Flat White

Freedom of political communication

22 January 2022

9:00 AM

22 January 2022

9:00 AM

I suspect the people who voted for Alex Hawke and Scott Morrison will not be particularly persuaded by the seriousness of their actions vis-à-vis Djokovic; but as I will endeavour to show, it is not just a case of removing a tennis player from jurisdiction.

The full Federal Court may have given Hawke’s decision a thumbs up, but it starts and finishes with Morrison. He does not understand the political art and as a result, he is a danger to the liberties of democratic government.

Morrison’s mistake is common to many people. They think that managing a business is the same as governing a country. They ignore the necessity for prudence and political wisdom. If you have watched Scott Morrison carefully, you will notice that the most important thing is the PR, the optics, ‘the look’ as they say.

It was assumed that Novak Djokovic would be a danger to the Morrison government because they thought he would challenge the government’s narrative on Covid vaccination and influence public opinion – he would ‘harm the optics’. Morrison knows all about the ‘optics’ because he was in advertising and marketing.

We could spend hours arguing about the deportation of Djokovic from Australia and whether Minister Hawke’s reasons for cancelling his visa were sufficient at law. The Court, however, was only concerned with the process of the decision making rather than the result. Though Alex Hawke said he held an opinion, it is generally thought that the cancellation could not be challenged unless the process he followed in cancelling the visa was wrong at law.

It was not open to Djokovic to argue that Hawke’s opinion was wrong, or insufficient. The Court was only interested in the process Hawke followed. Whether the law that the Court was obliged to follow is itself sufficient is another question. The Court’s hands were tied with respect to the merits of the decision, but its adoption of Dixon CJ’s legal positivist legal reasoning did not give all sides confidence in the outcome.

The reason that the Minister gave for revoking the visa and the one reportedly relied upon by the Court for confirming that decision was:

I consider that Mr Djokovic’s presence in Australia may pose a health risk to the Australian community, in that his presence in Australia may foster anti-vaccination sentiment leading to (a) other unvaccinated persons refusing to become vaccinated, (b) other unvaccinated persons being reinforced in their existing view not to become vaccinated, and/or (c) a reduction in the uptake of booster vaccines.

Specifically this may lead to one or more of the following: (i) an increase in anti-vaccination sentiment being generated in the Australian community, leading to others refusing to become vaccinated or refusing to receive a booster vaccine; and/or (ii) a reinforcing of the views of a minority in the Australian community who remain unvaccinated against Covid.’

There are other banalities in Hawke’s reasons, but significantly they all show an amazing disdain for the right of people in Australia to hold, entertain, or express opinions that are contrary to the opinions of the Commonwealth and state governments. This entails a breach of the Constitution. Some thirty years ago, the High Court looked at this issue and it concluded that the Australian Constitution contained an implied guarantee of free political communication. It was thought to be necessary in a democracy.

Now, whether you believe that Mr Djokovic holds an opinion about vaccination that is contrary to that of the Commonwealth government, its experts, or any state government is largely beside the point.

Vaccination against Covid is not compulsory, which implies that the decision to become vaccinated is up to the individual. Those who do not wish to be vaccinated – at least at the moment – don’t have to be; but those who want to make an informed decision about vaccination are entitled to obtain information and arguments from anywhere they choose.

Surely, their choice must depend on something more than Morrison’s motet: ‘We’re all in this together’ as if an advertising ditty is a scientific statement about the total efficacy of a vaccine.

If a citizen’s decision to be vaccinated involved listening to Mr Djokovic, obtaining his views, and challenging that opinion where possible – perhaps he hasn’t seen Morrison’s motet – that is the political purpose of the ‘freedom’ that the High Court said is guaranteed by the Constitution.

The Minister asserted that Mr Djokovic’s presence in Australia may ‘foster anti-vaccination sentiment’, a very doubtful proposition at best, but completely irrelevant since the government’s policy is nothing more than a wish.

It was more likely, given that about 85 per cent of the 5+ age population are vaccinated with insignificant side effects (so far), that Djokovic’s views, assuming they are as the Minister asserted, would have been changed by the presence of such overwhelming evidence, which would have brought immense worldwide benefits.

The benefit that free political speech brings to a nation is that it allows the people to confirm or reject government political wishes. The High Court found political speech guaranteed in the Constitution. When Alex Hawke cancelled Djokovic’s visa because he feared what Djokovic might communicate, he was in breach of the Constitution; but it was the government who were prepared to demonstrate just how ready it was to cancel your political communication; and I’m surprised that the Court would ratify such a base desire.

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