This article appeared in today's Age and I thought it shed some useful light on the admin law issues.
There’s better use of ‘God Powers’ than on Djokovic
Yesterday, lawyers for Novak Djokovic argued before the Federal Circuit Court that the Australian Border Force delegate who cancelled the tennis star’s visa acted outside the law. The case attracted intense public interest, with more than 20,000 people worldwide tuning in to the court’s livestream.
The hearing confirmed that Djokovic is unvaccinated and that he contracted COVID in mid-December. This recent infection was what led medical panels convened by Tennis Australia and Victoria to approve a medical exemption, based on ATAGI guidelines, clearing him to play in the Australian Open.
The Commonwealth, which controls entry to Australia, was not involved in this process. But Djokovic’s lawyers stressed that when he submitted his travel declaration he detailed the panel exemptions and received correspondence from the Department of Home Affairs saying he had met the requirements for entry. They argued Border Force should have factored this in before deciding to cancel Djokovic’s visa.
Ultimately, this question was left undecided. Late in the afternoon, the parties agreed that Djokovic should win on a different, procedural, ground. The Minister for Home Affairs, Karen Andrews, conceded that Border Force was unreasonable when it proceeded with cancelling Djokovic’s visa without allowing him time to contact Tennis Australia or his lawyers.
Following the parties’ agreement, Judge Kelly found that Border Force’s handling of the matter had been legally unreasonable and quashed the decision to cancel Djokovic’s visa. This reactivated the visa he had been granted pre-travel and allowed him to leave detention, seemingly with a path to the Open.
But if Djokovic had cause for celebration, it was short-lived. Within seconds, the Home Affairs Minister’s counsel advised that Immigration Minister Alex Hawke would consider using his personal power under s 133C(3) of the Migration Act to re-cancel the visa.
As Judge Kelly observed, this raises the stakes. Challenging an exercise of this personal power in court may raise complex questions, making litigation difficult in the short window before the Open. If Djokovic loses his visa again and is deported, he faces a three-year ban on travel to Australia, jeopardising his ability to compete in future Opens, though the minister could elect to waive the ban.
Even those with little love for Djokovic may find it harsh and surprising that the government, after overstepping legal bounds, simply gets another go. But this is commonplace in Migration Act matters. Decisions that are invalid due to defective process can be remade using a better process. Moreover, the Immigration and Home Affairs ministers have far more personal discretionary power than any other member of government – so much so that their discretions have been called ‘‘God Powers’’. This means that if one source of power fails, there is often another path to the same end.
Additionally, as many migration law matters are bipartisan, when the minister is found to lack power Parliament sometimes speedily creates one. In 2017, long-term resident Mehaka Te Puia had his visa cancelled. Te Puia was a member of a bikie club that was suspected of criminal links, but had a clean record himself. He never found out why he lost his visa – the minister relied on a provision that allowed that information to be kept secret. Te Puia went to the High Court. He argued, successfully, that the provision relied on was, in part, unconstitutional because it also required the critical information to be withheld from courts. The minister’s decision to cancel Te Puia’s visa was found invalid. But while the case was in progress, Parliament passed legislation retrospectively validating the cancellation decision. A week after his win, Te Puia was deported.
Parliaments and even immigration ministers have previously expressed unease about the ‘‘God Powers’’. It’s worth remembering that a key reason for including such powers in the first place was to facilitate humanitarian solutions for people who fell outside strict statutory criteria but nonetheless had particularly compelling circumstances.
The minister could exercise a personal power to grant visas, on public interest grounds, to Nades, Priya, Kopika and Tharnicaa Murugappan, allowing them to return to the Biloela community, or to release the refugees who will remain detained in the Park Hotel long after Djokovic leaves and the world’s attention wanes. But that’s all a matter of discretion.
Sangeetha Pillai is a senior research associate at the Kaldor Centre for International Refugee Law, UNSW.