An Analysis of the Law Society’s Cloud Computing Guidelines

An analysis of the Law Society of South Australia’s Cloud Computing Guidelines

MARK FERRARETTO, SOLICITOR, EZRA LEGAL

The Law Society publishes Cloud Computing Guidelines1 which quite rightly guide legal practitioners through the various risks and issues associated with adoption of cloud services. What the Cloud Computing Guidelines neglect to mention, however, is that these same risks and issues also apply to on premises services. When evaluating cloud services, legal practitioners should evaluate the risk profile of cloud systems against the risk profile of adopting (or remaining with) on premises computer systems.

This article and the next four that follow it analyse a set of cloud services commonly used in the legal profession against the Cloud Computing Guidelines and compares these services against on premises services.

Before we get under way however, I should disclose a bias. I am a big fan of cloud services. The convenience of having information at your fingertips is simply too attractive. I constantly demonstrate to friends and colleagues how I can write on a tablet and have my writing magically appear on my desktop and on my phone at the same time. The accessibility that cloud services provide can lead to a great increase in productivity. Cloud services do pose unique challenges, data sovereignty and data security being but two. However, cloud services have evolved significantly over the last five years, to say nothing of the last 10 to 15 years. In my view, there are many contexts where using cloud services for data storage should now be considered best practice for law firms.

Thus endeth my declaration of bias.

What We Will Cover

In this first article we’ll give a broad overview of what lies ahead, and then explore issues relating to governance of cloud computing.

Firstly, we will discuss key points from the Guidelines and then discuss how I approach the analysis.

The Cloud Computing Guidelines

As I’ve said, the Cloud Computing Guidelines are drafted with a view to guiding practitioners through the evaluation and adoption of cloud systems. Overall, in my view, they paint a cautionary tale. The Guidelines cover a raft of issues, but they can be grouped into these broad categories: 1. Governance; 2. Confidentiality; 3. Data security; and 4. Data resilience.

The Guidelines’ dealings with governance refer mainly to issues around data sovereignty and the governing jurisdiction of a cloud service’s terms of service. Data sovereignty raises issues of the underlying laws of a sovereign state that protect (or otherwise) your data. Ideally, practitioners would want their data located in Australia so that their data is protected by Australian law, which if nothing else, is a known quantity. Governing jurisdiction clauses in terms of service raise issues regarding the ease (or otherwise) of asserting a party’s legal rights.

The Guidelines unsurprisingly deal extensively with confidentiality. Confidentiality stems from the risk of third party access to data but extends past this because, as we shall see, third parties always have access to our data regardless of whether it is in the cloud or on-premises. The confidentiality issue becomes a question of regulation of third-party access to a degree that satisfies practitioners’ obligations under the Australian Solicitor Conduct Rules.2

Data security is self-explanatory and has long been a concern of those looking to migrate to the cloud. As will be demonstrated, data security is also a significant issue with on-premises systems.

Data resilience refers to several aspects. The most obvious being availability of data (ie: how often does a service crash). Less obvious are issues around incident management and data portability, data portability being the ability to extract data out of a cloud service if desired.

Analysis

The aim of my analysis is to apply the abstract concepts in the Guidelines to the practical context of cloud services commonly used by legal practitioners. To that end, I have decided to analyse the Guidelines against a set of popular cloud services and also against an onpremises context. The could services to be analysed are: • Dropbox (the consumer version);3 • Dropbox Business;4 • Google Workspace;5 • Microsoft 365;6 • LEAP;7 and • Actionstep.8

It is worth stating that there are many other cloud services, large and small, that are available to legal practitioners. My intention is to focus on the more prominent services that many practitioners consider adopting or have already adopted. It is also worth stating that this analysis is not a substitute for performing your own due diligence!

GOVERNANCE

Two main points in the Cloud Computing Guidelines relate to governance – data sovereignty and jurisdictional issues. Let’s deal with data sovereignty first.

Data Sovereignty

As discussed above, data sovereignty relates to the location of data. The location of data is important as different countries prescribe different legal protections to data stored in them. Protections vary widely from country to country. Also, sovereign data protection may only extend to the citizens of a country. For example, data stored in the US may not be subject to the constitutional protections afforded to US citizens.

