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Australia’s high court has unanimously backed the government’s 2024 decision to refuse the rightwing provocateur Candace Owens a visa to enter the country.
The full bench of the court ruled on Wednesday that the minister’s denial did not infringe an implied constitutional freedom of political communication.
Last October the home affairs minister, Tony Burke, refused Owens’ visa application before a planned national speaking tour, arguing that she had the “capacity to incite discord”.
Burke said at the time the US conservative influencer and podcast host, who has advanced conspiracy theories and antisemitic rhetoric – including allegedly minimising Nazi medical experiments in concentration camps – did not pass the “character test” to receive a visa under the Migration Act.
A statement released by the court said: “The minister found that there was a risk of … [Owens’] controversial views leading to increased hostility and violent or radical action.”
Owens, in court, sought a declaration that a section of the act was invalid or, alternatively, that the minister had misconstrued the act when refusing to grant her a visa.
Her lawyers argued the character test was more likely to exclude non-mainstream political views that sparked division.
Perry Herzfeld SC contended that the threshold of “inciting discord” to reject a visa was so broad it could capture disagreements and robust debates and was “very much in the eye of the beholder”.
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This meant visas could be withheld from people who “will stimulate debate … the minister doesn’t like”, Herzfeld argued in the high court in May.
But on Wednesday the judges “unanimously held that, reading the minister’s decision fairly and as a whole, the minister did not misconstrue [the act] in deciding to refuse to grant the visa,” a summary of the court’s judgment said.
According to the judgment, the minister argued that Owens had made “extremist and inflammatory comments towards Muslim, Black, Jewish and LGBTQIA+ communities which generate controversy and hatred”.
The court said the section that Owens argued Burke had misconstrued “applies where … there is a risk that the person would stir up or encourage dissension or strife in the Australian community, or a segment of that community, of a kind or to a degree that is harmful to that community or segment”.
In October Burke said: “From downplaying the impact of the Holocaust with comments about [notorious Nazi doctor Josef] Mengele through to claims that Muslims started slavery, Candace Owens has the capacity to incite discord in almost every direction. Australia’s national interest is best served when Candace Owens is somewhere else.”
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The minister argued that Owens met all relevant legal requirements to be issued a visa – except for the character test. Owens maintained that she satisfied all the requirements.
The minister argued that Owens, as a rightwing activist with 18 million followers on social media, posed a risk because her controversial views may lead to increased hostility and violent or radical action, Wednesday’s ruling said.
In his reasons, Justice James Edelman quoted the philosopher Isaiah Berlin: “Freedom of some must at times be curtailed to secure the freedom of others.”
“For instance, there is no freedom to make a serious threat to kill an individual in order to communicate a political message,” Edelman wrote.
Burke welcomed the ruling: “This is a win for social cohesion. Inciting discord might be the way some people make money, but it’s not welcome in Australia.”
The high court found that Owens was not entitled to any relief and ordered her to pay the defendants’ costs. Owens and her Australian solicitors were contacted for comment.
English (US)