It’s Not About Novak, It’s About Us

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Isabelle SkaburskisThe article It’s Not About Novak, It’s About Us is written by Isabelle Skaburskis, Partner, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.

Isabelle joined the firm from the Criminal Trial Division of the Supreme Court of Victoria and has experience in criminal law and international human rights law. She is currently based at our Melbourne office.

Isabelle has worked on murder and terrorism matters whilst an Associate at the Supreme Court. Before this, she was in Thailand, Cambodia, and Palestine working in international human rights law for non-governmental organisations and the United Nations Office of the High Commissioner for Human Rights.

Novak Djokovic“He’s not some sort of criminal.”

“They’re treating him like a terrorist.”

These are some expressions uttered at the Australian Government’s treatment of Novak Djokovic. As a criminal defence lawyer, these comments ring true to me, but perhaps in a different way than they do for a Djokovic fan.

The parallel between this situation and the work that I do is that in both cases, appalling examples of government overreach are enabled by misdirected public attention focusing instead on the character of those affected. The object of public debate the world is seeing over these past few days has not been the shocking power that the Commonwealth government has taken for itself in the Migration Act, but how we feel about Novak Djokovic and whether he deserves such poor treatment or not.

Of course people will have their opinions about the conduct and politics of a high profile individual, and I’m not suggesting it should be otherwise. But conflating two separate questions of Djokovic’s personal politics and this government’s use of power deflects scrutiny away from the actual threat to the good order of Australia and onto a minor distraction, to our society’s grave detriment.

Parallels with criminal justice

As a criminal defence lawyer, I have seen rights of accused or convicted persons eroded to the point where, in some cases, my clients’ treatment under the law bears no reference to the principles that legitimise the state’s power to deprive people of their liberty.

A person is innocent until proven guilty. A person has a right to reintegration and rehabilitation, to be afforded a just sentence commensurate to the gravity and circumstances of their offending, to be detained in a prison only upon a finding of guilt and the right to leave prison at the end of their sentence, to name a few foundational principles of criminal justice. And yet, Victoria’s bail laws, its draconian system of parole, mandatory sentencing and ever-expanding reliance on post-sentence detention and supervision, have skewed the criminal legal system in ways that are unprincipled, vengeful and unfair.

Governments succeed in these legislative cruelties because the people affected are “criminals”, not “us”. They are expelled from the community in the political rhetoric used to pitch these amendments to the public: protection of the community, implying that people who break the law are no longer members of our community. And because “rule breakers” have “done the wrong thing”, the electorate is happy to cast their vote against “criminals”; to hurt them, to take away their rights, to treat them with depersonalized indignity and send them away to a cage. Or banish them from the country.

It is by reference to the bad character of the “criminal”, the person who has broken the law, that we avoid our responsibility as citizens and members of society to assess how much freedom we actually want to give up for the sake of security and government control. And we are doing the same thing now when we talk about Djokovic’s deportation as though the issue was Novak’s politics, not the Migration Act.

The Djokovic affair, in a nutshell

At first the Novak Djokovic debacle in Australia was weirdly cathartic for me—the grotesque irrationality of a government swollen with power was exposed for all to see, the veneer of righteousness that attaches to the powerful would be shattered. No longer would these all-too-familiar examples of flagrant unfairness be kept to the confidential files and suppressed proceedings of a courtroom.

To review, this is how the government behaved:

  • Novak Djokovic was given a visa to enter Australia;
  • He was given a visa after a lengthy process of review over several months involving assessments by Tennis Australia, the Victorian Government and the Department of Home Affairs, all of whom assessed him as suitable to enter;
  • Novak Djokovic entered Australia with his visa and was detained for 8 hours incommunicado in the airport. It was the middle of the night, and he was told to turn off and put away his phone, depriving him of the opportunity to call an agent, coach, support person or lawyer in any time zone;
  • He was told that his visa would be cancelled on account of his vaccination status;
  • There is no law prohibiting a person from entering Australia without a vaccine;
  • There is no regulation or directive that prohibits a person from entering Australia without a vaccine;
  • He was given a notice of intention to cancel his visa at 4:11 AM;
  • The notice failed to correctly cite the legislation relied upon to cancel his visa, and cited an exemption policy that no one has been able to identify with certainty even after two court proceedings;
  • Novak Djokovic’s right to procedural fairness in Australia consisted of being told several times that he would be given an opportunity to respond to the notice after getting legal advice, and then being pressured into participating in a formal interview in the small hours of the morning without obtaining legal advice, which was then relied on to cancel his visa;
  • After the cancellation was quashed in court on judicial review, the government then relied upon a different power, s 133C(3) Migration Act, to cancel his visa in spite of the earlier court decision;
  • Section 133C gives the Minister a personal power to cancel a visa on any ground listed in s 116 Migration Act, including for the health, safety or good order of the Australian community. This power is protected by a “privative clause” which is the government’s best effort to exclude the jurisdiction of the courts to act as a check or balance on the Minister’s power. A person who falls foul of this power need not be put on notice that the Minister will expel them nor afforded a right to respond. The only recourse against such a decision is judicial review in a federal court to determine whether the proper procedures were followed in making the decision, not to assess whether the decision itself was right in the circumstances.
  • The main criterion to enliven the power to expel someone from the country in this manner is a subjective state of mind of the Minister: he must be satisfied that there is a ground under s 116 that is made out, and must be satisfied that it is in the public interest to do so.

