Novak Djokovic ruling: Strategic surrender or an embarrassing loss?

Novak Djokovic could be free to defend his Australian Open crown. Picture: AFP

Legal cases are rarely dramatic. But the federal government’s total capitulation on Monday in its case against Novak Djokovic was about as dramatic as you could imagine.

Home Affairs Minister Karen Andrews consented to the Federal Circuit Court quashing the decision to cancel Djokovic’s visa and to paying his legal costs. All up, the legal costs for the taxpayer (without including court time), will likely be more than $250,000.

Djokovic didn’t technically win his case, he just forced the government to give up its defence. But in some ways, forcing your opponent to yield to you and surrender is better than a win. It’s certainly more embarrassing for the loser.

People might not understand how an unvaccinated person – tennis player or not – can come into this country, especially after Australians overseas have had difficulty getting home for the two years of the pandemic. Add to that the fact that Melbourne has endured substantial lockdowns and the unvaccinated have been subject to strict controls on their movements.

Djokovic would say he is entitled to an exemption from getting vaccinated because he recently contracted Covid and given that it might not be safe to get the vaccine. He seems to have ATAGI on his side on that. The government would say that is not a good enough reason and he’s been ­allowed in because Border Force made technical mistakes in processing the decision to cancel his visa.

With a clearly annoyed judge Anthony Kelly, the government not only agreed to the reinstatement of Djokovic’s visa, it agreed to the court finding the process that the government – through Border Force – engaged in was unreasonable.

The big question is whether the government will now try to ­remake the decision but this time with a proper process.

Advantage Novak Djokovic who was released from detention after yesterday’s court hearing.

Scott Morrison at Belview Heights near Adelaide. Picture Gary Ramage

On one view it’s possible the capitulation was a strategic one. There’s a saying in the law about “taking the temperature of the bench”. The bench is where the judge sits, and so this refers to trying to guess from the judge’s comments or demeanour which way they’re going to decide.

Taking the temperature of the bench on Monday told me his Honour was red hot in favour of finding for Djokovic. Not only did his Honour seem to think the process was unreasonable – as the government agreed to his Honour including in the court orders made by consent – but his Honour appears to have had a tentative view in favour of Djokovic on a far more important point.

Earlier in the hearing – when the live feed was not active – his Honour said he found it difficult to understand how Djokovic’s medical exemption – based on his December positive test and signed by a professor of immunology, a physician with expertise in disease and endorsed by a state government ­independent panel – was rejected by Border Force. A finding by his Honour that Djokovic was medically exempt would have tied the government’s hands in future.

So it is possible it surrendered in order to limit the loss it was about to suffer by agreeing to ­essentially start the whole process again.

The big question at the end of Monday’s hearing was what will the government do now? The court was told at the end of the case that the government was still considering cancelling Djokovic’s visa. The judge seemed unimpressed, although thankful he had been told and not blindsided later.

The powers to cancel visas are wide, including if the minister considers it is in the public interest.

Even while Djokovic was in detention he was the favourite to win the Australian Open. After Monday’s court drama he would have been even shorter odds. I’m not putting my money on him, but then again, I’m not going to bet against him either.

Justin Quill is a partner with law firm Thomson Geer, which acts for The Australian

Twitter: @justinquill