Hoban v Attorney-General

[2023] NZHC 222

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 Poverty Action Group Inc v Attorney-General [2012] NZHC 675; Ministry of Health v Atkinson [2011] NZHC 202.

5      See Waller v Hider [1998] 1 NZLR 412 at 413 (CA).

Assessment

[5]    Here the Attorney-General accepts that the proposed appeal raises questions of law, but he argues that those questions ought not be submitted to the Court of Appeal as they are not of general or public importance.

[6]    The proposed appeal plainly involves questions of law. Three key questions have been identified — whether the legislation is discriminatory within the meaning of s 19(1), whether any discriminatory effect is protected by s 19(2), and whether any discriminatory effect involves a demonstrably justified limit in accordance with s 5. There are also other more detailed questions of law within those three main categories.

[7]    I accept  that  these questions  of law are of general  or public importance.  Mr Hoban brings these proceedings to address an issue that has wider significance for those who are adversely affected, or potentially adversely affected by hate speech on the basis of sexual orientation. I accept that Mr Hoban, and others whose interests he seeks to advance take deep offence to such conduct and the fact that New Zealand legislation does not address it. The appeal is properly seen as important for a significant sector of the community, and more broadly.

[8]    Notwithstanding the Attorney-General’s arguments I also accept that these questions warrant consideration by the Court of Appeal. There are a number of interrelated issues on which there is scope for different views. This Court has found that the legislation has prima facie discriminatory effect, as did the Tribunal. The Tribunal found that this was protected by what has been described as the affirmative action provision in s 19(2) of BORA, although this Court disagreed. Both the Tribunal and this Court then found that the discriminatory effect involved a demonstrably justified limit in accordance with s 5 of BORA. All three questions involve matters capable of genuine argument.

[9]    On the question of justified limitations there are issues relating to the extent to which the Crown must put forward evidence before it can be found that a measure is demonstrably justified, and whether this Court was correct in concluding that it is necessary to address other prohibited grounds of discrimination when addressing the applicant’s case, and accordingly the difficult line drawing exercise. Moreover the

approach the courts adopt to declarations of inconsistency is not subject to fully developed case law as yet. Further guidance from the appellate courts is justified given these matters.

[10]   I do not accept the Attorney-General’s argument that leave should be declined because the scope of unlawful hate speech involves policy questions for Parliament to address. As the Court observed there are also legal questions involved, and it is the constitutional function of the courts to address them.6 The fact that the subject matter was before Parliament until a recent decision not to pursue the Human Rights (Incitement on Ground of Religious Belief) Amendment Bill 2022, and that the wider issue has been referred to the Law Commission simply demonstrates its general or public importance. The Court should not decline to undertake its constitutional function because other bodies are looking into the same subject matter.

[11]   I also do not accept the Attorney-General’s argument that debate about the scope of the category of justified limit referred to by the Supreme Court in Make It 16 v Attorney-General does not warrant a further appeal.7 Whether a justified limit is established in the present case is a question involving factors not addressed by the Supreme Court in Make It 16 and capable of further development by the Court of Appeal. The fact that the under-inclusive measure here corresponds to New Zealand’s international obligations is relevant, but may not be decisive.

[12]   Similarly I do not accept the Attorney-General’s argument that the Supreme Court’s decision in Make It 16, and the upcoming appeal in Attorney-General v Chisnall mean that an appeal in this case concerning the approach to s 5 of BORA is not warranted.8 Whilst these cases also involve the application of s 5, this appeal involves specific issues involving the application of justified limits in the context of the right to be free from discrimination that will not be addressed in the other two decisions. It involves particular issues, as the decision of the Supreme Court of Canada in Vriend v Alberta, and New Zealand discrimination cases illustrate.9

6      Hoban v Attorney-General, above n 1, at [48].

7      Make It 16 v Attorney-General [2022] NZSC 134; Hoban v Attorney-General, above n 1, at [41].

8      Attorney-General v Chisnall [2022] NZSC 77.

9      Vriend v Alberta [1998] SCC 816, [1998] 1 SCR 493; Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 446; Quilter v Attorney-General [1998] 1 NZLR 523 (CA).

[13]For these reasons leave to appeal is granted.

Cooke J

Solicitors:

Mayne Wetherell, Wellington for the Applicant Crown Law, Wellington for the Respondent