The Minister maintained he was satisfied that Djokovic posed a threat to the health, safety or good order of the Australian community, and that it was in the public interest to prevent him from playing tennis in the Australian Open.

In coming to his state of satisfaction, it was accepted by the Minister that:

  • Novak Djokovic posed a “negligible risk” of transmission in Australia;
  • Djokovic had a medical reason for not being vaccinated;
  • Djokovic was not vaccinated and had previously been infected by Covid but was no longer infected;
  • The actual policy surrounding vaccination requirements and medical exemptions are unclear, but it was conceded that Djokovic acted in a manner consistent with the government-published guidelines (ATAGI).

And yet, in his reasons, the Minister cites:

  • Rising numbers of covid cases in the community;
  • An active, vocal minority of people who oppose compulsory vaccination;
  • The Minister had not sought the views of Mr Djokovic regarding vaccinations, but was satisfied that in the past he had publicly expressed his opposition to becoming vaccinated.

Ultimately, the Minister pointed his finger at Djokovic and struck him down, not on account of Djokovic’s own views or anything that he did or did not do, but because

“his presence in Australia may foster anti-vaccination sentiment leading to (a) other unvaccinated persons refusing to become vaccinated, (b) other unvaccinated persons being reinforced in their existing view not to become vaccinated, and/or (c) a reduction in the uptake of booster vaccines.”

It was on account of what 5% of the Australian public may or may not do on account of Novak Djokovic playing tennis in Melbourne, that he was banished for posing a threat to the health, safety and good order of Australia. It is hard to know if this was intended as a form of collective punishment of the unvaccinated, or a shrill squeal of intolerance and disdain, using Djokovic as a megaphone.

My stomach lurches at the hypocrisy of this government taking the moral high ground when it comes to maintaining the health and safety of its citizens in the face of Covid. This government that failed to provide vaccinations in a timely manner; to provide access to tests and a functional system of contact tracing; that abandoned its own citizens overseas and even banned their return to Australia.

This, from a party that has advocated vociferously for the right of religious people to discriminate against LGBT individuals and use hate speech against racial minorities, identifying as a threat to good order a person who holds minority views inconsistent with those of the government, even in circumstances where that person was not here to speak of them or advocate for any position, but to play tennis.

The government’s justification for deporting Djokovic lacks sense. And yet the power under s 133C is drafted so broadly that the Court was helpless to keep it in check.

Once again we are seeing an Australian government use brute (and brutish) force in the absence of competence or leadership. In trying to combat anti-vaccination sentiment in this way, the government has more likely reinforced the resolve of those who do not see themselves as anti-vax, but pro-freedom. The government somehow still hasn’t realised that bullying minorities into submission does not win them over but entrenches oppositional views to the point of radicalisation.

We need to rise above this

By assessing the merits of the government’s action by reference to the politics of Novak Djokovic, we are letting them off the hook again. We are apologizing for this embarrassing and counter-productive display from a government who lost once in court because of its bullying tactics, and came back with an almighty sweep of the hand to banish its opponent from the kingdom.

Even worse than looking past this irrational use of power, by participating in a discussion of Djokovic’s morality and “what he stands for” as the ultimate arbiter of whether the Minister was right or wrong, we are buying into the divisive rhetoric that the governments of Australia perpetuate, of an unvaccinated underclass who deserve to be treated with singular contempt—like the refugees, like the people who break the law. We must reject the government’s efforts to divide us.

[1] Isabelle Skaburskis is a double-vaccinated senior associate eagerly awaiting her booster.
Date Published: 18 January 2022

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