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The right to repel

Should controversial historian David Irving have been allowed to enter New Zealand?

Should issues of freedom of speech - and freedom of movement - be entrusted to politicians, and exercised on grounds they need not disclose? The decision to bar controversial historian David Irving from entry to New Zealand does not, it now seems, hinge on Irving once having been deported from Canada. As Irving has pointed out, BBC journalists routinely get deported for displeasing Third World regimes, without losing their chance to holiday in New Zealand.

In Irving's case, what his Canadian track record has done is disqualify him from automatic entry here. Under our immigration law, that places an onus on him to gain an exemption from the Associate Minister of Immigration, Damien O'Connor. At which point, as Radio New Zealand morning host Linda Clark asked Acting Prime Minister Michael Cullen, isn't Irving's viewpoint on the Holocaust what is really blocking his entry here? "Well, the nature of what he says is certainly part of it," Cullen agreed. "How he says it, and what the likely reaction might be ..."

It is a political call, in other words. How much ruckus, how much offence to whom, may ensue - and even, how many diplomatic brownie points might the government regain by barring Irving, after its conflict with Israel about the recent passport scandal?

Few people will shed tears for Irving personally. Yet his case spotlights the politicised nature of ministerial exemptions, and the opaque grounds on which they are used. A major drawback, when - constitutionally - the minister's power to grant exemptions is supposed to serve as a balance between the powers of the state and the rights of the individual.

Irving is not the only player. In recent weeks, Auckland lawyer Colin Amery has asked O'Connor to explain why his client, the Iranian deportee Saied Ghanbari, was not shown clemency. Similarly, at the conclusion of the epic Ahmed Zaoui case, the Immigration Minister can grant an exemption and let Zaoui stay here - and that provision has been cited by the Crown in the Court of Appeal as a legal safeguard and balance within the process to which Zaoui is being subjected. Unfortunately, the law is utterly silent on how, why and when this clemency should be exercised.

The process should be more open, says Auckland University constitutional law professor Bill Hodge. "Where there is a discretion granted to politicians, there should be an obligation under the statute to give some explanation for the exercise of that discretion," he says. Good reasons exist for doing so. "It may be quasi-legal, it may be quasi-political, but I think there is a strong argument morally, legally and so on for the minister to justify the exercise of a discretion."

To Hodge, the cases cited vary in one key respect. "With the Iranian and Zaoui, the difference is that is they are in, and the government is trying to get them out, while Irving is out and trying to get in - and that's an inherently weaker position. So, understandably, there is a bit more of a burden on him to put forward some reason to come in."

In practice, the airline carrier would probably stop Irving from boarding a plane for New Zealand, unless he already had a valid permit to enter here. An unedifying spectacle, though, all round. "I don't think we should fear a dicky, dicey, dodgy historian," Hodge concludes.

Clearly, Irving would not be an attractive visitor. In Irving's failed libel case against the historian Deborah Lipstadt in 2000, the presiding judge described why Irving qualified as a Holocaust denier: "Not only has he denied the existence of gas chambers at Auschwitz and asserted that no Jew was gassed there, he has done so on frequent occasions and sometimes in the most offensive terms ... I cite his story of the Jew climbing into a telephone box-cum-gas chamber; his claim that more people died in the back of Kennedy's car at Chappaquiddick than died in the gas chambers at Auschwitz; his dismissal of the eye-witnesses en masse as liars or as suffering from a mental problem; his reference to an Association of Auschwitz Survivors and Other Liars or 'ASSHOLS' and the question he asked of Mrs Altman how much money she had made from her tattoo."

Irving's rights though, are not the point. Surely, it is the right of every New Zealander to hear and assess what he says? "You've hit the nail on the head that I keep telling my students here," Hodge says. "Freedom of speech is really the freedom to read, the freedom to hear and the freedom to listen. It is far more important to the listeners, the readers and so on than it is for the speaker. Everybody is losing. If you go back to John Stuart Mill, we might know the truth of it [the Holocaust], but it might be dead truth, if we do not allow it to be challenged."