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Dangerous Precedents and Hypothetical Threats: The Deportation of Novak Djokovic

Australia’s treatment of Novak Djokovic, the tennis world number one, has been revelatory. Unintentionally, this has exposed the seedier, arbitrary and inconsistent nature of Australia’s border policies. The approval by the Australian Federal Court of the Immigration Minister Alex Hawke’s decision to re-cancel the prominent Serb’s visa left the country a heaving precedent that will be invoked, in future, with relish.

Djokovic had originally entered the country under the assumption that he had been granted a legitimate vaccine exemption. As the former Australian Tennis Open director Paul McNamee explained to the ABC, “every player and support member fills in a form, visa 408, and everyone does that, you are guided through it by Tennis Australia, every step of the way, and then you get approval, that is the process.”

On December 30, 2021, Djokovic received a letter from the Chief Medical Officer of Tennis Australia explaining that he had been granted a “Medical exemption from COVID vaccination” on the grounds that he had recently recovered from COVID-19. The exemption certificate had been furnished by an Independent Medical Review panel commissioned by Tennis Australia and approved by the Victorian state government’s independent Medical Exemptions Review Panel.

To cap things off, the Department of Home Affairs informed Djokovic that his Australia Travel Declaration has also been given the nod. His “responses [i]ndicated that [he met] the requirements for a quarantine-free travel into Australia where permitted by the jurisdiction of your travel.”

The story turned out rather differently. Such documentation proved insufficient for Djokovic on entering Australia on January 5. A delegated officer of the Australian Border Force hastily cancelled his visa, giving Djokovic insufficient notice to prepare his explanation on the morning of January 6. It was this procedural blunder that led to the Serb’s victory in the Federal Circuit Court, where Judge Anthony Kelly stated the following with some pungency: “Here, a professor and a physician have produced and provided to (Djokovic) a medical exemption. Further to that, that medical exemption and the basis on which it was given was separately given by a further independent expert specialist panel established by the Victorian state government […] The point I am agitated about is, what more could this man have done?”

The Commonwealth, for its part, rejected claims that any deferral of vaccination should not have been read as an excuse not to get vaccinated. The Tennis Australia exemption letter did not constitute sufficient information for the purpose of entering the country unvaccinated.

Exercising ministerial discretion

The Commonwealth’s defeat in the Federal Circuit Court did not end matters. Hawke was left to exercise his vast executive discretion in a none-too Solomonic way. The federal Labor opposition leader, Anthony Albanese, wondered whether the government was conducting a focus group in order to receive “the answer before it responds to the issue.”

As Hawke dithered, Djokovic was ritually torched in media and social media circles for incorrectly filling out the travel declaration. Much of the kindling had been provided by the tennis player himself. He had, it transpired, been in Spain; his agent had made a “human error” in stating that he had not travelled abroad in the 14 days prior to arriving in Australia on January 5.

He had also breached Serbian pandemic restrictions by avoiding isolating for 14 days after receiving a positive PCR result on December 16. Instead, on December 17, he breezily attended a tennis event in Belgrade where he presided over the giving of awards to children and, on the following day, conducted an interview with French journalist Franck Ramellaof L’Equipe. “The instructions were clear,” Ramella subsequently wrote on realising that the tennis star had done the interview after testing positive for COVID-19. There were to be “no questions about vaccination.”

This was all a bit much even for the otherwise supportive Serbian Prime Minister Ana Brnabić, who told the BBC, “If you’re positive you have to be in isolation.” She did, however, leave it to Djokovic to explain the matter. “I do not know when he actually got the results, when he saw the results, so there is some grey area… the only answer to this can be provided by Novak.”

This growing resume of seeming shiftiness did not augur well for Djokovic’s already anaemically thin chances. The Minister had been furnished with fuel and duly ignited it. The cancellation came, timed with brutal effect, on January 14. It had been made “on health and good order grounds, on the basis that it was in the public interest to do so.” The Australian Open, for which Djokovic had started training for on court, was to commence on January 17.

The threat inflation factor

Within hours, the legal team began proceedings in the Federal Court of Australia in a speedy effort to overturn Hawke’s cancellation. The government submission was telling, consciously magnifying the Djokovic threat. He had “indicated publicly that he was opposed to becoming vaccinated against COVID-19.” He had “acted inconsistently with certain COVID-19 restrictions in the past.”

