‘This is Orwellian’: Djokovic defence emerges ahead of court hearing

Novak Djokovic’s beliefs about COVID-19 vaccination will go on trial in the Federal Court on Sunday after his legal team challenged the federal government to prove his presence in Australia may disrupt civil order and undermine its pandemic response.

Djokovic was returned into the custody of Border Force guards on Saturday, two days before the start of the Australian Open, after a brief Federal Court hearing.

Novak Djokovic is driven back to detention at The Park Hotel in Carlton.Credit: Nine News

Late on Saturday afternoon the men’s world number one player was driven into Melbourne’s Park Hotel, the Carlton detention centre where he was held following the first cancellation of his visa. The tennis star appeared calm and composed, wearing a green tracksuit pants and jumper with a white face mask, as he was driven in by a white sedan.

In court documents submitted after the hearing, lawyers for the Serbian tennis star said it was not open to Immigration Minister Alex Hawke, on the material before him, to declare their client held well-known anti-vax views.

Although Djokovic has refused to take the jab, his lawyers told the court his strongest public statement against vaccination dated back almost two years, to April 2020, before the first COVID-19 vaccines were available.

“There was no evidence before the respondent that Mr Djokovic had made any comments about his vaccination status or expressed any ‘views’ regarding vaccination at any time during which he has been in Australia ... or at any other time in any other location (post April 2020)” his lawyers submitted.

Mr Hawke’s decision to pursue deportation proceedings against the world’s best tennis player on grounds that his global profile, public opposition to vaccination and disregard for following COVID-19 restrictions may fuel the anti-vax movement in Australia has elevated the Djokovic saga from a dispute about travel papers into something well beyond its bureaucratic origins.

Australian Lawyers Alliance spokesman Greg Barns SC, a barrister experienced in migration cases, said Djokovic was now feeling the full force of migration laws designed to remove suspected terrorists from Australia, not tennis players.

“One of the most dangerous aspects of the Djokovic matter is the preparedness of the federal government to deem someone to be a risk to public order simply on the basis of what it perceives that person’s views might be,” Mr Barns said.

“This is Orwellian and it is deeply troubling in a society supposedly committed to freedom of speech and freedom of thought.”

The latest twist in Djokovic’s fate received only measured sympathy among his tennis peers. Alex de Minaur, a fully vaccinated Australian player who was forced to miss last year’s Tokyo Olympics due to an untimely COVID-infection, expressed frustration that the protracted saga had engulfed the entire lead-up to the Open.

Australians have gone through a lot, de Minaur said. “There’s no secret about that. They’ve had it very tough. They’ve done a lot of work to protect themselves and their borders.

“If you wanted to come into the country, you had to be double vaccinated. It was up to him, his choices, his judgment. Here we are.”

Rafael Nadal says the Australian Open is bigger than any one player.Credit: Getty Images

Rafael Nadal, one of Djokovic’s great rivals, said he had immense respect for Djokovic, but added pointedly: “Novak Djokovic is one of the best players of the history, without a doubt. But there is no one player in history that’s more important than an event.

“We need to be vaccinated and the situation needs to be better for the well-being of everyone and for the health of our sport.″⁣

As for Djokovic: “Everyone chooses his own road.”

Nick Kyrgios was more supportive. He told The Age and The Sydney Morning Herald the saga had become embarrassing for Australia. “I feel it is not fair on him now,” he said. “Preparing for a grand slam is hard enough.”

In Djokovic’s home town of Belgrade, Serbian President Aleksandar Vucic posted a video statement in which he accused Prime Minister Scott Morrison of harassing Djokovic for his own political purposes.

“If you wanted to forbid Novak Djokovic to win the trophy for the 10th time, why didn’t you return him immediately? Why didn’t you tell him that it was impossible to get a visa?” Mr Vucic said.

“Why do you harass him? Why do you mistreat him, as well as his family and nation that is free and proud? Is all this necessary to win the elections and please your public?“

The Serbian embassy to Australia revealed that Djokovic, as “our most recognisable representative in the world” was the holder of a diplomatic passport which should have ensured his fair treatment at the Australian border.

“Although the fact is that he is the best tennis player in the world, Serbia doesn’t expect any preferential treatment of Novak Djokovic, but an adequate, professional approach of foreign authorities, which we are obliged to provide to every holder of our travel document,” the embassy said.

“On the other hand, we do not expect that, because of his status as the best, he will be subjected to a particularly harsh treatment in order to serve as an example to others just because of his popularity.”

Protesters opposed to vaccine mandates and the treatment of Novak Djokovic take to the streets in Sydney.Credit: Rhett Wyman

By late afternoon, a group of Djokovic supporters and anti-vax activists had gathered outside the security fence surrounding the Melbourne Park site.

Djokovic successfully challenged the government’s initial decision to cancel his visa upon his arrival at Melbourne Airport late on January 5 after his lawyers convinced the Federal Circuit Court that he had been treated unreasonably by border officials.

Mr Hawke, has now conceded all matters in dispute in that case and accepts that Djokovic, due to a recent COVID-19 infection, had a valid medical reason and exemption to travel here without being vaccinated.

The new case against Djokovic is that his status as a “high profile unvaccinated individual” and admission that disregarded his own country’s COVID-19 restrictions shortly before travelling to Australia made him a risk to both public health and public order.

“Given Mr Djokovic’s high-profile status and position as a role model in the sporting and broader community, his ongoing presence in Australia may foster similar disregard for the precautionary requirements following receipt of a positive COVID-19 test in Australia,” Mr Hawke wrote in his reasons.

“In particular, his behaviour may encourage or influence others to emulate his prior conduct and fail to comply with appropriate health measures following a positive COVID-19 test, which itself could lead to the transmission of the disease and serious risk to their health and others.

“I consider that Mr Djokovic’s ongoing presence in Australia may lead to an increase in anti-vaccination sentiment generated in the Australian community, potentially leading to an increase in civil unrest of the kind previously experienced in Australia with rallies and protests which may themselves be a source of community transmission.”

The Minister said these matters: “go to the very preservation of life and health of many members of the community.”

In response, Djokovic’s lawyers flagged that the renewed attempt to deport Djokovic and potentially, ban him from returning to Australia for three years, would be challenged on the basis that Mr Hawke’s reasoning was illogical or irrational, that the Minister had no evidence to conclude that Djokovic’s presence in Australia would foster anti-vax sentiment or that Djokovic even held a strong view against vaccination.

The case will be heard at 9.30am, Sunday before a full bench of the Federal Court, comprising Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan.

With Marta Pascual Juanola

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