Hypocrisy of a cruel state sparked the Djokovic outrage

Novak Djokovic plays in Paris in November. Picture: Getty Images

The participation of defending champion Novak Djokovic in the Australian Open would have enhanced the credibility of the tournament. However, the decision by the Victorian government to facilitate a Covid exemption via a desktop medical assessment has resulted in an international diplomatic farce and a breathtaking blow to the integrity of the government’s Covid strategy.

The international embarrassment of cancelling Djokovic’s visa on arrival at Tullamarine Airport would have been avoided if the Victorian government had a coherent and consistent Covid strategy.

The suffering that each and every Victorian experienced as a result of Daniel Andrews’ fanatical lockdown strategy was incalculable. The world’s longest lockdown damaged every aspect of the lives of most Victorians.

The singular dispiriting hallmark of the lockdown was the brutally strict and inflexible manner in which the restrictions were applied and enforced. The Victorian government gave no quarter, no matter how cruel or arbitrary the restrictions had become in their implementation.

Covid-free relatives could not visit dying loved ones in hospital. The Victorian government was the only government to ban the playing of sports that carried zero Covid risk, such as golf and, yes, you picked it, even tennis.

Yet come Australian Open time the same government pivoted to a case-by-case assessment of Covid restrictions and established an “expert” panel to consider applications for vaccine exemptions from tennis stars. This is against the brutal backdrop of thousands of financially stretched unvaccinated Victorians who have been deprived of a livelihood as a result of being sacked from work because of the vaccine mandate. Not one of them was given the option of pleading their case for an exemption to an expert exemption panel.

Inconsistency in the application of rules is the badge of unfairness. Empirical evidence shows there is no better way to lose community confidence in the legal system.

Moreover, the claim that Victorians should have accepted the decision to grant Djokovic an exemption because it was by an expert independent panel that did not know the identity of the applicant is hollow.

The application was assessed on the papers. None of the panel members examined Djokovic. Any medical assessment made without an examination of the patient has no legitimacy. Anonymising the application made the process even less robust because it logically impeded any attempt to interrogate the credibility or reliability of the information that was provided.

The situation is beyond farcical as a result of the claim by Victorian Acting Premier Jacinta Allan that it’s up to Djokovic, not her, to explain the basis for his exemption application.

The privacy horse has well and truly bolted out of the Covid gates. Australians need to show their vaccine certificate to enter a restaurant or their workplace. We have been revealing our movements via the QR code for more than a year.

The Australian Technical Advisory Group on Immunisation has strict criteria for vaccine exemptions. On Thursday the federal government released docu­ments it sent to Victorian auth­orities last November in which it emphasised that players who failed to meet the regulatory body’s definition of fully vaccinated as applied by the Federal Government would be refused entry into Australia and that contracting Covid-19 within previous months did not provide a basis for an exemption for international arrivals. The ATAGI criteria are clear and exhaustive. They include being infected with SARS or having recently undergone major surgery. Djokovic had an uninterrupted tournament run in the last half of 2021 and hence it is unlikely that these considerations were satisfied.

The other grounds include a previous adverse reaction to a Covid vaccine, a heart condition or serious mental health issue. Djokovic is one of the fittest and most stable athletes on earth and has the best last-set record in tennis. The circumstantial evidence is not indicative of a compromised heart or mental health issue. There is nothing to suggest that Djokovic has had a previous dose of the vaccine.

If Djokovic has a genuine and demonstrable basis for an exemption, the Victorian authorities should have stipulated the grounds at the outset. Failure to do so represents the high-water mark of government incompetence and hypocrisy.

Given the lack of transparency associated with the exemption process and the seeming failure of the Victorian government meticulously to ensure that its exemption criteria was identical to that applied by the federal government it is not surprising the situation has turned into a fiasco.

The situation is made immeasurably worse by the humiliation and considerable incon­ven­i­ence inflicted on one of the world’s greatest athletes, who is detained against his will for the crime of following the rules as he understood them to be. No elite sportsperson has been treated this appallingly in living memory. The Victorian government has struck one of the worst unforced errors in tennis history. Game, set and match.

Mirko Bagaric is dean of Swinburne Law School.