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Hoban v Attorney-General

Hoban v Attorney-General

Case [2022] NZHC 3235 5 December 2022

Discrimination

Unconscionable Conduct

Reasonable Limit

Justification

International Obligations

Human Rights 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

[2022] NZHC 3235

BETWEEN
RUSSELL THOMAS HOBAN

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing: 31 October – 1 November 2022

Court:

Cooke J, M Keefe and L Ashworth

Appearances:

M Timmins and N Browne for the Appellant A M Powell and T Li for the Respondent

J S Hancock and E C Vermunt for the Human Rights Commission

Judgment:

5 December 2022

JUDGMENT OF THE COURT

(Delivered by Cooke J)

Table of Contents

Relevant background[2]

First issue: Is s 61 discriminatory?[12]

Analysis[16]

Second issue: Is s 61 protected by s 19(2)?[26]

Analysis[30]

Third issue: Is the limit justified?[35]

Analysis[40]

Conclusion[51]

[1] Pursuant to s 92J of the Human Rights Act 1993 (the HRA) the Human Rights Review Tribunal (the Tribunal) may declare that a Parliamentary enactment is

HOBAN v ATTORNEY-GENERAL [2022] NZHC 3235 [5 December 2022]

inconsistent with the right to freedom from discrimination affirmed by s 19 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). Mr Hoban appeals against the decision of the Tribunal dated 23 March 2022 in which it declined to make a declaration that s 61 of the HRA, was so inconsistent with s 19.1 His appeal is supported by the Human Rights Commission. It is opposed by the Attorney-General who supports the decision of the Tribunal, including on alternative grounds.

Relevant background

[2] Section 61 of the HRA is broadly described as a provision that makes “hate speech” unlawful — that is speech that is threatening, abusive, or insulting directed at inciting hostility or contempt against a group of persons when made in defined public ways. The unlawful speech is limited to so inciting hostility and contempt for any group “on the ground of colour, race, or ethnic or national origins of that group of persons”.2 The section provides:
61 Racial disharmony

(1)It shall be unlawful for any person—

(a)to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b)to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or

(c)to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

(2)It shall…

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 [2022] NZHC 3235
Case: [2022] NZHC 3235
Decision Date: 5 December 2022

CaseChat Overview and Summary

In the case of Hoban v Attorney-General, the appellant, Mr Hoban, appealed against the decision of the Human Rights Review Tribunal, which declined to declare that s 61 of the Human Rights Act 1993 was inconsistent with the right to freedom from discrimination affirmed by s 19 of the New Zealand Bill of Rights Act 1990. The appeal was supported by the Human Rights Commission and opposed by the Attorney-General. The key issues in the case were whether s 61 was discriminatory, whether it was protected by s 19(2) of the Bill of Rights, and whether the discriminatory effect was a demonstrably justified limit in accordance with s 5 of the Bill of Rights.

The Court found that s 61 of the HRA was discriminatory within the meaning of s 19(1) of the Bill of Rights as it did not prohibit hate speech on the basis of sexual orientation. However, the Court held that the discriminatory effect was protected by s 19(2) of the Bill of Rights as a measure taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged by unlawful discrimination. The Court further held that the discriminatory effect of s 61 was a reasonable limit prescribed by law that was demonstrably justified in a free and democratic society in accordance with s 5 of the Bill of Rights.

The Court concluded that the discriminatory effect of s 61 was limited in nature, arising from it being an underinclusive remedial measure. The existence of international obligations in ICERD and the ICCPR provided the justification for s 61 of the HRA being in the targeted terms that it was. The Court also found that it was legitimate for a state to respond to the effects of discrimination by taking more limited and targeted responses addressing particular disadvantaged groups.

The Court dismissed the appeal, agreeing with the Tribunal that no declaration of inconsistency was appropriate. The Court expressed sympathy for Mr Hoban but emphasised that the questions relating to the scope of hate speech laws were primarily political and involved important legal questions which the Court should address. The Court saw these questions as the primary issues of law to be addressed by the Court in relation to such matters.

Orders