How to get deported: Novak Djokovic

As the tennis season roars back to life at The Championships and the US Open, throw your mind back to the beginning of the tennis – and legal – year when the Djoker became the Djoke.

The fault heard around the world

After competing in 2021 for a single-year Calendar Slam (holding each of Wimbledon, the Australian, French, and US Opens), the tempestuous Serb fell to Russian Daniil Medvedev at the final hurdle. Djokovic commented that although he had failed, it was the first time he felt like the US crowd – and tennis world – was truly behind him.

Inevitably, pride goeth before the fall.

Basking in public adoration, in January 2022, the fervent vaccine sceptic posted a grinning airport selfie on Instagram stating he had a COVID-19 vaccination “exemption permission” to play the 2022 Australian Open. On the morning of 5 January 2022, he touched down in Melbourne and was detained for the first time by the Australian Border Force.

Djokovic v Minister for Immigration [2022] FCAFC 3

What resulted was a quasi-diplomatic incident as Serbia’s greatest modern cultural export was unceremoniously sent packing. But Australia issued a Class GG Subclass 408 Temporary Activity Visa in November 2021; so how and why did Djockovic find himself on a plane back to Europe?

At play was section 133C(3) of the Migration Act 1953 (Cth) (Act), which permits the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to cancel a visa on the grounds of public interest – such as, say, where a vaccine sceptic tennis-GOAT is likely to win one of Australia’s premier sporting events and in doing so unintentionally rabble-rouse.

The power in section 133C(3) must be exercised by the Minister personally. That is, in contrast to the operation of many other government powers, it may not be exercised by a delegate of the Minister (for example, an employee of the relevant department). Section 133C(3) is often used as a catch-all because the power need not be exercised according to the rules of natural justice (s 133C(4)).

The section requires that the Minister be satisfied of two things: first, that there is a ground to cancel the visa arising under section 116 of the Act, and second, that it’s in the public interest to cancel the visa. The key to the Minister’s decision is not the fact of either requirement but that the Minister is satisfied.

The FCAFC ended up rejecting Djokovic’s three grounds of complaint, finding broadly that:

It was open to the Minister to conclude that Djokovic’s stance on vaccination was “well known” and that he was broadly opposed to it.

It was open to the Minister to conclude Djokovic’s presence in Australia could foster anti-vaccination sentiment.

The Minister’s decision was not impacted by unreasonableness because he had failed to consider the binary counterfactual presented by Djokovic’s legal team.

Regardless of your vaccine views, your views on Novak Djokovic, or your views of the Minister’s extreme powers, the tragicomic political mire of Djokovic’s arrival and deportation did not reflect well on us or our political class.

Game, set, and match.

Soapbox is a Hearsay: The Legal Podcast add-on. If you liked this article why not try our CPD platform for Australian lawyers at htlp.com.au. Catch the latest episodes of the podcast on the Episodes page, but if you’re not quite ready for all that continuing legal education, try Sidebar – the fun, free, no-CPD version of the podcast.

By: Alexander Ross Davis, Producer, Hearsay: The Legal Podcast

It’s time to decriminalise the world’s oldest profession

Sex work has a long history – not for nothing is it, tongue-in-cheek or otherwise, called the world’s oldest profession. In March 2022, Victoria joined the Northern Territory and New South Wales in decriminalising sex work.

But what exactly does “decriminalisation” mean? It’s one of those perennial questions without a simple answer. For Victoria, beginning 10 May 2022, a raft of changes came into effect in the state decriminalising certain parts of the sex work industry, including street-based work, certain advertising, and working while infected with an STI.

The remaining patchwork criminalisation of sex work across the rest of Australia perpetuates a harmful stigma which indirectly, and wrongly, affords protection to potentially violent customers because workers live in fear the of law.

Breaking bad… taboos

Sex workers have long been excluded from public discourse thanks to puritanical and anachronistic ideologies which attempt to erase their very existence. The criminalisation of sex work is one offshoot of such limited worldviews.

The avoidance of public discussion about traditionally “taboo” topics such as sex work has historically prevented, and is preventing, the access to justice that sex workers need and deserve. Latent social anachronism towards sex work is especially confounding given many workers identify as members of hot-button vulnerable groups, such as those from LGBQTIA+ community, or from migrant backgrounds.

It’s especially disheartening that over the past few decades and multiple waves of feminism, sex workers are regularly left out of vital feminist conversations, despite being one of the largest victims of gender-based violence. Breaking down barriers and engaging in these conversations is fundamental to the functioning of our legal system.