The second ground drew more attention to the first point, with the Minister insisting that Djokovic was stirring an anti-vaccination insurrection: “[T]here are some media reports that some groups opposed to vaccination have supported Mr Djokovic’s presence in Australia, by reference to his unvaccinated status.” The ground was barely credible, given that his reservations about vaccination were already known before entering Australia. As is often the case Down Under, the Australian public is treated as a potentially wayward child who might be tempted by anti-institutional contrarianism.

The third ground followed on from the first: that encouraging such resistance against COVID-19 vaccinations and restrictions “would present a problem for the health of individuals and the operation of Australia’s hospital system.” What a revolutionary monster the Serbian player was being made out to be.

Djokovic’s submission

The defence outlined, plausibly, that Hawke had engaged in a crude bit of threat inflation. It was one thing to deport an individual who, posing an individual health risk, had entered Australia lacking a medical exemption and inconsistently with the guidelines of ATAGI (Australian Technical Advisory Group on Immunisation). It was quite another to do so to a person “who poses negligible individual health risk, enter with an exemption, and consistently with ATAGI guidelines, etc.”

Such reasoning, it followed, was “perverse, illogical, or irrational” and distinctly “out of keeping with the proper exercise of a power the purpose of which is to reduce risk to health.” This also ignored that the cancellation “creates a much larger health risk (or good order risk).”

The Minister had also not addressed “in express terms” what those dangerous consequences to health and good order Djokovic posed might be. This was a “counterfactual” that the Minister did not consider. The “anti-vaccination sentiment” approach was also at odds with the original delegate of the Minister for Home Affairs.

In attempting to hole Hawke’s argument, emphasis was placed on the Minister’s one-sided approach in considering the consequences of Djokovic’s presence, rather than absence. It might very well be that the visa cancellation, the Serb’s detention and deportation, rather than the player’s presence in Australia, could cause unrest. “Mr Djokovic’s point is that that material [suggesting that anti-vaccination groups were upset at the cancellation and his detention] is not referred to or considered in the Minister’s reasons.”

Valiantly, the defence also argued that Hawke’s discretion to cancel the visa could not be undertaken “on an evidence-free figment of his imagination.” The point on whether there was evidence supporting the contention that Djokovic’s presence “may foster sentiment against vaccination” was not addressed. The media reports cited by the Minister to supposedly show anti-vaccination support by groups in Australia failed to even mention Djokovic.

The mess became even more elaborate with the defence salvo that the Minister did not himself know what Djokovic’s actual views on vaccination were. This was despite claiming that his anti-vaccination stance was a “well-known” one. “This,” the submission bluntly states, “is illogical.” Djokovic’s statement for the record should, the argument went, lead one to an inference that his public views had been “taken out of context” and that he did “not accept the depiction by the ‘international media’ of his views on vaccination.”

All it would have taken was a request by Hawke that Djokovic furnish him with material on the issue. As the player had previously pointed out in other media reports, he was “no expert” on vaccinations and was keeping an “open mind” on the issue; he simply wanted to have “an option to choose” what was “best” for his body.

Dark consequences, sinister precedents

On Sunday, January 16, the decision of the full court of the Federal Court was handed down. (Full reasons are yet to be published.) In finding for the Commonwealth, Chief JusticeJames Allsop affirmed the traditional reservation shown by Australian judges to challenging exercises of executive power. The grounds made by Djokovic “focus on whether the decision was, for different reasons, irrational or legally unreasonable. It is not part or function of the court to decide upon the merit or wisdom of the decision.”

The Djokovic precedent presents the authorities with a large tarring brush, one to be used against other notable figures of certain opinions seen to pose a risk to Australia’s public interest. Hypotheticals will suffice, given that the Minister need only be satisfied that the person might be a risk to health, safety and good order.

Such latitude also grants authorities a heavy hand to target future dissent and protest. The Australian government will be able to justify, barrister and president of Liberty Victoria Mike Stanton warns, “the suppression of legitimate political expression because others might engage in unrest.”

With a stunning lack of imagination, the Djokovic precedent promises that the executive will not be accountable for the disorder and disruption arising from deporting individuals who might command a following. Oppression promises to be twinned with unpardonable stupidity.

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13 comments

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  1. New England Cocky

    The Novaxx Joker episode provided Scummo et al with an eleven (11) day break form public scrutiny, which was why the matter was engineered to run until the eve of the Australian Open.

    Hawke could not scratch his backside without directions and Scummo could not lie straight in bed. Novaxx was made into a pawn of the Liarbral Nazional$ misgovernment that has been unwilling or unable or incapable of correctly & efficiently managing the roll-out of the COVID vaccination programme and distribution of RATs.

