Welcome to Eureka Street

back to site

The trouble with God powers: The Novak Djokovic case

5 Comments

 

It should be troubling for anyone, religious, secular or agnostic, to be told that a human being wields anything approximating to ‘God like’ powers. That very suggestion implies a power unreviewable, unaccountable and at odds with the earthly rule of law.

Under the Migration Act 1958 (Cth), such powers are vested in the immigration minister under section 133C, which cover visa cancellation powers. They were used against the tennis world number one Novak Djokovic after his initial victory in the Federal Circuit Court, which held that the Australian Border Force had procedurally erred in not giving him adequate notice in responding to their queries about evidence of a vaccine exemption.

The Djokovic case should cause much consternation. It has become a story of marked notoriety, and for all its noise and partisanship, threatens, in time, to become distant, forever associated with the man more than the issue. It was tribal and parochial in scapegoating the notable athlete. It demonstrated institutional inconsistencies — the conduct of Tennis Australia, for instance, and its reading of advice on vaccine exemptions seemingly at odds with the Commonwealth. But most of all, it affirmed that perceptions of risk to health or public order posed by notable visitors are far more pertinent than either their views or evidence of that fact. 

Djokovic had originally entered the country availing himself of the vaccine exemption provisions he thought he had followed. On 30 December, 2021, he 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. Two bodies had approved the exemption: the Independent Medical Review panel commissioned by Tennis Australia and the Victorian state government’s independent Medical Exemptions Review Panel. The Department of Home Affairs duly informed Djokovic that his Australia Travel Declaration has also been given the nod. 

On 5 January, when Djokovic arrived in Melbourne, a delegated officer of the Australian Border Force informed him that he had not provided sufficient evidence to satisfy entry into the country. The visa was cancelled. It was subsequently found on appeal to the Federal Circuit Court that the official in question had given Djokovic insufficient notice to prepare his explanation on the morning of 6 January. 

This bungle led to a remarkable ruling by Judge Anthony Kelly, who stated the following with unequivocal force: ‘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 exercise of such ‘God’ powers shows the broken nature of Australia’s visa review system. Djokovic was at least fortunate to have resources to mount two legal challenges. Refugees and asylum seekers, in the main, do not, meaning that potentially unlawful visa cancellations stand.'

 

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.

With the decision cancellation quashed, Djokovic began training for the Australian Tennis Open. Immigration Minister Alex Hawke then exercised the ‘God’ powers in question on 14 January to re-cancel the visa ‘on health and good order grounds, on the basis that it was in the public interest to do so.’ Djokovic duly appealed to the Full Court of the Federal Court. 

 

Arguments: The threat factor

In its submission to the Full Court of the Federal Court, the government saw Djokovic as a threat to the public interest indicating ‘publicly that he was opposed to becoming vaccinated against COVID-19’.  He had ‘acted inconsistently with certain COVID-19 restrictions in the past.’ (He had knowingly, for instance, given a press interview on December 18, 2021 after receiving a positive COVID-19 test result the day before.) 

It followed, as the second ground claimed, that Djokovic was stirring anti-vaccination sentiment: ‘[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.’ His ‘high profile status and position as a role model in the sporting and broader community’ also exacerbated the matter. 

The third ground followed on from the first: that encouraging scepticism and opposition against COVID-19 vaccinations and restrictions would present a problem for the health of individuals and ‘the operation of Australia’s hospital system’. 

The defence outlined, plausibly, that Hawke had inflated the threat. 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.’ Nor had the Minister addressed ‘in express terms’ what the dangerous consequences to health and good order Djokovic posed might be. 

The defence also argued Djokovic’s actual views on vaccination were never sought. It was only assumed that his anti-vaccination stance was a ‘well-known’ one. Djokovic’s statement to the court 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’. As the player had previously pointed out in other media reports not cited by the Commonwealth, he was ‘no expert’ on vaccinations and was keeping an ‘open mind’ on the issue, merely reserving ‘an option to choose’ what was ‘best’ for his body.

