James Allsop, chief justice of the Federal Court, did his best to explain to the global audience exactly what Novak Djokovic’s second case against the Australian government was not about.
The case focused, Allsop said before delivering the court’s unanimous verdict, “on whether [the immigration minister’s decision to cancel Djokovic’s visa for a second time] was irrational or legally unreasonable. It is not part of the function of the court to decide upon the merits of the decision.”
Allsop’s point was that the case was not an appeal from Alex Hawke’s decision; that is not legally available. It was an application for “judicial review”: a request to the court to look at the minister’s executive action and determine whether it was one he could have lawfully made.
It’s the same question as Djokovic asked after the first cancellation decision, by a Border Force officer under delegation from the minister. Ironically that decision was far more rational than Hawke’s, but the officer had failed to follow due process, giving Djokovic an easy first-up win.
Hawke’s decision was made under a different power, known as a “god power”, given to him by the Migration Act and explicitly designed to be almost impossible for the courts to overturn. Extraordinarily (in general terms, not in the scheme of the act), the provision says that “the rules of natural justice do not apply” to such decisions. This means that the law overrides the ordinary principle that the victim of a ministerial decision must be treated fairly.
The only avenue for challenging an exercise of the god power is to ask the court to find that the decision in question is not one which any rational person could have made; that it is inherently unreasonable, capricious or malicious and therefore outside the minister’s power altogether. It’s the last post defence. Yes, the minister’s discretion is absolute, but it is still constrained just enough to allow the courts to intervene should the minister turn out to be a madman.
Hawke’s decision, the court found, could not be said to be obviously irrational. It was based on material he had considered, and the court has no power to second-guess whether the reasons he gave for his decision are logically sound. The judgment reemphasises what lawyers working in the refugee field have known for a long time: the god power is almost bulletproof.
Hawke’s rationale was that his decision was made “on health and good order grounds, on the basis that it was in the public interest to do so” under s133C(3) of the Migration Act.
In court, the government’s lawyers explained that the minister’s concern was that Djokovic’s presence in Australia might put lives at risk and endanger civil order by stoking anti-vaccination sentiment and disregard for public health orders. Simply, that he is a potential lightning rod for the tiny but vocal anti-vaccination brigade in Australia, and it was too dangerous to let him stay for the two weeks of the Australian Open.
Props to the government’s senior counsel for saying that with a straight face; what a load of specious crap. It’s insulting to everyone’s intelligence for Hawke and his puppetmaster Scott Morrison to pretend that’s the reason they’ve deported Djokovic.
In June 2020 Djokovic put on a rebel tennis tournament and was pictured dancing in a crowded nightclub, resulting in a super-spreader event and his own first infection with COVID-19. He was globally notorious from early on as an anti-masker and then anti-vax-mandater, refusing to disclose his vaccination status but generally assumed to be unvaccinated. Yet he was given a visa to play in the Australian Open in January 2021. Apparently not a threat to public safety and good order then.
What’s changed between 2021 and 2022? Simple. A year ago, Australia was a COVID-zero nation, zealously protecting its borders to keep the pandemic out. Now we have the fastest rate of infection in the world, along with one of the most-vaccinated populations. That is to say, all of the reasons why it would have made sense to refuse Djokovic entry in 2021 are practically irrelevant today.
So bullshit, and everyone, including the court, knows it. But the court’s decision was nevertheless legally correct; it had no choice but to refuse Djokovic’s application.
The politics of this case are pathetic: Morrison is now crowing about his “victory”, getting the Federal Court to uphold his government’s decision to cancel a visa which his government had issued in the first place. A ridiculous, embarrassing farce.
It would be nice to think that the country, or the media at least, has taken closer note of the legal horror which the case has exposed: the infamy of the god power. In this case, it has been used to kick a man out of the country on ostensible grounds which are patently nonsensical but not able to be challenged. That is the state of the law.
It is wrong, absolutely wrong, for the executive arm of government to have unfettered powers of (effectively) life or death over the fate of individuals, which are not susceptible to any meaningful oversight by the courts. It is a corruption of the rule of law, and the consequences can be (and sometimes are) dire.
My hope is faint. I know the circus will move on with Djokovic’s flight back to Monaco, and the 30 or so men left languishing in the Park Hotel, some in detention for more than nine years now, will go back to silently rotting in the shadow of the public’s disinterest.
“It is wrong, absolutely wrong, for the executive arm of government to have unfettered powers of (effectively) life or death over the fate of individuals…”
Yes, it is. But why is this being labelled a ‘god power’? It has nothing to do with any god. These are powers Parliament has given the minister. Parliament has given such powers to many ministers. If ministers can really be trusted to exercise limitless executive powers that cannot be checked by the courts there is no need for a Parliament because ministers do not need oversight and no need for courts either. Ministers can do it all. That’s the way it used to be in the small primitive kingdoms where the king and his ministers had absolute power and there was no seperation of the branches of government. We are betrayed by parliamentarians who put party loyalty before basic principles of governance and who grovel to the ministers who demand these powers.
