The Djokovic saga sets a dangerous legal precedent in Australia

Novak Djokovic in 2018 (Photo: Wikimedia commons)

By invoking sweeping ministerial discretionary powers to cancel tennis star Novak Djokovic’s visa last week, the Australian government set a dangerous precedent for political deportations.

When a quickly convened full Federal Court unanimously dismissed Djokovic’s legal challenge last Sunday, it upheld the power of federal governments – whether the Liberal-National Coalition or the Labor Party – to deport anyone, including political activists, refugees and poor immigrants, designated as a “person at risk”. to “good order” in Australia.

As the WSWS has documented in detail, the two-week saga in which the government twice revoked Djokovic’s visa was saturated with political hypocrisy.

Had the coalition government and his Victorian Labor Party counterpart been successful, Djokovic would have headlined the Australian Open, making the COVID-19 superspreader event as lucrative as possible. Both governments gave him the green light to travel to Australia, knowing that he was a widely publicized opponent of vaccination and that his entry violated the ban on unvaccinated arrivals in the country.

Everything was going according to plan until Djokovic bragged on Instagram that he had received an “exemption” and flew to Melbourne. It sparked popular opposition because it was another blatant case of subordinating public health to corporate interests, amid a soaring pandemic outbreak.

After initially saying on national television that Djokovic’s entry was entirely within the Labor government of the state, Prime Minister Scott Morrison changed his tune overnight. He said Djokovic was stuck at Melbourne airport because “the rules are the rules” when it comes to “border protection”.

Djokovic won a first court victory, however, on the grounds that Border Force officers denied him procedural fairness by barring his lawful entry to Melbourne Airport due to his lack of evidence of a medical exemption.

Morrison’s crisis-ridden government then dithered for three days before revoking his visa, now on a different basis, after facing renewed public outrage.

Immigration Minister Alex Hawke canceled the visa under Section 116 of the Migration Act, but not because Djokovic broke the vaccination rule. Instead, Hawke said the tennis player could endanger the “good order of the Australian community” as his presence in the country could encourage “anti-vaccination sentiment” and “civil unrest”.

Morrison lied about the case on Monday, claiming Djokovic was deported because he failed to meet “the rules” of vaccinations to enter Australia. The prime minister told 2GB radio: “It’s as simple as that.”

In reality, the government turned to avoid deporting Djokovic for not being vaccinated, as that would have opened up discussion about the government’s own record and that of the entire “National Cabinet” of federal government leaders, states and territories. They all dismantled public safety measures to satisfy the profiteering demands of the corporate elite, triggering the Omicron-fueled catastrophe.

Hawke actually said he assumed Djokovic “currently had a medical reason not to be vaccinated” but “that ultimately doesn’t affect my reasoning about health and good order.”

Djokovic was a ‘negligible risk to those around him’. But it was “in the public interest” to withdraw it because it was “perceived by some as the talisman of a community of anti-vaccine sentiment”.

In other words, Djokovic was expelled not for saying or doing anything, or breaking any rule or law, but because other people might engage in political ‘trouble’. he remained in the country.

This sets a considerable precedent for the cancellation of visas based on political opinions. It could be invoked against socialist opponents of criminal policies of “living with the virus” and against other left-wing opponents of the business and political establishment.

As legal experts have pointed out, anti-war or environmental activists could be barred from the country. Australian Lawyers Alliance spokesman Greg Barns said: “If, for example, a high-level visitor to Australia expressed negative views about the Australian-American alliance, would the government ban that person because that this opinion could encourage people to demonstrate in Pine Gap? [joint US-Australian base]?”

True to its own record of deportations and anti-refugee “border protection” policies, the opposition Labor Party backed the government’s decision, while blaming it for not taking it sooner.

The undemocratic and arbitrary nature of the sections of the Migration Act concerned were reinforced by amendments in 2014. Morrison was then Minister for Immigration and Border Protection, but the Labor Party vehemently supported the changes.

Under section 133C(3) of the Migration Act, a minister can personally cancel a visa, without providing any procedural fairness, if he is “satisfied” that it is in the “public interest”.

Under section 116(1)(e), the minister can do so if the person’s presence in Australia “is or may be, or would be or could be, a risk” to “the health, safety or the good order of the Australian community or a segment of the Australian community.

Another section, 501, not used against Djokovic, provides similar powers to cancel or deny visas to people deemed “likely” to “incite discord.”

Such vague language – “public interest”, “risk” and “good order” – is designed to make the minister’s decisions virtually impossible to legally challenge.

To pass, a person would have to prove that the decision was “irrational” or “so unreasonable that no reasonable decision-maker could have made it” or was for an “illegitimate purpose” or had no evidence to justify it.

Djokovic had a top-flight legal team, unlike most people, and they made such arguments. The court quickly dismissed the request, paving the way for wider use of ministerial powers in the future.

Civil liberties and refugee organizations have expressed concern over the outcome. Liberty Victoria chairman Michael Stanton warned: “It can and will be used in the future to justify the suppression of legitimate political expression because others might engage in unrest.

Liberty Victoria said thousands of visa cancellations have been summarily carried out since 2014 and are often legally flawed but carry serious consequences for those affected, including separation from family, indefinite detention and forced return to harm.

A 2019 parliamentary committee report indicates that 39,450 visas were canceled under Section 116 from 2013-2014 to 2017-2018. Another 1,839 non-citizens had their Section 501 visa canceled or denied in 2016-17.

In a joint submission, the Visa Cancellation Task Force, Asylum Seeker Resource Center and Refugee Advice and Assistance Center said: often after a long flight or at irregular hours. They do not have access to legal advice or other forms of assistance. As a result, visa cancellations made under the veil of secrecy remain unchallenged and visa holders are summarily expelled from the country and barred from re-entry.

Others, including asylum seekers, are being held under the mandatory migrant detention system first imposed by Keating’s Labor government in 1992. Some have been held for many years in poor conditions , either in remote camps at sea or in “Alternative Places of Detention” hotels. “, like the one in which Djokovic was detained for a few days.

Djokovic was treated with gloves compared to the brutal treatment of asylum seekers. Yet her case highlights the reactionary nature of Australia’s bipartisan ‘border guard’ laws and regime, and their potential for politically repressive use.