Too Cool For School ?
Did Novak think he was above the law and would gain special exemption simply because he was a sporting superstar?
One needs to only delve into the gruelling interview between Novak and the Australian Border Force to gain insight into Novak’s thinking when put under pressure. The interview (which at times resembles an interrogation) commenced at 12.20 am on 6 January. At 3.55 am when Novak was advised his visa is likely to be cancelled, he responds:
I mean, I am really failing to understand what else do you want me to provide to you. I have provided all the documents that Tennis Australia and Victorian government has asked me to do in the last three/four weeks, this is what we have been doing. My agent and I have been in a constant communication through my agent with Tennis Australia and the Victorian state government, the medical panel. They — whatever they asked us to do — this is their set of rules they have provided, so they have allowed to have the medical exemption for a COVID vaccination. I applied, they approved, I……………- I arrived here because of these documents otherwise I wouldn’t have been allowed to come in. I just really don’t understand what is the reason you don’t allow me to enter your country — just I mean, I have been waiting four hours and I still fail to, to understand what’s the main reason — like — lack of what papers? Lack of what information do you need?
At a later stage Novak says to the Australian Border Force interviewer:
“ – There’s absolutely no way I would put myself in a position to come and sit here with you….it would come to my attention or my agent or the team of people around me that the six months Covid regulation was not in place. It was absolutely in place. And I’m sure there is a way to check that, whether it is with the federal government, or Victorian government, whether it’s with tennis Australia, whatever I can do to provide I will. Because I mean I made it all the way to Australia because they all made it, you know, very clear and certain to me that I have all the documentation that I possibly can provide to you.”
The transcripts of the interview demonstrate a complicit , honest and respectful Novak endeavouring to answer all questions asked of him by the Border Force. Indeed the Minister for Home Affairs in arriving at his decision found that Mr Djokovic had made no attempt to contravene any Australian law, was of good standing, and was known for his philanthropic efforts.[1]
Moreover the transcripts highlight Novak held a genuine belief that he and his agent had procured all necessary documents and consents required of him to enter the country and compete at the Australia Open. The Minister also accepted that Novak believed he had a valid medical exemption to come to Australia and remain in Australia.[2]
Why wouldn’t he? He held a visa , had received certification of a medical exemption from vaccination from Tennis Australia that had been reviewed by a panel established by the Victorian State Government and had received from the Department of Home Affairs a document informing him that he met the requirements for quarantine free arrival.
Administrative Bungle by Tennis Australia?
The transcripts coupled with correspondence between the Federal Government and Tennis Australia in the months leading up to Novak’s arrival make clear Tennis Australia played a leadership role in advising and assisting Novak in gaining lawful entry to the country for the Tournament.
Novak and his team relied upon Tennis Australia to ensure his entry to Australia would be a smooth one.
“ Me I was — well me and my agent — we were instructed that we can only communicate with Tennis Australia and that’s it. And that’s how we requested what we requested……. I mean I made it all the way to Australia because they [ Tennis Australia] all made it, you know, very clear and certain to me that I have all the documentation that I possibly can provide to you” [3]
Novak’s agent dealt exclusively with Tennis Australia and followed their advice and instructions on what steps were needed for Novak to gain entry. Tennis Australia advised Novak that he qualified to enter Australia on the grounds of a medical exemption because he had been infected with Covid in the 6 months prior to entering the country. They advised he fell within the exemption status outlined by the guidelines provided by the Australian Technical Advisory Group on Immunisation.(“ATAGI”).
The problem however, for Tennis Australia in relying upon ATAGI Guidelines as a basis for advising Novak is, aside from the Guidelines being just that – Guidelines – is that they are not the law and they are not made by lawmakers. It was foolish of Tennis Australia to rely upon these Guidelines as the Magna Carta of immigration law not simply because the guidelines contradict themselves at pages 3 and 4 and therefore create confusion but because Tennis Australia had been earlier specifically warned by the National Covid Taskforce First Assistant Secretary that people who have previously had Covid-19 and not received a vaccine dose are not fully vaccinated.[4]
Moreover in November 2021 Health Minister Greg Hunt sent the CEO of Tennis Australia a letter advising that people who had tested positive to Covid-19 within six months did not meet exemption requirements to enter the country:
“ In relation to your specific questions , I can confirm that people who contracted Covid -19 within the past six months and seek to enter Australia from overseas and have not received two does of a TGA approved or TGA recognised vaccine …. Are not considered fully vaccinated.[5]
Despite these directives and guidance from Federal Government, Tennis Australia’s Chief Medical Officer, a Carolyn Broderick provided a letter to Novak on Tennis Australia letterhead dated 30 December 2021.
