I’m writing this before we know whether Immigration Minister Alex Hawke will use his discretionary powers to cancel Novak Djokovic’s visa, sending him out of the country once and for all, because, really, who cares? Apart from everyone, I mean.
All possible worlds — COVID-19, anti-vaxxers, sport, Scott Morrison’s dire political fortunes and (least importantly) Australia’s gothic horror migration system — have already collided in the fulcrum of the most profound question we could ever ask ourselves: how badly do we hate the Djoker? Badly enough to kill the Australian Open?
That’s pretty much it, so far as history will record. That time when the world’s No. 1 tennis player fought the system and won, bringing down a country in the process.
The legal arguments are intensely technical, and as I expressed on Twitter yesterday, Djokovic had a pretty good case and was likely to win on the basis that the Australian Border Force fucked up its own decision-making process by giving him a notice of its intention to cancel his visa, which was so badly flawed that it was rendered invalid. No valid notice, no valid cancellation.
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Turns out I was right, and the judge has now sent the problem back to the immigration minister to do his job properly. The government can then, validly, cancel Djokovic’s visa again, either on the same grounds (him not being vaccinated) or wielding its almost unlimited power to decide who gets to enter the country. It could — and I absolutely dare it to — refuse him entry on character grounds, and he’d have no grounds for appeal whatsoever.
The only relevance of the law here is that this case points up that our Migration Act is — following decades of tinkering with its wording to shut down every conceivable avenue of procedural fairness — a very close legislative reflection of what former Liberal PM John Howard meant when he said that “we will decide who comes here and under what circumstances”. By “we”, he meant the government, and that’s what the act achieves.
Our tweet unleashed a bush lawyer storm, all fascinating and of no moment. It is clear that every moving part of the process that led to Djokovic’s arrival in Australia was stuffed up; Tennis Australia, the Victorian and Commonwealth governments between them put on an absolute festival of incompetence and poor communication. Seriously. Everyone in the world knew Djokovic is an anti-vaxxing poseur, and that his desire to come for the Australian Open would guarantee a circus. All they needed to do was get on a Zoom call and sort their shit out. But no. Instead, each authority issued contradictory messages to each other and Djokovic, guaranteeing the debacle that has ensued.
None of that matters for the law; the Migration Act says you can’t enter Australia without a valid visa and it gives the power to issue, refuse and cancel visas to the federal minister with the widest discretion imaginable. It simply doesn’t matter what Tennis Australia or the Victorian government or Djokovic himself thought the situation was.
I know, the judge said “What more could this man do?”, a telling expression of sympathy for Djokovic’s plight. It’s true, too. He’s been royally dudded. The proper consequence is twofold: Djokovic gets deported, with a bunch of flowers and national apology, and Australia loses its grand slam open. The tournament is then given to another country which, unlike us, has the demonstrated ability to organise a chook raffle.
That won’t be happening. The open will proceed, and maybe a solution will be found, allowing Djokovic to take a medical time-out which lasts 14 days and defaults him all the way to the final. It just requires some imagination. Otherwise we’ll be left dangling on the horns of a most uncomfortable dilemma.
For a country which defines itself by two things — sport and tall-poppy chopping — which do we desire more? The exhilarating rush of making a super-rich spoilt tennis brat share accommodations for a few days with some of the non-people we routinely imprison in immigration detention for nine years and more, followed by a cheery “Off you go, dickhead!” as we wave him on to the plane back to whichever tax haven he lives in? Or the spectacle of the world’s best male tennis player, playing in one of the world’s best tournaments, vying for a world record 21st grand slam singles title? And, if he wins, a dip in the Yarra as a symbolic COVID super-spreading event?
A more perfect metaphor for the chasm in Australia’s soul could hardly be found. Lionise or demonise? Call it the Warnie syndrome, but it goes back past Ned Kelly. The fact that Djokovic is a foreigner hardly matters. So was Breaker Morant. Rules, as Morrison said with his usual facility for the facile, are rules. They apply with equal arbitrariness, subject to unexpected poll-driven reversal, to everyone.
But here we are. This disaster has no good solution, when it could have been so easily avoided altogether. If I were, I don’t know, in charge, I would have written to Djokovic months ago and said mate, get vaccinated or don’t bother trying. That, however, would have required leadership, of the national kind, something Howard would have managed, seeing the fire before it started and turning the hose on it.
Morrison, though? You know what he doesn’t hold.
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