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Make It 16 Inc v Attorney-General

Make It 16 Inc v Attorney-General

Case [2021] NZCA 681 14 December 2021

Constitutional Validity

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA640/2020
[2021] NZCA 681

BETWEEN	MAKE IT 16 INCORPORATED Appellant
AND	ATTORNEY-GENERAL Respondent

Hearing:	5 August 2021
Court:	French, Miller and Courtney JJ
Counsel:	J S McHerron, G K Edgeler, E B Moran and C M McCracken for Appellant A M Powell, D Jones and A P Lawson for Respondent
Judgment:	14 December 2021 at 9 am

JUDGMENT OF THE COURT

AThe appellant’s application for declarations of inconsistency is declined.
BThe appeal is dismissed.
CThere will be no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Make It 16 Inc is a lobby group seeking to lower the minimum voting age from 18 years to 16 years. As part of its campaign, Make It 16 issued proceedings in the High Court. It sought a declaration that the provisions of the Electoral Act 1993 and the Local Electoral Act 2001 that set the minimum voting age at 18 are inconsistent with the right to freedom from age discrimination guaranteed under s 19 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).
The application for a declaration was unsuccessful. The Judge, Doogue J, held that although setting the voting age at 18 did discriminate against 16 and 17 year olds, it was a limitation on the right against age discrimination that was justified in a free and democratic society. The voting age provisions therefore did not breach the Bill of Rights Act.[1]
[1]Make It 16 Inc v Attorney-General [2020] 3 NZLR 481, [2020] NZHC 2630 [High Court judgment].
Dissatisfied with that outcome, Make It 16 now appeals.
For completeness we note that since the appeal was heard, the Supreme Court has delivered its decision in Fitzgerald v R[2] addressing various aspects of the Bill of Rights Act. We did not consider it impacted on the issues in this appeal and therefore did not consider it necessary to call for further submissions.

The controversy

[2]Fitzgerald v R [2021] NZSC 131.

The minimum voting age in New Zealand has been 18 years since 1974 when it was reduced from 20 years. Prior to 1974, it had been 21 years.
Under the Electoral Act, generally speaking most citizens as well as permanent residents who have attained the age of 18 are legally entitled to register to vote and once registered are legally entitled to cast a vote in parliamentary elections. The two sections (ss 60 and 74) that create these rights do not specifically refer to the age of 18 years.[3] Section 60 sets out who may vote and references those who are “qualified to be registered as an elector of the district”. Section 74 states that every “adult person” is qualified to be registered as an elector of an electoral district if certain criteria are met. The 18 years comes about because “adult” is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Make It 16 Inc v Attorney-General

Details

AGLC: Make It 16 Inc v Attorney-General [2021] NZCA 681
Case: [2021] NZCA 681
Decision Date: 14 December 2021 at 9 am

CaseChat Overview and Summary

In Make It 16 Inc v Attorney-General, the New Zealand Court of Appeal dismissed an appeal brought by Make It 16 Inc, a lobby group that sought to lower the minimum voting age from 18 years to 16 years. The group sought declarations that the voting age provisions in the Electoral Act 1993 and the Local Electoral Act 2001 were inconsistent with the right to freedom from age discrimination guaranteed under section 19 of the New Zealand Bill of Rights Act 1990. The High Court dismissed the application, finding that the provisions were a justified limitation on the right against age discrimination. On appeal, the Court of Appeal found that the High Court's approach to the issue was flawed and that the Attorney-General had not established that the limits on the right of 16 and 17 year olds to be free from age discrimination created by the voting age provisions were reasonable limits that can be demonstrably justified in a free and democratic society. However, the Court of Appeal declined to make the sought declarations, exercising restraint due to the intensely political nature of the issue. The appeal was dismissed, and there will be no order as to costs.

Orders