Friday, September 17, 2004


I've wanted to get around to commenting on this for a while. A lot of people consider it bad/wrong/really, really wrong that David Irvine is effectively banned from New Zealand.

Firstly, who is this guy? He's a right-wing historian and all-round git. He unsuccessfully sued for libel over a book setting this out. You can read the judgment here and a Guardian article on the case here. The "nursery rhyme" alone suggests that he's a racist on a par with the worst we have in NZ - the fact that he has more hair than most skinheads and a posh English accent doesn't really detract from this - he is undoubtedly a very nasty piece of work.

Why isn't he allowed into New Zealand? NZ has pretty liberal rules on who is allowed to visit, and unlike many countries, a fairly clear-cut definition on what constitutes an undesirable. (Most countries are a *lot* more subjective in this matter). The test in this case is that visitors must be of good character (as defined here) - which equates to not having been in jail or deported. (NZIS has the discretion to exclude those convicted but not jailed).

Irving was convicted in Munich of defaming the dead, an offence under German law. He was later deported from Canada - the circumstances of this are somewhat opaque. Essentially my understanding is that his German conviction would have prevented his admission to Canada, and to circumvent this he snuck back and forth across the US/Canada border on several occasions, was eventually caught and deported (on the grounds of the demonstrably false account he gave for his movements).

The fact of Irving's deportation bans him from NZ under the rules above, unless the government wishes to grant a waiver. His German conviction probably would not (no jail sentence).

The German laws that criminalise holocaust denial are interesting, and a bone of contention with those who favour unfettered free speech. Germany is generally regarded as one of the most liberal states around. It's constitution was written after WW2 and is pretty much a model of its kind. German law is also subordinate to the European Convention on Human Rights. This guarantees free speech, but contains two caveats that allow the German anti-Nazi statutes to stand:
  • "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
  • "Article 17 – Prohibition of abuse of rights
    Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."
Should a waiver be granted in this case? I personally can't see why. We have the rules as they stand, and generally they only get waived when it's in the public interest to do so. Irving can express his unfortunate views here through publications and broadcasts, so I can't see any overriding public interest.

Should we change the laws that govern the character of vistors? Probably? I'd like to see a requirement that any conviction be for an offence that would merit a prison sentence in New Zealand, and that the verdict leading to the conviction have been reached in a just and proper manner. (Currently the law would block Anwar Ibrahim from entry without a waiver, for example). A similar rule covering deportation would seem sensible.

Irving still wouldn't get in with these changes though. If you sneak into NZ (by boat for instance, or on a false passport) and aren't a refugee, then you'll be deported and banned. Most countries, including Canada, have much the same rules - so Irving was deported from Canada for behaviour that would have led to his deportation from New Zealand.

I can understand the alternative point of view that all views, however disgusting, should be heard. Contemporary European law has been framed in the wake of Nazism, and consequentially regards such the suppression of such extremism as a public good justifying restrictions on speech. Possibly we're so sensible down here that we don't need such protections?


Nigel Kearney said...

Nice blog. Worth setting up a blogroll, we don't notice you're there unless you link to us :)

A few points:

1. I think 'good character' can include people with convictions, but it's not clear-cut. I hope we'd let Nelson Mandela enter NZ if he wanted to visit.

2. Irving's views are horrible but should not be a factor. If a poisonous ideology counts against Irving it must also count against Ahmed Zaoui, who has enough problems as it is.

3. Please don't call Irving right-wing, he describes himself as having socialist leanings.

4. The conviction in Germany is completely bogus, I mean "defaming the dead"? It's safe to say the dead will be largely unaffected by Irving's statements.

5. Why do we need this deportation rule at all?

6. Don't understand how you can quote that section and they say the ECHR guarantees free speech. The "protection of health or morals" clause is a cast-iron guarantee of lack of free speech. Europeans wouldn't know a right if it pissed in their chardonnay.

Greyshade said...

David Irving has been kept outof NZ by normal due process which does not depend on his views. The govt has declined to grant a discretionary waiver. Ideally this decision should have nothing to do with Irving's views. I believe the same decision would have been made if it had involved a "non-entity" who was just coming for a holiday. I hope it would have been the same if Irving had been an agitator for views more in line with the govts.

Nigel: My first reaction to the qualifications on Free Speech in the ECHR was the same as yours but, on reflection NZ Law places restrictions (including civil claims for damages or injunctions) on free speech on all the listed grounds!

Nigel Kearney said...

Helen said that his views were a factor in the decision not to grant a waiver.

I agree NZ law is not great where free speech is concerned, but Europe is worse.