternatives among which Parliament could "pick and choose" at its discretion.(15)The objective of the limit was held to be ensuring an electorate of sufficient maturity, or competency. In the absence of any evidence to the contrary, reliance was placed on a report from the children's commissioner and expert evidence from the appellant which supported the proposition that 16- and 17-year-old persons were competent to vote.Should the declarations have been made?Whether relief should presumptively be granted in civil cases, as argued by the appellant, was left for development on a case-by-case basis, but it was held not to be premature to make a declaration in circumstances where a Royal Commission Report in 1986 had advised that a strong case could be made to reduce the voting age to 16 and had recommended that Parliament keep the voting age under review. Nor was the issue of such complexity as to be beyond the judiciary's ability to resolve it. Other factors supporting relief included, importantly, the protection of the fundamental rights of a minority group, which meant that alternative avenues for addressing the issue, including an electoral review, may not provide an effective means of protecting their rights. As the age of 16 was expressly referred to in New Zealand's anti-discrimination provisions in the Bill of Rights, a particular focus was required on provisions that discriminate against those aged 16 and 17.While Parliament may take into account other matters in ensuring the democratic legitimacy of the resolution ultimately adopted, the Supreme Court considered that it should fulfill its role and declare the law. A declaration of inconsistency of the minimum voting age of 18 with the Bill of Rights did not pre-empt the ability of Parliament to decide that an age other than 16 or 17 was a justified limit on the protected right.CommentUnder New Zealand law, a 16-year-old can work part-time (paying tax on the income earned), learn to drive a vehicle and consent to sexual connection. Supporters of a change also point to the future impact of the climate crisis as justification of a reduction of two years in age in influencing who should lead the next government. However, why stop at 16 rather than, for example, 15?(16) The quest to find a cogent connection between an individual's age and the right to vote is complex, requiring an assessment that factors in a broad range of issues, and is rightly left for Parliament to finally decide.Make it 16 Inc illustrated an attempt to define the line where judicial inquiry appropriately ends and political debate (for Parliament and the electorate) begins. While holding that it was doing no more than declaring the law, the inquiry is connected to a hot political issue and the decision is public – available to all looking to participate in the subsequent political process. Political opponents of a change have been critical of the decision to issue declarations of inconsistency, suggesting a blurring of the separation of powers.Following the decision, the government has introduced a bill to lower the voting age to 16. If passed, it would make New Zealand among only a handful of countries to take this step (but not the first, in contrast to women obtaining the right to vote in 1893).(17) The outcome of this process is awaited with interest, particularly regarding whether lowering the voting age for general elections achieves the requisite cross-party support in Parliament or majority support in a referendum.(18)For further information on this topic please contact Shan Pearson at Wilson Harle by telephone (+64 9 915 5700) or email ([email protected]). The Wilson Harle website can be accessed at www.wilsonharle.com.Endnotes(1) Make It 16 Incorporated v Attorney-General  NZSC 134 [21 November 2022].(2) Electoral Act, s 268(1)(e) and (2); cited in Make It 16 Inc at .(3) Make It 16 at .(4) Make It 16 at .(5) R v Hansen  NZSC 7,  3 NZLR 1.(6) Make It 16 at .(7) Make It 16 at .(8) Make It 16 at .(9) Make It 16 at .(10) Make It 16 at .(11) Make It 16 at .(12) Unlike the general election provisions, the local body provisions are not entrenched, so the attorney-general could not rely on this argument against making the declarations in respect of local body elections.(13) This prompted Kós J to observe that significant questions of public rights before the Court "cannot just be resolved by the forensic choices made by parties": Make It 16 at .(14) Traditionally quoted by its Latin equivalent as generalia specialibus non derogant.(15) Make It 16 at . Sauvé v Canada (Chief Electoral Officer) 2002 SCC 68,  3 SCR 519 at .(16) Prominent UK academic Prof David Runciman has argued that the voting age should be lowered to six, saying ageing populations meant young people were now "massively outnumbered", creating a democratic crisis and an inbuilt bias against governments that plan for the future.(17) Brazil, Cuba, Austria and Malta have voting ages of 16 and up, while 16-year-olds in Scotland can vote in Scottish elections, but not UK general elections.(18) At the time of writing, public comments by the parties indicate that the bill will be supported by three parties and opposed by two others, which would mean that it fails to obtain the necessary majority.