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Hoban v Attorney-General

Hoban v Attorney-General

Case [2023] NZHC 222 17 February 2023

Discrimination

Justified Limitation

Breach of Trust

Natural Justice & Procedural Fairness

Statutory Interpretation

Human Rights Law

Constitutional Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-192

[2023] NZHC 222

BETWEEN
RUSSELL THOMAS HOBAN

Applicant

AND

ATTORNEY-GENERAL

Respondent

Teleconference: 8 February 2023

Appearances:

R A Kirkness and M D N Harris for the Applicant G M Taylor for the Respondent

Judgment:

17 February 2023

JUDGMENT OF COOKE J

(Leave to appeal to the Court of Appeal)

[1] The applicant seeks leave to appeal from this Court’s decision dismissing his appeal from a decision of the Human Rights Review Tribunal under the Human Rights Act 1993 (the Act).1 The applicant contended that the fact that New Zealand legislation prohibits hate speech on the basis of race, but not on the basis of sexual orientation, meant that it was inconsistent with the right to be free from discrimination under s 19 of the New Zealand Bill of Rights Act 1990 (BORA). He sought a declaration of inconsistency under s 92J of the Act. The Tribunal found that the legislation was not inconsistent with this right.2 On appeal the Court agreed with the Tribunal that the under-inclusive nature of the provisions had discriminatory effect, but that this was justified under s 5 of BORA — statutory measures directed at addressing only particular categories of discrimination were justified, particularly given that the measures here corresponded to New Zealand’s international obligations.

1 Hoban v Attorney-General [2022] NZHC 3235.
2 Hoban v Attorney-General [2022] NZHRRT 16.

HOBAN v ATTORNEY-GENERAL [2023] NZHC 222 [17 February 2023]

[2] The applicant now seeks leave to appeal to the Court of Appeal. The Attorney- General opposes the grant of leave. Both parties filed written submissions outlining their arguments, and after a telephone conference it was agreed that the decision would be made on the papers.

Test for leave

[3] Under s 124 of the Act the High Court may grant leave to appeal if there is a question of law which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision. This statutory formula for leave is used in other statutory contexts,3 and has been considered in previous High Court decisions under this Act.4 The approach that has been adopted is similar to that generally applied to applications for leave for a second appeal.5 There are three requirements:

(a)That the appeal involve a question of law.

(b)That the question of law is of general or public importance, or the appeal involves some other feature.

(c)That this importance, or feature, means that a second appeal is warranted.

[4] In the context of this legislation it is to be noted that a case does not satisfy these requirements simply because it raises issues of fundamental human rights. The proposed appeal should raise a question of law of sufficient importance to warrant a second appeal.

3 See, for example, Immigration Act 2009, s 245(3); Minister of Immigration v Jooste [2014] NZCA 23 at [5].
4 Child…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoban v Attorney-General

Details

AGLC: Hoban v Attorney-General [2023] NZHC 222
Case: [2023] NZHC 222
Decision Date: 17 February 2023

CaseChat Overview and Summary

In the case of Hoban v Attorney-General, the applicant, Russell Thomas Hoban, sought leave to appeal against the High Court's decision dismissing his appeal from a decision of the Human Rights Review Tribunal. Hoban argued that the New Zealand legislation prohibiting hate speech on the basis of race but not on the basis of sexual orientation was inconsistent with the right to be free from discrimination under the New Zealand Bill of Rights Act 1990. The Tribunal found that the legislation was not inconsistent with this right, and the High Court agreed, finding that the discriminatory effect was justified under the Act. Hoban now seeks leave to appeal to the Court of Appeal, and the Attorney-General opposes the grant of leave.
The primary legal issue in this case is whether the applicant is entitled to leave to appeal from the High Court's decision. Under section 124 of the Human Rights Act, the High Court may grant leave to appeal if there is a question of law which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision. The court must consider whether the appeal involves a question of law, whether the question of law is of general or public importance, or whether the appeal involves some other feature that means a second appeal is warranted.
The court accepted that the proposed appeal raises questions of law, specifically whether the legislation is discriminatory within the meaning of section 19(1) of the New Zealand Bill of Rights Act 1990, whether any discriminatory effect is protected by section 19(2), and whether any discriminatory effect involves a demonstrably justified limit in accordance with section 5. The court also found that these questions are of general or public importance and warrant consideration by the Court of Appeal. The court further found that the questions involve matters capable of genuine argument, and further guidance from the appellate courts is justified. The court declined to accept the Attorney-General's arguments that the scope of unlawful hate speech involves policy questions for Parliament to address, and that the Supreme Court's decision in Make It 16 v Attorney-General and the upcoming appeal in Attorney-General v Chisnall mean that an appeal in this case is not warranted.
The court granted leave to appeal, and the applicant may now appeal the High Court's decision to the Court of Appeal. The court's decision highlights the importance of addressing legal questions involving fundamental human rights and the need for further guidance from the appellate courts on the application of the New Zealand Bill of Rights Act 1990 to hate speech legislation.

Orders