2023 PLP 426 (SCMR)

[75] I agree however with the majority that a declaration of inconsistency must be made in relation to the provisions of the Local Electoral Act 2001. Those provisions stand alone, unaffected (and unprotected) by s

12. They are inconsistent with s 19, and the Attorney-General does not attempt to justify the inconsistency under s

5. Important questions of public rights cannot be resolved by parties forensic choices [76] Non-inconsistency was advanced by the Attorney-General in the Court of Appeal, but rejected there.81 As the majority in this Court notes, the Attorney-General initially re-advanced the argument here, in its notice to support the judgment on other grounds, but then abandoned it ahead of the hearing. Pressed on the point at the hearing, counsel did address the Court on the issue. Had the point persuaded more than one of us, further argument may perhaps have been needed. It is regrettable the argument was abandoned by the Attorney-General. Important questions of public rights before this Court cannot just be resolved by the forensic choices made by parties. Parliamentary elections [77] In a parliamentary democracy, the extent of the franchise is determined by the express will of the electorate. That is, through Parliament, acting by legislation defining exactly who may vote. So it has been in New Zealand since 1852.82 In play are both voter qualification and voter disqualification. [78] Voter qualification has historically depended on five factors: sex, ownership or possession of real property, race, citizenship (or residence) and age. Today the last two alone remain relevant. Race, at least in principle, has only ever affected qualification to vote in the Māori electorate seats first established in 1867.83 Property-based qualifications, which in fact had disproportionately disenfranchised Māori from entry on the general roll, were abolished in 1879.84 New Zealand was the first nation state to exclude sex as a discriminating factor, in 1893.85 As to citizenship/residence, what began as a right effectively confined to British subjects evolved to a qualification based on New Zealand citizenship or permanent residence, combined with continuous residence at some time for one year.86 Finally as to age, a minimum voting age of 21 years was adopted in 1852 and retained by the Electoral Act 1956. Post-1956 reforms will be considered shortly. [79] Voter disqualification, at least presently, focuses on (1) continuous absence from the jurisdiction of voters otherwise entitled to vote, (2) serving prisoners, (3) persons detained for treatment in a mental hospital or secure facility following specified processes, and (4) persons named on corrupt practices lists.87 Only the second has proved particularly controversial in recent years, with a number of legislative amendments having been enacted and a number of legal challenges advanced.88 [80] Parliamentary tinkering with electoral law had been a feature of the first half of the twentieth century. Second ballot voting (a form of preferential voting) was introduced in 1908 and repealed in 1913.89 An Act was passed to elect members of the Legislative Council by single transferable vote in 1914, but never implemented.90 A four-year parliamentary term was introduced in 1934, but repealed in 1937.91 Legislation was passed twice during the Second World War to extend the parliamentary term.92 [81] What was singular about the Electoral Act 1956 and is continued into the present Act was the legislative entrenchment of six specific aspects of the electoral law it produced: the three-year parliamentary term, the constitution of the Representation Commission, the rules for drawing electoral boundaries, the five per cent electoral population quota tolerance, the voting method (secret ballot) and the minimum voting age.93 Voting age continues to be reserved (or entrenched) by s 268(1)(e) of the current Electoral Act. That is, it may not be amended unless the amendment is passed by 75 per cent of all the members of the House of Representatives or by a simple majority in a plebiscite of electors.94 [82] Parliament in 1956 conceived reservation of these provisions as a means of safeguarding democratic rights to vote. It was unanimous in that resolution, the 1956 Act passing without dissent. Describing reservation as an attempt to place the structure of the law above and beyond the influence of Government and party , the then-Attorney-General, the Hon J R Marshall MP, characterised the reserved provisions as providing the best safe-guard we can work out to protect what in the unanimous view of Parliament are essential safeguards for our democratic method of electing the people s representatives .95 He continued:96 As I have said already, these provisions will depend for their real force on whether they commend themselves to the people. While we can entrench them as far as we can go in the law, with the limitations I have mentioned, they will only really be entrenched if they become universally accepted as rules which commend themselves to the sense of fairness of the people as a whole. Only then can they be regarded as a permanent part of our democratic way of life. That perhaps is the unique and the most important part of this Bill, but the Bill contains a number of other matters to which attention should be drawn. [83] His colleague (and a