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Djokovic versus the Australian Commonwealth

January 10, 2022 will be remembered as one of the odder days in the annals of sport. For one, it had little to do with physical exertion. Tennis proved secondary to the claims of one Novak Djokovic, currently the world’s number one ranked player. Instead of finding himself training on court in preparation for the Australian Open, he found himself with a legal team in the recently created Federal Circuit and Family Court of Australia. His purpose: to challenge the decision to cancel his Temporary Activity visa (subclass 408 in bureaucratic lingo), after his arrival in Australia just prior to midnight on January 5.

The visa was granted on November 18 last year and, according to his court submission, “was subject to no condition having the effect that his right to enter and remain in Australia was qualified in any way in regard his vaccination status.” On December 30, 2021 the player received a letter from the Chief Medical Officer of Tennis Australia noting that he had been granted a “Medical exemption from COVID vaccination” on the grounds that he had recently recovered from COVID-19.

The letter also noted a range of salient points. Djokovic, for instance, recorded the first positive COVID PCR test on December 16, 2021. Fourteen days had expired; the player had shown no relevant symptoms of a fever or respiratory symptoms in the last 72 hours. The exemption certificate had been provided by an Independent Medical Review panel commissioned by Tennis Australia and duly reviewed and approved by an independent Medical Exemptions Review Panel of the Victorian State Government. These exemption conditions were also deemed consistent with the Australian Technical Advisory Group on Immunisation (ATAGI).

On January 1, 2021, the Department of Home Affairs informed Djokovic that his Australia Travel Declaration had been assessed and approved. His “responses [i]ndicated that [he met] the requirements for a quarantine-free travel into Australia where permitted by the jurisdiction of your travel.”

It then came as quite a shock that his visa was cancelled after arriving in Melbourne International airport by a delegate of the Australian Border Force. He had been held, incommunicado, for eight hours (till approximately 8 am, January 6). After being notified of the decision, Djokovic was hurried off to the infamous Park Hotel in Melbourne where he, in his defence team’s words, was detained “notwithstanding his requests to be moved to a more suitable place of detention that would enable him to train and condition for the Australian Tennis Open should this present challenge to the Purported Decision be successful.”

Judge Anthony Kelly had to confront a veritable blizzard of legal grounds, eight in all. Among other things, these focused on the purported invalidity of the notice given to Djokovic in cancelling the visa. The immigration minister could only exercise a discretion to cancel the visa after considering that notice. There were also time constraints in making that decision, and considerations of natural justice.

The cardinal point remained the differing readings by Djokovic and the Commonwealth government on the nature of the medical exemption. For the tennis player, testing positive on December 16 exempted him from the vaccination requirement for six months, a reading based on ATAGI’s statement to that effect.

The Commonwealth rejected this interpretation, claiming that having a previous infection did not dispense with the need to be vaccinated before entering Australia. A deferral of vaccination should not have been read as an excuse not to get vaccinated.  Placing such heavy reliance on the Tennis Australia exemption letter did not constitute sufficient information for the purpose of entering the country unvaccinated. The government also disputed whether Djokovic had an “acute major medical illness” last month. “All he said is that he tested positive for COVID-19. This is not the same.” (Djokovic did himself few favours in that regard, having been photographed at public events following the positive test.)

 

 

In terms of the constitutional pecking order, the government lawyers were eager to pull rank. It did not ultimately matter what Tennis Australia had concluded, or, for that matter, what the Victorian government had done. In submissions to the court, the government asserted that there was “no such thing as an assurance of entry by a non-citizen into Australia.” The Commonwealth had the final say.

Remarkably, and disturbingly, it is also clear that the same thing applies to Australian citizens, who have no formal constitutional guarantee of a right to return or re-enter their country despite such a position being protected at international law.

At points, the denseness of the legal argument struck a nerve. The number of acronyms used stirred the judicial bench. “You’re going to have to drag yourself back to the last century,” stated the judge pointedly to Djokovic’s lawyer, Nick Wood. “I hate acronyms.”

But the government lawyers fared worse, being told witheringly that, “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?”

Both sides eventually agreed that the notice requirement for Djokovic had not been adequately satisfied. In the words of the court order, the “decision to proceed with the interview and make a decision to cancel the applicant’s visa pursuant to s.116 of the Migration Act 1958 (Cth) was unreasonable.” This was because Djokovic had been told at 5.20am on January 6 that he would have until 8.30am to “provide comments in response to a notice of intention to consider cancellation” under that same provision. Impatiently, the authorities had sought comments at 6.14am, with the decision to cancel the visa being made at 7.42am.

Despite quashing the cancellation decision and mandating that Djokovic be released from immigration detention “without limitation thereto […] by no later than 30 minutes after them making of this Order,” counsel representing the Commonwealth made an ominous promise. The Minister for Immigration “may consider whether to exercise a personal power of cancellation” under the Migration Act.

In response, Judge Kelly insisted that he be “fully informed in advance” of such developments, warning that “the stakes had risen rather than receded.” Any cancellation will promise further litigation and the prospect that Djokovic be barred from entering the country for three years, though this requirement can be waived.

In this episode of pandemic bureaucracy has seen a number of inglorious achievements. The Commonwealth has done its bit to conjure up a monster of its own making. It failed to follow its own notice requirements of visa cancellation in shabby fashion. It created an exemption system lacking in clarity and liable to be interpreted, at points freely, by state and sporting bodies. It aided the tarnishing of tennis and an international tournament whilst almost causing a diplomatic incident with Serbia.

