In Hoban v. Attorney General, (NZ HC, Dec. 5, 2022), a New Zealand High Court, reviewing a decision of the Human Rights Review Tribunal, held that New Zealand's hate speech law (Human Rights Act Sec. 61) that covers incitement of racial disharmony but not hate speech aimed at sexual orientation does not violate the Bill of Rights Act. The court held that while the hate speech provisions of the Human Rights Act have a discriminatory effect on victims of hate speech based on sexual orientation, the discriminatory effect is permitted by Sec. 5 of the Bill of Rights Act that allows "demonstrably justified" limits. The court said in part:
We consider it significant that there is no human rights obligation, in either domestic or international law, to make hate speech on the basis of sexual orientation unlawful. By contrast there is such an obligation in relation to racial hate speech, both in ICERD [International Convention on the Elimination of All Forms of Racial Discrimination] and the ICCPR [International Convention on Civil and Political Rights]....
Section 61 only has apparently discriminatory effect because it is a targeted remedial measure. We consider that the existence of the international obligations in ICERD and the ICCPR in of themselves provide the s 5 justification for s 61 of the HRA being in the targeted terms that it is. The New Zealand legislation is limited, but the limit corresponds to the international obligations.
Stuff discussed the case when it was argued before the court. [Thanks to Jane Norton for the lead.]
