The High Court in Wellington Photo: RNZ / Aaron Smale
The government's decision to allow British anti-transgender activist Posie Parker into New Zealand was the right one, the High Court has ruled.
Parker, also known as Kellie-Jay Keen-Minshull, is currently en route to Aotearoa to speak at domestic rallies in Auckland and Wellington this weekend.
Immigration New Zealand reviewed her case after some supporters at her Melbourne event threw Nazi salutes. The department ultimately decided she could enter the country.
A coalition of rainbow communities has now tried - and failed - to challenge this decision through a judicial review urgently heard in the High Court at Wellington this morning.
Gender Minorities Aotearoa, InsideOUT Kōaro, and Auckland Pride argued the Immigration Minister made a mistake giving Parker the green light to come to New Zealand.
Their lawyer Tiho Mijatov, citing Parker's transphobic views, said the activist met the criteria to be barred entry, with domestic research showing transgender people are twice as likely to kill themselves.
"We're beyond a situation of offence or people just being really upset ... we're moving into starting to disrupt social cohesion and thus, public order."
Section 16 of the Immigration Act allows the Immigration Minister a discretionary power to ban a non-citizen if they have reason to believe they're likely to be a threat or risk to security.
Drawing on affidavits provided by his clients, Mijatov said an online sleuth had infiltrated at least two far-right groups on Telegram that had 194 and 70 members each.
He said a news article about Parker being allowed entry into New Zealand had generated inflammatory and baseless comments like "anti-paedophile protest at Albert Park on Sunday" with references to "final solutions".
Posie Parker, also known as Kellie-Jay Keen-Minshull Photo: AFP
"[It's] an unambigious reference to nazi ideology, and again, it's not just in a late night chat room where people are letting off misguided steam. It all started with that news article 'Posie Parker's coming, there's an event on'."
Mijatov also pointed to evidence the Ministry knew about a Twitter post in which Parker allegedly encouraged people with guns to go into girls' bathrooms at schools.
"It's espousing this idea that people who call themselves transgender, they're just making it up. So if you're a man, just call yourself a girl and get in there and do it with guns."
Mijatov said it was clear the case was not about a clash of opinions being exhanged in the marketplace of ideas, but a likely threat or risk to public order.
"A core tenet of [Parker's] so-called activism is to deny the existence and reality of trans people and to boil them down to people with an opinion about their genders."
In response, the government's lawyer Aaron Martin said Immigration Minister Michael Wood's public statements showed the rainbow communities' concerns were known and understood.
He argued the law was "reaonsonably open enough" to allow for him to not intervene in the case, even though he and others may disagree with Parker's views.
The Free Speech Union joined the proceedings as an 'intervener', and its lawyer Nicolette Levy KC said free speech extended to all information and opinion, no matter how unpopular, distasteful or offensive it might be.
"The applicants say safety of trans people is front of mind. The Free Speech Union says public order or safety is not seriously threatended by the public being able to listen to views that the applicants do not agree with. There's no person or group right not to be offended or hurt by the views of another; hurt in the mind not the body obviously."
Making his oral ruling, Justice Gendall said he had "considerable symphathy" for the challenges transgender people faced, but had decided to dismiss their application for judicial review.
"It is largely for technical and procedural reasons that the application must fail. The courts are often reluctant to make their way into the merits of the exercise of a discretionary decision made by a minister. In my view it would not be appropriate in this case for the court to substitute its own views relating to material in the public domain and placed before the minister here."
He said he was also "troubled" Parker had not had the opportunity to speak on the matter, given the understandable urgency the without-notice application had been heard under.
The case arose after the coalition of rainbow support groups - Gender Minorities Aotearoa, InsideOUT Kōaro, and Auckland Pride - filed for a judicial review in response to the decision to allow Parker to enter New Zealand.
Minister Wood had sought advice about whether she or her presence was likely to be a threat to security, public order or the public interest, as set out in section 16 of the Immigration Act 2009.
It followed protests and counter-protests at her speaking events in Australia which included neo-Nazis performing Nazi salutes in support of her rhetoric.
The Rainbow Greens had urged Wood to bar Parker's entry to New Zealand, saying it would put the safety of trans people at risk.
On Thursday, Wood said he condemned her "inflammatory, vile and incorrect worldviews" but that the decision sat with Immigration NZ and their advice was there was no reason to believe that she is, or is likely to be, a threat or risk to the public order or public interest.
It meant she would be granted entry to the country, to carry on with her speaking events in Auckland and Wellington this weekend.