In one of the most highly publicised administrative law cases in recent history, Novak Djokovic’s case in the Australian Federal Circuit Court shines a light on the important but often overlooked role of judicial review in the Australian legal system, and the power of procedural fairness and reasonableness in overturning government decisions.  

In this article, Alistair Bridges (special counsel and Accredited Administrative Law Specialist) and Emily Jennings (partner and head of dispute resolution), put aside the politics and public opinion to look at whether the legal issues at play in the Djokovic case could influence ‘procedural fairness’ and ‘unreasonableness’ arguments in future judicial review matters.

From tennis court to courtroom

Like many countries, Australian law provides mechanisms for decisions made by governments to be openly challenged in court. A rich body of administrative law (both legislation and case law) has developed in Australia to provide some checks to the exercise of executive power. Administrative law does not usually attract much public attention, but it is an important pillar of our legal landscape.

At the heart of any judicial review, and indeed the central issue in the Djokovic case, is whether the government has made a decision ‘according to law’. The question for the court is whether or not the government has strayed beyond the powers afforded to them under law (e.g. as set out in legislation) in making the challenged decision.

Seems simple? In true legal fashion, what this means in real life will vary depending on the circumstances and can often become the subject of intense debate and disagreement.

The starting point is always the words in the legislation being applied. But as anyone who has studied statutory interpretation will tell you, even the best-drafted legislation can end up being ambiguous and uncertain, paving the way for an inevitable legal joust.

In the Djokovic case, this is exactly what happened. A decision was made under s 116 of the Migration Act 1958 which allows the Minister to cancel a visa if satisfied that one of the listed reasons for cancellation applies. Here, the Minister claimed to be satisfied that Djokovic (paraphrasing the legislation) ‘…may be, or would or might be, a risk to… the health… of the Australian community…’. This was on the basis of his non-vaccinated status, and despite his claim that he had a valid medical exemption. Unsurprisingly, given the commercial and reputational stakes involved, Djokovic sought a review of this decision in the Federal Circuit Court.

Unwritten rules of government decision making

Like a good tennis rally, there were a myriad of technical arguments exchanged as to whether the cancellation was allowed under the legislation, whether based on misinterpretation, or some other wrong step in terms of the legislation.

Ultimately, however, the outcome achieved was not because of the success of the government or Djokovic on any of those technical legal arguments. Important questions about the relationship between the Migration Act 1958, the Biosecurity Act 2015 and the Australian Technical Advisory Group on Immunisation (ATAGI) Guidelines in enforcing border entry requirements were not answered.

Instead, Djokovic succeeded by convincing the government to admit that the cancellation decision was unreasonable because of the actions of Australian Border Force in making a decision earlier than had been agreed with him, and before he could speak with his representatives. Without getting too legal in our explanation, the government’s concession did not expressly include anything about there being a breach of procedural fairness. But reading between the lines, the unreasonableness in how the decision was made could have also amounted to a breach of procedural fairness. This was something that was strongly argued for by Djokovic’s lawyers.

Procedural fairness is an unsung hero of Australian administrative law. It is based on the very simple idea that government decisions must be made fairly. Philosophically, you might think of this as the legal equivalent of Australia’s well-known predilection to give everyone a ‘fair go’. A person should know the critical issues to be addressed in any decision-making process that affects them and should be given a fair opportunity to respond to those issues before a decision is made.

The current judicial philosophy is that procedural fairness is an ‘implied’ condition in legislation, meaning that it applies even if not expressly stated. What is required to ensure fairness will vary depending on the context of the legislation that is being applied... which is another fine example of the law leaving things open to interpretation.

Similarly, ‘unreasonableness’ is based on the fairly unextraordinary expectation that a government decision maker will exercise a discretion reasonably. When will a discretion not be exercised reasonably? When the decision is unreasonable of course.

For a long time, the bar to prove a decision was unreasonable was set very high. The test was whether the decision made was ‘so unreasonable that a reasonable authority could not have come to it’.

In 2013 the High Court reframed the test and lowered the threshold. In Minister for Immigration and Citizenship v Li [2013] HCA 18, Hayne, Kiefel and Bell JJ acknowledged that ‘[t]he legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably’. In more simple terms, the question of what is reasonable in any given decision will be informed by the scope, purpose, and real object of the statute. Again, more room for interpretation.

Making decisions is not child’s play

The idea that government decisions should be made fairly and reasonably seems so obvious that it should go without saying. Nonetheless, it is common to find government decisions that have not been made with due consideration for the rights of the citizen to make submissions, or to otherwise defend his or her interests.

Government decision makers are busy people, and frequently find themselves under great pressure from departmental superiors and their political masters to ensure that broad-based policy goals are achieved in their administration of a particular statute. In these circumstances, due regard for the interests of the individual can go missing, not through vindictiveness or any ulterior motives of the officials involved, but simply because of ‘the machinery of government’. And the decision makers are rarely lawyers themselves and may have to make decisions without the benefit of immediate legal advice.

Thus, there is often good reason for a decision to be set aside, because someone has not been afforded procedural fairness or the decision is unreasonable in the circumstances.

Djokovic won the set, but who will win the match?

In arguing against Djokovic’s case, it became clear to the government that the timeline of events in making the cancellation decision was going to be difficult to defend. Djokovic was told he had until 8:30am to respond to the government’s questions, but the government sought his responses at 6:14am and then made the visa cancellation decision at 7.42am without hearing further from Djokovic. In essence, the government faulted on its first serve.

But events continue to unfold. A win on fairness and reasonableness does not guarantee an overall win. The decision can still be made or re-made, in the same or a different way, provided that is done lawfully and within the bounds of reasonableness and procedural fairness. The Migration Act 1958 is complex, and the Minister has multiple powers to cancel a visa. One thing we can be sure of is that the government will now do its best to decide what to do next, if anything, ‘by the book’. To use yet another tennis analogy, the government will definitely not ‘rush the net’.

Fairness and reasonableness are paramount

The Djokovic case is not ground-breaking. Indeed, the parties entered into consent orders, and the court did not make any judgment on the substantive issues.

This preliminary outcome, and how it was reached, reminds the public, and indeed the government, that no matter how ‘justified’ or ‘appropriate’ a decision may be according the words of the relevant legislation, the obligations to be reasonable and to afford procedural fairness are paramount in arriving at the decision. These principles are the foundation of good decision making and will rightly be enforced and upheld, regardless of the consequences.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

© Moulis Legal 2022