In 2017, a pastor at Westcity Bible Baptist Church delivered a sermon which included abhorrent comments to the effect that parties to a same-sex marriage deserve death.

The comments were widely reported in the media and online as an issue of “hate speech”. The police, however, took the view that no criminal offence had been committed and took no action. The Human Rights Commission similarly took no action as the comments were not a breach of the Human Rights Act 1993 (HRA) which only protects against hate speech involving racial discrimination.

Mr Hoban challenged the scope of current hate speech laws by applying to the Human Rights Review Tribunal for a ‘declaration of inconsistency’. Unlike courts in some other countries, New Zealand courts cannot strike down or invalidate laws on the basis that they conflict with human rights like the rights protected by the New Zealand Bill of Rights Act 1990 (NZBORA). However, they can make a declaration that a law is inconsistent with the rights in the NZBORA and, if they do, Parliament must be notified of the decision.

Mr Hoban, who described himself as a homosexual man, said he was “horrified” at the comments which made him feel unsafe. The pastor had said:

My view on homo marriage is that the Bible never mentions it so I’m not against them getting married … As long as a bullet goes through their head the moment they kiss … Because that’s what it talks about – not homo marriage but homo death.

Mr Hoban argued that the lack of legal recourse under section 61 of the HRA discriminated against gay and lesbian people and that it was therefore inconsistent with the right to be free from discrimination on the ground of sexual orientation under s19 of the NZBORA.

Mr Hoban was unsuccessful in his challenge at both the Tribunal and the High Court. The lower courts, for different reasons, found that the omission of sexual orientation in the law protecting against hate speech was not unlawful discrimination and that any expansion of hate speech provisions is ultimately a decision for Parliament not the courts.

Mr Hoban appealed to the Court of Appeal.

Issues

The first issue under appeal was whether omitting sexual orientation from the protection against hate speech is discriminatory.

If it was, the next issues were:

• Whether s61 of the HRA is nonetheless saved by s19(2) of the NZBORA which says that measures intended to assist or advance a disadvantaged group are not discriminatory; and/or

• Whether the omission of sexual orientation as a ground of hate speech is a demonstrably justified limit on the right to freedom from discrimination under s5 of the NZBORA.

Was it discriminatory to omit sexual orientation from hate speech protection?

On the first question the Court of Appeal agreed with the Tribunal and the High Court saying, yes, s61 of the HRA did discriminate against some people because only those suffering hate speech because of colour, race, ethnic or national origins were protected by it.

Discrimination occurs when there has been different treatment of a group of people when compared with another group in a comparable situation (comparator group) causing material disadvantage to the unprotected group.

Hoban argued that individuals who are targets of hate speech based on sexual orientation have no protection compared to those who are protected by s61 of the HRA on racial grounds. This amounted to differential treatment which causes material disadvantage.

The Human Rights Commission as intervener said the High Court’s approach was the correct one. The High Court had said it was appropriate to consider the groups more commonly subjected to hate speech and that hate speech based on sexual orientation is a well-recognised phenomenon. The Commission argued this approach is consistent with the case law which required a substantive inquiry as to whether differential treatment was offered to persons in comparable circumstances and indirect discrimination had occurred. Further, common sense indicated that gay people have been historically subject to violence and abuse which is “still present and biting”.

The Attorney-General, however, argued that the correct comparator group must be people of different sexual orientations which will include heterosexual, lesbian and bisexual people. It was argued that because all these groups of people are treated the same under s61 there is no discrimination.

The Court of Appeal said the common denominator of the victims of hate speech is the perception that they are different or “other”. People of a heterosexual sexual orientation are unlikely to be the subject of hate speech and so it would be wrong to suggest that a group including heterosexuals or others unlikely to be the subject of hate speech is the appropriate comparator group.

In other words, the key issue was not the omission of protection on the ground of sexual orientation but about the lack of a provision equivalent to s61 to specifically protect homosexual people. While s61 of the HRA protects against racist speech and allows people who are victims of racist speech to seek redress, the same protection is not provided for victims of other hate speech. This amounts to differential treatment which disadvantages those victims.

Was s61 of the HRA nonetheless saved by s19(2) of the NZBORA?

Section 19(2) of the NZBORA provides that measures taken in good faith for the purpose of assisting or advancing persons or groups disadvantaged by unlawful discrimination are not discriminatory measures. If there is no discrimination the court could not declare an inconsistency in the law.