future Attorney-General) the Hon J R Hanan MP saw reservation as almost an attempt to attain some of the advantages of a fixed constitution that is, making laws unalterable except under certain conditions .97 And while it was true it was not fully entrenched, it gives the people a right to the continuance of those principles (contained in the entrenching provision) so that repeal would be at a government s peril :98 There is created a strong moral obligation on any future Government not to alter the rules of the game unless with a 75 per cent vote in the House of Representatives or through a referendum. [84] In closing the debate, the Attorney-General observed:99 What we are doing has a moral sanction rather than a legal one, but to the extent that these provisions are unanimously supported by both sides of the House, and to the extent that they will be universally accepted by the people, they acquire a force which subsequent Parliaments will, I believe, respect, and which subsequent Parliaments will attempt to repeal or amend at their peril against the will of the people. [85] The 21-year voting age instituted in 1852 was retained, more than a century later, by the Electoral Act 1956 (along with more restrictive citizenship requirements than now apply).100 Whether that age was right was queried by the then-leader of the opposition, the Rt Hon Walter Nash MP, who wondered aloud whether democracy commences ... after a person becomes twenty-one .101 In 1969, cross-party support (led by the then-National Government) lowered the minimum voting age to 20 years.102 Labour largely preferred a move to 18 years, regarding the Government s more modest proposal as a (misconceived) attempt to gain political advantage. But it still supported the measure.103 In 1974 more cross-party support (this time led by the then-Labour Government) lowered the minimum voting to 18 years, where it remains.104 [86] Thirty years after the 1956 Act, the Royal Commission on the Electoral System considered Parliament s then-aspiration to place the structure of the law above and beyond the influence of Government and party had succeeded in fact, noting its force as a convention of the constitution appears to be clearly established .105 With one exception (arising after the Commission s Report), subsequent electoral amendments either had cross-party support or were abandoned for want of it.106 In short, the reserved provisions had become a permanent part of New Zealand s democratic way of life, and had acquired the conventional status hoped for. [87] In 1968 New Zealand signed the International Covenant on Civil and Political Rights (ICCPR), ratifying it a decade later in 1978.107 Article 25 provides that [e]very citizen shall have the right [t]o vote at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors . What however is required by citizenship, age and periodicity is left to local legislatures to define further here done in the provisions of the Electoral Act 1993. To that extent the exact form the right takes is itself given only limited expression in the ICCPR.108 [88] The Bill of Rights then further affirmed that right in s 12(a) by providing that every New Zealand citizen aged 18 years or more has the right to vote in genuine periodic parliamentary elections, by equal suffrage and secret ballot. That limited formulation repeats some of the language of the ICCPR, and at the same time draws upon some (but not all) of the reserved provisions of the Electoral Act 1956. Those limits, and the connection to the reserved provisions, were noted in the White Paper that preceded the Bill of Rights:109 10.48 This Article is concerned with basic principles and is not designed to entrench the present law in its details. Thus it guarantees the right to vote to New Zealand citizens only, whereas the present law (Electoral Act 1956 s 39) gives the franchise also to all permanent residents of New Zealand who have lived continuously in New Zealand for one year. That provision will not be affected, and will remain in force unless Parliament decides to change it. 10.50 The voting age of 18 is also a reserved provision by virtue of s 189 (e) of the Electoral Act and thus partly entrenched. 10.51 Equal suffrage does not require an exact equality of population for electorates. The present 10 percent differentiation allowed under the Electoral Act s 17 (itself a reserved provision ) is already one of the narrowest in Western democracies. Only if the permitted discrepancies in the populations of electorates were gross might a court hold that this Article had been infringed. 10.52 Permissible limitations under Article 3 would doubtless include such usual requirements as voter registration and reasonable residence tests. These are commonplace provisions in democratic societies. Again, their detailed regulation is properly left to Parliament in the ordinary way. [89] When, three years later in 1993, s 19 was amended by simple majority to include by incorporation freedom from discrimination on the ground of age, there was no reference in Hansard to non-discrimination as to age in voting.110 The focus, so far as age discrimination was discussed at all, was on the interests of senior, rather than junior, citizens.111 Voting was not discussed. There is no explicit suggestion that the amendment to s 19 was intended to alter the voting rights affirmed by s

