Court Of Appeal To Consider Whether Hate Speech Law Is Discriminatory – Human Rights Commission

On Tuesday 9 April 2024 the Court of Appeal in Wellington will hear a case brought by Russell Hoban against the Crown in Hoban v Attorney General.

Mr Hoban is seeking a declaration that New Zealand’s hate speech law under s 61 of the Human Rights Act 1993 is discriminatory because it protects against hate speech on the grounds of colour, race, or ethnic or national origin, but does not afford the same protection on grounds of sexual orientation.

In July 2017, a pastor made public comments that were published online and in mainstream media that incited hate and extreme violence against homosexuals who wish to marry.

Mr Hoban’s claim was unsuccessful in the Human Rights Review Tribunal in June 2021 and the High Court in October 2022 and will now be heard by the Court of Appeal.

The key question for the Court is whether the exclusion of sexual orientation from the protection of s 61 is justified.

Te Kāhui Tika Tangata Human Rights Commission appeared as an intervener in the Human Rights Review Tribunal proceeding and High Court pursuant to section 92H of the Human Rights Act.

Section 61(1) of the HRA provides that hate speech directed towards the colour, race, or ethnic or national origin of any person is unlawful. If a person believes they are subject to speech of the kind referred to in s61(1), they can complain to the Commission and, if the matter is not resolved, to bring proceedings before the Human Rights Review Tribunal. However, the HRA does not contain a similar prohibition on the remedy for hate speech directed towards sexual orientation.

Andrew Butler KC, Timothey Pilkinton, and Eleanor Vermunt will appear on behalf of the Commission.

Further information

Two of the Royal Commission of Inquiry into the Christchurch Mosque Attacks recommendations directly relate to reducing hate motivated crime:

Amend legislation to create hate-motivated offences in the Summary Offences Act 1981 andtheCrimes Act 1961; and

Repeal section 131 of the Human Rights Act 1993 and insert a provision in the Crimes Act 1961 for an offence of inciting racial or religious disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communications with protected characteristics that include religious affiliation.

In November 2022 and February 2023, then-Minister of Justice (Hon Kiri Allan) referred the issue of “legal responses to hate-motivated offending” to the Law Commission. The review was to include “whether further protections should be afforded to specific groups, including rainbow communities”.

In March 2024 the current Minister of Justice (Hon Paul Goldsmith) withdrew the referral of the issue to the Law Commission

In December 2022, the Human Rights (Incitement on Ground of Religious Belief) Amendment Bill was introduced to expand the groups protected from incitement to hostility to religious groups. However, the Bill was then withdrawn.

In 2017 the Committee on the Elimination of Racial Discrimination (CERD Committee) had called on the Government to:1 “Review the adequacy of current legislation in addressing and sanctioning racist hate speech and incitement to racial hatred, and ensure that the legislative framework conforms to article 4 of the Convention.”