Djokovic saga has policy and administrative consequences, say experts

By Jackson Graham

Tuesday January 11, 2022

Australian Border Force
A former Australian Border Force officer is sentenced to two years’ imprisonment. (AAP Image/Dean Lewins)

The Federal Court quashing the Australian government’s decision to cancel Novak Djokovic’s visa based on a procedural error exposes policy concerns and a potential for officials to make mistakes, according to experts with differing views. 

The court on Monday ordered Djokovic be allowed to stay in Australia after the government conceded the case and the parties agreed procedural fairness had not been followed. 

The court heard Djokovic, who is unvaccinated and entered Australia believing he had a valid exemption, should have been given until 8.30am on Thursday to seek advice on why his visa application should not be cancelled. 

But border officials reneged on giving him the full amount of time, the court heard. 

Prime minister Scott Morrison had backed the government’s position, saying days earlier that “rules are rules”, while the government might still cancel Djokovic’s visa on separate grounds. 

Either way there will be negative political consequences for the government, according to ANU Australian Studies Institute professor Mark Kenny. “The government seems to have put its foot right in it,” Kenny says. 

Kenny acknowledges while there are questions about the culture and competence of the agencies and departments involved, he worries the government will “hang the department out to dry” rather than address what he sees as policy issues with Australia’s strong position on its borders. 

“It will be the execution of policy rather than [acknowledgement] the policy itself was wrong,” he said.  

“Clearly there’s a massive propensity for these kinds of problems to occur if you are only checking for further and better details at the border, sometimes in the middle of the night rather than at the time that a visa is issued. Anyone could see that is poor practice.” 

ANU International Law professor Don Rothwell said he was surprised the case was won by Djokovic because of a procedural error.  

“It was a relatively minor procedural error and I suspect that if the Commonwealth had not been prepared to agree to the orders and had it been much more minded to contest the matter at a higher level, it might have had a different outcome,” Rothwell said. 

He said it exposed how a high profile case could put the actions of public servants before a judicial review.  

“That’s something they might not always have a full appreciation of,” Rothwell said. 

“Ensuring all border officials are aware that their determinations can be subject to judicial review, might ensure that they are much more mindful of the provisions of the Migration Act in this case that they are seeking to rely upon.” 

Rothwell is wary of commentators using the case to condemn Australia’s wider position on its borders. 

“The Commonwealth has a very high level of success in robustly defending its immigration policy before the courts,” he said. 

“My own view is that this Djokovic case can be predominately explained by the unique set of circumstances created by COVID, and the ever changing evolving medical advice with respect to exemptions for international travellers.” 

Kenny believes deficiencies in the immigration process were only exposed because they had impacted a high profile individual with capacity to quickly challenge a visa decision. 

“This idea that ministers can shuffle away from this problem, suggesting that perhaps an official has been too strenuous in their position [is wrong]. Ministers set the policy and ministers set the tone,” he said. 

With uncertainty surrounding what the government’s next move will be, Kenny believes Djokovic should be allowed to compete in the Australian Open with monitoring of his health and restrictions on his movement. 

The Department of Home Affairs was contacted for comment.

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