Was Djokovic's 'natural immunity' a threat to Australian policy?
Was Djokovic's 'natural immunity' a threat to Australian policy?
By Maryanne Demasi, PhD and Magdalene L. D’Silva, BA/LLB, LLM, MA
Australia’s deportation of world number one tennis player Novak Djokovic, on the day before the Australian Open, was unprecedented.
While the mainstream media focused Australians’ attention on whether Djokovic completed his visa forms dishonestly or broke Australia’s ‘COVID-19 vaccine rules,’ the submissions and evidence in court would confirm he had not broken any rules.
What was in issue for the Immigration Minister was whether Djokovic’s prior public comments about COVID-19 vaccines some two years back , meant his mere presence in Australia may pose a risk to the health, safety or ‘good order’ of the community, by potentially fostering ‘anti-vaccination sentiment’ and resistance to Australia’s COVID-19 vaccine policy.
Before a COVID-19 ‘vaccine’ was developed, Djokovic said that he wasn’t against vaccines of any kind, he was open minded, but that he wouldn’t want to be forced to take the jab for travel or tournaments.
As the World Health Organisation calls for countries to lift COVID-19 travel restrictions, Djokovic may have a point.
In late December, Djokovic was granted a medical exemption on the basis of his recently acquired natural infection immunity. But many Australians viewed Djokovic’s natural immunity exemption as an elite entitlement.
Djokovic’s legal appeal
In legal submissions and affidavit evidence, the Minister accepted Djokovic’s medical exemption given by eminent double-blinded medical practitioners commissioned by Tennis Australia’s Chief Medical Officer, and endorsed by the Victorian Government’s independent medical panel.
The Minister also accepted that Djokovic presented a low to negligible COVID-19 public health risk.
However Djokovic still presented a problem for the Australian Government.
Although he was just in Australia to play tennis and had not been involved with ‘anti-vax’ protest activities, Djokovic was high profile, had previously expressed personal sceptism about COVID-19 injections and was still unvaccinated for COVID-19.
It was for these reasons the Minister considered Djokovic posed a risk to the ‘health’ of the Australian community because his mere presence may ‘foster anti-vaccination sentiment’.
Djokovic’s Australian lawyers produced evidence confirming his recent COVID-19 infection and recovery, along with Department of Health advice that he was protected from future infection for at least several months and therefore presented a low risk of transmission to others.
The Australian Border Force interview transcript also records Djokovic saying he had submitted a blood test result before travelling, showing he had a sufficient level of antibodies.
The Minister did not read or consider the medical evidence in deciding to cancel Djokovic’s visa. He accepted Djokovic’s medical exemption and assumed, effectively, that Djokovic was not a medical health risk to the Australian community.
Instead, Djokovic was, arguably, considered to be a political health risk because his ongoing presence may encourage others to question, resist and dissent with the Australian Government’s policy of COVID-19 vaccine injections.
What the Federal Court decision seems to show is that the Australian Government’s policy is for everyone in Australia to take a COVID-19 injection vaccine (and boosters). Those who deter Australians’ obedience to this policy may be considered a risk to the ‘health’ of the Australian community.
Natural immunity - ignored?
The lawyers representing Djokovic cited medical science evidence that his recent natural infection would provide him a level of immunity that was as high, if not higher, than double-vaccination.
Further, medical science evidence shows that immunity triggered by SARS-CoV-2 (COVID-19) infection is “extraordinarily long-lasting,” in contrast to the significant waning antibody titres seen with the COVID-19 injections.
This presents a major problem for governments and businesses because robust natural immunity endows people (like employees) with individual autonomy by conferring immunity not only from COVID-19 infection, transmission and disease, but from government surveillance and control as well.
In challenging earlier arguments that Djokovic had not provided sufficient evidence of a ‘medical contraindication to COVID‑19 vaccines’, Djokovic’s lawyers cited medical science evidence showing why he likely faced a higher risk of severe adverse events from a COVID-19 injection after his recent natural infection.
Djokovic’s lawyers wrote that:
"There is a body of medical evidence of medical contraindication against vaccination for those who have been recently infected with COVID-19…
Were a Court to apply the above interpretation … there could be … unintended national policy consequences…"
As the Minister ultimately accepted that Djokovic had a valid medical exemption, the Federal Court did not examine the medical science merits of Australia’s COVID-19 vaccine policy.
Djokovic’s case might still have consequences for Australia’s COVID-19 vaccine policy. But by and large, most Australians have not (yet) considered how the evidence and arguments in Djokovic’s case possibly now raise serious questions about the scientific validity of Australia’s COVID-19 vaccination policy.
