(Image: Private Media)

James Allsop, chief justice of the Federal Court, did his best to explain to the global audience exactly what Novak Djokovic’s second case against the Australian government was not about.

The case focused, Allsop said before delivering the court’s unanimous verdict, “on whether [the immigration minister’s decision to cancel Djokovic’s visa for a second time] was irrational or legally unreasonable. It is not part of the function of the court to decide upon the merits of the decision.”

Allsop’s point was that the case was not an appeal from Alex Hawke’s decision; that is not legally available. It was an application for “judicial review”: a request to the court to look at the minister’s executive action and determine whether it was one he could have lawfully made.

It’s the same question as Djokovic asked after the first cancellation decision, by a Border Force officer under delegation from the minister. Ironically that decision was far more rational than Hawke’s, but the officer had failed to follow due process, giving Djokovic an easy first-up win.

Hawke’s decision was made under a different power, known as a “god power”, given to him by the Migration Act and explicitly designed to be almost impossible for the courts to overturn. Extraordinarily (in general terms, not in the scheme of the act), the provision says that “the rules of natural justice do not apply” to such decisions. This means that the law overrides the ordinary principle that the victim of a ministerial decision must be treated fairly.

The only avenue for challenging an exercise of the god power is to ask the court to find that the decision in question is not one which any rational person could have made; that it is inherently unreasonable, capricious or malicious and therefore outside the minister’s power altogether. It’s the last post defence. Yes, the minister’s discretion is absolute, but it is still constrained just enough to allow the courts to intervene should the minister turn out to be a madman.

Hawke’s decision, the court found, could not be said to be obviously irrational. It was based on material he had considered, and the court has no power to second-guess whether the reasons he gave for his decision are logically sound. The judgment reemphasises what lawyers working in the refugee field have known for a long time: the god power is almost bulletproof.

Hawke’s rationale was that his decision was made “on health and good order grounds, on the basis that it was in the public interest to do so” under s133C(3) of the Migration Act.

In court, the government’s lawyers explained that the minister’s concern was that Djokovic’s presence in Australia might put lives at risk and endanger civil order by stoking anti-vaccination sentiment and disregard for public health orders. Simply, that he is a potential lightning rod for the tiny but vocal anti-vaccination brigade in Australia, and it was too dangerous to let him stay for the two weeks of the Australian Open.

Props to the government’s senior counsel for saying that with a straight face; what a load of specious crap. It’s insulting to everyone’s intelligence for Hawke and his puppetmaster Scott Morrison to pretend that’s the reason they’ve deported Djokovic.

In June 2020 Djokovic put on a rebel tennis tournament and was pictured dancing in a crowded nightclub, resulting in a super-spreader event and his own first infection with COVID-19. He was globally notorious from early on as an anti-masker and then anti-vax-mandater, refusing to disclose his vaccination status but generally assumed to be unvaccinated. Yet he was given a visa to play in the Australian Open in January 2021. Apparently not a threat to public safety and good order then.

What’s changed between 2021 and 2022? Simple. A year ago, Australia was a COVID-zero nation, zealously protecting its borders to keep the pandemic out. Now we have the fastest rate of infection in the world, along with one of the most-vaccinated populations. That is to say, all of the reasons why it would have made sense to refuse Djokovic entry in 2021 are practically irrelevant today.

So bullshit, and everyone, including the court, knows it. But the court’s decision was nevertheless legally correct; it had no choice but to refuse Djokovic’s application.

The politics of this case are pathetic: Morrison is now crowing about his “victory”, getting the Federal Court to uphold his government’s decision to cancel a visa which his government had issued in the first place. A ridiculous, embarrassing farce.

It would be nice to think that the country, or the media at least, has taken closer note of the legal horror which the case has exposed: the infamy of the god power. In this case, it has been used to kick a man out of the country on ostensible grounds which are patently nonsensical but not able to be challenged. That is the state of the law.

It is wrong, absolutely wrong, for the executive arm of government to have unfettered powers of (effectively) life or death over the fate of individuals, which are not susceptible to any meaningful oversight by the courts. It is a corruption of the rule of law, and the consequences can be (and sometimes are) dire.

My hope is faint. I know the circus will move on with Djokovic’s flight back to Monaco, and the 30 or so men left languishing in the Park Hotel, some in detention for more than nine years now, will go back to silently rotting in the shadow of the public’s disinterest.