Even as the threat of cancellation for Djokovic hovers, the one thing that will not be cancelled will be the indefinite detention regime for refugees of which the tennis star sampled, if only briefly. That the prominent Serbian was ever asked to be an impromptu spokesman for those detained for years in Australia’s very own minted concentration camp system suggested, in Behrouz Boochani’s words, “that politics is broken there.” His advice: that true power lay within the borders of a country with its citizens, rather than that of a celebrity.

 

 

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17 comments

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  1. Kaye Lee

    He declared on his travel declaration that he had/would not travel in the 14 days prior to coming to Australia yet was in Belgrade at Xmas and flew from Spain.

    Also, documents sent to all players by Tennis Australia stated applications for medical exemptions must come ‘no later’ than December 10.

  2. ajogrady

    It is amazing and frightening that a tennis player is held to a higher level of accountability, honesty and truthfulness by Australias media stenographers, laughingly called journalists, then the Prime Minister of the country. That in itself explains why Australia is in the predicament it is in. Truly pathetic.

  3. The AIM Network

  4. corvusboreus

    Garth,
    Ever considered putting your hand up as a UAP candidate?
    I am sure the yellow blimps would love tapping your hot air.

    FREEDOM FREEDOM! (!!!)

  5. Kate Ahearne

    Thanks for the update, Binoy.

    Kaye,

    The plot thickens. It’s starting to look like there’s wrong on both sides.

    Garth,

    An ‘experimental’ jab?

  6. Kaye Lee

    The vaccine is patently not toxic as billions of doses have been given worldwide and the proof of the protection it offers is displayed by the overrepresentation of unvaccinated people in ICU or worse.

    Please STOP spreading misinformed rubbish.

  7. Roswell

    I have deleted his comment and all future comments will be placed in moderation for approval.

  8. Kate Ahearne

    Thanks, Roswell.

    People’s lives are at stake, not to mention the widespread anxiety, illness, loss of income, and the loneliness of people forced into isolation through no fault of their own.

  9. Roswell

    Kate, my pleasure. What we don’t need or want are crazy conspiracy theories.

  10. GL

    I see Scummo running away from this as the opprobrium ramps up because the one thing he can’t stand is criticism (and seeing his standing as the world’s village idiot increasing) and being perceived as the dolt that we all know he is. On the other hand…

    On another note: There’s a pretty good three part documentary about Warhol called Andy Warhol’s America.

  11. corvusboreus

    GL,
    The current head of Home Affairs is a self-identified feminist who officially accepted the orthodoxy of climate science as far back as 2020. Additionally, she lacks a dick to swing.

    A disposeable minister if ever there was one.

  12. Kaye Lee

    Alex Hawke is the one who now must make the decision and he is ScoMo’s numbers man and fellow happy clapper. Brother Stewie seems impervious to repercussions so I don’t think Hawke will take kindly to being made a sacrificial lamb.

    I can understand him taking time to make the decision. His only job before politics was at Woolworths while he was at uni. Other than that, he’s just been a Party boy. Plus he’s REALLY busy……

    “Liberal powerbroker Alex Hawke has threatened a dramatic federal intervention in NSW that could lead to candidates being imposed in key seats across the state, during a heated meeting of the party’s state executive.”

  13. New England Cocky

    NOVAXX JOKER is a talented tennis player and successful business person considering only his international property portfolio listed elsewhere. In Australia Scummo is a congenital failure as a corporate executive, a parent, a politician and a man. It appears to be a ”no contest” until you stir in blundering Border Force goons to expose the apparent fraudulent visa application by the loudly anti-vaxx advocate.

    Really this debacle has become another pin the donkey on another COALition politician.

    Bring on the 2022 feral elections so that Australian taxpayers may elect representatives by VOTING FOR EVERY CANDIDATE BELOW THE LINE IN MY ORDER OF PREFERENCE.

  14. Terence Mills

    Alex Hawke has shown himself to be incapable of making decisions, look at the Sri Lankan family and the numerous people held in hotels around Australia and offshore.

    The plight of a young man who has spoken out from the Park Hotel, detained for over two years, is finally receiving some publicity so how about a decision on him and all the other detainees in the Park Hotel ?

  15. Kaye Lee

    Terence,

    I would suggest Alex Hawke is glued to talk-back radio and Sky to find out what his decision should be. As one of the few people still with a landline and living in a marginal electorate, I’m expecting to be polled any moment.

  16. Terence Mills

    Re the young man in detention in the Park Hotel who has spoken to the media and who had previously been on Christmas Island and Nauru over the past nine years, since he was fifteen : you can anticipate that there will be a clamp down on him and his fellow detainees to confiscate their mobile phones,

    Nothing more damaging in a pre-election period than actually hearing the story of these unfortunate folk and allowing them to appear human.

  17. GL

    I hope nobody minds me saying this, but I’m getting sick and tired of seeing and hearing about this whole bloody Djokovic crap. What about the people who aren’t the famous Djokovic (or have a few spare millions of dollars to bribe their way out) still locked away even though they have refugee status. Oh wait, Scummo, Dungheap and rest of the Bastard Party wouldn’t have anyone to torment and vilify…silly me.

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