Cloud services may store data across many countries. As cloud services usually store multiple copies of customer data (for resilience), it’s possible that information stored with a cloud service could fall under multiple widely-varying data legislation. Google, for example, stores its Google Workspace data in 18 different countries across the world, from the USA to Finland to Indonesia.9

TABLE 1 GOVERNANCE

Dropbox

Dropbox Business DATA SOVEREIGNTY

(Location of data) GOVERNING JURISDICTION

‘All around the world’ USA File data in Australia, metadata and ‘Paper’ data in the US USA

Google Workspace Worldwide Microsoft 365 Australia USA USA

LEAP Australia Australia

Actionstep On Premises Australia Australia Australia Australia

Ideally, as practitioners, we would want our data stored in Australia so that it falls under the protections of Australian law which, although may not the most protective laws, at least are well-known and understood.

So, we will assess data sovereignty by asking the question: ‘Can my data be stored exclusively in Australia?’

Governing Jurisdiction

Governing jurisdictional issues arise as most cloud service providers are based outside of Australia and usually require their customers to agree to have their agreements governed under foreign, predominantly US, laws. For Australians this predominantly raises a convenience and cost issue as any dispute needs to be litigated overseas. It also subjects agreements to foreign laws that may not contain the same level of consumer protection as Australian law.

Data sovereignty and governing jurisdiction are clearly not issues in an on-premises environment. Data on premises is stored in Australia. For firms that outsource their IT support, they do so with local firms and these agreements are governed under Australian law.

In contrast, these issues do arise with cloud services, particularly so with consumer services, such as Dropbox. The consumer Dropbox stores its data ‘around the world’10, giving a user no control over where their data resides. Dropbox’s business offering is better, allowing file storage to be limited to Australia, but file metadata and other products, such as its ‘Paper’ product, remain located in the US.11

Google’s Workspace business offering gives no option to nominate where data is to reside. A Workspace subscriber must accept that their data will reside in any of the 18 locations where Google has data centres.12

Microsoft 365 allows its customers to specify that all data, including email, file storage, SharePoint and Teams data, be located in Australia.13 Both LEAP14 and Actionstep15 also locate data exclusively in Australia.

Most of the cloud services reviewed contain jurisdictional clauses that govern agreements under US law. The Dropbox Business terms also impose a mandatory arbitration process.16 The only exceptions for the services reviewed are LEAP and Actionstep which are governed under NSW law17 (for LEAP) and ‘Australian law’18 according to Actionstep’s terms.

The Verdict

Clearly the on-premises solution wins out in this category. Data sitting in a practice’s office will be located in and governed by the jurisdiction a practitioner is most comfortable with. The practice management systems also do well in this category. The big cloud providers are all based in the US so while some, such as Microsoft, allow for location of data in Australia, terms are still governed by US Law.

On-premises wins this round.

In the next article we discuss confidentiality. B

Endnotes 1 ‘Cloud Computing Guidelines’ (Law Society of South Australia, February 2016) <https:// www.lawsocietysa.asn.au/pdf/EP_Cloud%20

Computing%20Guidelines.pdf>. 2 ‘Australian Solicitors’ Conduct Rules (SA) 2011 V3 with Commentary’ (Law Society of South Australia, 1 July 2015) <https:// www.lawsocietysa.asn.au/pdf/Australian%20

Solicitors’%20Conduct%20Rules%20(SA)%20 2011%20V3%20with%20commentary.pdf>. 3 ‘Dropbox’, Dropbox <https://www.dropbox. com/> In this paper ‘Dropbox’ means the consumer version of Dropbox (which has a free offering) and ‘Dropbox Business’ means the business offering (which has no free offering). 4 ‘Secure Team Collaboration - Dropbox

Business’, Dropbox <https://www.dropbox.com/ business>. 5 Google, ‘Google Workspace | Business Apps &

Collaboration Tools’, Google <https://workspace. google.com/intl/en_au/>. 6 ‘Compare All Microsoft 365 Plans | Microsoft’ <https://www.microsoft.com/en-au/ microsoft-365/business/compare-all-microsoft365-business-products>. 7 ‘Legal Practice Management Software | LEAP

Legal Software’, LEAP AU <https://www.leap. com.au>. 8 ‘Actionstep - Legal Practice Management

Software’ <https://www.actionstep.com/>. 9 Google, ‘Global Locations - Regions & Zones’,

Google Cloud <https://cloud.google.com/about/ locations>. 10 Dropbox, ‘Privacy Policy’, Dropbox <https:// www.dropbox.com/privacy>. 11 Dropbox, ‘Dropbox Business Security, A

Dropbox Whitepaper’ 13 <https://www. dropbox.com/static/business/resources/

Security_Whitepaper.pdf>. 12 Google (n 9). 13 Microsoft, ‘Privacy & Security Terms’,

