A federal court in Australia on Monday quashed the government’s decision to cancel the visa of Serbian tennis star Novak Djokovic, who had been held in detention at Melbourne Airport since Jan. 6, and ordered his immediate release so he could begin preparing in earnest to defend his Australian Open title.
The government’s lawyer, Christopher Tran, informed the court immediately after that the immigration minister reserves the right to exercise his personal power to cancel the visa again and deport Djokovic from Australia. This would bar him from entering Australia for three years and he would also have to declare this henceforth on many countries’ visa application forms.
In some ways the breathtaking arrogance of this is more frightening than the original blunder. It would be a deliberate two-finger gesture to the rule of law backed by an independent judiciary to arbitrate the exercise of state power over individuals. What it shows is that governments, bureaucrats and technocrats have become habituated to ruling by decrees without challenge and accountability, no matter how arbitrary, autocratic, capricious and cruel.
Clearly, people have a fight on their hands if they wish to roll back the vast expansion of state power in the shadow of the pandemic. “Rules are rules,” Australian Prime Minister Scott Morrison said pompously as soon as news broke about Djokovic’s detention.
Australia’s international and state entry rules in the time of COVID-19 are frustratingly complex, hostage to subjective interpretation by airline and border staff and have often been enforced with conscience-shocking brutality. The lack of clear rules means that people who plan a visit down under and are permitted to board flights enter a minefield on arrival at an Australian airport with no certainty of being let in.
The government’s submission claimed Djokovic poses a “greater health risk” of spreading the virus than a vaccinated person, a risk that would “burden the health system.” On the second claim, the facts are that on Jan. 9, Australia’s rate of 3,062 daily new cases per million people was one of the highest in the world, higher than the United Kingdom and United States rates of 2,607 and 2,132, respectively. Djokovic would be more at risk of catching than spreading the virus in Melbourne.
On the first claim, U.K. Health Security Agency data for the final four weeks of 2021 show that double-vaxxed people in Djokovic’s age group had a 2.4 times higher infection rate than the unvaccinated. Djokovic maintains a strict regime of diet and exercises to stay in peak physical condition. Vaccines do not stop people from catching and spreading the virus. Not every unvaccinated person is infected.
Also, a tennis spectator’s risk of catching the virus does not depend on the vaccination but the infection status of the persons around them. They are safer with two unvaccinated but uninfected people on either side than two vaccinated but infected. There is no medical or ethical justification for requiring Djokovic to be vaccinated as a condition of playing in Melbourne. Governments have imposed that rule not because it’s scientifically necessary but because they can.
Djokovic was trapped in a Kafkaesque nightmare of different jurisdictional requirements between federal and state governments and different departments dealing with him. Even Tennis Australia had tried to seek the cooperation of relevant authorities and cleared him for participation in good faith. The international embarrassment of a diplomatic farce could have been avoided with consistent and coherent policies and clear lines of communications between the different authorities. This has been conspicuously missing for two years. His lawyers argued exemption had been granted to the player by two separate medical boards following a recent coronavirus infection; he had presented all the necessary medical evidence to officials and he had “engaged with everything that was required of him by Tennis Australia.”
The court agreed. Judge Anthony Kelly concluded Djokovic had obtained the necessary exemptions for travel before catching a flight; had been courteous and cooperative with border officials on arrival at Melbourne Airport; told airport officials he “had complied with all the rules about being permitted to enter into Australia” and wouldn’t have flown into Australia otherwise; but had been treated unceremoniously and unreasonably and denied procedural fairness. At one point he asked: “The point I am somewhat agitated about is, what more could this man have done?”
Serbs were united in outrage, with President Aleksandar Vucic condemning Djokovic’s treatment as a “political witch hunt.” Leading tennis players past and present were divided. Some took the pragmatic line that the whole mess could have been avoided by Djokovic just getting vaccinated. Few seemed to have the clarity of mind to recognize that the issue is a fundamental principle of freedom of choice and right to medical privacy. Djokovic showed remarkable courage of conviction and has provided an example to all role models on how to stand up to collective hysteria, mob pressure and diktats from autocratic governments — without seeking to knowingly violate rules.
Many Australians are distressed by the verdict as yet another example of entitled celebrities being able to flout rules that are far too costly for ordinary people to challenge. This is back to front. Proportionately more of the poor and marginalized groups are unvaccinated and the target of efforts to stigmatize and exclude them from society. Governments get away with draconian powers secure in the knowledge that legal challenges are intimidatingly unaffordable for ordinary folks. Legal costs for the taxpayer of the Djokovic case could be more than 250,000 Australian dollars. His victory in the law court is a win for everyone against government overreach and arbitrary conduct of the administrative state. Victory on the tennis court would be the icing on the cake.
Omicron has utterly humiliated the “Fortress Australia” lockdown establishment and, arguably, just a few months away from an election, authorities decided to make an example of one of the greatest tennis players of all times by a very public humiliation to cover their own failures. Fortunately for Djokovic, their autocratic instincts were executed with a staggering degree of ineptness that unraveled spectacularly in court.
In the past two years, Australia has descended into a country I no longer recognize: authoritarian, bureaucratic, petty, meanspirited and vindictive. It used to be said the interesting thing about the Australian accent is you can hear the sunshine in it. Now it would appear Australia might have been in the sun a bit too long.
Ramesh Thakur is emeritus professor in the Crawford School of Public Policy, Australian National University and a former United Nations assistant secretary general.
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