A legal challenge to current hate speech laws – Hoban v Attorney-General – recently failed in the High Court.

In this FYI we discuss the issues the case raised and the court’s observation that, ultimately political questions relating to the scope of hate speech laws are ones for Parliament to address.

The case – an appeal against a decision of the Human Rights Review Tribunal (Tribunal) – argued that s 61 of the Human Rights Act 1993 (HRA) prohibiting hate speech on the basis of race was discriminatory, as it did not also prohibit hate speech on the basis of sexual orientation.

This legal development is timely in light of proposed hate speech reforms.  Currently, only hate speech on the basis of race, skin colour or national origin is prohibited.  The reforms, recommended by the Royal Commission report following the March 15th terror attack, proposed expansion of these protections to religious groups, women and the rainbow and disabled communities.  Despite these initial proposals, it seems the scope of the reforms have been significantly curtailed.  Justice Minister Kiri Allan has announced that the government will only proceed with enacting protections for religious communities, omitting further changes regarding threats against women, LGBTQ+ or disabled persons.  This curtailment of reform in tandem with the recent decision in Hoban v Attorney-General sheds light on the current gaps in our hate speech law.

Background

In 2018, a ‘sermon’ containing hate speech towards homosexual persons was published in an Auckland newspaper. The publishing of the sermon raised questions regarding inconsistencies within New Zealand’s human rights laws.  The violent and anti-gay language used greatly concerned Mr Hoban, a homosexual man who has faced years of discrimination because of his sexual orientation.  Mr Hoban was disturbed by the inaction of police and the Human Rights Commission, and decided to make an application to the Tribunal.

The Claim

The application made to the Tribunal was for a declaration that s 61 of the HRA was incompatible with s 19 of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides a right to freedom from discrimination.  Section 61 specifically prohibits racially charged hate speech, but fails to cover hate speech directed at sexual orientation.  The Tribunal held that s 61 is discriminatory, but falls under s 19(2) of NZBORA as a measure taken in good faith to assist disadvantaged groups, and thus does not constitute discrimination.  Further, the Tribunal held that s 61 was a demonstrably justifiable limit under s 5 of NZBORA, and accordingly declined to grant a declaration of inconsistency.

The Decision

On appeal, the High Court considered three key questions:

1. Whether the Tribunal was right to find that s 61 of the HRA had discriminatory effect within the meaning of s 19(1) of NZBORA.
2. Whether the Tribunal was right to find that such discriminatory effect fell within s 19(2) of NZBORA such that it is not inconsistent with the right in s 19.
3. Whether the Tribunal was right to find that even if not within s 19(2), the discriminatory effect was nevertheless a demonstrably justified limit on the right to be free from discrimination in accordance with s 5 of NZBORA.

On the first issue, the Court agreed with the Tribunal’s reasoning that s 61 has a discriminatory effect, but upheld the finding that the limit was demonstrably justified when dealing with the third issue.  Section 61 was enacted to effect New Zealand’s international obligations in relation to racial discrimination, and so these targeted measures are justified and should not themselves constitute discrimination.  On the second issue, however, the Court disagreed with the Tribunal’s assertion that s 61 fell under s 19(2).  The Court agreed with Mr Hoban that while the words “measures taken” could include legislative provisions, the focus is on positive steps taken to counteract the adverse effects of discrimination by assisting or advancing the position of disadvantaged persons. 

In summation, the Court acknowledged its sympathy for Mr Hoban, but noted that the primarily political questions relating to the scope of hate speech laws are matters for Parliament to address.  As noted, the current suite of proposed reforms does not appear likely to ameliorate the concerns raised by Mr Hoban.

Special thanks to Tim Bremner and Mary Holden for their assistance in preparing this article.