The smoke from the Black Summer bushfires was still visible from Rod Laver Arena when Novak Djokovic held his eighth Australian Open trophy aloft in February 2020. Always mindful of his “brand”, Djokovic sought to temper his triumph with a public offering of sympathy and perspective. “There were some devastating things that started 2020 with huge bushfires here in Australia, conflicts in some parts of the world, people dying every day,” Djokovic told the crowd, a suspicious vagueness blurring two-thirds of his list. “Of course, we are part of professional sport, we compete and we try our best, but obviously there are more important things in life and it’s important to be conscious and humble about things that are happening around you.”
For the five sets of the final, that sharpened consciousness was evident in his caustic mockery of the umpire when a decision correctly went against him, and his visible offence that the crowd had sided with his underdog opponent, Dominic Thiem. In a match marked by his petulance and feigning of injuries – a signature tactic – there was no evidence of the humility or perspective he was now asking us to see in him.
The world’s best tennis player has always been easy to dislike, but after news came that he had been offered a medical exemption from vaccination to compete in this year’s Open, a majority of Australians – understandably fed up after two years of the pandemic’s bullying – found it even easier. His family called press conferences and compared their son and brother to Jesus, Spartacus and Muhammad Ali – then abruptly ended those press conferences when asked if it was true that their saintly child had made public appearances after testing positive for Covid-19.
Djokovic contains multitudes. Unlikeable ones. Our imperiously willed and ruggedly individualistic hero is oddly vulnerable to the tides of public opinion, courting it with conspicuous donations and platitudes about “humility”, and sulking and screaming when it turns against him on the court.
The man whose eccentric New Age sensitivity is such that he believes water can become depressed if you yell at it is the same man ejected from the 2020 US Open for hitting a ball into the throat of a line judge. The man whose eponymous charity declares its mission as “making long-term investments in early childhood education” – and thus “investing in dreams” – made public appearances, with children, after testing positive. The “things” of which “it was important to be humble and conscious of” did not, it turned out, include a pandemic.
So, we might agree that the guy’s a strange and self-absorbed arsehole. We might also agree that his refusal to be vaccinated has helped retard vaccination rates, at least in his home country. And we might agree that the inaccuracy of his paperwork to come here was suspicious, and that his “medical exemption” was intolerable to Australians who’ve submitted to lockdowns and jab mandates.
But almost none of what I’ve written so far is either (a) much relevant to the visa debacle, or (b) at all comparable with the greater villainy of our immigration system, and the near-unfettered, God-like discretionary powers of its minister.
What is relevant here is our collective desire to punish people based upon our feelings, combined with our complete indifference to the formal mechanisms that uphold those feelings – namely an immigration system whose most potent powers are too often exercised politically and without restraint.
Per federal rules, Djokovic should never have landed in Australia. But he did, and what followed is on our federal government (although there are unanswered questions about the medical boards employed by the Victorian government to blindly adjudicate Djokovic’s application for a medical exemption – and which found him eligible – and queries surrounding Tennis Australia’s petitioning for Djokovic).
Once Djokovic arrived, he instantly became ensnared in our domestic politics. Once polling confirmed the overwhelming popularity of his deportation, the die was cast. One does not stand between Scott Morrison and an election without bruising.
Djokovic had also arrived in a country whose immigration policies have been praised by Donald Trump and former leader of Britain’s Brexit Party Nigel Farage, in which 30,000 refugees, because of the form of transport they took here, have existed in a torturous legal limbo for a decade, which has locked up children overseas and repeatedly thwarted their medical evacuations, and helped maintain Nauru’s illegal blacklist against political opponents in order to uphold our outsourcing of refugee detention to them.
Australia is a country whose prime minister, when shadow Immigration minister, criticised the government for flying an orphaned boy to the burial of his father and, in May last year, proposed to ban the return of its own residents from India. This proposal, quickly abandoned, was likely illegal but was nonetheless popular.
Relevant to the Djokovic case, it’s also a country that, in 2014, amended its immigration laws in such a way as to increase the extraordinary discretionary powers of its minister, powers that could be wielded capriciously and spitefully and with little chance of their exercise being successfully challenged in court. Powers that former prime minister Malcolm Fraser described at the time as “dictatorial”, and former Labor Immigration minister Chris Evans has described as “God-like”.
And so it was last Sunday morning, when the gears of justice suddenly spun with unusual speed and the three justices of the Federal Court sat to consider arguments.
The government’s grounds for deporting Djokovic had changed. In their submission to the Federal Court, the government asserted that Djokovic’s presence could cause “civil unrest” and that the player was “a talisman of anti-vaccination sentiment”. It was left for Djokovic’s lawyers to contest this on the narrow grounds that it was either illogical, unreasonable or irrational.
The government’s argument seemed thin: it was almost entirely based upon one old BBC news report about Djokovic’s views. It’s also worth noting we have one of the world’s highest vaccination rates. In fact, it was rationally argued by Djokovic’s lawyers that the opposite was true: that the government’s bungled acceptance of Djokovic, then the dramatic reversal, detention and messy attempt to deport him, had transformed the athlete into a global martyr for anti-vaxxers. Less than a week before Sunday’s hearing, police had used capsicum spray after confrontations with Djokovic supporters outside his lawyers’ office. (The minister’s lawyer argued that a government should not be compelled to retain an alien because of fear about what might happen if they’re deported.)
The government’s argument was also curious because, only a year ago – back when Craig Kelly was still a member of the Coalition and George Christensen hadn’t announced his intention to retire at the next election – their spruiking of quack drugs and vaccine hesitancy elicited shrugs from the prime minister, and/or blithe lectures on freedom of speech. “He’s not my doctor and he’s not yours,” Morrison said when asked about Kelly’s insistent claims, made to an ever-swelling Facebook audience, about the efficacy of drugs used for livestock to treat Covid.
And about Christensen speaking at anti-lockdown protests last year, Morrison said: “I’m not about to be imposing those sorts of restrictions on people’s free speech.”
Now Morrison was declaring that he would not tolerate one set of rules for average Aussies and another for celebrities, and yet a double standard was precisely what he had allowed his colleagues to enjoy.
Whatever you might think about the discrepancies of Djokovic’s application, these weren’t submitted by the government as grounds for his deportation. We had only the “civil unrest” argument, something the government’s ineptitude had actually encouraged.
During the hearing, various lawyers I spoke with felt a certain mootness about the proceedings, given the vast discretionary powers enjoyed by the minister. There is little incentive for substantial or sophisticated arguments from the minister – the overwhelming onus is upon the applicant. Djokovic’s lawyer argued that the minister had not critically sought the athlete’s views but had instead lazily depended on one old article to divine them, which was true but, given his powers, this was an inference available to him. Irrespective of our feelings about the applicant, it should bother us that so little is demanded of the minister to exercise great powers.
Nonetheless, the three judges were unanimous: Djokovic’s Federal Court appeal was dismissed. Crucially, the chief justice made this clarification – “It is not part of the function of the court to decide upon the merits or the wisdom of the decision [by the Minister]” – while Morrison predictably invoked his own talisman: “I welcome the decision to keep our borders strong and keep Australians safe.”
We had booted out one arsehole but were intractably stuck with our own. Our schadenfreude doesn’t change that.
This article was first published in the print edition of The Saturday Paper on January 22, 2022 as "An ace in the hole".
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