(Image: Mitchell Squire/Private Media)

The Novak Djokovic court case ended with a whimper. The Commonwealth government, part way through its submissions, effectively conceded that it couldn’t win. That was not because it recognised it was on the wrong side of a cranky judge’s favour, but because its defence was utterly hopeless.

Simply put, the Australian Border Force had fucked up the procedural steps it needed to take to give valid effect to the ultimately correct decision the government wanted it to make: to cancel Djokovic’s visa. Those steps are set out in simple detail by the Migration Act; a moderately competent counter clerk at the motor registry could have followed them and got them right. If Border Force had managed that, Djokovic would have had no case at all.

The direction to intercept Djokovic when he landed, put him in a holding cell and fast-track his deportation was undoubtedly a political one; you’d be a fool to think otherwise. The procedural handling, however, was left to the officers whose job it is to know and follow the simple rules of due process that the law stipulates.

We should be asking how they managed to stuff it up so badly. Anyone who has had to deal with the Department of Home Affairs knows the answer. It is rooted in the organisational principles embedded in that empire since it was created by Malcolm Turnbull as a sop to Peter Dutton’s ambitions. It remains a bureaucratic expression of Dutton’s peculiar worldview.

We are a billion miles from what “immigration” was traditionally meant to be: the facilitation of an orderly welcoming of arrivals, permanent and temporary, to our precious shores. Under this government, beginning with Scott Morrison’s reign as immigration minister and accelerated under Dutton when immigration was folded into the quasi-militarised Home Affairs super-ministry, the welcome sign was removed and “border protection” became our national stance.

The hotel in which Djokovic was held, the Park Hotel in Melbourne, is an “alternative place of detention” (APOD), of which there are many around the country. They are like black sites — not proper immigration detention facilities but off-grid holes in which refugees and asylum seekers are hidden in the system. Last year my firm filed a case in the Federal Court on behalf of one of the Park Hotel’s former inmates, arguing that the APOD system is entirely illegal because it is not authorised by the Migration Act at all. If we’re right, then everyone who has ever been held in an APOD will have a claim for substantial damages for unlawful imprisonment. Yes, including Djokovic. That case will be heard this year.

Why do they use APODs instead of providing fit-for-purpose accommodation for immigration detainees? For the same reason that, back when we and many other lawyers were running medivac cases to force Home Affairs to bring sick detainees back from Nauru for proper medical care, the government routinely fought every case and made it as hard as possible to achieve the logical and humane outcomes that saved people’s lives. It’s why they argued with a straight face that it would be better to send someone to Taiwan for medical care than bring them here.  

It’s why Reza Barati’s murder on Manus Island was covered up and ignored. It’s why Hamid Khazaei died an entirely preventable death after Home Affairs bureaucrats blocked doctors’ desperate pleas for his medical evacuation from Manus.

In November, we took on the case of an asylum seeker who has been in the limbo of our detention system since he tried to come to Australia as an unaccompanied minor in 2013; he is a stateless Rohingya. On his uncontested account he has been the victim of several violent and sexual assaults inside immigration detention centres in Australia. 

We became involved following a stabbing which nearly killed him, because Border Force’s proposed solution to the ongoing risk to his safety was a plan to move him from the centre in Perth, where he was then held, to the Alice Springs prison. There he was going to be held in the maximum-security wing and subject to the usual rules applicable to serious criminal offenders. He is not accused of committing any crime.

We spent several days trying to get Border Force, Home Affairs or the Australian Government Solicitor to answer our urgent calls, to not do this awful punitive thing to our innocent client. No response. So we filed an urgent application in the Federal Court and, would you believe it, miraculously the AGS turned up for the hearing a few hours later with a barrister fully briefed and clear instructions from the minister that our client would not be moved to Alice Springs without giving us 48 hours’ notice. They could have told us that any time earlier, to save the need for court proceedings and wastage of the court’s resources, but no. It had to be made as hard as possible.

The cruelty, as is so often said, is the point.  

If you read the transcript of how the ABF officers dealt with Djokovic, polite as they were in deference to his VIP status, the cruelty is still obvious. Absent is humanity, no surprise, but also absent is basic competence.

It is embarrassing to say, but the agency charged with protecting Australia’s borders is not competent to do the job. It is a Potemkin battleship, sparkling uniforms and all. Its focus is on prevention, and it has been taught that deterrence requires cruelty. It has become mindless in that pursuit.

Consequently, when for once the spotlight was turned on — solely because the victim in this instance was a celebrity — and Border Force needed to follow a procedure no more challenging than the recipe for boiling an egg, it wasn’t up to it.