Microsoft | Licensing <https://www. microsoft.com/licensing/terms/product/

PrivacyandSecurityTerms/all>. 14 LEAP, ‘LEAP Information Security Policy |

LEAP Legal Software’, LEAP AU <https:// www.leap.com.au/information-security-policy/>. 15 Actionstep, ‘Tems of Use’, Actionstep [9.4] <https://www.actionstep.com/legal/>. 16 Dropbox, ‘Business Agreement’, Dropbox [13.2], [13.3] <https://www.dropbox.com/business_ agreement>. 17 This was confirmed to me by email in 1 February 2022 from a LEAP representative. 18 Actionstep (n 15) [10.5].

CANCELLATION COURT! DJOKOVIC RALLIED TO SECURE RELEASE BEFORE THE MINISTERIAL DISCRETIONS PROVED A WINNER

CHRIS JOHNSTON AND ROSA TORREFRANCA, IMMIGRATION LAWYERS, WORK VISA LAWYERS

The two recent Djokovic visa cancellations and appeals have provided insight into non-character related cancellation powers under the Migration Act 1958.

The Federal Circuit Court and Family Court of Australia have established an online public file for the Djokovic matter.1 This was done with a view to the public interest and provides a great opportunity to view the inner workings of the courts, for law students or anyone interested, to view a range of relevant documents including primary documents from the Department of Home Affairs (DHA) and Tennis Australia, the lodgements with full grounds, the parties’ submissions and the decisions.

From a detailed analysis of the files, we will discuss the turning points of the cases and lessons to be learned for visa holders trying to enter Australia.

THE FIRST DJOKOVIC CANCELLATION: IN IMMIGRATION CLEARANCE AT THE MELBOURNE AIRPORT BEFORE ENTERING AUSTRALIA

Novak Djokovic was granted a 408 Temporary Activity Sports Stream visa, on 19 November, 2021.2 We will detail the timing and content of interactions between Djokovic and the Delegate of the Minister of Immigration, because these events subsequently proved to be significant: • Djokovic arrived by plane at the

Melbourne Airport just before midnight on 5 January, 2022.3 • He was interviewed between 00.21 and 00.52 am by a Delegate, with some brief breaks.4 • Djokovic was given a Notice of

Intention to Cancel (NOITC) at or about 4.11am, 6 January, 2022. • He asked for time to rest and to “talk to [his] solicitor again.” And asked for this time to be up until 8.00 or 8.30. • The Delegate checked with his superiors and then said that Djokovic would be given more time. • He was interviewed by the DHA officer from 6.07 am and the decision to cancel was made at 7.29 • Djokovic was notified of the Decision to cancel at 7.42 am.

The DHA decision record provides that the grounds for cancellation:

“Under the Biosecurity Act 2015, there are requirements for entry into Australian Territory. These requirements include that international travellers make a declaration as to their vaccination status (vaccinated, unvaccinated, or medically contraindicated). … Previous infection with COVID-19 is not considered a medical contraindication for COVID-19 vaccination in Australia.

Subject to Section 116(1) of the Migration Act 1958, the Minister may cancel a visa if he or she is satisfied that; (e) the presence of its holder in Australia is or may be, or would or might be a, a risk to: i. the health, safety or good order of the

Australian community or a segment of the Australian community…

Based on the above information, I am satisfied there are grounds to consider cancelling the visa holder’s subclass GG 408 visa.”5

Following the cancellation, Djokovic was taken to immigration detention at the Park Hotel, where a number of asylum seekers in long term detention are also held. APPEAL TO THE FEDERAL CIRCUIT COURT (FCC)

Arguments made before the FCC

As Djokovic did not make it through immigration clearance, he did not ‘enter Australia’, the 408 visa was cancelled prior to entry. As such, merits review at the Administrative Appeals Tribunal (AAT) was not available and his appeal options were limited to the Federal Circuit Court.

An appeal of the cancellation decision was lodged on the 6 January, 2022. The applicant’s Representatives6 submitted that there were a “variety of jurisdictional errors”. These grounds included: • Failure to give the required notice under section 119(1), (Ground 1A). • Error in purported formation of state of satisfaction in the Decision to cancel (Ground 1B) • Errors in failing to consider the applicant’s medical contraindication (Ground 1C)

The applicant’s representative made arguments for why Djokovic had provided evidence for a “medical contraindication”. Under the Biosecurity Determination made under the Biosecurity Act 2015. • Failure to consider representation made by Djokovic (Ground 2A) and illogicality and/or unreasonableness in relation to extenuating circumstances (Ground 2B) • Procedural unfairness (Ground 3A) and unreasonableness in process (3B) preceding the cancellation.

