Australia's not ready for the words of candice

In Farmer v Minister for Home Affairs (S160/2024), the High Court of Australia issued a unanimous decision on 15 October 2025, upholding the Minister’s refusal of a Class GG Temporary Activity visa to Candace Owens Farmer, a U.S. political commentator. This case turns on the character test in section 501(6)(d)(iv) of the Migration Act 1958 (Cth), which raises complex constitutional questions about freedom of political communication.

Background & Procedural Context

Farmer applied for a Class GG visa on 12 September 2024, intending to visit Australia in November for a speaking tour covering political themes. According to the High Court’s summary, on 25 October 2024, the Minister refused her visa under s 501(3)(a) because he reasonably suspected she would fail the character test, specifically, that “there was a risk that she would ‘incite discord in the Australian community or in a segment of that community’” under s 501(6)(d)(iv).

Farmer challenged the decision in the High Court, arguing that the Minister had construed s 501(6)(d)(iv) incorrectly and that the provision invalidly burdened the implied freedom of political communication.

The Court treated the matter as a “special case,” allowing it to frame discrete constitutional issues for resolution.

Legal considerations

Three central issues emerged:

• Statutory Interpretation: What does “incite discord … in the Australian community or a segment of that community” mean? Does the clause require a risk of harm, or can non-violent division itself suffice?

• Freedom of Political Communication: Does s 501(6)(d)(iv) infringe the implied constitutional freedom of political communication?

• Justification: If there is a burden, is it justified in the public interest (e.g., national security, social cohesion)?

  
  

High Court’s Reasoning & Decision

The High Court held that s 501(6)(d)(iv) is valid and that the Minister’s exercise of power in refusing Farmer’s visa was lawful.

In their joint judgment, the Justices accepted that the provision “limits at least two categories of political communication … within the scope of the freedom.” Yet they found the restriction justified.

The Court rejected Farmer’s argument that “incite discord” must connote a risk of violence or serious harm. Instead, the majority reasoned that Parliament clearly intended a “definitional” threshold that captures “dissension or strife” even in the absence of overt physical danger.

Critically, the Court emphasized that the implied freedom is not a personal right: as it stated, the inquiry “is the terms, operation and effect of the law generally, not the facts of the case in which a challenge is made.” The Court underscored that the freedom protects a broad range of political communication, including views on government policy, freedom of speech, and social dynamics, noting that such communication “plainly” falls within the constitutional protection.

In considering the Minister’s reasons, the Court accepted that Farmer’s public statements were capable of vilifying a segment of the community and could be seen as capable of encouraging extremist behaviour.

Legal Circles & Wider Reaction

In discussing the case, legal observers have described the implications as significant. One independent commentator, Peter Allsopp, noted that although the Court “accepted that the provision burdens political communication … it held that the burden is justified.” Allsopp argued that the decision reflects a key structural tension: while Australia’s implied freedom constrains executive power, it does not guarantee entry or visa rights for non-citizens engaged in political speech.

From the government’s perspective, the Minister welcomed the ruling as a “win for social cohesion,” according to media reports.

Justice Edelman’s reasoning in particular drew attention. He quoted the philosopher Isaiah Berlin, writing that “freedom of some must at times be curtailed to secure the freedom of others,” underscoring a legal philosophy that supports limits on speech when broader community interests or stability are at stake.

Practical Implications & Risk Profile

For migration lawyers and commentators advising non-citizens, this decision sends a clear message: the character-test regime under s 501 can lawfully target individuals for their public speech, even if non-violent. Speech that is provocative, divisive, or linked to extremism may trigger exclusion.

On a policy level, the decision underscores Parliament’s power to craft a “definitional” character test that does not require proof of violence but allows a risk-based assessment of discord. The High Court has given its imprimatur to a broad conception of character risk tied to social cohesion.

Moreover, the ruling clarifies that the implied freedom of political communication functions not to grant individual rights to entry, but rather to check the constitutional limits of discretionary legislative power. Visa applicants cannot rely on the constitutional freedom as a shield from character-based exclusions — particularly when their presence is assessed to pose a risk to segments of the Australian community.

Strategic Considerations

• How public commentary might be construed in visa assessments: it is not enough that speech be lawful, but its likely social impact may be evaluated.

• Non-citizens planning public engagements or tours must be prepared for character-test scrutiny, particularly if their views are polarising or target identifiable groups.

• There may now be a heightened incentive for policy reform or legislative challenge: visa-applicants and civil-society actors may press for greater clarity, transparency, and procedural protections in character-test assessments.

• For the Government, the decision strengthens its discretion in managing not just criminal risk, but reputational or ideological risk associated with non-citizens.

  
  

Conclusion

Farmer v Minister for Home Affairs is a landmark ruling. It bridges migration law, executive discretion, and constitutional limits, affirming that non-citizens can be refused a visa on the basis of public speech, even if that speech is non-violent. The High Court has sanctioned a broad understanding of “incite discord,” reinforcing that freedom of political communication does not guarantee entry but must be balanced against community risk and cohesion.

In an unfortunate and unpredictable potential case and point, in between Farmer's original visa application denial October 2024, and High Court's confirmation in October 2025, Charlie Kirk was assassinated. In fact, just over a month after Kirk's death was when the High Court officially upheld the Minister's original decision.

Since then, Australia experienced the Bondi Beach tragedy. Although Bondi was not a platform for a speaking engagement, it was a peaceful community gathering blended among thousands of other Australians enjoying summer at the beach, it shows how a proud but harmless religious observation drew hate and violence from extremist views. The Minister, the government, and the courts can now never be too careful.

Authored by Campbell Dore

Publisher

The Brief

campbell@thebrieflaw.com.au