Te Kāhui Tika Tangata Human Rights Commission addressed whether New Zealand’s hate speech law is discriminatory, in court yesterday.

The Court of Appeal heard the case brought by Russell Hoban, who is seeking a declaration from the Court that New Zealand’s hate speech law under section 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 not on the ground of sexual orientation.

Kaihautū Tika Hauātanga Disability Rights Commissioner and Rainbow spokesperson Prudence Walker says, “Mr Hoban’s case highlights the urgent need for sexual orientation to be a protected ground within section 61 of the Human Rights Act.”

“If sexual orientation was covered, the Commission would have been able help Mr Hoban at the outset. Instead, he’s had to go from court to court to find a way to challenge the legislation.”

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

Mr Hoban could not proceed with a complaint to the Human Rights Commission under section 61 because it does not protect hate speech on the ground of sexual orientation.

He took his case to the Human Rights Review Tribunal, alleging that the law is discriminatory because it does not protect people like himself. Mr Hoban’s case was unsuccessful in the Tribunal and subsequently the High Court, which led him to appeal to the Court of Appeal.

Te Kāhui Tika Tangata Human Rights Commission appeared as an intervenor, making the case that the exclusion of sexual orientation from civil hate speech protections is discriminatory under s 19(1) of the NZBORA and that it is not protected by s19(2) which provides for affirmative action measures.

The key question for the Court was whether the exclusion of sexual orientation from the law is a justified limit on the right to be free from discrimination. The Commission submitted that the Crown had not provided sufficient evidence of why it is reasonable for s 61(1) to target race-based hate speech but not to target sexual orientation hate speech.

If the Court finds that the limit is not justified, Mr Hoban is seeking a declaration of inconsistency, which would notify Parliament that it has acted inconsistently with rights and would require a response.

Recent data published by the Police between 1 January 2022 and 31 January 2024 shows that they logged 9351 hate incidents of which 83% were race based. The next category of hate incidents were those on the grounds of sexual orientation, 915 incidents, followed by those on the basis of gender identity.

The Commission notes that under Te Tiriti o Waitangi the Government has responsibilities to protect Tangata Whenua communities from harmful speech, including takatāpui Māori (LGBTQ+ Māori).

Key points from the hearing:

Andrew Butler KC, counsel for the Commission, submitted that in limiting the protection offered by the civil hate speech provision of the Human Rights Act s 61(1) to race, Parliament has unjustifiably discriminated against people on the basis of their sexual orientation.

The Commission submitted that the fact s 61 was enacted to give effect to New Zealand’s international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination 1965 and International Covenant on Civil and Political Rights 1966 is not sufficient to justify the exclusion of sexual orientation from its protection. The Crown did not submit evidence of why it is reasonable for section 61(1) to target race-based hate speech but not to target sexual orientation hate speech and that the discriminatory effect of s 61(1) cannot be justified on the basis that it gives effect to international obligations New Zealand came under nearly 60 years ago.

The Crown raised freedom of expression as the case sits at the intersection between the right to freedom of expression and the right to be free from certain forms of discrimination. The Commission highlighted that similar countries criminalise hate speech on the basis of sexual orientation. The Commission referred to European Court of Human Rights case law that convictions for hate speech directed towards gay people do not unjustifiably interfere with the right to freedom of expression.

The Commission submitted that for centuries gay people have been subject to vitriolic speech, violence and often the heavy hand of the criminal law.

The Crown submitted that Parliament is entitled to deference or that the issue is one for the elected branch of government. Andrew Butler KC told the Court “Deference is earned, not simply given. There should be no deference without meaningful justification having been offered.”

The Commission appeared as an intervener in the Human Rights Review Tribunal proceeding and High Court.

Past developments regarding hate speech

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

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.

© Scoop Media