Spot on and the consequences are already becoming evident with rising authoritarianism in Europe, America and here. Take a look at how Law as been used to suppress us, how the separation of powers as been white anted by this government stacking the AAT with its mates, many not even qualified Lawyers and there attempt to bring in Voter ID, exactly the same thing the Republicans are using in America, to ensure minorities can’t vote.
It’s certainly not unusual for politicians to like passing laws which give them more power, especially if it’s power which can be exercised with little scrutiny, accountability or challenge. But in regards to “god powers’. the Migration Act probaly has more of them than most other areas of law, apart from anything that comes under the umbrella of so-called ‘security’. It’s no accident that the increase in Ministerial powers in the migration area has coincided with governments re-framing immigration as a ‘security’ issue.
Very well put Andrew. Rule of law means more than obeying or following the law, it means no-one is above it. Liberal democracies add extra protections in the shape of separation of powers and checks and balances to further protect against despotism. To safeguard rule of law. Liberal democracies originated in the desire to end the god powers of despots, Kings and such like, and to stop their return. A parliament giving a minister god powers is a travesty of liberal democracy. It’s also how democracies end, emergencies declared along with suspensions of law and the power of decree. Watch Trump for this if he returns.
Basically Hawke made a decree. He surrounded it with laughable reasoning, on a par with something the Burmese junta would come out with.
Right now this power is being applied to non-citizens for political purposes but it sets a precedent. It also inures people to the idea. Who is unpopular next, demonised next, for whom it will also be possible to make subject to decrees that will be applauded? Yet another example of how there is nothing liberal about the Liberal party
Your penultimate sentence evokes Martin Niemöller, perhaps set to Buffalo Springfield’s ‘For What it’s Worth‘.
Europe is not a country!!! Do you mean UK, Poland, Hungry or which one of the 27 EU member countries members are you referring too? Each of these countries have their own laws, political systems etc. And there are huge differences between them!!!
If Australia wants to become once again the country it use to be, stop saying: “we are better than the US” or “every where it is the same”
Schengenland?
Hear, hear
Of course, rules are rules (and the government admitted Border Force had broken them) and everyone is treated equally: rich tennis players and destitute refugees alike can get 3 Federal Court judges out on a Sunday if they are famous enough to interest the world media and rich enough to pay top lawyers.
Just to clarify, I don’t mean to suggest that the Federal Court was improperly influenced by Djokovic’s celebrity status. It’s just a case of the majestic equality of the law.
Your point is fair, but it should be acknowledged that there have been occasions when the Court has held hearings at very short notice for urgent cases involving refugees facing imminent deportation. All due to the selfless efforts of pro-bono lawyers, it has to be noted – who sometimes get slandered as somehow doing all that free work “just for the money”
They wont change it so time for another govt. If the good cits of Australia can have a moment of lucidity at voting time we might pull this off. Lets hope. Dont vote LNP.
I certainly won’t be voting LNP, but I’m equally not harbouring under the illusion that Labor will change anything. They didn’t when they were in power last time and there’s nothing in their current rhetoric that promises anything different next time…
Who were the ministers who introduced this power? Morrison or Dutton at Immigration? Brandis or Porter as A-G? Or was it the eminence grise at Home Afffairs – Mike Pezzullo or Chris Moraitis at A-G’s Dept?
Oh no. It goes back much further than that. If I could post a link without be modbotted to hell I would. But anyway, just search on
Ministerial discretion in migration matters: explanation and history
which is part of a report on the Parliament of Australia web site.
But I should add that while the powers have a long history, going back more or less to Federation and developed over decades, the decision to brazenly abuse the powers on an industrial scale is recent, and you have named several of the current perps.
I watched on YouTube the proceedings in the Federal Court. Fascinating. Even more fascinating was the delivery by His Honour who fell just short of saying, he has the power to do this and we don’t have the power to stop him. The full judgement will be interesting and we shouldn’t have to wait to hear it. To release it on the day could and would have stirred up more than anti vaccination sentiment.
Worrying too was the PM delivering a ‘sermon’ replete with religious ideology about the ‘sacrifices’ Australian’s have made and how these ‘sacrifices’ need to be ‘protected’. The idea that a scapegoat needs to be identified, and must pay a ‘price’ such as indefinite detention whether they be a tennis player, a refugee or an opposition leader is deeply troubling as well. A slippery descent into authoritarian rule is the end result and something Australian’s should never tolerate. I wonder if religious ideology is infecting political decision making as the Morrison Government today sought to soften it’s harsh international reputation by offering a path to ‘salvation’ whereby Djokovic might atone for his misteps somehow and be allowed into Australia again.
Creating and maintaining the ‘existential threat’ …… Djokovic was accidental, and was not the object of the target audience; more about othering refugees, immigrants, NOM, population growth and the lower orders….
His religion is called ‘narcissistic sociopathy’, and it influences every one of his actions (and every one of his failures to act).