Hawke’s 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 the prospect that the visa cancellation potentially created ‘a much larger health risk (or good order risk).’ The Minister’s one-sided approach, the defence alleged, had only considered 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 his presence in Australia, could stimulate anti-vaccination sentiment.

 

The decision

On 16 January, the decision of the Full Court of the Federal Court was handed down in favour of the Commonwealth. The judges found the exercise of the cancellation power lawful.  In reasons published four days later, the court accepted that it was open for Hawke to conclude that ‘Djokovic had a stance that was well-known on vaccination and that he was opposed to it.’ The onus was on the player to give any ‘evidence of any apparent change of attitude’; there was no need for the Minister to seek an ‘express statement to the contrary’.

It was also ‘open to infer that it was perceived by the public’ [emphasis added] that Djokovic did not favour vaccinations, and that he had been portrayed as ‘a hero and an icon of freedom of choice in relation to being vaccinated.’ He had also ‘recently disregarded reasonable public health measures overseas’.

The court put much stock in the role of an ‘iconic world tennis star’ influencing ‘people of all ages, young or old, but perhaps especially the young and impressionable’. There was no need to produce evidence of that fact, as it was not a ‘fanciful’ proposition. Nor was it ‘irrational to infer’ that the tennis player’s ‘presence may be taken up by some groups in the future in support of their [anti-vaccination] views.’

It was also unnecessary, according to the judgment, for Hawke to weigh ‘two binary ‘choices’’ in assessing whether cancellation would itself incite a threat to public order. That, contended the judges, was a mere ‘counterfactual’. All that was sufficient under the Migration Act was that the Minister was ‘satisfied’ that ‘the presence of [the visa] holder in Australia … may be … a risk … to the health, safety or good order of the Australian community’.

The judges also sidestepped the issue of whether ‘lawful’ rallies, even if robust and pursued in the name of free expression on social and political views, albeit unpopular ones, might constitute a threat. ‘In the absence of argument or of it being an issue, we do not comment any further on this.’

 

The trouble with God powers

The decision throws up a number of troubling aspects. It shows that merits review of a ministerial decision made after a tribunal or court has quashed a finding is virtually impossible. It suggests that such decisions to cancel visas can be made for political reasons. (Djokovic’s problematic stance on vaccination was well known to the government prior to arrival, something even the court acknowledged.) Indeed, the judges accepted that the Minister was never under an obligation to produce any reasons in the first place.

Such latitude also grants authorities the heaviest hand to target future dissent and protest on mere perception, especially if they pertain to a ‘role model’ figure. 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.’

Last, but by no means least, the exercise of such ‘God’ powers shows the broken nature of Australia’s visa review system. Djokovic was at least fortunate to have resources to mount two legal challenges. Refugees and asylum seekers, in the main, do not, meaning that potentially unlawful visa cancellations stand.

Djokovic’s profile was such that he was briefly detained at Park Hotel, not indefinitely in harsher detention facilities. Others, such as Mehdi Ali, are currently being held at the same facility, with Mehdi having spent time in offshore and onshore facilities for almost a decade. It is high time that such vast powers, entrusted to a mere mortal, be reviewed and curtailed.

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Main image: Novak Djokovic waiting at the net on day eight of the Tokyo 2020 Olympic Games. (Naomi Baker/Getty Images) 

Topic tags: Binoy Kampmark, Novak Djokovic, God powers, Federal Court, Tennis Australia, Immigration

 

Feedback is closed.

Existing comments

The 'Death of God' used to be a peg to begin theological debate by then trendy Anglican clerics in the 1960s, Binoy. Things have certainly moved forward since then. I think what you are saying, in plain English, is that the government is using its powers in an unchecked, totalitarian way. This was something envisaged by Karl Popper, who had escaped from a totalitarian state to England. Popper was against both Fascism and Communism, both totalitarian. He was worried that, after the Second World War, there were few checks on our sort of parliament. He wanted a legislative check on parliament. I concur. This is not a philosophical issue, it is pragmatic and of the utmost importance.