Many Australians seem to have instead stayed religiously devoted to Australia’s COVID-19 public health narrative and redirected any pandemic frustration at Djokovic. While Djokovic’s lawyers produced positive opinion polls showing a majority of Australians wanted him to play in the Australian Open, other polls showed that most Australians (71%) wanted him deported.
Although the Minister did not mention negative polls in his reasons for cancelling Djokovic’s visa, he did recognise the risk of negative Australian community reaction to Djokovic and public discord. With a national election due in a few months, this may have been an important factor.
Curiously, the Minister also said that in considering the ‘public interest’, ‘unvaccinated persons create a greater health risk of contracting COVID-19 and spreading COVID-19 to others than vaccinated persons.’
This is questionable given escalating daily rates of omicron infection and transmission in fully-vaccinated Australians leading the US and EU to warn its citizens to avoid travel to Australia.
Djokovic’s lawyers did not challenge the scientific validity of the public health advice relied upon. The Federal Court upheld the Minister’s decision to cancel Djokovic’s visa as there was no legal basis to interfere with it.
Had Djokovic been allowed to stay and play, widespread questions about 'natural immunity' as a genuine alternative to 'vaccination' may have pierced the veil on Australia’s entire COVID-19 public health policy.
Indeed, deporting Djokovic has not quelled questions and dissent about Australia’s COVID-19 public health policies, but elevated them.
Individual Dissent vs Authoritarian Consensus
Australian lawyers and law professors have denounced the deportation of Djokovic as setting a dangerous precedent of authoritarianism for all future visitors who have, or will express, dissent with any Australian Government policy.
Djokovic’s lawyers did not ask the Federal Court to consider whether lawful rally protests of free expression should be characterised as a threat to ‘good order’.
Nevertheless, the Federal Court said that as some Australian rallies against COVID-19 measures had involved some violent activity and the spreading of the disease, it was not irrational for the Minister to be concerned that Djokovic’s apparent position on COVID-19 vaccines may encourage anti-vaccination rally protests that may lead to heightened community transmission. The Minister’s consideration of risk to ‘health’ could include people who may simply be hesitant, wavering or unconvinced about the need for or desirability of COVID-19 vaccination.
This landmark court ruling arguably paves the way for the Australian Government to ban foreign travellers who pose no meaningful risk to the community, as well as showing deep flaws in the discriminatory effect of Australia’s Migration Act 1958 (Cth).
However Dkojovic’s case may have also opened the door to future litigation that challenges the scientific merits of Australia’s COVID-19 vaccine policy.
Other Australian lawyers have said Djokovic was clearly not a public health risk threat either with regard to COVID-19 or in inspiring ‘anti-vaccination sentiment’ and raised serious concerns about the arbitrary nature of cancelling someone because they have unfavourable views.
Other tennis players have extended their support to Djokovic. American tennis player, Tennys Sandgren, who has also not taken a COVID-19 injection and opposes government vaccine mandates, slammed the decision to cancel Djokovic’s visa, tweeting, “You know when an 'icon of free choice' isn’t welcome in a western country, things have gone batsh*t crazy."
Djokovic is considered a freedom fighter by many, but there is a different reception in Australia.
New reports seem to raise a question of conflict of interest after Djokovic bought into a Danish biotech firm back in 2020 that is developing an alternative treatment for COVID-19 which is not a ‘vaccine’.
Djokovic’s refusal to bow to coercive pressure to take a government ordered jab that he did not want or need, arguably allowed others to position him as a new ‘COVID-19 threat,’ on which Australians could redirect their pandemic frustration.
What was also at the forefront of this incident is that the Minister relied on alleged breaches by Djokovic, of COVID-19 protocols overseas after it was reported he attended a group event close to his positive test result.
The Federal Court said it was open to the Minister to infer that Djokovic’s ongoing presence in Australia may foster a similar disregard for Australia’s public health regulations and that his past behaviour may encourage or influence others to emulate his past conduct.
In a lengthy statement, Djokovic said the allegations were "misinformation" as well as "hurtful" and "concerning."
Ultimately, Djokovic’s case may serve to highlight the problem with Australia’s vast and constantly changing COVID-19 public health rules.
Only an hour after Djokovic’s visa was cancelled the first time at Melbourne airport, Australian Prime Minister Scott Morrison tweeted, “rules are rules … no-one is above the rules.”
However, as Djokovic had not actually breached any rules, his lawyers suggested, ‘this is driven by politics, not law’.
In his written reasons, the Minister did not accept that cancelling Djokovic’s visa would ‘create the appearance of political decision-making’.
Be that as it may, the appearance it has cemented is that of a dangerous rise of authoritarianism in Australia.