The Novak Djokovic affair has been called many things, including a debacle, an embarrassment, a farce, a fiasco, a mess, a muddle and a shambles.
Shambles fits best. An issue that unites anti-vaxxers, the migration lobby and the big end of town is bound to be a doozy. And like all world-class shambles, few people seem to have a firm grasp of what the rules are and the few that do find it devilish hard to explain them.
Worse still – even fewer can explain what lies at the heart of the matter.
The idea is to clear out all the underbrush of bodgy assumptions and misconstructions.
First, many make the point that Djoker should never have been granted a visa in the first place. This sounds quite sensible except for the fact that it is not how the system actually works.
He applied for a visa on 18 November and it was granted the same day; all you really need to do is to provide ID and passport information. All the other rigmaroles lie down the track.
Administrative decision makers have three main options: they can get to the right thing the right way, the wrong thing the right way, or the right thing the wrong way. There is another path, of course: the wrong thing, the wrong way. Any path with ‘wrong’ in it is best avoided.
Second, many think, say or write that Judge Kelly found in the Federal Court that the Djoker’s medical exemption was valid for the purposes of his visa. He didn’t. It never got to that point.
The Commonwealth realised that its delegate had made a procedural error by not honouring the extension of time he had promised. Thus the Commonwealth agreed to revoke the visa decision and Kelly J issued a Consent Order which reflected the two parties’ own agreement.
Thus the Commonwealth’s current position is that the Border Force delegate decided the right thing the wrong way.
So, what is the ‘right thing’?
It all boils down to the medical exemption.
What Djoker needed to enter Australia as an unvaccinated traveller was a medical exemption from the Border Force Commissioner that said that he “cannot be vaccinated for medical reasons”.
What he did have (and which he attached to his Australian Travel Declaration) was a letter dated 30 December from Tennis Australia’s Chief Medical Officer granted on the grounds that he had “recently recovered from COVID”.
The fact that the TA Chief Medical Officer’s letter was based on advice of two independent panels set up by TA and the Victorian government is really neither here nor there. The difference between “has recently recovered from COVID” and “cannot be vaccinated for medical reasons” is not even a subtle one.
Tennis Australia was told this twice in writing: first by a senior Commonwealth Health executive on 18 November and again by her Minister Hunt on the 29th.
It’s not much use having a medical exemption that gets you into Victoria and then into the Open if it can’t get you into the country.
How did it happen? Why?
What are the lessons?
Well, that’s for the autopsy, and this is just the anatomy.
jameswm
Roar Guru
They let their committee make a decision on the exemption based on the wrong criteria.
Ball Burster
Roar Rookie
Djoker's lawyers would need to convince the judge that the TA did follow ATAGI guidelines. The problem with that is the Commonwealth gave TA unambiguous advice about what the guidelines meant on 18 an9 November. TA never tried to sort it out. They were obliged to in my opinion.
jameswm
Roar Guru
Even an exemption based on the wrong criteria? Tiley initially said the exemption followed ATAGI guidelines, but that has blown up in his face, and has been shown as rubbish.
Ball Burster
Roar Rookie
Kelly J runs the risk - on the basis of his manner and comments - of being invited to recuse himself from the next hearing on the basis of apprehended bias.
Enna Maher
Guest
Gullible and proud , you set a low bar mick .
Ball Burster
Roar Rookie
Not a lawyer James but familiar with administrative law. They'll hope to convince a judge that the TA and Vic interpretation is right. Mind you strange things can come out of left field. I think what Kelly was saying was about the appeals process. He did seem to think an exemption was an exemption though.
Mick Gold Coast QLD
Roar Guru
,,, and gaze at a blank screen? Then I'll end up as loopy as you pilgrim! Nah, not today.
Marcel
Guest
It showed a stunning lack of objectivity for him to make any comments until all submissions were made. More alarming though was the apparent failure to restrict proceedings to the relevant jurisdiction.
Mick Gold Coast QLD
Roar Guru
Justice Kelly said at the outset to the effect he knew little of tennis - you may gain some insight from this account of his manner during the hearing on Monday. I know nothing of him. I wasn't impressed with his announcement very early in the January 10 hearing that he was “preoccupied” and “somewhat agitated” by the issue of why Australian officials did not accept an exemption document provided by Honest Djok, following up with the question "what more could this man have done?" He was at the time referring to an exemption from “a professor and eminently qualified physician”, which was further approved by an independent expert panel established by the Victorian state government. Andrews people set that up, it was not a part of Australian Border Force' business. The Financial Review legal editor offered this profile and brief critique on Tuesday. One assumes the Court will continue to appoint this fellow, for knowledge and efficient use of resources. They generally all have egos and barely camouflaged prejudices there are some notable exceptions - Justice Barry O'Keefe was one. Justice Michael Kirby and Justice Rod Meagher trotted theirs out for all to see, but they were entertaining with it. :stoked:
Enna Maher
Guest
The worst is yet to come , Australia and the world is going to erupt in 2022.
