Appeal Court Reviews Alleged Discrimination in NZ Hate Speech Legislation.
On Tuesday, 9 April 2024, the Wellington Court of Appeal deliberated on the case of Hoban v Attorney General, challenging the current framework of New Zealand’s hate speech laws. Plaintiff Russell Hoban contends that the Human Rights Act’s Section 61, which currently prohibits hate speech based on colour, race, or ethnic or national origins, fails to offer equivalent protections for sexual orientation.
The dispute originates from remarks made by a pastor in July 2017 that advocated hate and violence against homosexuals seeking to marry, which were widely disseminated online and through mainstream media. Hoban’s initial complaints were dismissed by both the Human Rights Review Tribunal in June 2021 and the High Court in October 2022, prompting the current appeal.
The central issue before the Court is the legitimacy of excluding sexual orientation from Section 61’s protections. This exclusion has been criticized by the Te Kāhui Tika Tangata Human Rights Commission, which has participated in the proceedings as an intervener, advocating for inclusive hate speech protections.
Prudence Walker, the Disability Rights Commissioner and Rainbow spokesperson emphasized the critical need to extend Section 61 to cover sexual orientation, noting that such inclusion would have enabled the Commission to support Hoban from the outset, avoiding prolonged litigation.
The Commission also argued that the government had not adequately justified why the law targets race-based hate speech exclusively while neglecting similar protections for sexual orientation. This point was highlighted during the presentation of recent police data, revealing that while 83% of 9,351 hate incidents logged from January 2022 to January 2024 were race-based, a significant number involved sexual orientation.
Furthermore, under Te Tiriti o Waitangi, the government holds specific obligations to shield Tangata Whenua and takatāpui Māori communities from hate speech. If the court deems the current legal limits unjustified, Hoban seeks a declaration of inconsistency, which would formally notify Parliament of the need to address this legislative discrepancy.