The letter was addressed “ To whom it may concern” and advised that Novak has been provided with a medical exemption for Covid vaccination on the grounds that he had recently recovered from Covid.[6] It went on to say that several independent medical panels – one formed by the Victorian Government and one by Tennis Australia – had formed the view that Novak’s exemption was consistent with the recommendations of the ATAGI !
It was clear from Federal Government earlier directives to Tennis Australia that Novak entering Australia on the basis of a medical exemption arising due to him being infected within the past six months was not enough to guarantee entry.[7] How were these directives overlooked, ignored or forgotten by Tennis Australia ? In the circumstances, providing Novak and his team with the letter so that he might rely upon to gain entry to Australia was at best naïve but more likely reckless.
Home Affairs Decision – Good Policy or Good Politics?
Subsection 133 C(3) of the Migration Act 1958 provides:
The Minister may cancel a visa held by a person if
(a) the Minister is satisfied that a ground for cancelling the visa under Section 116 exists; and
(b) the Minister is satisfied that it would be in the public interest to cancel the visa.
Section 116(1) of the same Act provides that the Minister may ……………. cancel a visa if he or she is satisfied that:
…. The presence of its holder in Australia is or may be or would or might be a risk to:
(1) the health , safety or good order of the Australian community or a segment of the Australian community.
The Minister only needs to be satisfied Novak might be a risk. He does not need to prove Novak was in fact a risk.[8]
Despite these cancellation powers, the Home Affairs Minister must have been tempted to allow Novak to compete in Australian Open. After all , he found Novak to be a negligible risk of transmitting Covid to the broader Australian community.[9]
Yet the Minister exercised his personal power to cancel Novak’s visa and formed a view that Novak may be or would or might be a risk to the health safety or good order of the Australia community or a segment of the Australian community.
Why, you may ask, if there was negligible threat of passing any covid infection onto others would the Minister cancel Novak’s visa?
The answer lies in the fact that Novak’s is a high-profile unvaccinated super star sportsman who has indicated publicly that he opposed becoming vaccinated against Covid. The Minister was of the view his presence in Australia may pose a health risk to the Australian community because it may lead to an increase in anti-vaccination sentiment being generated , a reinforcing of the views of a minority in the Australian community who remain unvaccinated against Covid and who are at risk of contracting Covid, an increase in the number of people deciding to not receive the booster, an unvaccinated person becoming very unwell and or transmitting it to others and or increased pressure on the Australian health system.[10]
There were many “ mays” in the Minister’s reasoning, and one has the urge to explore just how realistic his concerns are in order to discount the notion his decision was either pandering in a election year to an electorate frustrated with lockdowns and the slow roll out of available vaccines or some other ulterior reason.
Is Novak really the poster boy for the unvaccinated that makes his presence counterproductive to efforts at vaccinating others in Australia? On face value, some might find it hard to accept he is. Sure there is the following:
1. An excerpt from only one media interview back in April 2020 in which he states he is opposed to vaccination – despite Novak later advising later he was not opposed to vaccination per se;
2. A statement by Novak he would not want to be forced by someone to take a vaccine
3. A failure to isolate following receipt of a positive covid result;
4. Knowingly attending an interview and photoshoot with L’Equipe; and
5. Organising a charity tennis exhibition that lacked social distancing protocols resulting in a cluster of covid cases
But absent these reasons, there is no strong media advocacy by Novak decrying vaccinations, no calling to arms of the unvaccinated to take up the cause against the evil perils of those fascists who would have us inject this venomous poison into our arms. More a case of wanton recklessness on Novak’s behalf and a personal belief that vaccination is not for him.
