Roar Rookie
Joined April 2019
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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.
Enter the Djoker: Anatomy of a shambles
Sheek: It is not without irony that the Djoker’s legal guys will have to swing from procedural flaws being a fundamental denial of a chap’s human rights to just a human error by the chap’s “support team”.
Enter the Djoker: Anatomy of a shambles
It will be interesting to see how that plays out.
Enter the Djoker: Anatomy of a shambles
James: one reading is that TA went exemption shopping.
Enter the Djoker: Anatomy of a shambles
Sheek/Joe
That does strike me as spin. On the other hand Kelly is obviously aware of what is at stake/the time constraints and has pulled out all stops to hold a quick hearing – commendable because the courts usually appear to dawdle along…
Enter the Djoker: Anatomy of a shambles
Marcel
The Commonwealth conceded because it agreed that it was unreasonable for the ABF decision maker to withdraw the agreement to extra time after it had been promised. So it agreed there had been a procedural flaw. You can also click on the Consent Order in the article for the precise words.
Enter the Djoker: Anatomy of a shambles
When the court resumed at around 5 that afternoon Kelly J made the Consent Order, declared himself functus officio (done and dusted). He then made it clear to both parties that he expected to be kept in the loop about any future developments in advance. In effect he said there’s no way that any other judge could get up to speed if there was another adverse decision and a further injunction or stay.
Enter the Djoker: Anatomy of a shambles
Sheek
Or a product of people sticking to their values! If I can put it that way.
Enter the Djoker: Anatomy of a shambles
I don’t know of that letter. It might be the one on 18 November from the head of the National Covid-19 Taskforce, Lisa Schofield. It’s part of the Commonwealth Health Dept.
I feel sorry for the ABF staff too. The crux of it is that they agreed to extra time so that he could contact X,Y, Z and then reneged for reasons that were not explained very clearly.
Enter the Djoker: Anatomy of a shambles
Our rough translations tally up.
The reason it’s taking time is that the Feds will be considering the position carefully (and being seen to do so). They’ll need to consult Djoker and possibly the Federal Court.
The rule of thumb is that quick “no” decisions nearly always draw the crabs (a sign of a closed mind, bias, etc). Quick “yes” decisions almost never do. Strange, but true.
Enter the Djoker: Anatomy of a shambles
The transcript suggests that that’s what happened – the Border Force guys couldn’t see any use in ND talking to TA, his lawyers, etc.
One learning is that procedural fairness is an important part of administrative decision making. Once you’ve given someone an undertaking (in this case agreeing to provide more time) you must honour it.
Enter the Djoker: Anatomy of a shambles
According to ND his Border Force interview transcript his “agent” did the paperwork and he was under strict instructions to go through Tennis Australia. It’s not clear who his agent is, but he was in contact at various points in the interview.
You are supposed to formally appoint an “authorised recipient”, which includes a sponsor or nominator of a visa applicant. Tennis Australia would therefore be able to be appointed.
The bottom line is that the applicant is ultimately responsible for the accuracy of the paperwork.
[Tiley might be in strife for other reasons.]
Enter the Djoker: Anatomy of a shambles
That is an important point. He would not have been able to come under either the TA or ATAGI medical exemption rules. It’s worth noting that TA’s own cut off for players to apply for exemption was 10 December, so TA made an exception for him.
I agree that the various factions are unlikely to be swayed. But the better approach is to discuss the caper from the perspective of how the rules might be changed rather than what they are.
Enter the Djoker: Anatomy of a shambles
And Cummins went to St Paul’s Grammar.
Private school will kill English cricket, just as it killed rugby in Australia
Uzzie went to Westfields Sports High School (public). Head went to Trinity College Gawler and Jhye Richardson to Emmanuel College.
But I suspect it’s a bit more complex than private v public schools. For a start talented young players have been gravitating to short form cricket (money) and learning some very bad habits.
Private school will kill English cricket, just as it killed rugby in Australia
The live reporting from “court reporters” was hopeless. They had no idea of the legal issues in play – more worried about the state of the live feed, not being able to get the nose-bag on at 1pm and sugaring off at 4.
BREAKING: Novak Djokovic wins battle to stay in Australia
I believe that the “future entry” issue is subject to Ministerial discretion (“might” rather than “must”. It would be open to the Minister to say that, in the circumstances, the visa can’t be approved on this occasion without prejudice to future applications.
BREAKING: Novak Djokovic wins battle to stay in Australia
I see your point, but the Commonwealth can’t grant someone a visa that they haven’t actually applied for. The Commonwealth could say we can’t/won’t grant you this category of visa, but could grant this category if you cared to apply for it.
BREAKING: Novak Djokovic wins battle to stay in Australia
It’s important to note that the case turned on a procedural flaw and not “the merits”. It’s not unusual for a procedurally flawed administrative decision to be revoked and replaced with the same decision after a process that is squeaky clean. Nor is it unusual to be told “go away and do it properly”.
BREAKING: Novak Djokovic wins battle to stay in Australia
It looks like the case is a house of cards built by Tennis Australia and ND that they thought no one would dare to have a puff at.
Court papers reveal Djokovic received medical exemption from TA after positive COVID result
Good on you for putting up some ideas.
Nonetheless many of the options you propose depends on who is actually batting. For example giving Glenn McGrath a free hit is hardly a penalty that fits the crime.
I’d prefer to simply deduct the missing overs. If the bowling side is three overs short: (i) the batting side’s score is adjusted up by the runs made in its three best overs; and (ii) the bowling side has to chase that total in 3 fewer overs.
Unfortunately almost any penalty regime will provide an incentive for the batting side to slow things down. Disputes about which side caused the slow over rate then have to be adjudicated.
What's the best way to punish a bowling side for slow over rates in T20 cricket?
1. It’s too early to know why TA and Djokovic believe ND was given a medical exemption.
2. ATAGI doesn’t issue exemptions. You upload your medical advice to the Australian Immunisation Register. Only an eligible health practitioner can do so – importantly the medico must be a member of the Australian College of GPs, etc.
3. TA was told formally at the end of November by the Commonwealth that having Covid in the last 6 months would not solve the problem.
4. Whatever he thought he had, it didn’t work at the border.
5. I note that ND’s lawyers are arguing “unfair and unreasonable” rather ultra vires, legal error or defective administration.
UPDATE: Serbian president vows to 'fight for Novak' as ScoMo weighs in on Djokovic deportation
Why not pick an XI from the Sydney Swans?
Why the Aussies should select eight bowlers for the SCG Test
1. Boland? No – pick your best side from who is available. The fairytale debut would stand for all time.
2. Joe Root is not the problem. The poms’ thought they could play the series on paper rather than on the field. See 1.
3. Sam Billings? Not a good idea to pick a bloke on the basis of ODI/T20 returns.See 1 and 2.
Ashes Scout: Ponting backs 'staggering' Boland call, England legends bay for blood, left-field batting option emerges
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.
Enter the Djoker: Anatomy of a shambles