Enna Maher
Guest
It certainly has , governments are now advocating that un va xx ed are unable to leave their homes , prisoners in their own homes , and many are nodding their empty heads in agreement . It won't be long and they'll be removing them from their homes, separating them from their children to imp rison them in the recently built " isol ation camps" , and the same shee ple will be cheering it on again. With no knowledge that the same or worse fate awaits them in the not too distant future . Open your eyes , this is all a great con job , there is no virus , just a lot of cor rupt people getting paid a lot of money to pump this filth into all and sundry to achieve a sinis ter goal
Enna Maher
Guest
Rubbish , no one dies of anything other than the dreaded c o v I d bogey man any more, it's all a hoax , turn off the TV and open your eyes
Enna Maher
Guest
Probably didn't, because it doesn't exist , it all a giant hoax
Enna Maher
Guest
PCR ? They don't have to be manipulated, they are absolutely bogus, the C D C in the US , has flushed them because they are unreliable ..... People lining up for hours to find out if they are sick , positively shows that those people are stewpud , and nothing more . C O V I D IS A HOAX.......
Enna Maher
Guest
It frustrates, angers and saddens me that she eple put so much value in the words of a corr upt polit ician , it displays how much trouble this country really is in . Get ready for the greatest schitshow you've ever seen and died during .
jameswm
Roar Guru
Thanks BB. You must be a lawyer... So Hawke and his legal team are just making sure there s no "legal mistake" or jurisdictional error. I am worried that this Judge who is trying to keep the next case to himself is a fan or otherwise wants him to play. I have heard this, not sure how reliably.
Mick Gold Coast QLD
Roar Guru
I had not seen your analysis until this evening, Ball Burster - you have done a fine job focusing on the important bits and explaining the situation with clarity. Well done.
Mick Gold Coast QLD
Roar Guru
"procedural fairness is an important part of administrative decision making" I offered comments at midday today on the thread entitled "Djokovic family's angry reaction ...", including this: So many people were put to the test in their day jobs and failed. The border blokes were first class dolts for not appointing their cleverest, quickest thinker to deal with Honest Djok on arrival (an early report had them hurrying him along so that they could finish their shift on time!) – one who knew the regulations backwards and understood the importance of “due process” and “acting reasonably”. This procedural failure emerged early in Monday's hearing before Justice Anthony Kelly and my confidence level dropped. There were other things (in my piece here). My disappointment is in the inability of the Federal people to plan for possibilities - from the time Honest Djok walked off the plane onwards. No-one sat with Ministerette Karen Andrews beforehand to run through next week's potential problems ... "We have the Australian Open in Melbourne, egos flying in with money, fame and pretensions to wisdom on the Wuhan virus and personal liberty, media looking for juicy stories - here is our plan. 1. Border Force has rostered on one of their smart supervisors ..." As you have identified they had / have good material to work with, a clear route to follow and they get busy sabotaging that! They are well paid to do better.
Ball Burster
Roar Rookie
I agree that where the response should have been on a 0 to 100 scale is debatable, but I'm not sure that it follows that it has revealed a nasty side to the national psyche.
Ball Burster
Roar Rookie
James If ND gets a "no" and lodges an injunction it will be heard the the same court and likely the same judge. The grounds are relatively narrow (I've copied the stuff below from the Federal Court website). You'll notice that they are mostly about procedural fairness, which is why Hawke it's taking longer than people expect. ND's legal team will launch a blizzard of objections under every one of these headings, but their central focus will be to establish that the Minister interpreted/applied the law. This will likely focus on legal interpretation/application of the ATAGI advice. Longwinded, but I hope it helps. What the Court cannot do in migration proceedings In hearing a migration case, the Federal Court cannot decide if a visa should be granted or cancelled. Whether the Court would have made a different decision to the original decision-maker is not relevant to the Court’s determination. What the Court can do in migration proceedings The Federal Court generally has the same jurisdiction as the High Court of Australia under paragraph 75(v) of the Commonwealth Constitution external link. This means that the Court can consider whether a legal mistake has been made by the decision-maker and adjudge “questions of law" (under ss 43(3) or 45(2) of the AAT Act) or whether there has been a "jurisdictional error". Examples of jurisdictional errors include the decision-maker: - not adopting a fair process in making the decision; - identifying a wrong issue; - ignoring materials they were required to look at; - relying on materials they should not have looked at; - incorrectly interpreting or applying the law; - reaching a decision that is unreasonable in the legal sense; - making a decision for which there was no evidence, or that was not reasonably open on the materials.