The Court of Appeal declined Make It 16’s application for a declaration that the minimum voting age was inconsistent with the right to freedom from discrimination under the New Zealand Bill of Rights Act 1990 (“NZBORA”).
Make It 16 is a lobby group seeking to lower the minimum voting age from 18 to 16. The group argued the minimum age of 18 set by the Electoral Act 1993 and Local Electoral Act 2001 was inconsistent with the right to freedom from discrimination on the basis of age. The High Court acknowledged a voting age of 18 was discriminatory to16-17 year olds. Despite this, Doogue J held the limitation was justified in a free and democratic society and not in breach of NZBORA.
Make It 16 appealed this decision to the Court of Appeal.
NZBORA guarantees both the right of those aged 18 and above to vote, and the right to freedom from discrimination. Under the Human Rights Act1993, discrimination on the basis of age includes “any age commencing with the age of 16 years”. The Court held the right to vote in NZBORA did not expressly exclude 16 year-olds from voting, meaning the provisions were not in conflict.
While rights under NZBORA can be limited, they can only be done so when demonstrably justified in a free and democratic society. The High Court identified the purpose of a minimum age was to ensure “all qualified adults(as opposed to children) should be able to vote”, and was satisfied this was an appropriate justification. The Court of Appeal held this alone was insufficient, requiring further justification as to why Parliament determined16-17 year olds were not qualified adults. The Attorney-General provided no evidence to suggest 16 year olds lacked capacity to vote or exercise independent thought. Instead, evidence before the High Court suggested 16 year olds were sufficiently competent.
The Attorney-General also argued 18 is within the range of reasonable alternatives. The Court found this was an arbitrary threshold and more evidence was required to justify limiting a core democratic right to those aged 18 and over.
The Court has discretion to issue a declaration of inconsistency where appropriate. The Court found the Attorney-General had not established the limit was justified. However, this was not a positive finding that the discrimination could not be justified, but instead that the evidence presented was insufficient to justify the limitation. French J noted the issue is highly political and subject to a range of reasonable views.
The Court declined to make a declaration of inconsistency and the appeal was dismissed.
Despite this, the Court found that the Attorney-General is required to provide evidence to justify a minimum voting age of 18.
Make It 16 successfully appealed the decision to the Supreme Court, who made the requested declaration of inconsistency ([2022] NZSC 134).