    Naturally Scummo waited until the last moment when opinion polls showed that 79% of Australians polled wanted Joker out of Australia. Nothing like a bit of unprincipled populism.

  2. James Robert LEONARD

    The most important thing is that the correct decision has now been arrived at. It’s rather a shame that a simpering and inept minister had to be used to give the whole thing the touch of sadism that seems to characterise everything the prime minister has to do with foreign nationals.

  3. Phil Pryor

    Has this been run through so that this turdaceous tinysouled termite in the P M’s office could have a precedent to turf out anyone for any reason by an enabling act befitting adolf and josef at their dictatorial worst. If you can shaft a famed star, what might happen to unlucky ordinary sods? No Vax came here with federal documentation accepted by officials and airlines.

  4. Jack Cade

    John Hewson commented that Novaxx might have been okay if he’d been a member of Hillsong, which suggests he – like me – thought it a convenient smokescreen to hide that noxious groups happy-clapping ‘no penalty’ peccadillo..,

  5. Roswell

    With you on that one, Jack.

    This government is 100% predictable when it comes to matters of devious intent.

  6. Garth

    I am not embarrassed to be Australian but I am immensely embarrassed because of my ruling Government and Bureaucracy.
    As Australians we will all have to weather this embarrassment of world criticism for future years.
    It shows how desperate the Morrison Government is to play this type of sick politics, hopefully, to prop up their sagging ratings.
    The Morrison Government is terminally sick and no pharmaceuticals or Vaccines will cure this ailment; euthanasia is the only needle that will cure.

  7. My say

    It really beggers belief that one man has so much power that he can decide who comes into this country ,All done for political gain,
    Does anyone remember the Tampa

  8. Florence Howarth

    Can’t come back? It depends on circumstances, says our honourable PM. They sure will be PM. The election will be over next year.

  9. Terence Mills

    The French have made it abundantly clear that anybody attending (either as a spectator or player) at the French open held between late May and early June at Roland Garros must have had at least two vaccinations : there are no exemptions, no leave passes and definitely no au-pairs.

    The bungling by Australian authorities – mainly at the federal level – needs to be looked into to sort out once and for all who is responsible for our border security : remember this started with the Ruby Princess and we still don’t know where we are – as the first judge said of Djokovic how much more could this man do ?

  10. Caz

    What upsets me most apart from the obvious godlike power given to a Pentecostal idiot, is the viciousness displayed by the Australians on social media. They descended like a pack of rabid dogs spewing vitriol as if the man was a terrorist or worse. Has our lockdowns caused us to come to the boil like a cauldron of oil hitch then burns the house down? Okay the man won’t reveal his vaccination status: has some definite ideas about food and health, but he’s not Robinson Crusoe in that department. And whatever he decides to eat or inject or anything else, he is the world’s top tennis player,arguably the greatest of all time.
    So once again this government has shown the world our pettiness and parochialism and as well our glee in tearing down a tall poppy. And what has been Djokovic’s reply? He accepts the court’s ruling and leaves quietly and with dignity.
    I am appalled at the behaviour of the majority of posters on line and ashamed to be numbered amongst them by the rest of the world. I’m ashamed that we could elect these crooks and carpetbaggers as our government. I fear like every other poster, that this has set a precedent and will become common practice.
    We have allowed one man to say who comes in and who stays in our country. We have allowed one man to decide if we sent our defence force to war. We have lost any semblance of democracy and the rule of law means nothing. Poor fella, my country.

  11. Caz

    I would like to add that on reading some background on ND I have learned a lot about his philanthropy. With everyone harping on about his privilege, there has been no mention of the schools he has set up for underprivileged children or his generous donations to disaster appeals. Queensland received a donation following the Queensland floods. I just think we should remember this.

  12. Josephus

    All useful comments, unlike the rabid, poorly spelt and ungrammatical posts that appeared on blogs. This whole shamozzle is a cocktail of laziness or favouritism by our tennis body, sloppiness by border force and yes, the generous donations but whacky beliefs and arrogant behaviour of this man. If he had agreed to a jab he might have been let in even if only to counter the bad example argument. The man’s faulty application is fair grounds for deportation, no doubt. But he could have compromised. Tennis Australia has to explain how their doc agreed to grant an exemption given the amnesia on the visa document. All that said it is disturbing that one minister can do as s/he likes. Like casually letting all the infected ultra Christians off the ruby princess, perhaps? Did the minister agree to that though? Seems a total lack of due process. Hawke probably was told that xenophobia was always effective before an election.

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