Some obvious remarks on the Djokovic scandal. I doubt there is anything new here.
Background: Government in Crisis
The right wing Australian federal government has recently been obviously stuffing up on issues related to Covid. Covid is exploding, hospitals are being overwhelmed, people are dying, etc. We won’t know how bad it will get for a while longer – by January 18 2022 about 256 people in NSW had died with or of Covid in 2022 – that seems to be over a third of those who died the whole of last year. The Government did not have enough vaccines, or Rapid Antigen tests, even though they demanded that people have them. Reports suggest the vaccination of kids before school returns is ‘stressful,’ to say the least, without the vaccines. Presumably the Federal government had all summer to prepare if they wanted schools to go ahead. The economy which was doing well, until the “Let it Rip” approach to Covid was implemented, is now tanking. Supply chain systems are breaking down for lack of healthy workers. Small businesses are taking it really hard.
While the federal government is not responsible for what State governments do, until it suits them, in December 2021, while omicron was emerging (omicron was first reported to WHO on 24 November), the Prime Minister Scot Morrison was gung-ho about the economy opening up and governments getting out of people’s lives. This lead was followed by Perrottet, the current Premier of NSW, who repealed constraints pretty quickly.
For all her faults I simply cannot imagine Berejiklian (the former Premier of NSW), going along with the Federal Government saying “Oh goody here is a new Covid variant we know nothing about other than it spreads really quickly, lets remove most of our public health measures before we learn more about it, and risk spreading it through all of Australia.” Perrottet just placated the Coalition and went ahead.
Even if they had delayed by a month or so to let it rip, to find out more about what was going to happen with Omicron without ripping, the decision would have been better informed.
These are not the only major problems the Federal government was facing at this moment, and it was declining in the polls with a federal election nearing.
A distraction is needed! One that will take up lots of air time…. What can be manufactured?
The Looming Australian Tennis Open attracts lots of eyes and minds
Originally the government (the Prime Minister himself) said it was up to the State government in Victoria to decide if Novak Djokovic could come in. Djokovic filled in forms and everything looked ok. According to Djokovic the Department of Home Affairs approved him directly (I cannot find evidence one way or the other). It turned out later he, or someone else, filled in the forms incorrectly and therefore lied to get a visa. He also was out and about in Europe, in public maskless, supposedly a day after after a positive Covid test – not an indicator of trustworthy behaviour. So there is plenty of reason to deny him a visa, or revoke the visa.
Legally it was never the Victorian government’s say so that counted – it is the Federal Government’s responsibility to issue and confirm the visa. So the PM was either wrong, deliberately misleading, hedging his bets, or at that time he did not think he needed a distraction beyond the tennis itself.
If the PM had a resolution about the visas and what was acceptable, he should have made it clear and visible before all this happened, rather than saying it was up to Victoria, when it never was. What stopped the Federal Government from saying beforehand publicly it was not possible for unvaccinated people to enter Australia to play tennis? Why let other unvaccinated tennis players through before Djokovic? Why wait until he was here? Perhaps, initially, they weren’t seeking a distraction. However, it looks completely capricious. Just as it does to release the decision Friday evening, when it would normally have been too late to arrange anything over the weekend, if it wasn’t for ‘extremely kind’ judges.
It is not as if it was unknown that the World Number One had refused to be vaccinated, so the Government could have prepared. But they had not, which could imply that they suddenly needed something which they thought might do them some good.
The argument is that it is not implausible that they may have decided to distract people from their Chaos and change the news focus, by being Strong on Australian Borders which seems popular with voters, and their one sure public policy for near 20 years…. So to be strong, they seized upon the moment, and revoked Djokovic’s visa, and put him in immigration detention. A judge ruled the Feds had not followed procedural fairness, which was pretty blatantly correct – Djokovic was not allowed to speak to his lawyers before the visa was revoked, he was pressured by Border force to give up his rights, he did not have the reasons explained to him, etc.
The lying was then discovered, and the government had to decide whether alienating the sports mad Australian people was going to undo the protecting borders shtick.
Bizarre Reasons for a second removal of Visa
Then after a week or so, on Friday evening, the Minister for immigration, who basically has arbitrary power to decide who gets a visa, cancelled the visa again saying the visa was cancelled the second time because Djokovic’s presence: “creates a risk of strengthening the anti-vaccination sentiment of a minority of the Australian community”.
