Anti-gay hate speech case tries to prompt law change
A claimed gap in the law that overlooks sexual orientation hate speech is being highlighted in a Court of Appeal case that aims to prompt Parliament to reconsider the law.
Although sexual orientation is one of the prohibited grounds of discrimination under the Human Rights Act, there’s no corresponding ban on hate speech based on sexual orientation, as there is against hate speech on the grounds of race.
Auckland theology scholar and gay man Russell Hoban had complained about the lack of action against a West Auckland pastor who was reported in 2017 as having said he was not against “homo” marriage because it was not mentioned in the Bible at all. But he wanted gay marriage partners shot the moment they kissed.
Neither Police nor the Human Rights Commission took action against the pastor.
After years of feeling discriminated against Hoban was very concerned and asked the Human Rights Review Tribunal to declare that it was inconsistent with the Bill of Rights that there was no ban on hate speech on the grounds of sexual orientation.
The law deemed some victims of hate speech more worthy of protection than others, lawyers for Hoban told the Court of Appeal in Wellington yesterday.
His lead lawyer, Robert Kirkness, said a declaration of inconsistency from the court was a notification to Parliament and it was for Parliament to decide what to do about it.
Hoban was deeply marked by hate speech, he said in calling for the court to “not take the human out of human rights”.
Hoban had been discriminated against throughout his life because of his sexual orientation. Gay marriage was legally recognised in New Zealand 2013 so Hoban could not see how the pastor’s words could be tolerated, Kirkness said.
Hoban had already taken his case to the Human Rights Review Tribunal and on appeal to the High Court.
But he did not convince either that the lack of a ban on hate speech based on sexual orientation was inconsistent with the right, under the Bill of Rights, to be free from unjustified discrimination.
Both the tribunal and the court had agreed it had a discriminatory effect, however the current law was justified in covering only certain types of discrimination particularly since that met New Zealand’s international obligations.
The Human Rights Commission was represented at the appeal, where its lawyer, Andrew Butler, KC, said police records for the two years until January hate race-based hate incidents at 83 per cent of the total number and the next largest group was sexual orientation based at about 10 per cent or 915 incidents.
The commission believed that sexual orientation discrimination was as serious as racial discrimination.
The Hoban case concerned a ban on hate speech that was a civil, not a criminal, act. Ultimately a complainant could seek a range of remedies before the Human Rights Review Tribunal, including damages.
The hearing of Hoban’s appeal is due to end today.