12. Nor does that potential consequence appear to have been appreciated, either at the time or for many years thereafter.112 Assessment [90] My assessment draws on the legislative history just discussed. I make four points. [91] First, the right to vote is inherent in a free and democratic society. Without that right, society is neither free nor democratic. As the Solicitor-General submitted, correctly, in Ngaronoa v Attorney-General, the Electoral Act 1993 creates the machinery by which we exercise the right to vote, but it assumes the existence of a right to vote as a fundamental common law right.113 Since 1852 that common law right has been both affirmed and limited in this jurisdiction by the electoral legislation, with some of the legislative limitations peeling off over time and with some of the rights-protective provisions themselves being subject to legislative protection via entrenchment an action intended by Parliament to have real constitutional consequence. As the debates demonstrate, along with the unanimity that prevailed in 1956, Parliament intended the reserved provisions to create enduring rights which have at least the force of constitutional convention. Those electoral rights were further affirmed, incompletely and in general terms, by the ICCPR and the Bill of Rights. Electoral rights reside in this combination of common law, statute and international law. Specifically, they include the constitutional protections given by the reserved provisions in the Electoral Act. [92] Secondly, the internal inconsistency in the Bill of Rights between (1) the broad reach of s 19 in providing for a generic right to be free from discrimination on grounds of age (from age 16), limited only by what is demonstrably justified in a free and democratic society, and (2) the explicit reach of s 12 (consistent with the entrenched Electoral Act provisions) in making express provision for a right to vote from age 18, falls to be resolved by statutory interpretation of the Bill of Rights itself, discerning its meaning from the text in light of its purpose.114 As Elias CJ made clear in R v Hansen, ascertaining the meaning and extent of rights and freedoms affirmed in the Bill of Rights is itself a matter of statutory interpretation:115 Many of the rights recognised in Part 2 are qualified in their own terms or by necessary implication because they collide with other rights recognised in Part

2. The meaning of an enacted right therefore turns on the text, purpose and context of the New Zealand Bill of Rights Act. In disagreement with the majority (and the Court of Appeal), I do not find s 6 of the Bill of Rights helpful in resolving a conflict within the Bill of Rights itself.116 I regard that section as most fundamentally concerned with interpretation of primary legislation here, the Electoral Act 1993. I do not consider it speaks coherently when the issue is what the rights and freedoms contained in this Bill of Rights actually are. [93] Thirdly, the Court of Appeal, and the majority in this Court, construe s 12 as simply protecting 18 year-old voters against an increase in the voting age.117 I disagree with that construction, which I think takes too narrow a view of the relevant right. It does not fully account for the background to s 12(a), which reflects the reserved provisions as to voting age in what then was the Electoral Act 1956. The reserved provisions did not merely protect against diminution of voter qualification for example, by increasing the qualifying age or, in the example given by the majority, re-inserting a property qualification. They also protected qualified voters against enlargement of voter qualification. Altering voter age is not a neutral political action. Whichever direction it goes in is likely to benefit some parties disproportionately. That consequence is perfectly fine, but it is one of the reasons voting age is reserved and requires a parliamentary super-majority. That purpose must also lie behind s 12 of the Bill of Rights. [94] Fourthly, the difficulty here is the conflict within the Bill of Rights, because if s 19 extends to voting, the prohibited discrimination is triggered from the age of

16. Yet s 12, just one page, and seven sections, earlier, explicitly affirms that right with effect from the age of 18 years in the case of parliamentary elections. And relatedly, 18 years is also the constitutionally-reserved minimum age for persons otherwise qualified to be registered as electors or to vote under the Electoral Act 1993. Had Parliament intended to alter the temporal aspect of the right to vote, collectively affirmed by s 12 since 1990 and protected through entrenchment by the Electoral Act since 1956, it would have amended s 12 in 1993. It did not do so. I consider the better way of reading the two provisions together is that the explicit right to vote in parliamentary elections at 18 years, grounded in the constitutionally-entrenched provisions of the Electoral Act and affirmed by s 12 of the Bill of Rights, prevails over the generalised right to freedom from discrimination affirmed by s

