Djokovic Appeals Minister of Immigration's Decision - A Critical Case Looms

"The personal opinion of the Minister is extraneous and irrelevant"

On 14th January 2022, the Immigration Minister of the Commonwealth of Australia, Alex Hawke, used his ministerial power "under section 133C(3) of the Migration Act to cancel the visa held by Mr Novak Djokovic on health and good order grounds, on the basis that it was in the public interest to do so." Djokovic lodged an appeal against the minister's decision which was held and televised on Saturday 15th January 2022, however, the full bench of the Federal Court decided in favour of the minister on the grounds that under the Migration Act, the minister's powers to revoke a visa is "final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." Djokovic was duly deported from Australia, denied the ability to defend his Australian Open title. He has subsequently commenced a legal action against Australia for his treatment and loss of earnings. https://stolzuntermenschen.blogspot.com/2022/01/djokovic-vs-minister-for-immigration_18.html

At the time of the Federal Court's decision, some legal and constitutional commentators expressed the view that the Federal Court indeed had no jurisdiction to hear an appeal against the minister's decision and erred in its decision. Instead, the case should have been heard in the High Court. In Australia, the High Court is the highest court in the land. It is both a court of appeal against decisions made in lower courts but also has jurisdiction to hear cases directly, especially where matters touch on the Constitution. Few Australians know anything about our Constitution. It is no great work of literature like the Constitution of the United States, but a relatively short and rather tersely worded Act of Parliament of Great Britain that defines the rules for the operation of the government of the Commonwealth of Australia. Reading it alone, one may come away with the impression that 'we the people' do not count for much in the constitution as we are barely mentioned. This is what our government would like us believe of course, but that would be wrong. To understand the meaning of every clause and word used in the Constitution, one must referred to the Annotated Constitution of the Australian Commonwealth by Justices John Quick and Robert Garran (1901). The Annotated Constitution is 1056 pages of extremely detailed legal explanation of every right, power and obligation of the supreme law of this country. It is important - critical in fact - to understand that the Constitution protects the rights of every man, woman and child in the country and that we, the people are the “Supreme, Absolute, Uncontrollable Authority”, not the politicians. https://constitutionwatch.com.au/annotated-constitution/ It is also an extremely detailed history of the evolution of law and human rights, not only in Australia but across the world.

Djokovic's legal team are now appealing the authority of the minister to revoke his visa on Constitutional grounds. At issue here is a fundamental point of law of whether politicians, in drafting the powers of their office in legislation, are able to set those powers above the Constitution, which is the ultimate source of authority for all law in this country. I believe the Constitution is clear on this matter and that answer is firm no. I will quote some of the arguments from their submission to the court, emphasizing key points were appropriate in bold.

The legislative authority of the Commonwealth is derived pursuant to section 51 of the Commonwealth Constitution. The pertinent clauses relating to this case are:

SECT 51. Legislative powers of the Parliament.
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
(ix.) Quarantine:
(xxiiiA.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:
(xxvii.) Immigration and emigration:

The powers defined under the Constitution s51 act as a restraint upon the government and must be read together, i.e., the government cannot pick and choose which clauses to apply or ignore. So, while the government can enact legislation to regulate immigration, it cannot demand or require anyone to undergo a medical procedure as this authority is explicitly denied the government under s51 clause xxiiiA. Djokovic's lawyers argue:

"All constitutional guarantees operate as a restraint on legislative power and disapply any authority in the part of the executive to exercise any personal discretionary powers contrary to this prohibition. Thus the personal opinion of the immigration Minister in relation to vaccination is irrelevant as the Commonwealth’s authority to force vaccination does not exist and is prohibited under the Constitution. Furthermore, the Commonwealth acknowledged Mr Djokovic was not a serious risk and therefore the decision in the matter had no basis in fact or law."

Opponents of the mandatory vaccination regime have long argued that neither the state nor federal governments have any lawful authority due to the Constitutional guarantee against medical conscription at s51 xxiiiA. In 2021, the Victorian Supreme Court, in a serious error of interpretation, narrowly ascribed the guarantee to be limited to 'military conscription of medical services' in a finding against the petitioners. Case law against any form of medical conscription (enforcement) is conclusive on this matter and that erroneous decision is being appealed in the High Court.

The second part of the Djokovic appeal touches on public health and the powers of quarantine. Djokovic's lawyers continue:

"The only authority that the Commonwealth has to make laws in relation to people's health is the quarantine power pursuant to section 51(ix). The Commonwealth has made a law in the Biosecurity Act in relation to quarantine, that law makes it very clear that a person is only subject to quarantine powers when laboring under infectious disease. The immigration Minister has no authority in relation to quarantine, that power being exercisable [only] by Biosecurity Officers. No control order was issued by these officers on Mr Djokovic. Therefore Mr Djokovic was no longer subject to Federal Jurisdiction on the grounds that quarantine powers could not be exercise against him without showing signs or symptoms of an infectious disease.

