Hoban v Attorney-General - [2025] NZCA 644

HUMAN RIGHTS - declaration of inconsistency - hate speech - freedom from discrimination - s 61, Human Rights Act 1993 - s 19, New Zealand Bill of Rights Act 1990

Mr Hoban is a homosexual man. On 27 July 2017, he became aware of a "sermon" given by a pastor, who said:

"My view on homo marriage is that the Bible never mentions it so I'm not against them getting married ... As long as a bullet goes through their head the moment they kiss ... Because that's what it talks about - not homo marriage but homo death.'

Mr Hoban was "horrified" at the remarks and the lack of a response by the police or the Human Rights Commission. He applied to the Human Rights Review Tribunal for a declaration of inconsistency under s 92J of the Human Rights Act 1993 (HRA) on the basis that s 61 (the "hate speech" provision) was inconsistent with the right to freedom from discrimination as affirmed by s 19 of the New Zealand Bill of Rights Act 1990 because it only prohibits hate speech based on colour, race, or ethnic or national origins, and not hate speech based on sexual orientation.

The Tribunal found against Mr Hoban. Mr Hoban unsuccessfully appealed to the High Court. With leave, he now appeals again to this Court.

Is the legislative omission of the ground of sexual orientation from the protection against hate speech afforded by s 61 of the HRA discriminatory in terms of s 19(1) of the Bill of Rights Act?  Held: yes.

Those subjected to threatening, abusive or insulting language which excites hostility against people belonging to the prohibited grounds of discrimination in subss 21(I)(e)-(g) of the HRA receive the protection of ss 61 and 131, which acknowledges their s 19(1) right to freedom from discrimination. Those subject to language which excites hostility against people belonging to other prohibited grounds of discrimination in s 21(1) do not receive equivalent protection or acknowledgement. It is clear that this amounts to differential treatment: the statute puts some categories of prohibited grounds of discrimination in a special category which it denies to others. This differential treatment causes a disadvantage because no statutory remedy is provided for the unprotected group. It follows that prima facie discrimination has been established, contrary to s 19(I) of the Bill of Rights Act.

Is s 61 of the HRA a measure falling within s 19(2) of the Bill of Rights Act?      Held: yes.

Section 61 is a measure taken by the legislative branch captured by s 19(2). It was also enacted "for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination", irrespective of the fact it only assists or advances a limited class of those subject to unlawful discrimination. "Assisting" is broader than "advancing", which is evidenced by Parliament using both terms in s 19(2). A person may be assisted by receiving protection against hate speech through laws which aim to prevent such speech occurring and to provide remedies when they do: this is what has led to the commencement of the present proceeding.

The complaint about s 61 is not that it does not assist those to whom it applies, but that it is underinclusive and does not assist the position of persons subject to hate speech on other grounds. But this does not mean that s 61 cannot be regarded as a measure intended to protect those to whom it applies, or that it is not included ins 19(2). It is relevant thats 61 was always intended to have a limited ambit; other forms of discrimination were never intended to be covered. Section 19(2) of the Bill of Rights Act therefore applies to s 61 of the HRA. Section 61 therefore does not constitute discrimination in accordance with s 19(2).

Despite the other grounds then being moot, the Court went on to consider them to assist the Supreme Court in the event of an appeal.

Is the omission of sexual orientation ins 61 of the HRA a justified limit for the purposes of s 5 of the Bill of Rights Act?     

The Crown has a proactive justificatory role where there is a limit on a right. In this case Parliament has not curtailed an existing right: it has afforded protection to a limited class of the people likely to be subject to hate speech. The justification issue must be approached on the basis that the provision said to create the unlawful discrimination is one that seeks to protect those to whom it applies, which gives rise to such a significant issue here about deference and legislative choice. It is well-established that the court's review of a justification will be more intensive when the matter is more legal than political, social or economic. Here, there is a significant issue about the extent to which the Court passing judgment about justification risks trenching on matters which are for Parliament to determine.

A limited extension of the hate speech law to cover sexual orientation would raise legitimate questions about why a more comprehensive approach had not been taken. There is no consensus about expanding hate speech protections (as demonstrated by the history of the provisions). Further, a more extensive hate speech law could give rise to issues about freedom of expression. Parliament might consider that not all of the prohibited grounds of discrimination will require the same human rights response or engage the same rights to freedom of speech and religion-these are not straightforward assessments, and they are ones most appropriately made by the broadly representative legislative branch rather than through litigation. We emphasise however that the provisions to which Mr Butler referred in the United Kingdom, Ireland, Canada and Australia make the omission of a hate speech proscription based on sexual orientation in New Zealand increasingly anomalous.

Regarding the Crown's present justification argument, the discriminatory nature of s 61 is not demonstrably justified on the basis of New Zealand's international obligations alone. Whether the omission of hate speech on the grounds of sexual orientation is demonstrably justified is not logically answered by pointing to inclusion in the HRA of hate speech on the grounds of colour, race, or ethnic or national origins. The discriminatory effects of the section can be demonstrably justified by focusing on Parliament's original motivation for enacting s 61.  This approach might underplay the New Zealand legislature's own commitment to human rights. Furthermore, the question raised by s 5 must be addressed on the basis of current standards and an analysis which rests solely on the content of international instruments adopted 60 years ago seems inappropriate. With respect to the Crown's concern regarding freedom of speech, it is not clear why proscribing hate speech based on sexual orientation should impose any greater detriment to freedom of speech than was the case with the inclusion of colour, race, or ethnic or national origins in s 61. It is, in any event a matter for Parliament.

Should this Court issue a declaration of inconsistency?           Held: no.

As s 19(2) applies to s 61 of the HRA and the appeal cannot succeed, no declaration of inconsistency can be made. This Court endorses the High Court's expression of sympathy for Mr Hoban.

Result: The appeal is dismissed. There is no order as to costs.