CaseBase® Case of the Month [May 2022]

CaseBase provides legal summary and references on this Court of Appeal decision that addresses the hot topic of reducing the legal voting age, and if age discrimination was a factor in High Court rulings.

CASE: Make It 16 Inc v Attorney-General [2021] NZCA 681; BC202164491

Make It 16 Inc is a lobby group seeking to lower the minimum voting age from 18 years to 16 years. It sought a declaration in the High Court 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 New Zealand Bill of Rights Act 1990. Its application was unsuccessful.

The High Court Judge dismissed the case on the basis that the Electoral Act 1993 qualified an "adult person" as "a person of or over the age of 18 years". Although the age limitation discriminated against 16- and 17-year-olds, it was justified. Maintaining age at 18 was reasonable and proportionate to the objective of granting adults right to vote.

Make It 16 appealed the case to the Court of Appeal. In the Court of Appeal, the judges agree that some limit on voting age is clearly justified. However, for the purposes of a Bill of Rights Act analysis, the focus is on 16- and 17-year-olds, because the protected right under s 19 of the Bill of Rights Act against age discrimination only applies to those aged 16 and over. Fifteen-year-olds could not argue a breach of s 19 if the voting age were lowered to 16 years. The court found that the Attorney-General has not established that the limits on the right of 16- and 17-year-olds to be free from age discrimination are reasonable limits that can be demonstrably justified in a free and democratic society. Yet, the case was dismissed.

The decision rests not on a positive finding that discrimination on grounds of age cannot be justified but on what the court held to be a failure to attempt to justify the existing age limit. Further, the issue is very much in the public arena already. It is an intensely and quintessentially political issue involving the democratic process itself and on which there are a range of reasonable views. That being the context, the Court of Appeal choose to exercise restraint and decline the application for declarations.

Leave to appeal was granted by the Supreme court on 13 April 2022.

ACCESS CASEBASE: Make It 16 Inc v Attorney-General [2021] NZCA 681; BC202164491

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