A separate article addresses whether this legal case provides a model to reverse New Zealand’s gender laws?
On Tuesday 9 April the Human Rights Commission is intervening on behalf a legal case that attempts to introduce new Hate Speech laws through the back door. In this case ‘Queer Theologian’ Russell Hoban is in court attempting to force a change in the law to implement hate speech provisions against people making hateful or disagreeable comments about sexual orientation in general because in the past threats made to gay people have not been prosecuted by the police. The case will be held at the Appeal Court in Wellington as it was already turned down by a lower level court.
Background
The argument that is being made is that the Human Rights Act (1993), that has been in place for over 30 years, is itself inconsistent with the Bill of Rights Act (BORA) because it does not allow prosecutions on the basis on anti-gay hate speech. The case arises from incidents in 2017 when Logan Robertson, then the unpleasant and extremist pastor of a small church, made violent anti-homosexual comments which the police investigated, but did not assesss as sufficient incitement to violence and thus did not prosecute. The pastor subsequently left for Australia but had his visa cancelled for anti-Muslim statements and harassment and is now back in New Zealand. My impression is that what Hoban and the HRC are proposing is a big ask and the lower court agreed for several strong reasons. Hoban took the original case because, he said, he felt scared by the pastor’s words. It does not appear that Hoban was directly subject to the pastor’s threats, rather that he and others heard about them from recordings of the sermons and were perhaps also aware of previous offensive messages sent to a gay author in 2014. In both 2014 and 2017 there was media coverage that was strongly critical of the pastor and more recently his history was publicised and his present home photographed in a media story.
The Declarations of Inconsistency with the Bill of Rights Act legislation
The case is being taken under a recently passed law. The Declarations of Inconsistency with the Bill of Rights Act law came into effect in 2022. It was introduced into Parliament by David Parker, then the Attorney General. The new law does fill a gap for the good reason that it allows judges to rule on laws that constrain the proper operation of the BORA. A judge can make a finding of inconsistency with the BORA and such rulings are reported to parliament which must act on them. A win in the Human Rights Review Tribunal that had an inconsistency finding would have the same effect. Cases are only reported by the judge / tribunal chair to Parliament if and when all appeals have been exhausted.
The law strengthens the idea that the BORA and the Human Rights Act are laws of a special character that are constitutional in context and so should be treated by governments whatever their politics as if this were the case. Since case is being taken and suppprted by the HRC it appears that the new Act allows all pre-existing law to be challenged. This includes laws that predate the Declarations of Inconsistency changes. It is also possible to challenge even the Human Rights Act itself as not meeting criteria that litigants believe it should contain.
How the Declarations of inconsistency law came about
The Declarations of Inconsistency legislation arose after the previous National-led Government legislated to prevent prisoners from voting. A legal case against the decision was taken by prisoners right through to the Supreme Court but even there the prisoner’s challenge failed. However the Supreme Court agreed that ‘the ban was inconsistent with the Bill of Rights Act’. At the time there was no way to force the government to consider how to address the inconsistency through a parliamentary process and nothing changed.
What happens if the case is successful?
In the current case a successful judgement would change nothing immediately (including because the Crown Lawyers could appeal to the Supreme Court against the decision). If it ultimately succeeds because there is no appeal, or a Supreme Court case upholds the finding of an inconsistency, the law obliges the judge to present the findings back to government.
There is no doubt that a means of raising complaints about constraints on the BORA is an important part of the justice system. The way the law operates is that, where the complainants succeed in their case, the judge makes a ruling of inconsistency and it is reported to Parliament where the issue has to be addressed by a select committee within 4 months. The government then presents their findings in parliament for a debate and then parliament considers whether anything needs to be done.
Any parliament receiving a finding of inconsistency should feel morally obliged to give the issue sympathetic hearing but this case is still some way from that stage. If this case is succesful but the government has already ruled out hate speech laws altogether the next steps are unclear. There would appear to be a majority in favour of deciding that any reported declaration of inconsistency on this issues should not be resolved by new hate speech laws. Presumably both policy and secondary legislation options are also available to tackle BORA limitations if there is no decision to change the law. In this case the police could be given clearer advice about what constitutes incitement.
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