Edward Fido | 08 February 2022  

Thanks for the article, it's a powerful persuasive conversation but misses the "god-powers" godliness of knowing what will happen in the future; even the Minister had to wait for the fulness of time. The case against Djokovic's stance on vaccination and inferred risk to health, safety and good order was something which needed to be observed over a period of time, including after the visa was granted and even his entry to Australia. Minister Hawke may be aware of Djokovic's stance prior to his arrival in Australia through news media hearsay but the Minister had no knowledge of or control over Djokovic's ability to change his stance; precisely as contained in this article: 'The onus was on the player to give any ‘evidence of any apparent change of attitude’; this was wholly within Djokovic's discretion and (I assume understanding). If the Minister had acted prior he would have been exercising powers without consideration of Djokovic's (inalienable) right to change his mind, but he has duly waited for the process of law which has documented the case of Djokovic's vaccination status, disregard for international quarantine requirements and, most importantly, unchanged attitude. Somewhat less than god powers but unreviewable and unaccountable...


ray | 08 February 2022  

I followed this saga closely and clearly there were some inconsistencies between state and federal rules and the intervention of Tennis Australia contrary to advice from the federal health minister.Without this ND would not have contemplated coming as many other players understood well.The first judicial review found in the plaintiffs favour on a technicality ,the second hearing before the full court upheld the ministers right to revoke the visa as lawful and not unreasonable .It did not even consider the question of the clear breach by ND of the border rule No vax No entry.
So the rule was upheld despite a high profile person
with high profile backers throwing a lot of money at it . A win for our processes.No "God" power involved.


John Murphy | 09 February 2022  

Djokovic thumbed his nose at Australian law designed to prevent death and long term disability during a very serious pandemic. He knew the rules for months before he tried to beat the system. Videos taken of his activities within days of allegedly testing positive to Covid -19 indicate that he did not respect the health and wellbeing of others with whom he came into contact, again thumbing his nose at established control measures in place internationally. In his application he lied in stating that he had not travelled internationally in the month prior to coming to Australia. Thank goodness Minister Hawke had the guts to send him on his way. The big mistake was that we didn't deport the CEO of Tennis Australia, also a nose-thumber at Australian law, and that we didn't sanction the mickey mouse "expert panels" set up as a kangaroo court style authority, independent of the national health authority struggling to contain the pandemic and designed to ensure nothing but an increased income for Tennis Australia. Tennis is a game, played and promoted for obscene levels of corporate and player income which at this time might better have been diverted to the many sick, unemployed and financially suffering victims of the pandemic around the world.


john frawley | 09 February 2022  
Show Responses

John, I concur wholeheartedly except for the last bit which suggests that we should just shut down everything (except essential services ) and give it to the poor.
A bit too "Lefty" for me !


John Murphy | 09 February 2022  

JF aren't you ignoring the fact that those who recover from Covid have roughly 26 times more antigens than the unvaccinated and that during his brief stay he tested negative every time he was tested ? Also what real use are these vaccinations? Everyone I know who has contracted the deliberately weaponised CCP disseminated scourge has at least been double vaxed.


Francis Armstrong | 10 February 2022  

Binoy too many cooks spoil the broth.
Hawke was throwing his weight around to win brownie points for re election.
Judge Anthony Kelly was absolutely right, and his reasoning was flawless.
The eventual outcome was a travesty.


Francis Armstrong | 09 February 2022  

Good morning, John Murphy. You worried me today!. Many have accused me of being an extreme, right wing conservative (which is probably accurate apart from the "extreme" bit). But "leftie" has me seriously wondering who I really am!


john frawley | 10 February 2022  
Show Responses

You may be right as well as wrong, John Frawley, so long as you aren't ever described as a 'leftie', an appellation I'd never associate with your posts.

The problem is that so many here, undoubtedly without benefit of a Jesuit education, and with teeth cut on the anti-communist pre-Vatican II politics and theology of Santamaria, imbibed their world-view with their mother's milk.

This was the standard Catholic fare of the 1950s and '60s and many who post here have found it insuperably difficult to adjust to a post-Communist world in which no educated person castigates Marxists like ES readers do.

