Many diverse issues have been raised, and diverse perspectives aired, in the Australian and international public square, over the past week about the events concerning the cancellation of Novak Djoković’s visa by the Australian (federal) executive government (see here, here, here, here, here, and here).
I will focus on an issue and a principle that sits comfortably above, and has always sat comfortably above, substantive political decisions, national pandemic responses, state capacity, moral stances about vaccination, commercial decisions by organisers of a tournament, and the emotions of sports fans. That principle is the rule of law.
To quote the Australian Prime Minister: “Rules are rules…no one is above these rules”. Indeed, the rules bind the executive government, and it is not above the law. This principle has been confirmed in the outcome of the judicial review brought by Mr Djoković against the Australian federal Minister for Home Affairs. The visa cancellation was unlawful, and therefore invalidated by order of the Federal Circuit and Family Court of Australia.
It may appear decidedly unusual for any constitutional lawyer to feel the need to place so great an emphasis on so fundamental and straightforward a principle as the rule of law – that governments are subject to the rule of law, in how they exercise any and all of their powers –, but that emphasis is worth making in the context of almost two years during which state capacity to address a pandemic appears, in Australia at least, to have taken priority over that principle.
Of course, the political priority for states during the current pandemic is to contain, and appear effectively to contain, the pandemic and to address the harm caused by that threat to public health. In this context, important norms and legitimate expectations, such as individual privacy, free travel across internal and external borders, and freedom of protest (gathering in public), to name just a couple, have been deprioritised in order that the executive government can deal with a pandemic. That is, we might say, the state’s responsibility: national securitisation against threats to the nation.
However, as has always been recognised, and as was recognised by sundry judicial decisions across the common law world in the context of anti-terrorism measures taken by different states over the past couple of decades, the state is always and everywhere subject to the rule of law, and must act in accordance with the rule of law, even when it is purporting to securitise the nation. (It is also subject to the rule of law even when it purports to prorogue Parliament itself, so sacrosanct is that principle).
The way in which common law courts of any jurisdiction will uphold the rule of law will vary significantly depending upon the law in question that empowers the state to act in the way it has acted, and the facts in question in the particular case. The fundamental and straightforward principle, however, that the rule of law binds the state always and everywhere, holds true in every such case.
In Djoković v Minister of Home Affairs, the respondent Minister attempted in essence to stop the Court from interfering with the way in which the ministerial power to cancel the applicant’s visa was exercised in this particular case, and the grounds upon which the substantive decision to cancel Mr Djoković’s visa was made. In addition to denying the applicant’s allegations of procedural unfairness by seeking to argue that nobody “intended” to pressure the applicant in the process of the visa cancellation, the Minister submitted (in respect of the applicant’s allegations of jurisdictional error) that the Court’s intervention in this particular case would amount to “impermissible merits review”.
In doing so, the Minister ultimately attempted, in written submissions on both technical narrow matters of law and more general principles such as “sovereignty”, to deflect judicial scrutiny under the rule of law, and thereby to avoid one form of accountability in a liberal democracy – and particularly in a common law system – that never fades away, even in a pandemic: accountability under the law. The outcome of the Djoković case confirmed that this particular case does indeed call for judicial scrutiny and, in the end, judicial intervention, in the form of an order by a court that the visa cancellation was unlawful and therefore invalid.
This is an instance in which a common law court has not simply accepted that, given there is a pandemic, the executive government has absolute or almost-absolute discretionary power in how it makes determinations under statute (namely, whether to cancel an incoming, unvaccinated non-citizen’s visa).
Instead, for example, His Honour Judge Anthony Kelly indicated in oral hearings that he was “agitated” by the evidence that a medical exemption, granted by “a professor and an eminently qualified physician … and further to that … separately given by a further, independent, expert, specialist panel established by the Victorian state government” was insufficient to convince the Minister’s delegate (the officer at the border in Melbourne airport) to refrain from exercising the relevant power to cancel Mr Djoković’s visa, which hinged on grounds that his “presence … in Australia is or may be, or would or might be, a risk to … the health, safety or good order of the Australian community or a segment of the Australian community” (section 116(1)(e)(i) of the Migration Act 1958 (Cth) – the specific power under which the cancellation was made). It was accepted also that that power in section 116 imposes no duty on the Minister to cancel a visa-holder’s visa. Instead, the Minister may exercise that power, subject to the requirements of lawfulness, including the principles of administrative law that attach to every exercise of executive power (unless, in exceptional cases, the court accepts these principles have been excluded by statute; that was not the case here).
