American conservative author and influencer Candace Owens has amassed millions of followers on YouTube and X for her controversial views. These include suggesting the Holocaust was “ethnic cleansing that almost took place”. She also recently said men are being “socially engineered to be gay” and rejected that people can be transgender.
Owens is due to deliver talks in five cities across Australia in November 2024. But Australian Jewish groups and others are calling on Immigration Minister Tony Burke to deny her an entry visa. In the United States, the Anti-Defamation League has also previously outlined its concerns about her antisemitic messaging.
In response, Owens’ promoters have said she’s “never incited violence or been cancelled by social media for breaching community standard, and everything she has said has been in her capacity as a commentator and as an author”.
While it’s unclear if Owens has applied for a visa yet, what can the federal government do in cases like these?
It’s up to the minister
Australia’s federal government has discretion over which non-citizens can enter the country. Other than the specific rights of those seeking protection under international law, the capacity of a non-citizen to enter Australia is a privilege, not a right.
This is not a new issue. Australia has previously banned conspiracy theorists and far-right figures from entering the country. It’s also not exclusive to Australia, with other countries facing similar decisions.
In addition to decisions the department can make about granting visas, the immigration minister has the overarching discretion to decline or approve visas on character grounds.
Decisions of departments to grant or decline a visa can be reviewed by tribunal and courts. However, exercises of ministerial discretion to decline, cancel or grant visas are not reviewable. In short, Owens cannot seek judicial review of a decision of the minister to decline her a visa, should that happen.
On what grounds?
There are several grounds on which a minister can decline a visa. These include someone’s criminal record, concerns in relation to domestic violence, or concerns about terrorist activity. Overall, the minister is to consider the best interests of the Australian community.
In addition, and relevant to the case of Owens, another factor the minister can consider is the risk of vilification of a segment of the community, including conduct likely to be incompatible with the smooth operation of a multicultural society.
There are reports of a marked rise in antisemitic and Islamophobic incidents in Australia since October 2023.
In that context, it is reasonable to be concerned that someone with a history of antisemitism, for example, may contribute to a destabilisation of our social cohesion at a time when we need to be protecting it.
Threats to social cohesion are national security risks for many reasons, not least because this can lead to the normalisation of provocative and inflammatory behaviour. In turn, this has the potential to trigger an increase in acts of politically motivated violence, including terrorism.
In short, how we get along with each other in public matters in minimising the risk of extremists feeling emboldened to attack other members of our community violently. How we speak about each other in a public forum matters for minimising radicalisation. The Australia Security Intelligence Organisation (ASIO) has warned of this.
What about free speech?
As noted above, while Owens can appeal a decision on a visa made by the department, a court or tribunal cannot review an act of ministerial discretion.
However, ministers are not always immune to political pressure and decisions to cancel visas of high profile would-be visitors are not without public controversy.
Often this controversy centres on a difference of opinion on where the outer boundaries of the principles of free speech begin and end. Who gets to decide those boundaries?
A marketplace of free-flowing ideas is an important element of a representative democracy. There are also times when allowing for the airing of problematic ideas allows for them to be refuted in a way that is edifying for the community.
However, the right to free speech is not absolute, because it has to accommodate other rights. In an era of misinformation and disinformation and the rise of extremist ideas propagated online, the principles of free speech must be balanced alongside the imperative to keep our communities safe.
Mick Tsikas/AAP
There is also a need to protect the right of all members of our community to be free from racial vilification, for example.
Importantly, there is no absolute right to free speech in the Australian Constitution. However, the Constitution does contain an “implied freedom of political communication”.
That freedom can be burdened for legitimate purposes as long as the measures taken are proportionate to the risk. Regulating hate speech is an example of a legitimate public purpose.
The means by which lawmakers can achieve that purpose that are not unlimited, but as long as regulation remains proportionate, limitations of political communication are permitted by the Australian Constitution.
The big picture
Ministerial discretion is an important tool in visa decision-making, but it is open to abuse.
Ultimately, though, there are checks and balances because ministers are accountable to the parliament (and to the National Anti-Corruption Commission). And parliament is accountable to the electorate.
But more broadly, words have power, particularly in the public domain. With great power comes great responsibility. That includes minimising hate.