And yet….its easy to understand how a high-profile athlete of Novak’s status and influence could galvanize the resolve of the small proportion of the unvaccinated in Australia to not get vaccinated or stymie the resolve of those vaccinated to go one step further and get the booster . “ Look at Novak. He just won the Australian Open again. He is fit and strong and the best. He doesn’t need to be vaccinated. He has had covid and still can win the Tournament. Why should we get vaccinated ?” or “ Look? Novak doesn’t isolate when he tests positive. Why should we?”[11]
When one reads the detail of the Minister’s reasoning behind making his decision however its difficult to point to it being a political driven exercise in order to win votes or it being a point taking exercise against what could be construed as a belligerent or at the least incompetent Tennis Australia. Its hard to argue the decision was made without anything but the interests of the Australian community squarely in mind. Novak’s profile and fame and notoriety for being unvaccinated weighed heavily against him. As the Full Federal Court held “ the themes of encouragement and emulation of a sporting hero and icon run through the reasons for satisfaction as to health and good order and the public interest” [12]The Minister decided that cancelling Novak’s visa would be consistent with Australia’s strong stance on the benefits of vaccination and its other measures directed to managing the Covid -19 pandemic. It was policy and perception all rolled up in one.
Novak’s legal team thought otherwise however the Full Bench of the Federal Court certainly found nothing unreasonable with the Minister’s exercise of powers in making his decision noting that the Minister’s decision was reached on proper and lawful grounds and was not irrational or illogical.
The Wash Up
Novak came to this shores with good intentions and a genuine belief he was eligible to enter the country for the purpose of playing in the Australian Open. He had a visa issued by the Federal Government and was advised by Tennis Australia he was medically exempted from being vaccinated. That he could therefore enter the country. He had good reason to be disillusioned with Australia’s governing body of Tennis. Tennis Australia certainly have some explaining to do. It ignored or misconstrued the directives of the Federal Government. It must have also failed to get proper advice on the subject or there was a massive internal communication blunder within. I favour the former. Either way it is inexcusable and needs to be addressed so to ensure trust is restored to its administration of the sport moving forward. The Federal Minister’s decision was based on good health policy devoid of any political grandstanding or vote winning agenda – although judging by the majority of Australia’s reactions – it did not hurt the Government’s election chances.
[1] Clause 10 Applicant’s Amended Application filed in Federal Court proceedings No VIC 18 of 2022.
[2] Clause 16 Part B of the Minister For Home Affair Personal Decision dated 14 January 2022
[3] Border Force transcript of interview with Novak.
[4] Letter from Assistant Secretary Lisa Scofield to Craig Tiley CEO of Tennis Australia dated 18 November 2021
[5] Letter from Federal Minister Greg Hunt to Craig Tiley CEO of Tennis Australia dated 29 November 2021.
[6] Affidavit of Catherine Broderick dated 7 January 2022 filed in Federal Circuit and Family court of Australia proceedings No MLG 116/2022
[7] Clause 16 Part B of the Minister For Home Affair Personal Decision dated 14 January 2022
[8] Para 20 of Judgement of Full Bench of Federal Court of Australian in Djokovic V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs in proceedings No VID 18 of 2022 dated 20 January 2022.
[9] Clause 13 Part B of the Minister For Home Affair Personal Decision dated 14 January 2022.
[10] Clause 22 Part B of the Minister For Home Affair Personal Decision dated 14 January 2022
[11] These stats will help answer those questions. As at the date of writing this article there are over 25,000 daily cases of Covid infection in NSW. Of this 2,776 were in hospital. Of those in hospital 27.65 were unvaccinated and 70.2% were vaccinated. Tellingly the percentage of unvaccinated in ICU’s rises to 43.8% whilst for those double vaccinated it decreases 53.7%. Clearly vaccination reduces the number of people in ICU due to covid. 40% of NSW Health ICU beds are taken up with Covid meaning that ICU is at 60% of its normally capacity dealing with the same number of other ICU patients.NSW Health COVID-19 Critical Intelligence Unit: COVID-19 Monitor, 20 January 2022
[12] Para 103 of Judgement of Full Bench of Federal Court of Australian in Djokovic V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs in proceedings No VID 18 of 2022 dated 20 January 2022
