Justified discrimination on the basis of sexual orientation? A critique of the decision in Hoban v Attorney-General

Abstract

Hoban v Attorney-General displays the shortfall of the New Zealand legal system as it fails to protect people from hate speech based on their sexual orientation. However, it also highlights how the fluid application of the Bill of Rights Act by courts can lead to insufficient investigations into rights limitations. Following the publication of objectionable, homophobic comments made by a pastor, Mr Hoban was unable to take legal action in response as these comments were entirely legal under New Zealand law. Mr Hoban argued that he is discriminated against based on his sexual orientation as he cannot access legal protection from hate speech under s 61, due to the provision being limited to hate speech based on race or ethnicity. This paper argues that Cooke J’s s 5 analysis in Hoban was insufficient as he failed to adequately probe into Parliament’s justification for the limitation on the right to be free from discrimination. Cooke J erred in his conclusion that Hoban was a case like the kind discussed in Make it 16 and subsequently a limited justification provided by international obligations was sufficient to justify the breach of the right. Additionally, Cooke J was implicitly deferential to Parliament as he felt consideration of the controversial topic was not within the Court’s institutional competence. Further, Cooke J wrongly stated that the acceptance of Mr Hoban’s argument would place an obligation on Parliament to enact measures to protect all minority groups from hate speech. Consequently, the High Court may have erred in concluding that the limit on freedom from discrimination was justified under s 5 of the Bill of Rights.