19. Section 12 constitutes a limited and specific exception to the general right expressed in s

19. That conclusion can, and should, be reached without need to resort to the statutory interpretation canon generalia specialibus non derogant (general provisions do not derogate from specific ones), because it arises from a more fundamental review of (1) textual conflict and (2) the need to resolve that by reference to context and inferred parliamentary purpose. As to (2), both the legislative history and Parliament s silence in 1993 is to me persuasive.118 However, the canon propels analysis in the same direction.119 Local elections [95] As noted earlier, I agree with the majority that a declaration of inconsistency must be made in relation to the provisions of the Local Electoral Act. Those provisions stand alone, unaffected (and unprotected) by s

12. They are inconsistent with s 19, and the Attorney-General does not attempt to justify the inconsistency under s

5. I make two final points. [96] First, although it does not appear generally to reflect New Zealand local electoral history, there is nothing inherently illogical in a different voting age qualification applying to local elections. [97] Secondly, it is important the public appreciate that what is made is a declaration of inconsistency, not illegality. Parliament is the sole arbiter of the content of legislation; the courts are the sole arbiters of legislative interpretation. The declaratory jurisdiction requires the courts to identify, for parliamentary and public attention, cases brought to it where Parliament has passed primary legislation that, duly interpreted, takes effect in a manner inconsistent with the Bill of Rights. In some cases Parliament will know that already, because the Attorney-General will have told it so under s 7, any judgment then serving as authoritative confirmation of that opinion. But what is to be done about the inconsistency identified is always a matter for Parliament.120 MWA/1/SCNZ Appeal allowed. * [2022] NZSC 34 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. 3 Make It 16 Inc v Attorney-General [2020] NZHC 2630, [2020] 3 NZLR 481 (Doogue J) [HC judgment]. 4 Make It 16 Inc v Attorney-General [2021] NZCA 681, [2022] 2 NZLR 440 (French, Miller and Courtney JJ) [CA judgment]. 5 Electoral Act 1993, ss 3(1), 60 and 74; Local Electoral Act 2001, ss 20, 23 and 24; and Citizens Initiated Referenda Act 1993, ss 2, 18 (eligibility to sign an indicative referendum petition), 24, 24A and

27. See also Referendums Framework Act 2019, s 13 (repealed on the close of 1 July 2022 by s 3); and New Zealand Public Health and Disability Act 2000, sch 2 cl 3 (repealed on 1 July 2022 by s 103(1) of the Pae Ora (Healthy Futures) Act 2022). 6 New Zealand Constitution Act 1852 (Imp) 15 & 16 Vict c 72, s 42. 7 Electoral Amendment Act 1969, s

2. This was followed, in 1970, by a lowering of the age of legal majority to 20: Age of Majority Act 1970, s 4. 8 Electoral Amendment Act 1974, s

2. The voting age for local government elections has followed a broadly similar pathway. See generally Kenneth Palmer Local Government Law in Aotearoa New Zealand (2nd ed, Thomson Reuters, Wellington, 2022) at ch 4. 9 As the Court of Appeal notes, s 60(f) is an exception: CA judgment, above n 4, at [6], n

