Covid Tyranny def. Djokovic

Australia’s response to the Covid pandemic has been incredibly heavy-handed. I know. For my sins, I live there. Alone amongst the democratic nations of the world, Australia locked its own citizens inside the country. Only those who received special bureaucratic permission to leave the country were allowed to do so, and there were very few such permissions granted. And virtually no one could get in, either (the odd exception being made for Hollywood types making movies and sporting stars). Meanwhile, the State of Victoria, Australia’s second-most populous, had one of the world’s longest and strictest lockdowns, the city of Melbourne having endured six lockdowns totaling 262 days from March 2020 to October of 2021.

All this was done, implicitly, under the foolhardy aegis of a “Covid zero” policy. Yes, some Australian states were a good deal less despotic than Victoria but the general “we can eradicate this virus” attitude was shared just as much by politicians on the right as it was by those on the left, as both made Covid cases and deaths the only matrix of concern that counted in public policy-making for almost two years. They also elevated a cadre of public health supremos to the role of de facto decision-makers. I have written widely against this illiberalism and public health despotism throughout the pandemic, to zero effect.

But a couple of months ago that all seemed to change as reality set in, vaccination rates got up over 80 percent, Omicron started to explode, and the country opened up and loosened up, at least half-heartedly. Or so it seemed until the world’s best male tennis player, Novak Djokovic, came to play in the first of the year’s four majors, the Australian Open.

Readers need to realize that Australians take sports seriously. And they are very good at them. For a country of 25 million people, far fewer than live in California alone, Australia has top ten PGA golfers; it has the world number one women’s tennis player; it has NBA basketballers; the best punters in the NFL are Aussies (due to the popularity of Australian Rules Football that focuses on kicking a ball in a way not too different from the NFL punts); and it has a top Formula One driver. And that’s just overseas sports. Australia is the top-ranked test cricket team in the world, a sport few Americans admittedly follow, but one which has more worldwide followers and participants than baseball and football and is the national sport here. Then there’s rugby and the list goes on. Take it from me, Australians love sports in a way only Americans who follow SEC college football might understand. And the biggest international sporting event hosted each year in Australia is the Australian Open tennis grand slam.

That brings me to the Djokovic saga, or more aptly, fiasco. The current world number one, Djokovic applied for and was granted a visa to come to play in the tournament. Everyone knew the tennis great (currently tied for the most career grand slam wins with Roger Federer and Rafael Nadal) had not been vaccinated, though he half-heartedly prevaricated on the matter. What few in the media ever go on to say is that not a single professional sports star has died of Covid throughout the pandemic and that this virus is of close to zero risk for the fit, thin, and healthy. Even in Australia, it is not illegal (not yet at any rate) to be unvaccinated. Djokovic had tested negative for Covid and had shown proof of a recent Covid infection. That was enough for him to get the original visa approved. (And though science is always unsettled and in debate, the preponderance of evidence points to natural immunity—getting and surviving the illness—as being at least as protective as any number of vaccines, and most likely a good deal better and longer-lasting.)

Nevertheless, once Djokovic arrived in Australia, one of the world’s most vaccinated nations, the federal government started to panic. This is a supposedly right-of-center government under Prime Minister Scott Morrison. It was elected in 2019 and must hold an election before May of this year. Through its term so far, though, it has governed in an illiberal manner, seemingly unconcerned with freedom-related matters. It has also been a massive spender throughout the pandemic. The Morrison government outspent Canada’s Justin Trudeau government in per capita terms, and noticeably so, which tells you all you need to know. This has caused it to hemorrhage support from its base on the right while gaining next to no support on the left. PM Morrison is way behind in the polls. And once Twitter erupted about this unvaccinated sports star, Mr. Morrison, who has form in caving to Twitter mobs, panicked.

In the Djokovic case, the judges simply conceded the Minister had the power to do deport. It was not a judicial endorsement of the call being sensible or fair or anything else. And the decision was none of those things.

The government decided to try to deport Mr. Djokovic. The first court hearing was on the issue of whether the tennis star had properly obtained his visa. The court ruled that he had, a big Djokovic win and correct in my view. At that point the government had a choice: retreat with a bit of grace or charge onwards, possibly into the valley of political death. It opted for the latter and revoked his visa by ministerial fiat, which Djokovic again contested in court. Contrary to some people’s misunderstandings, this second court hearing had nothing to do with whether the original visa was dodgy, had factual errors, or relied on faulty medical exemptions. This time the Minister claimed the world number one had to go because of the tennis star’s beliefs about vaccination. The ministerial claim, unsupported by any evidence at all, was that Djokovic’s presence in Australia would whip up anti-vax sentiment.

We should be clear: This was about a government suppressing a view it did not like. It was, in its way, an attack on free speech. For what it’s worth, PM Morrison is no friend of free speech, once claiming that repealing oppressive hate speech laws was not his concern as “this issue doesn’t create one job” (which is both wrong on principled grounds and wrong empirically).

At any rate, at the second court hearing, the full bench of the Federal Court decided against Mr. Djokovic and he was deported. Now readers might think this odd, but I believe the court got the law right again. The Migration Act that was in play, enacted in 2014, grants a very wide personal discretion to the Minister. It does so intentionally, in part to deal with unelected judges regularly gainsaying the elected branches on deportations and immigration matters. If you want to be able to deal with the sort of illegal immigration you are seeing in Britain and the US, this is the sort of Act you would want. In other words, in the Djokovic case, the judges simply conceded the Minister had the power to do this. It was not a judicial endorsement of the call being sensible or fair or anything else. And the decision was none of those things.

A supposedly right-of-center government way behind in the polls got sucked in by short-term polling that showed a majority of Australians wanted Djokovic gone. That widespread public reaction is understandable given the despotic rules Australians have had to live under: if our family and friends can’t get in or we can’t have jobs without a jab, why should this multi-millionaire tennis player get in? But in my view, this decision will only play well domestically for a very short while. It’s a short-sighted and ineffective policy (and might even at a stretch endanger Australia’s hosting rights for what is informally thought of as “the Asian Major”). On its own claimed grounds, it will do more to advertise the anti-vax position than quietly letting the star play would have done, as Djokovic never tried to advertise his views.

Basically, this was a political play by a supposedly conservative government that for more than two years has not done a single conservative thing. In need of a boost, it desperately attempted a bit of populism, but even got that wrong, I think. This was not judicial failure. It was political failure by politicians who have forsaken liberalism and freedom.