| 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 |
| AND | ATTORNEY-GENERAL |
| 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 |
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…
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- AGLC
- Make It 16 Incorporated v Attorney-General [2022] NZSC 134
- Case
- [2022] NZSC 134
- Decision Date
CaseChat Overview and Summary
- **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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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