Mr Djokovic did not have any signs or symptoms of any infectious disease so he was not subject to that Act. The other question that must be asked and answered is does the Minister have authority under the Bioecurity Act? The answer to that question is no. When Mr Djokovic entered the country he should have been looked at by Biosecurity officers, they and they alone would have determined whether he was laboring under an infectious disease and therefore issue a control order against him. Mr Djokovic does not have any control orders against him, he has therefore satisfied the quarantine powers of the Commonwealth and is no longer subject to federal jurisdiction upon entering to the State of Victoria, he was subject to state jurisdiction and yet again on two accounts he was deemed to be safe..."

Summing up the arguments, Djokovic's lawyers affirm - above and beyond Mr Djokovic's personal situation - the governments of the Commonwealth, state and federal, do not have any lawful powers to impose either immigration controls, vaccine mandates, lockdowns, or restrictions on interstate or international travel.

"The Commonwealth authority to make laws in relation to immigration are only granted subject to this Constitution and that draws in the prohibition against civil conscription, a forced legal or practical compulsion to have a medical service such as vaccination. As there is no legislative authority to support the actions of the Minister his personal opinion is an irrelevant consideration of the court, “The constitutional constraint does not operate directly upon the exercise of executive power. It invalidates the executive act only by operating upon the legislation, disapplying the legislative authority for the executive act if the legislation would otherwise trespass against the constitutional limits upon legislative power.” The Migration Act is invalid in its operation as it contravenes s51(xxiiiA).

The Minister is basically stating that he will only allow entry into the country to those that are vaccinated, a power the Commonwealth clearly does not possess.

The ruling of the Federal Court not only was it applicable to Mr Djokovic personally but has ramifications to the population as a whole."

Djokovic's lawyers close their arguments by challenging the Federal Court's decision and failure to consider the Constitutional guarantees and prohibitions in weighing their decision.

"The judges acted on a wrong principle; the Minister cannot exercise his own personal opinion contrary to law as the discretionary power granted to him can only be exercised so [i.e., in accordance with the law and Constitutional guarantees]. The personal opinion of the Minister is extraneous and irrelevant, and the court allowed itself to be guided or effected by him. The court failed to take into account the material consideration that the Minister himself considered Djokovic was a low risk in spreading the virus, his vaccination status being irrelevant. Furthermore, it is clear that the court has committed further jurisdictional errors in believing that decisions on the basis of unreasonableness, irrationality or illogicality do not constitute grounds for judicial review and fall within the realms of judicial review ultra vires of the court."

That the courts, especially those in the state Supreme Courts, have been acting partially in these matters is highly concerning. State courts, refusing to hear constitutional arguments within their jurisdiction, are acting unconstitutionally. ALL law in this country is subject to the Constitution. Djokovic's lawyers fired a particularly telling shot across the Federal Court's bow with this statement "The constitution does not allow immunity to be confirmed on lower courts against judicial review of their decisions." The message here is clear - you need to follow the law or your decisions will be invalidated on appeal.

The government, in its desperation to achieve a propaganda victory against 'an icon that could be used by the vaccine hesitant', has burned the already shabby credibility of the Federal Court. Well, it achieved a fly-by night win but at the same opened the door to a High Court challenge that has the potential to completely destroy their entirely unlawful over-extensions. A loss in the High Court - and by any reading of Constitutional law - the government is facing a loss that would bring down the whole house of cards. At a stroke, the Migration Act and many other pieces of legislation will be automatically invalidated. By extension, all the numerous state laws around vaccination will also be immediately invalidated as the states no more have the power to enforce medical conscription than the federal government does. Section 109 of the Australian Constitution states: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid". Section 109 is invalidating or destructive; it has no reconstructive aspect. Its operation is automatic and does not require a judicial order. All laws the State Government propose that exceed their authority or contradict Federal laws are automatically invalid.

There are separately several cases going through the High Court at the moment arguing this fundamental point of law. Djokovic brings big guns and deep pockets to the table. The word to use is 'own goal.'

For more information: https://constitutionwatch.com.au/further-legal-argument-to-support-the-decision-in-the-djokovic-matter-being-absent-jurisdiction-and-the-requirement-of-the-federal-court-to-remake-the-decision-according-to-law/

Notice of jurisdictional error: https://constitutionwatch.com.au/notice-to-the-federal-court-of-jurisdictional-error-in-the-matter-of-djokovic-v-minister-of-immigration-citizen-migrant-services-and-multicultural-affairs-mlg116-2022/