Gay HRA omission ‘not discriminatory’
The attorney-general is arguing that while there might be a gap in the Human Rights Act (HRA) which fails to protect gay people in law, neglecting to mention them is not discriminatory.
In the second day of a Human Rights Review Tribunal in Wellington, counsel for the attorneygeneral argued that in order for something to be considered discrimination, the difference in treatment must result because of a characteristic. Auckland man Russell Thomas Hoban, with the backing of the Office of Human Rights Proceedings, is taking a case against the attorney-general over a gap in hate speech laws meaning a West Auckland pastor inciting violence against gay people in April 2017 got off scot-free.
Genevieve Taylor, on behalf of the Crown, argued; ‘‘Legislation that protects one particular group […] can’t be discriminatory against every other ground.’’
The tribunal, presided over by Human Rights Review Tribunal members Natalie Baird, Susan Isaacs, deputy chair Gillian Goodwin, and chair Rodger Haines ONZM, heard evidence from Hoban and his representative, Michael Timmins, yesterday.
Hoban’s case against the attorney-general rests on the idea that there is a gap in current hate speech provisions, which only explicitly cover colour, race, and ethnic or national origins – offering no explicit protection for people discriminated against on the basis of sexual orientation.
To Hoban, ‘‘it felt like a case of double discrimination’’, first by the hate speech itself, and again when the law failed to protect against it or serve any repercussions.
But, Taylor argued, in order to be considered discriminatory, by law, the differential treatment must be shown on the basis of a ‘‘prohibited ground’’ – gender, sexual orientation, or religion, for example. ‘‘Of course omissions can be discriminatory,’’ Taylor said, such as omission of homosexual couples from the marriage act, wherein a law denied them certain abilities or benefits.
But in this case it could not be shown that the reason for the differential treatment was due to sexual orientation or religious relief; it was not because they were gay that they were left off the list of protected people in the Act.
Justice Minister Kris Faafoi released a Cabinet paper in April proposing a change to the incitement provisions in the Human Rights Act to include sexual orientation, age and disability.