The representatives for the DHA submitted that all the grounds should be rejected, with detailed arguments on medical exemptions.

In relation to ground (1A) claiming the NOITC was affected by error, the

representatives for the Minister wrote: “That unfortunate typo misquoting the provision in one spot is unfortunate but immaterial.”7

The representatives submitted Djokovic’s claimed medical contraindication did not meet the requirements under the ATAGI Exemption Guidance (Ground 1C).8

In relation to the ground of illogicality, the representatives warn against the slide into impermissible merits review, citing Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30].9 This argument proved to be of great significance in the second Djokovic cancellation and appeal.

In relation to the claim of lack of procedural fairness (Ground 3A) the representatives provided: “Here, there is no evidence from the applicant’s lawyers about what they would or could have done between 7.42am and 8.30am, whom he had contacted previously.”10

In their conclusion, the Minister’s representatives made the following point, quoted below, that if the Court makes a decision in favour of the applicant, then the Minister has other cancellation powers under the Act:

“if this Court were to make orders in the applicant’s favour, it would then be for the respondent to administer the Act in accordance with law. That may involve the delegate deciding whether to make another cancellation decision, but there are also other powers in the Act, as the Court would be aware.”11

FCC FINDS IN FAVOUR OF DJOKOVIC (FIRST DECISION)

2022. The hearing was video cast to the public, but was oversubscribed, and continually crashed.

Judge Kelly was clearly unimpressed by many elements of the cancellation and provided some damning comments during the hearing.

Judge Kelly said:

“Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption,”

“Further to that, that medical exemption and the basis on which it was given, was separately given by a further independent expert specialist panel established by the Victorian state government.”12

Judge Kelly went on to ask: “What more could this man have done?”13

In relation to the submission by the Respondents, suggesting that even if Djokovic had access to a lawyer at the later stages at the Airport and given the opportunity to respond, that a lawyer could not help him. Judge Kelly commented:

“What they are saying is, ‘Getting in touch with your lawyers is not really going to help any of us. Why don’t we get it done?’”14

Judge Kelly found in favour of the applicant in the form of an Order.15 The Order was based the unreasonableness of the cancellation process which was Ground 3B.16

Judge Kelly did not publish a detailed decision and so there was no insight in the grounds based on medical contraindication.

The Order contained a notation which stated:

“The respondent concedes that the delegate’s decision to proceed with the interview and make a decision to cancel the applicant’s visa pursuant to s 116 of the Migration Act 1958 (Cth) was unreasonable in circumstances where: 1. at 5:20am on 6 January 2022 the applicant was told that he could have until 8.30am to provide comments in response to a Notice of Intention to

Consider Cancellation under s 116 of the Migration Act 1958 (Cth); 2. instead, the applicant’s comments were then sought at about 6:14am. 3. the delegate’s decision to cancel the applicant’s visa was made at 7.42am; 4. the applicant was thus denied until 8.30am to make comments; 5. had the applicant been allowed until 8:30am, he could have consulted others and made further submissions to the delegate about why his visa should not be cancelled.”17

The Order was that the decision to cancel be quashed18 and that Djokovic be released immediately from immigration detention.19

FIRST CANCELLATION AND SUCCESSFUL APPEAL: LESSONS TO BE LEARNT

Djokovic and any person entering Australia on a visa should take a number of steps to have been better prepared for a potential interview at the airport.

These could have included: • Ensuring all information provided to the DHA or the Department of

Foreign Affairs and Trade (DFAT) is accurate, including the information relating to travel and medical history and criminal history (including previous convictions) • Arriving at a time when he could more easily be represented, rather than at around midnight.

• Having a full set of his supporting documents available to him at the airport.

Having an Immigration Lawyer at the airport or at least on call at the time of arrival, so that they could have assisted him with his opportunity to respond.

In circumstances where someone has had their visa cancelled in immigration clearance, the possibility of a successful appeal of an airport cancellation to the FCC has been demonstrated by Judge Kelly’s order. The process of cancellation and the reasonableness of denying access to a lawyer are areas of potential jurisdictional error.

DJOKOVIC PREPARING TO PLAY AND WAITING FOR A FURTHER DECISION

After Djokovic’s successful appeal, there were four days of waiting to see if there would be a second cancellation.