On this issue the lower courts had come to different conclusions. The Tribunal found s19(2) of the NZBORA did apply. It considered that because s61 of the HRA implements New Zealand’s international treaty obligations related to unlawful racial discrimination it met the criteria to “assist or advance” persons disadvantaged by racial discrimination. Therefore, it did not amount to discrimination.

The High Court considered s19(2) of theNZBORA did not apply because s61 of the HRA was not a measure ‘advancing’ persons. The High Court said on an ordinary meaning s61 of the HRA did not involve any ‘positive’ steps to counteract adverse effects of discrimination. Section 61 of the HRA was rather a measure to make conduct unlawful and provide a remedy. The High Court said that was a different purpose to ‘assisting or advancing’ the position of people who are subject to racial discrimination.

The Court of Appeal, however, said that ‘assisting’ in s 19(2) of the NZBORA was broader than ‘advancing’ and that persons subject to racial hate speech are assisted by a law that deters such speech and provides remedies. The Court of Appeal said that legislative provisions can be ‘measures’ under s19(2) of the NZBORA and that s61 of the HRA was enacted for the purpose of ‘assisting or advancing’ persons or groups disadvantaged because of unlawful racial discrimination. The fact the provision only ‘assists or advances’ a particular group subject to unlawful discrimination does not alter its intended protection. Further it was important that s61 of the HRA was only ever intended to have a limited ambit as it was enacted to respond to international human rights commitments. That other groups did not receive protection artificially focused the discussion on a failure when in fact other forms of discrimination were never intended to be covered.

Was the omission of sexual orientation as a ground of hate speech a justifiable limit on the right to freedom from discrimination?

Despite finding that s61 of the HRA is saved by section 19(2) and Hoban’s case could not succeed, the Court of Appeal decided it would comment on the other issues engaged in the appeal in case the matter is appealed to the Supreme Court and in recognition of the importance of the issue under discussion.

The Court of Appeal observed that whether and how to expand hate speech protections, including for sexual orientation, involves complex, contested policy questions best resolved by Parliament. The right to be free from discrimination on a prohibited ground is not a right to protection from hate speech. A careful assessment of the evidence of hate speech experienced by different groups would need to be undertaken before Parliament enacted further hate speech protections that would inevitably impact on freedom of expression.

The Court of Appeal also noted there is no current consensus in New Zealand regarding the need to expand hate speech provisions. When it had arisen previously, proposed expansion had been rejected including as recently as 2023.  

When compared with overseas jurisdictions, however, the Court of Appeal said it is not unusual to prohibit hate speech based on sexual orientation, particularly in those free and democratic societies New Zealand often refers to.

The Court of Appeal then commented about whether including the ground of sexual orientation within s61 of the HRA would be a demonstrably justified limit on the right of freedom of expression. Section 5 of the NZBORA provides that rights can be subject to justified limits; if a limit is justified, there is no breach of rights.

The Court of Appeal agreed with the High Court that the limit would likely be justified. It was not clear to the Court that prohibiting hate speech based on sexual orientation would pose any greater detriment to freedom of expression than was the case when colour, race, ethnic or national origins were included. The Court of Appeal suggested that the international obligations justifying the current law enacted 60 years ago do not prevent New Zealand expanding its laws and nor does the absence of an international obligation requiring New Zealand to protect against other forms of discrimination. The standards of today would be relevant to whether an expansion of protection was justified under s5 of the NZBORA.

However, the Court of Appeal said it would be wrong for it to express a final conclusion about whether extending hate speech protections is justified in terms of s5 of the NZBORA. The Court of Appeal confirmed that ultimately Parliament must resolve these matters not the courts.

The Court of Appeal then endorsed the High Court’s expressions of sympathy for Mr Hoban’s situation and agreed with the High Court’s observation that many in the community would be surprised that the comments made by the pastor were not unlawful under New Zealand law. Nevertheless, the appeal was dismissed and no declaration of inconsistency made because s61 of the HRA falls within s19(2) of the NZBORA.

Comment

While Mr Hoban was ultimately unsuccessful in this case, the Court’s views suggest that there will be continued interest in law reform on hate speech.

Hoban v Attorney General [2025] NZCA 644

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