The Sex Work Decriminalisation Act 2022 (Vic)

On 22 February 2022, Victoria passed the Sex Work Decriminalisation Act 2022 (Vic) (Act). The legislation is a welcome change because it increases the legal protections available to sex workers in the state. Decriminalisation in this particular Victorian sense generally means the repeal of existing offences and penalties for consensual sex work.

The Act is split into two effective waves, with the first commencing on 10 May 2022 and the second in December 2023. The first wave of legislation decriminalises certain aspects of the industry such as street work, while the second wave focuses on abolishing the existing licensing regime, changes to planning controls, and the repeal of specific brothel and escort provisions in the Public Health and Wellbeing Act 2008 (Vic).

Importantly, the legislation is government recognition that “sex work is legitimate work and is better regulated through standard business laws”. To that end, the industry will be monitored and regulated by Victoria’s current workplace health and safety watchdog – WorkSafe Victoria.

There is still a long way to go with adequate legal protections for sex workers across all Australian states and territories, and an even longer way to go with eradicating the harmful stigma around sex work, but the future is looking bright with a number of passionate advocates leading the voice of reform.

Have you completed your mandatory continuing legal education this year? Hearsay: The Legal Podcast is a CPD provider for Australian lawyers which publishes up-to-date, on-the-go continuing legal education for solicitors and barristers.

By: Zahra Wilson, Paralegal, Hearsay: The Legal Podcast

How to unmask an anonymous troll (according to the government)

On 28 February 2021, then Prime Minister Scott Morrison announced in a media release that the government would be proposing legislation that will give courts the power “to force global social media giants to unmask anonymous online trolls and better protect Australians online“.

The Online Safety Act 2021 (Cth) (Act) passed later that year and made it easier for the targets of online comments to commence defamation proceedings against people criticising them online.

Step 1: Be a politician

Coincidentally Christian Porter, Peter Dutton, Andrew Laming, Anne Webster, and John Barilaro commenced defamation proceedings in 2020/21. So much for speaking truth to power.

The government claimed that the Act was a “world-leading move”, however, there was a foreign government that pipped us to the (political) post: Saudi Arabia – the renowned bastion of free speech and human rights.

Step 2: Invest the internet police with relevant power

Our Act expanded the powers of the eSafety Commissioner so that they are now able to fine or penalise individuals who post cyber-abuse material that targets adults. Cyber-abuse material targeted at an adult is defined as material posted online that “an ordinary reasonable person would conclude… [it] was intended to have an effect of causing serious harm to a particular Australian adult” and that same person “in the position of the Australian adult would regard the material as being, in all the circumstances, menacing, harassing or offensive.”

If material is deemed as cyber-abuse material then, under section 89, the Commissioner can provide the person who posted the offending content with 24 hours to remove it or risk a $110,000 fine. It’s at the discretion of the Commissioner whether this notice is issued after a complaint has been made.

Most importantly for anonymous internet dwellers, under section 194 of the Act, the Commissioner can require social media platforms to hand over users’ private data including their identity if it is relevant to the operation of the Act. The Commissioner is given full discretion in determining when a user’s identity is relevant to the Act.

If a social media platform doesn’t comply with forking over the user data, it could potentially cop a $22,200 fine. This may seem like a drop in the bucket, however, if a social media platform decides that they don’t want to violate users’ privacy then it’s essentially $22,000 in the Commissioner’s back pocket every time they ask for it.

Step 3: Go after the basement dwellers

Now that a troll’s personal data has been exposed, they can be sued for defamation. In Australia, a plaintiff doesn’t even have to prove that the statement is false. They can take a public stance that the statement isn’t true AND they don’t have the added baggage of having to prove it! They don’t even have to be named in the offending post. How good!

Then, they can drag the troll through the court system and make them rethink the day they foolishly decided to pipe up and voice their criticisms. Once they’ve had enough, it’s likely they’ll be begging to settle outside of court and the case will get dropped. Too easy!

The people more likely to be affected by this are the people whose identities are being revealed at the eSafety Commissioner’s discretion. This paired with politicians’ seeming propensity to sue for defamation, has the potential to be a deadly mix for people who dare criticise the people in power.

The Hearsay podcast is a CPD podcast for Australian lawyers in the format of your favourites from the podcasting world. Hearsay takes an experienced guest through an area of their expertise to get you fun, convenient CPD the way you want it. Catch all the Episodes on the website.

By: Jacob Malby, Legal Researcher, Hearsay: The Legal Podcast

How to get deported: Novak Djokovic

It’s time to decriminalise the world’s oldest profession

How to unmask an anonymous troll (according to the government)

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