Even this expression of “agitation” – this minimal degree of judicial scrutiny in response to the applicant’s submissions as to how the Minister (through her delegate) exercised the relevant statutory power against an unvaccinated individual – serves to remind a polity, facing a pandemic and living under an ostensibly powerful executive government, of the importance of basic principles of administrative law, and the paramountcy of the rule of law.
Following a day of technical interruptions in an online hearing accessible (most of the time) to the public via live internet broadcast, during which counsel for the applicant set out the grounds for review and adduced supporting evidence, and after which counsel for the Minister began to make oral submissions, the Judge ordered that the cancellation was unlawful. We therefore did not have the opportunity to observe counsel for the Minister presenting a full and comprehensive defence of this exercise of power by reference to “impermissible merits review” (or denial of “intentional” pressurising of the applicant).
This judicial outcome in favour of the applicant can be juxtaposed against the apparent popular demand in Australia, and the Prime Minister’s declaration, that an unvaccinated non-citizen should be excluded from the country.
The crux of the outcome is that the Minister conceded that the delegate’s decision at the border to proceed to interview Mr Djoković and to cancel his visa (under section 116 of the Migration Act) was “unreasonable”. The key reason why this executive action, taken under a statutory power (section 116), was unreasonable (by concession), and therefore unlawful, can be summarised as procedural unfairness, and a denial of natural justice (whether according to the statutory requirements or according to general principles of administrative law).
- Mr Djoković was told by the delegate that he could have until a certain time (8:30am) to provide comments in response to a notice of intention to consider cancellation under section 116 – which is a legal requirement for the valid exercise of that power to cancel.
- Instead, his comments were sought at about 6:14am.
- The delegate’s decision to cancel his visa was then made at 7:42am.
- Mr Djoković was thus denied until 8:30am to make comments.
- Had Mr Djoković been allowed until 8:30am, he could have consulted others and made further submissions to the delegate about why his visa should not be cancelled.
What of the allegations (and evidence) as to jurisdictional error in the context of this judicial review and the outcome of this case? The Court may have lost an opportunity to apply a greater degree of judicial scrutiny to the executive’s substantive decision-making in this case (whether it was illogical or irrational to decide that Mr Djoković “is or may be, or would or might be, a risk to … the health, safety or good order of” Australia, given the medical evidence provided), and to consider the Minister’s argument that judicial intervention in this case would amount to an “impermissible merits review”.
Albeit disappointing for constitutional and administrative lawyers wishing to see whether a court would indeed apply a higher degree of scrutiny to decisions about who is and who is not a health risk on the basis of their vaccination status, and whether it would intervene and find against a Minister on those grounds, it is significant that the evidence of procedural unfairness was so strong as to cause this Minister effectively to concede defeat. The affidavits, including the relevant transcripts of the interviews with Mr Djoković at the border, and Mr Djoković’s own affidavit, can be found here.
It should be noted that, in spite of this outcome of the visa cancellation under section 116 being quashed for unlawfulness on natural justice grounds, the Australian Migration Act (in section 133C(3), and as noted in the Court’s Order quashing the cancellation) permits the executive government nevertheless to cancel a valid visa, where natural justice does not apply, if the Minister is satisfied there are grounds to cancel under section 116, and if the Minister is satisfied it would be in the public interest to do so. This is a personal power held by the Minister, so it may not be delegated to any other officer of the executive. Alongside the ground in section 116 relating to the health, safety or good order of Australia, one potential ground, contained in section 116, is that the visa holder provided incorrect information, on which the visa was granted in the first place. If the relevant Minister personally pursues cancellation of Mr Djoković’s visa under section 133C(3), although natural justice requirements are suspended, there will be other principles of administrative law (including rationality and reasonableness) that will bind that decision-making process, and entitle Mr Djoković to further judicial review proceedings, if he is minded to undertake them.
But the outcome itself of this judicial review is an overarching reminder, if only for executive governments currently faced with the task of containing a pandemic, that in all of a state’s actions, it must adhere to the rule of law. Sometimes, as in this case, that means exercising statutory powers in accordance with the principles of natural justice, and applying rules of procedural fairness to all individuals equally, whoever they might be.
In all cases, however popular the governmental policy, however vocal populist support might be for a particular action asserting sovereign power, however loved or loathed the individual in question, what matters above all is that the government acts in accordance with the rule of law.
Dr Jelena Gligorijević is a Senior Lecturer in Law at the Australian National University, specialising in constitutional law and media law.
(Suggested citation: J. Gligorijević , ‘Game, Set and Match for the Rule of Law’, U.K. Const. L. Blog (10th January 2022) (available at https://ukconstitutionallaw.org/))