3. That subsection enfranchises (subject to the provisions of the Electoral Act) any member of the Defence Force who is outside New Zealand, if he or she is or will be of or over 18 years on polling day, and his or her place of residence immediately before leaving New Zealand is within the district. 10 Section 3(1)(a). 11 Electoral Act, s 268(1)(e) and (2). 12 Section 268(1) and (2). See also by way of background Ngaronoa v Attorney-General [2018] NZSC 123, [2019] 1 NZLR 289 at [1] [2], [10] [11], [13] [14] and [20] per William Young, Glazebrook, O Regan and Ellen France JJ and at [75] per Elias CJ (dissenting). 13 Local Electoral Act, ss 20, 23 and 24. 14 Human Rights Act 1993, s 21(1)(i). 15 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. 16 HC judgment, above n 3, at [95] [96]. 17 At [104]. See also at [109]. 18 At [105]. 19 CA judgment, above n 4, at [51]. 20 At [51]. 21 At [61]. 22 As we discuss at [61] below there has, since the hearing, been some debate on the issue. 23 Taylor, above n 1, at [53] and see also at [63]. 24 HC judgment, above n 3, at [45]. 25 Regina (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2015] AC 657. 26 Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (opened for signature 4 November 1950, entered into force 3 September 1953). 27 Nicklinson, above n 25, at [148(b)] and [148(c)(i)] per Lord Neuberger P, at [150] and [191] per Lord Mance SCJ, at [196] [197] per Lord Wilson SCJ, at [300] per Lady Hale DP and at [326] per Lord Kerr SCJ. 28 At [115] [116] and [148(c)(ii)] per Lord Neuberger P, at [150] and [190] per Lord Mance SCJ and at [196] [197] per Lord Wilson SCJ. 29 Regina (Steinfeld) v Secretary of State for International Development [2018] UKSC 32, [2020] AC 1 at [60]. See also Regina (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312 at [53] per Lady Hale; and Regina (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837 at [63] per Lord Hutton. 30 At [60] citing Nicklinson, above n 25, at [343] per Lord Kerr SCJ. 31 Human Rights Act, s 145 and sch 2 (now repealed and substituted respectively). Discrimination in employment (and other limited areas) on the basis of age was prohibited in 1992 following an amendment to the Human Rights Commission Act 1977. The Human Rights Commission Act and the Race Relations Act 1971 were later consolidated by the Human Rights Act. In the Human Rights Act, the prohibition on age discrimination applies more broadly and is no longer confined to just employment matters: Christopher Jury and others Human Rights Law (looseleaf ed, Thomson Reuters) at [HR21.01] and [HR21.15]. For a brief reference to voting age by a member in the debate on what became the Human Rights Commission Amendment Act 1992 see (6 September 1990) 510 NZPD 4354 (Hon Richard Prebble MP). 32 This aspect of the case is focussed on how to resolve internal inconsistencies within the Bill of Rights itself contrast the broader issues addressed in Hansen, above n 15. 33 In referring to a range of reasonable alternatives, the Attorney-General relies on the discussion of that approach to s 1 of the Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK) [Canadian Charter] in RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199 at [160] per McLachlin J. 34 HC judgment, above n 3, at [108]. 35 Care of Children Act 2004, s 28. 36 Contract and Commercial Law Act 2017, Part 2 Subpart 6. 37 Juries Act 1981, s 6. 38 See, for example, International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), art 19(3). 39 CA judgment, above n 4, at [51]. 40 HC judgment, above n 3, at [95]. 41 Fitzgerald v Alberta 2002 ABQB 1086, (2002) 331 AR 111. 42 At [56]. 43 At [71]. 44 At [76]. 45 Fitzgerald v Alberta 2004 ABCA 184, (2004) 348 AR 113. 46 Fitzgerald v Alberta [2004] SCCA No

349. More recently, there is a challenge to the federal voting age in Canada. An application has been filed in the Ontario Superior Court of Justice but is yet to be heard. 47 Fitzgerald, above n 41, at [69]. 48 Canadian Charter, s 15. 49 Human Rights Act 1998 (UK), sch 1 art 14. 50 See, for example, s 8 of the Human Rights Act 2004 (ACT); and see also at the federal level s 5 of the Age Discrimination Act 2004 (Cth). 51 Sauv v Canada (Chief Electoral Officer) 2002 SCC 68, [2002] 3 SCR 519 at [13]. This is a feature distinguishing the present case from that of Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [151], relied on by the Attorney-General. Assessment of the reasonableness of the limit by reference to the range of reasonable alternatives took place in Atkinson in the context of consideration of possible policy approaches to the payment of family members for the provision of disability support services to their children. The Court of Appeal referred at [151] [152] to the discussion in Hansen, above n 15, at [79] per Blanchard J, at [126] per Tipping J and at [217] per McGrath J. 52 Sauv , above n 51, at [13]. 53 The report was requested under the Children s Commissioner Act 2003, s 12(1)(g)(i). 54 Grace Icenogle and others Adolescents Cognitive Capacity Reaches Adult Levels Prior To Their Psychosocial Maturity: Evidence for a Maturity Gap in a Multinational, Cross-Sectional Sample (2019) 43 Law & Hum Behav 69. 55 Footnote omitted. The Commissioner also says a reduction in voting age to 16 would be consistent with the way in which children and young people are considered in law, apart from the age of criminal responsibility, which is lower (Crimes Act 1961, s 22). 56 CA judgment, above n 4, at [57]. 57 At [57]. 58 Electoral Act, s 47(1). 59 Report of the Royal Commission on the Electoral System Towards a Better Democracy [1986 1987] IX AJHR H3 at [9.8]. 60 At [9.8]. 61 Age of Majority Act, s 4(1). 62 Report of the Royal Commission on the Electoral System, above n 59, at [9.8]. 63 The declaration in that case was that the restrictions on voting rights for prisoners cannot be justified ; see Taylor, above n 1, at [3]. 64 It is accepted the position in relation to the criminal jurisdiction may be different. Although in a different context, see Shark Experience Ltd v PauaMAC5 Inc [2019] NZSC 111, [2019] 1 NZLR 791 at [111] per Winkelmann CJ, William Young, Glazebrook and O Regan JJ and at [125] per Ellen France J. 65 Referring to Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83, (2021) 18 ACTLR 1; and Re Application for Bail by Islam [2010] ACTSC 147, (2010) 4 ACTLR

