Border farce puts fairness and competence to the test

In the wake of a first-set defeat to tennis star Novak Djokovic, the Morrison government looks both impotent and incompetent, with a Border Force that is prepared to ignore due process when it acts to stop people entering the country. The international saga is not yet over, with Immigration Minister Alex Hawke considering exercising his power to cancel Djokovic’s visa to enter Australia for a second time. But the government must weigh carefully the costs of compounding legal doubts about the fairness of its treatment of Djokovic and the potential for the whole saga to drag on in the courts. This could possibly end up with an unwanted precedent or drag on for such a period, with Djokovic playing in the Australian Open anyway, that the whole thing becomes academic. Surrender, however, is a no less ignoble outcome for the commonwealth.

The government dropped its original bid to cancel Djokovic’s electronic visa and deport him presumably because it did not believe it could justify the treatment of the tennis ace by border control officers. Analysis of the transcript of interview has been interpreted as a textbook example of violation of natural justice. This included denying Djokovic access to his telephone and promising to delay a decision, then bringing it forward and pressing him to sign consent.

Certainly, the Djokovic case has raised serious questions about why decisions on issuing Covid vaccination exemptions were left to Tennis Australia and the Victorian government. And why they were able to ignore written instructions from federal Health Minister Greg Hunt that cases like Djokovic’s claiming prior infection as justification not to vaccinate would not qualify. Nonetheless, if, as he maintains, Djokovic was led by authorities to believe he had the legal right to enter Australia, on this basis he is entitled to feel deeply aggrieved by the treatment he has received. But there is also a bigger issue concerning the ability of the federal government to determine who can enter the country, something that has been unnecessarily confused by the government's own online application processes.

Mr Morrison has made attempts to defuse international tensions generated by Djokovic’s detention by speaking on Tuesday to his Serbian counterpart, Ana Brnabic. The Prime Minister must now find a way to save face with the Australian public, which expects the federal government to maintain control of the nation’s borders.

It is possible to feel outraged that Djokovic has somehow slipped the net unfairly to enter Australia while at the same time believe his treatment at the hands of Australian authorities has been unreasonable or unfair. Border Force is reportedly investigating whether Djokovic made a false declaration regarding recent travel, a jailable offence. If nothing else, the extraordinarily contradictory positions taken by the Victorian government are difficult to overlook. After supporting Djokovic’s exemption, the state government is making a third dose of vaccine mandatory for aged-care, disability and emergency services, correctional centres, quarantine accommodation and food distribution workers. Dan Andrews has sought to wash his hands of the Djokovic affair, saying he believes only fully vaccinated people should be allowed to enter Australia but that it is “entirely a matter for the federal government”.

Obviously, Djokovic poses little threat to public health in Australia, which is now awash with Omicron. But his exposure of the ramshackle communications between jurisdictions and the heavy-handed actions of Border Force officers, which were not defended in court, has sorely tested the Morrison government’s claims to competence and fairness.