This is bizarre for a number of reasons:
1) The Federal government is not particularly anti-anti-vaxers. It has largely accepted demonstrations as an expression of free speech. It has members who spread what seems to be anti-vax information, who participate in demonstrations and who do not get reprimanded by the government, and they have done their best not to make vaccination compulsory. They were also trying to open the economy up, before ‘safe levels of vaccination’ were reached. Whether this is bad or good is up to you, but given this background, why worry about Djokovic so openly and so late?
2) The argument also has little legal force, when the lying on the visa forms would have done for the purpose of revoking a visa. Why not just deport him because of the failure to vaccinate, the false forms, or the deceits and stupidities he had practiced. These are all straight forward evidence of breaking the visa rules?
3) If you truly want to silence something, you do not go shouting it from the rooftops. Every anti-vaxer in the world has now been told to seize on Djokovic for their cause. This technique also leaves the government open to having to prove that he would be a political problem for them – which is not illegal in any case, and is he only a political problem for them because of the minister’s statement?
I quote Djokovic’s lawyers:
One could see a situation in which it was plain to anyone with common sense that cancelling the visa would cause overwhelming public discord and risks of transmission through very large public gatherings.https://www.theguardian.com/australia-news/live/2022/jan/16/australia-live-news-update-novak-djokovic-fights-to-overturn-visa-cancellation-in-federal-court-australian-open-tennis-covid-victoria-new-south-wales-scott-morrison-vaccine-coronavirus 12.00
If the Minister’s argument is accepted by the courts it reinforces the arbitrary powers of that immigration minister. People can now be deported on the basis of how the Government thinks other people may respond to them if the government takes them to court. Yep this is bizarre. Either this is complete incompetence or a real double handed game. It is difficult to tell.
The final verdict
The case went back to a full bench of the Federal Court over the weekend – which is not normal I believe, and I’ve read lawyers wondering about this as well. I’m ignorant, but when was the last time a federal court sat on a Sunday? If not for a while, what does that say about priorities in Australia? Everything has been sped up so a decision can be reached in time for the tournament.
We now know Djokovic lost unanimously. The minister assumed that Djokovic “entered Australia consistently” with Australian Technical Advisory Group on Immunisation documents, although the minister noted there was a dispute about this in the earlier court proceedings.
“For present purposes, I will assume that Mr Djokovic’s position is correct rather than seeking to get to the bottom of this here,” Hawke wrote.
Basically he argued the decision would have been the same regardless of the travel declaration and vaccination issues which were were the real rule based grounds for deportation, which they are claiming to have asserted – or at least the PM is.
The court also appears to have asserted that the Minister does not really have to give reasons or conduct investigations into breaches of visas. So the banning was purely on the grounds that people might have protested against the government as a result of Djokovic being here. And the court agreed that the minister was within his rights.
Now while it might be debatable if this is a good thing or not, people are usually banned for political effects before they get here, or after they start agitating, and this supposed effect would have to have been known in advance, and the visa could have already been refused if they were not seeking a distraction
We now know, the minister can deport anyone and apparently does not have to give any evidence for that decision other than their ‘common sense’.
Maybe I’m wrong, but it seems that once such discretionary powers are granted no laws govern them. Especially when courts rule the minister does not need coherent reasons, fairness or evidence. This probably should worry you.
There have been people waiting in the ‘confinement hotel’ Djokovic was briefly in, for 8 years or more, to have their refugee status decided, and its now clear to everyone the minister could arbitrarily release them if he chose. But they are not wealthy or famous, so they will continue to languish in jail for attempting to entry the country and claim refuge from persecution, rather than play in a tennis match or two.
Incidentally the PM seems to have misrepresented the position that most people held in the ‘hotel’ were refugees, by saying they were not. Amnesty International tweeted:
We’ve written to PM @ScottMorrisonMP asking to correct the public record on the false statement he made regarding refugees in the #ParkHotel on @BenFordham‘s program on @2GB873. Most of the people being held are refugees and are languishing in limbo due to his govt’s policiestwitter.
This all seems to be about campaigning, not about ‘justice’ or ‘following the rules’.
A complete mess, a good distraction, or a confirmation of arbitrary powers?
Morrison and the end of Covid
Vaccine Supply problems
Ministerial arguments in court
https://news.sky.com/story/novak-djokovic-updates-tennis-star-in-final-court-bid-to-stay-in-australia-to-defend-his-open-title-12512779 [keep scrolling and scrolling]
There does not appear to be any record of the Minister’s arguments currently on the minister’s web site, but but the official document is now on the court website.
For those who are really interested – some of the court filings plus a link to the court youtube channels