235. There are similar statutory provisions in Victoria (s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic)) and Queensland (s 53 of the Human Rights Act 2019 (Qld)). The only declaration made in Victoria was set aside by the High Court of Australia in Momcilovic v R [2011] HCA 34, (2011) 245 CLR

1. See the discussion in Taylor, above n 1, distinguishing the Australian Constitutional arrangements in that regard: at [63] per Glazebrook and Ellen France JJ. 66 CA judgment, above n 4, at [9]. See, for example, Kris Faafoi Government to review electoral law (press release, 5 October 2021). 67 For example, the voting age was discussed in Justice and Electoral Committee Inquiry into the 2011 general election (April 2013); Justice and Electoral Committee Inquiry into the 2014 general election (April 2016); and Justice Committee Inquiry into the 2017 General Election and 2016 Local Elections (December 2019). 68 Citizens Initiated Referenda Act. 69 Electoral (Strengthening Democracy) Amendment Bill 2022 (131-1). 70 (21 September 2022) 762 NZPD (Electoral (Strengthening Democracy) Amendment Bill First Reading). 71 For a helpful discussion, see Conall Mallory and H l ne Tyrrell Discretionary Space and Declarations of Incompatibility (2021) 32 KLJ 466. 72 See, for example, Steinfeld, above n 29, dealing with the ability of different sex couples to enter into civil partnerships. 73 Taylor, above n 1, at [58] per Glazebrook and Ellen France JJ. 74 Nicklinson, above n 25, at [115] [116] and [148(c)(ii)] per Lord Neuberger P, at [150] and [190] per Lord Mance SCJ, and at [196] [197] per Lord Wilson SCJ. 75 See the observations of Lord Sumption SCJ in Nicklinson, above n 25, at [230], albeit made in the context of discussing what we have termed the no-go argument. 76 Nicklinson, above n 25, at [116] per Lord Neuberger P, at [190] per Lord Mance SCJ and at [196] [197] per Lord Wilson SCJ. 77 Report of the Royal Commission on the Electoral System, above n 59, at [9.14]. 78 It does not, as Make It 16 submit, involve a complex regulatory scheme. 79 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), art

12. Child is defined in art 1 as persons below the age of 18. 80 Nicklinson, above n 25, at [325]. 81 Make It 16 Inc v Attorney-General [2021] NZCA 681, [2022] 2 NZLR 440 (French, Miller and Courtney JJ) [CA judgment] at [28] [32]. 82 New Zealand Constitution Act 1852 (Imp) 15 & 16 Vict c

72. See generally Neill Atkinson Adventures in Democracy: A History of the Vote in New Zealand (University of Otago Press, Dunedin, 2003); Elizabeth McLeay In Search of Consensus: New Zealand s Electoral Act 1956 and its Constitutional Legacy (Victoria University Press, Wellington, 2018); and Andrew Geddis Electoral Law in New Zealand: Practice and Policy (2nd ed, LexisNexis, Wellington, 2014). 83 The Maori Representation Act 1867. 84 The Qualification of Electors Act 1879. Property qualifications had not applied in Māori seats. 85 The Electoral Act 1893. 86 Electoral Act 1993, s 74(1). 87 Section 80(1). 88 In Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 a majority in this Court declared that 2010 amendments enlarging the scope of prisoner disqualification were inconsistent with the New Zealand Bill of Rights Act 1990 [the Bill of Rights]. See also n 93 below. 89 Second Ballot Act 1908; and Legislature Amendment Act 1913. 90 Legislative Council Act 1914. See Atkinson, above n 82, at 121. 91 Electoral Amendment Act 1934; and Electoral Amendment Act 1937. 92 Prolongation of Parliament Act 1941; and Prolongation of Parliament Act 1942. See also Atkinson, above n 82, at 154; McLeay, above n 82, at 84 87; and Ngaronoa v Attorney-General [2018] NZSC 123, [2019] 1 NZLR 289 at [62] per William Young, Glazebrook, O Regan and Ellen France JJ. 93 Electoral Act 1956, s