Perchance John Murphy, in the manner of the French, uses the term 'leftie' in the sense of an unanticipated remark of your's coming out of left-field, but I suspect not.

I remember once during a retreat led by Fr Martin D'Arcy, the English Jesuit superior and Master of Campion, remarking that he had never written the fiery foreword to the US edition of his book on 'Communism and Chistianity', which he said read as if it had been penned by Senator Joseph McCarthy.

While Fr D'Arcy swore he hadn't written the foreword, he had no idea who wrote it!


Michael Furtado | 11 March 2022  

That fact remains that ATAGI had already officially recommended that prior recent COVID infection provides the same protection as a vaccine. (and experts suggest the protection is potentially 3 times greater than a vaccine!).
And what threat was Novak given that we'd already "let it rip?" Whether he's in Melbourne or Serbia, the anti-vaxxers will still make their own minds up.
The real things that upset the spin doctors of the Federal Libs was Novak's smug tweets telling the world he'd received an exemption, and the consequent response from other athletes who felt cheated and the perceived favouritism.
It was simply politics - Novak's politics vs Scomo's politics. And Scomo (via minister Hawke) had the last say thanks to the "God clause". It's a nice perk if you have it!


AURELIUS | 10 February 2022  

As a parent I've used the God power to be merciful or to make decisions for the good of the family despite everyday rules and expected or implied punishments or rewards associated with them.
In a Govt there is always a benefit on someone holding the power to draw or make judgements outside the normal lines of the law to either benefit or sanction an individual. Cutting through red tape and how we would welcome someone with the strength of moral character to do so in terms of giving justice to a number of refugee families allowing them residency despite the govt policy. The God power could be used without policy change and mercy shown without setting a precedent which would supposedly see the return of boat people arriving in huge numbers.
That's why we need the God power to remain or else we get locked in by redtape and policies which do not leave room for exceptional cases. All that being said it is also reasonable to the person wielding God powers to prove they are not swayed by bribes, political advantage or other personal gain in such decisions and a clear rational for the decision shared openly with the public. Just as that in Nojab Djokovich's case.


Phillip A Haar | 15 February 2022  
Show Responses

In which case, Mr Haar, you make a case against yourself, for no one with God-like powers, especially in a so-called democracy, is accountable to the parliament, the courts or even the constitution.

Such God-like decision-making may well pass the pub test in Russia or China, and which you and some others apply to the Djokovic case here.

However, the fact of the matter is that popular or populist decisions aren't necessarily democratic, as we have seen in the instance of Australia's asylum-seekers, whom you, further ruining your case, pejoratively describe here as boat-persons.

Australia, as Dr Kampmark explains, is governed by the rule of law, and people, whether tennis players or refugees, have rights that cannot be alienated, even by passage of emergency legislation exempting Christmas Island as an Australian territory.

While I admire your practical good sense in regard to asserting yourself with your children, you would, I fear, make a questionable lawyer: if only you hadn't reached out for the example that you cited and entered your post as a no more than an amusing remark.

Alas, you evince the precise example that would test the patience and good sense of any sound Jesuit and his supporters.


Michael Furtado | 11 March 2022  

Similar Articles

Rock the boat

  • Cristy Clark
  • 08 February 2022

Avoiding discomfort is a privilege only enjoyed by those who benefit from the status quo, and civility policing is fundamentally about protecting both that privilege and the status quo itself. Confronting the reality of injustice in both our past and our present should be uncomfortable, and no one is entitled to immunity.

READ MORE

The unequal pandemic

  • Brigid Meney
  • 31 January 2022

When COVID-19 first arrived, it was described as the great equaliser. Infection could happen to anyone. Your race, creed, or the balance of your bank account didn’t matter to the virus that was spreading. But after a summer of dodging the virus and hunting for rapid tests, it is abundantly clear this isn’t a pandemic of equals. Now we have the data which quantifiably measures just how Australia's socio-economic fault lines were exposed and exacerbated by COVID-19.

READ MORE