Now that the dust has settled on the Djokovic saga, it’s time to consider the appropriateness of the Immigration Minister’s remarkable powers in relation to visas and how they are exercised.
This isn’t the first time individual visa interventions by the Minister have made the headlines: recall Peter Dutton’s controversial intervention to grant visas to two foreign au pairs in 2015, or the 2004 Phillip Ruddock “cash for visas” scandal, each of which led to a Senate Inquiry.
As Liberty Victoria’s 2017 report “Playing God” pointed out, ‘the Minister for Immigration and Border Protection is granted the most personal discretion of any Minister by an overwhelming margin. More legislative provisions confer ‘public interest’ or ‘national interest’ discretions on him than on any other Minister … He or she has a power over individual lives, relatively unchecked by courts, that is greater than that of any other Minister, including the Prime Minister.’
In the Djokovic case, the Minister used his powers under Section 133C(3) of the Migration Act, enabling him to side-step procedures including notice periods - in fact, the Act specifies that the rules of natural justice do not apply to decisions under this section.
These truly are ‘god-like powers’, as Sydney University's Professor Mary Crock commented, adding that if “they really decide to … the power is there”. Such outright discretions without any human rights protection will inevitably lead to bad outcomes and must at the very least be constrained by a proportionality requirement.
And it’s not just civil libertarians questioning the Minister’s powers: critics include two previous Immigration Ministers. In 1989 Robert Ray tried to amend the Migration Act to remove his discretion from all immigration matters, saying “The wide discretionary powers conferred by the Migration Act have long been a source of public criticism. Decision-making guidelines are perceived to be obscure, arbitrarily changed and applied, and subject to day-to-day political intervention in individual cases."
In 2008 his successor Chris Evans told a Senate estimates committee that "I have formed the view that I have too much power. I think the Act is unlike any other act I have seen in terms of the power given to the minister to make decisions about individual cases.
"I am uncomfortable with that, not just because of concern about playing God, but also because of the lack of transparency and accountability for those decisions and the lack in some cases of any appeal rights against those decisions."
These powers have also been challenged by the courts: in November 2021, the Federal Court held that where a decision would involve Australia acting unlawfully under international law (as is the case where the Minister cancels the visa of a refugee on character grounds, resulting in indefinite and arbitrary detention in breach of Australia’s obligations under the ICCPR), the Minister must explain in more detail why he considers acting unlawfully is in the national interest. Disappointingly, the Minister has applied for special leave to appeal this decision in the High Court. NSWCCL believes that the Minister should accept the Federal Court’s decision, and that it is never in Australia’s national interest to act unlawfully in respect of Australia’s international humanitarian obligations.
Some uses of the Minister’s many discretions have been truly Orwellian. Take for example the 2017 cancellation of long-term Australian resident Mehaka Te Puia’s visa. Te Puia had a clean record but was a member of a bikie club that was suspected of criminal links. He was never told the grounds on which his visa was cancelled. He argued successfully in the High Court that the provision relied on to withhold this information was unconstitutional and the minister’s decision to cancel Te Puia’s visa was found invalid. Te Puia may have won the battle, but he lost the war: while the case was progressing, Parliament passed legislation retrospectively validating the cancellation decision. Te Puia was subsequently deported.
When it comes to the case of Djokovic, while NSWCCL neither supports the tennis player’s anti-vaccination stance nor believes he deserved any special treatment, our concern lies with the free speech implications of this particular use of the Minister’s discretion.
We accept that in some circumstances, it might be appropriate to cancel a visa over the likelihood of hate speech and incitement of violence. For example, we support the 2019 cancellation of far-right commentator Milo Yiannopoulos’ visa to participate in ‘The Deplorables’ tour alongside Proud Boys founder Gavin McInnes and ‘Tommy Robinson’, who founded the far-right English Defence League and was jailed for breaking reporting restrictions when live-blogging from sexual grooming trials . Yiannopoulos had an extensive track record of hate speech and already owed Victoria Police $50,000 to cover policing at a 2017 event in Melbourne, during which protestors and activists clashed, making this a strong case for a discretion to exist. But this case argues against the Minister themself having discretionary powers. The Immigration Department, which itself has considerable discretion to exercise, had recommended that the visa not be issued, but been overruled by the Minister. It was only when the Minister was put under political pressure over Yiannopoulos’ divisive comments in the wake of the Christchurch bombing that his decision was reversed and the visa denied. The way this decision was made illustrates the fears over politicisation and arbitrary decision making voiced in previous decades by Ray and Evans.
And the case of Djokovic himself does not, in our view, fall within this type of circumstance. He was not here to espouse his views or whip up anti-vax sentiment: he was here to play tennis. The use of the discretion in this instance seems inherently political and anti free speech.
And if Djokovic’s presence in the country is a problem, what of Raheem Kassam? The former chief adviser to Brexit campaigner Nigel Farage was granted a visa in 2019 despite his history of vilifying and attacking people online. He spoke at the Conservative Political Action Conference (CPAC), which attracts tens of thousands of attendees every year. He said that the Koran is ‘fundamentally evil’ and tweeted that SNP leader Nicola Sturgeon’s legs should be taped shut following a miscarriage “so she can’t reproduce”. What of far right podcasters Lauren Southern and Stefan Molyneus, whose 2018 Australian tour mocked Aboriginal culture and launched a tirade against multiculturalism and Islam. Why are we happy to welcome these people but not Djokovic? These decisions smack of political expediency and arbitrariness.
Meanwhile, less high profile but more devastating is the plight of those held alongside Djokovic in Melbourne’s Park Hotel, who have neither his legal resources nor a safe place to call home. People such as Mehdi Ali, who is now 24 and has been held in detention by Australia since he was 15. More than 30 refugees are currently detained here with no end to their detention in sight. Many of these people were detained offshore for six years or more before being medically evacuated to Australia to face indefinite hotel detention despite being genuine refugees.
Under international human rights law, Australia has a ‘non-refoulement obligation’ not to deport these people to a place where they will be at risk of irreparable harm. One might expect a humane government to grant these refugees a visa and release them into the community, a move that would reduce costs as well as being humane. But the Australian government’s response in 2021 was to pass a law allowing it to detain refugees indefinitely in such circumstances.
This cynical move has left many refugees in a soul destroying no man’s land: this law needs to be reviewed as urgently as the Minister’s powers.
As Evans said, nobody should play god. While some level of discretion may be necessary, we need to rethink its extent, who wields it, and how they do so. The current powers are too broad and too open to arbitrary and politicised decision making. Many would find it shocking if they knew that the Act gives the Minister so much power over other people’s lives - but not subject to the rules of natural justice.