189. In Ngaronoa, above n 92, a majority of this Court applied a fairly literal construction to the reserved provisions; thus the prisoner voting disqualification provisions were not entrenched and could be amended without a super-majority: at [70] per William Young, Glazebrook, O Regan and Ellen France JJ. 94 Electoral Act 1993, s 268(2). This is single entrenchment , as s 268 can in theory be amended by simple majority. 95 (26 October 1956) 310 NZPD 2839 2840. 96 (26 October 1956) 310 NZPD 2840. 97 (26 October 1956) 310 NZPD 2850. 98 (26 October 1956) 310 NZPD 2850. 99 (26 October 1956) 310 NZPD 2852. 100 Electoral Act 1956, ss 39(1) and 2(1). 101 (26 October 1956) 310 NZPD 2843. 102 Electoral Amendment Act 1969, s

2. Cross-party support was of course needed given the partial entrenchment of the voting age. 103 (5 August 1969) 362 NZPD 1723 1724; (13 August 1969) 362 NZPD 1937 1971; Atkinson, above n 82, at 180 182; and McLeay, above n 82, at 158 160. 104 Electoral Amendment Act 1974, s 2; and Electoral Act 1993, ss 74(1) and 60, and the definition of adult in s 3(1). 105 Report of the Royal Commission on the Electoral System Towards a Better Democracy [1986 1987] IX AJHR H3 at 288. 106 The exception is a contested vote carried by a qualifying majority of 79 votes to 13 in 1995, relating to voting method: see Ngaronoa, above n 92, at [56], n 65. 107 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976). 108 This is true of other international instruments such as the Universal Declaration of Human Rights GA Res 217A (1948). 109 Geoffrey Palmer A Bill of Rights for New Zealand: A White Paper [1984 1985] I AJHR A6. 110 Human Rights Act 1993, s 145 and sch 2 (now repealed and substituted respectively), passed by the 43rd New Zealand Parliament, a body of 97 members, by a simple majority comprising 64 votes (there were four votes against): (27 July 1993) 537 NZPD 16978 16979. 111 See, for example, (15 December 1992) 532 NZPD 13210 13211; (22 July 1993) 536 NZPD 16742 and 16751; and (27 July 1993) 537 NZPD 16911. The Justice and Law Reform Committee determined that [t]he lower age limit is to be retained as it was not possible during the consideration of this bill to identify all the areas where young persons might be adversely affected by its removal (this recommendation was discussed in some of the readings for the Bill): Human Rights Bill 1993 (214-2) (select committee report) at 8. 112 For instance, the potential clash of rights between ss 12 and 19 of the Bill of Rights is not adverted to in Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003). In the first edition of Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005), the authors noted only how difficult younger age-based discrimination can be and also discussed cl 27 of the Care of Children Bill 2003 (54-1), which created differential treatment between 16- and 17-year-olds and persons aged 18 and over on the grounds of age : at [17.20.15] [17.20.16]. The second edition of the text observed that many New Zealand laws do not confer full adulthood and capacity on young persons until they reach their eighteenth birthday; how this approach squares with the prohibition on age discrimination in s 19 of BORA has yet to be fully worked through : Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [17.8.27]. 113 Ngaronoa, above n 92, at 294. 114 Legislation Act 2019, s 10(1). 115 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [7]. 116 CA judgment, above n 81, at [29]. I do not read the passages cited there from Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 as really supporting the contrary proposition. 117 CA judgment, above n 81, at [30]; and above at [36] [37]. 118 See at [89] above. 119 See R I Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 607 619. 120 As to which, see now ss 7A and 7B of the Bill of Rights.