Legal Research
Cases
Make It 16 Incorporated v Attorney-General

Make It 16 Incorporated v Attorney-General

Case [2022] NZSC 134 21 November 2022

Jurisdiction

Constitutional Validity

Separation of Powers

Statutory Construction

Limitation Periods

Appeal

Constitutional Law

Elections & Political Law

Type to search within this case.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 14/2022
[2022] NZSC 134

BETWEEN	MAKE IT 16 INCORPORATED Appellant
AND	ATTORNEY-GENERAL Respondent

Hearing:	12 July 2022
Court:	Winkelmann CJ, Glazebrook, O’Regan, Ellen France and Kós JJ
Counsel:	J S McHerron, G K Edgeler, E B Moran and C M McCracken for Appellant A M Powell and A P Lawson for Respondent
Judgment:	21 November 2022

JUDGMENT OF THE COURT

AThe appeal is allowed. The decision of the Court of Appeal is set aside.

BA declaration is made that the provisions of the Electoral Act 1993 and of the Local Electoral Act 2001 which provide for a minimum voting age of 18 years are inconsistent with the right in s 19 of the New Zealand Bill of Rights Act 1990 to be free from discrimination on the basis of age; these inconsistencies have not been justified in terms of s 5 of the New Zealand Bill of Rights Act.

CCosts are reserved.

____________________________________________________________________

REASONS

Para No.
Winkelmann CJ, Glazebrook, O’Regan and Ellen France JJ	[1]
Kós J	[74]

WINKELMANN CJ, GLAZEBROOK, O’REGAN AND ELLEN FRANCE JJ
(Given by Ellen France J)

Table of Contents

Para No.
Introduction	[1]
The statutory framework	[6]
The electoral legislation	[7]
The Bill of Rights	[11]
The Courts below	[15]
The High Court	[16]
The Court of Appeal	[19]
The positions taken by the parties	[23]
A role for the Courts?	[26]
Effect of s 12	[35]
A justified limit?	[41]
*Our assessment*	[45]
Was the Court of Appeal right not to make a declaration?	[58]
Our assessment	[62]
The form of the order	[70]
Result	[71]
Costs	[73]

Introduction

The minimum voting age in New Zealand is 18 years. The appellant, Make It 16 Inc, is a group seeking to have the voting age lowered to 16 years. As part of its advocacy for that legislative change, Make It 16 sought declarations in the High Court that the provisions setting the minimum voting age in the Electoral Act 1993 and the Local Electoral Act 2001 are inconsistent with the right to freedom from discrimination on the basis of age which is protected by s 19 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). “Age” for these purposes is any age commencing with 16 years.
This Court in Attorney‑General v Taylor confirmed there was jurisdiction to make a declaration that legislation is inconsistent with the Bill of Rights.[1] Subsequently, legislation has been enacted providing for the procedures to be followed in the House of Representatives and by the government of the day in response to such declarations.[2]
[1]Attorney‑General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [65] per Glazebrook and Ellen France JJ and at [74] and [107] per Elias CJ.
[2]New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022.
The High Court declined to make the declarations sought by Make It 16 on the basis that the limit…

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 Incorporated v Attorney-General

Details

AGLC: Make It 16 Incorporated v Attorney-General [2022] NZSC 134
Case: [2022] NZSC 134
Decision Date: 21 November 2022

CaseChat Overview and Summary

- **Parties and Dispute**: The case involves Make It 16 Incorporated, an organisation advocating for the lowering of the voting age in New Zealand, and the Attorney-General as the respondent. Make It 16 Incorporated sought declarations in the High Court that the provisions setting the minimum voting age in the Electoral Act 1993 and the Local Electoral Act 2001 are inconsistent with the right to freedom from discrimination on the basis of age, as protected by section 19 of the New Zealand Bill of Rights Act 1990. The High Court declined to make the declarations, finding that the limit on the freedom from discrimination on the grounds of age in the two Acts was a justified limit under section 5 of the Bill of Rights. The Court of Appeal disagreed that the limit was justified but nonetheless declined to make the declarations.

- **Legal Issues**: The appeal raised four principal questions. Firstly, whether it was appropriate for the courts to engage in the inquiry which Make It 16 advocated. Secondly, the effect of section 12 of the Bill of Rights, which protects the voting rights in general elections for those aged 18 years and older, on the section 19 right to freedom from discrimination on the grounds of age. Thirdly, if inquiry was appropriate, and if section 12 did not override or qualify section 19, whether the inconsistency with section 19 was justified under section 5. Finally, whether, if the inconsistency has not been justified, the declarations sought should have been made.

- **Court's Reasoning and Outcome**: The Court found that it was appropriate for the courts to engage in the inquiry. It concluded that section 12 of the Bill of Rights does not preclude the relief sought by Make It 16. The Court of Appeal was right to conclude that the limit on section 19 has not been justified. The Court held that the Court of Appeal erred in declining to grant the declaratory relief sought by Make It 16. A declaration was made that the provisions of the Electoral Act 1993 and of the Local Electoral Act 2001 which provide for a minimum voting age of 18 years are inconsistent with the right in section 19 of the New Zealand Bill of Rights Act 1990 to be free from discrimination on the basis of age; these inconsistencies have not been justified in terms of section 5 of the New Zealand Bill of Rights Act.

- **Final Orders**: The appeal was allowed. The decision of the Court of Appeal was set aside. A declaration was made that the provisions of the Electoral Act 1993 and of the Local Electoral Act 2001 which provide for a minimum voting age of 18 years are inconsistent with the right in section 19 of the New Zealand Bill of Rights Act 1990 to be free from discrimination on the basis of age; these inconsistencies have not been justified in terms of section 5 of the New Zealand Bill of Rights Act. Costs were reserved.

Orders