“It’s very different from [denying a visa] for someone who has expressly said something about inciting violence or encouraging unrest,” he said. “The reliance on how someone might be perceived sets an impossible standard for that person to meet.”
It was also ironic that the government’s attempt to remove Djokovic had given his views a week of international attention, he said. “They have magnified the anti-vax voice.”
Mr Stanton and Ms Wright said the case highlighted the danger of the Immigration Minister’s power to make what they described as arbitrary decisions. Under powers described by a former Labor immigration minister as “god-like”, the minister can cancel someone’s visa if they believe the person may – rather than will – risk public health or good order.
The debate came as fans of the 20-time grand slam winner protested outside Melbourne’s Federal Court buildings on Sunday. The crowd went silent as the decision was announced and one woman began to cry.
Australian Lawyers Alliance spokesman Greg Barns, SC, a barrister experienced in migration cases, said the government would be justified in blocking Djokovic if he was coming to Australia to spruik anti-vaccination views. “But he’s coming here to play tennis, and his views [on vaccination] are somewhat muddied,” he said.
“While we understand the importance of public health … it’s dangerous in a democracy to refuse entry to an individual who happens to have views contrary to government policy, particularly when the person is coming to Australia for a purpose that is unrelated to those views.”
Mr Barns said the case could, hypothetically, set a precedent for a musician to be blocked if they were well known for opposing the US-Australia alliance, on the basis the person might diminish public support for a pillar of Australian foreign policy and national security.
The government initially blocked Djokovic’s visa on the basis he did not have a valid medical exemption. But its second visa cancellation was underpinned by the new rationale that he was a risk to public health and good order based on his vaccine-scepticism.
Ms Wright said the new reasoning used by Mr Hawke “smacked of arbitrariness” and highlighted the undue extent of the minister’s discretionary powers.
The mood of Djokovic’s supporters outside of Melbourne’s Federal Court dampened as the bench announced its ruling against the tennis star on Sunday evening.
Mina Zogovic said she had lost faith in Australia.
“It shows how they are, it shows what they are for. This is no longer a democratic country,” she said. “The man came here to play tennis, he came here to play the game he loves, he came here to do his job … he’s not some sort of criminal.“
Ms Zogovic accused the government of playing politics and sent the tennis pro the following message: “Nole [Djokovic’s nickname], the only way they could stop you from winning that 21st grand slam is to not let you play at all.”
Slobadan Bendjo said he respected the court’s decision, despite his disappointment.
“A lot of people are confused about the legal system now here in Australia,” Mr Bendjo said.
“I have a lot of friends in China and Russia are asking, how is that possible the minister is above the court the law?
“It’s very bad for the image of the country. When you have a number one tennis player invited here. It’s all clear. And then all sudden stopped at the airport and and drama starts and it goes for about 10 days?
“The court was saying if he stays here that may encourage some social movements in this country. That’s pure speculation.”
Supporters had maintained their presence from early Sunday morning.
Mliden ljanovic welled up in tears after the announcement.
“I feel Sad. Very sad. Sad. Sad. Sad,” he said.
“Novak’s job is to come here and play. He’s not anti-vaccine. In this world I’m not surprised by anything anymore. They tell us it’s a free country, free speech and this is what they do.”
With Ashleigh McMillan, Marta Pascual Juanola and Abbi Dib
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