Novak Djokovic and the Value of Administrative Law
In a few minutes, Novak Djokovic’s challenge to the validity of the decision to cancel his visa is going to get underway before Australia’s federal court. You can access the court materials here. The live stream will be here.
I do not think Djokovic is likely to win this case. He bears the onus to demonstrate that the Minister acted legally unreasonably, which includes an onus to demonstrate that any irrationality or illogicality in the Minister’s reasons made a material difference to the outcome. But the statutory power to cancel a visa in s. 116 of the Migration Act is extremely broad: it allows the Minister to act when “satisfied” (a subjective, rather than objective standard) that someone’s presence in Australia could conceivably cause harm to health, safety or good order; and the power is vested in a politically accountable official who is well placed to make judgement calls about the public interest. Accordingly, it will be very difficult for Djokovic to identify a serious error which renders the decision legally unreasonable.
We will see, soon enough, whether I am right about that. In this post, I want to draw attention to a remarkable feature of this case: the extensive reasons given by the Minister. You can read them in Djokovic’s supporting materials (from p. 13 of the PDF).
Immigration has traditionally been a prerogative of the executive, an island of unregulated discretion in the legal system. But over the last half century or so, courts around the common law world have landed on this island, wielding principles of procedural fairness and substantive reasonableness. Several generations ago, it would have been unthinkable that a Minister would give any reasons — still less 10 pages of reasons! — to support a decision to cancel a visa.
Yet because the courts now stand ready to scrutinize executive action, ministers can no longer rely on authority alone to make decisions. They must engage in the reasoned exercise of public power (even where, as here, Djokovic is not entitled to any procedural fairness prior to its exercise).
Perhaps the most remarkable aspect of the Minister’s reasons is the consideration of Djokovic’s interests, especially the reputational damage he would suffer as a result of his visa being cancelled. A direct line can be drawn from the Australian courts’ articulation of the principle of legal unreasonableness to these reasons: without such consideration, the decision may well have been held to be invalid. Again, if one rolled the clock back 50 years, one would not find much support for the idea that an immigrant’s reputational interests could be a relevant consideration for a minister exercising a sweeping statutory power.
Of course, officials do not always respect the precepts of administrative law. The first case brought by Djokovic — against officials who channelled the Queen from Alice in Wonderland (“Sentence first–verdict afterwards”) — is an ample reminder of that. Though notice that there the courts were ready to intervene.
Administrative law is no panacea. Hardly any immigrant has Djokovic’s resources and will receive the Cadillac justice he has been receiving. But today’s hearing is an important reminder of the value of administrative law in pushing ministers and others to justify their exercises of public power in reasoned terms.
This content has been updated on January 15, 2022 at 22:23.