During this time, there was a high level of scrutiny in the media in relation to Djokovic’s actions in the weeks leading up to his travelling to Australia.20 These articles raised issues which could have been grounds for a further cancellation. The issues included whether he had been accurate in his travel declaration form that was completed prior to entering Australia. Further issues emerged in relation to Djokovic’s actions immediately following his fi nding out that he had contracted Covid in mid-December, 2021. It was reported that he attended public events like the commemoration of his personal stamp in Serbia and a basketball match in Barcelona after testing positive for COVID-19.21

As these details emerged in the media Djokovic made statements in his social media saying that there had been errors.22

Djokovic was likely attempting to reduce the chance of a cancellation under s116(1AB) for providing incorrect information.

THE SECOND DJOKOVIC CANCELLATION: BACK TO DETENTION AND FULL FEDERAL COURT APPEAL

The second decision relates to what is often called the God powers of the Minister of Immigration.

At the 10 January, 2022 hearing of Djokovic’s application to quash the 6 January, 2022 decision of the Delegate of the Minister to cancel his visa, counsel for the Minister for Home Affairs informed the Court that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) would be considering whether or not to exercise the Minister’s personal power to cancel a visa under s133C(3) of the Migration Act.23 The relevant part of s133C(3) reads:

133C Minister’s personal powers to cancel visas on section 116 grounds

Action by Minister—natural justice does not apply (3) The Minister may cancel a visa held by a person if: i. the Minister is satisfi ed that a ground for cancelling the visa under section 116 exists; and (b) the Minister is satisfi ed that it would be in the public interest to cancel the visa.

Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section). (4) The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3).

As mentioned above, the delegate of the Minister cancelled Djokovic’s visa pursuant to Section 116(1)I(i) of the Migration Act 1958(Cth), which reads: 116 Power to cancel 1. Subject to subsections (2) and (3), the

Minister may cancel a visa if he or she is satisfi ed that:

…

I the presence of its holder in Australia is or may be, or would or might be, a risk to: i. the health, safety or good order of the Australian community or a segment of the Australian community; …

The power given to the Minister under s133C(3) is personal and cannot be delegated.

It is also clear under s133C(4) that the Minister in exercising the power is not required to afford ‘natural justice’ to the visa holder. It will be recalled that natural justice was the reason why the Minister’s delegate’s decision made on 6 January, 2022 was quashed by the Court. The procedure adopted by the delegate was unreasonable.24

So it came to pass that late on 14 January, 2022 (a Friday) as foreshadowed by the Minister’s counsel, the Minister exercised his power to cancel Djokovic’s visa under the above-mentioned section.

Djokovic had the resources to mobilise a legal team to work late on a Friday night in order to fi le an urgent application seeking interim relief and for judicial review.

The following day (Saturday), the matter was transferred from the Federal Circuit and Family Court to the Federal Court. The Chief Justice directed that the original jurisdiction be exercised by a Full Court.

On the Sunday, a day before the start of the Australian Open, Djokovic was in court but probably not the court he thought he would be attending when he arrived in Australia late on 5 January, 2022. The matter was heard by Allsop CJ, Besanko and O’Callaghan JJ.

The Court on the same day of the hearing dismissed Djokovic’s application, with costs.

Djokovic’s grounds

Djokovic’s legal team put forward three grounds25: 1. That the Minister’s decision had binary legal outcomes, that is, not to cancel and let Djokovic stay in Australia or cancel his visa, detain him and remove him from Australia. They argued that it was unreasonable for the Minister to only consider the effect of his presence in Australian but not the effect if Djokovic gets deported. The

Minister’s decision is therefore affected by jurisdictional error. 2. They submitted that the Minister cited no evidence that supported his fi ndings that Djokovic’s presence in Australia may “foster anti-vaccination sentiment” and therefore he cannot make the fi nding that Djokovic may be a risk to the health of the Australian community, that he is a risk to the good order of the Australian community and that it would be in the public interest to cancel

Djokovic’s visa. 3. It was also argued that the Minister

did not seek Djokovic’s view on vaccination, instead the Minister relied on an interview conducted in April 2020 wherein Djokovic said that he was “opposed to vaccination”.

It was noted that at the time of this interview, COVID-19 vaccines were not yet available and that Djokovic later clarifi ed his position that he was “no expert”, “would keep an open mind” and would want to have an “option to choose what’s best for my body.”26

The Court dismissed all three grounds.

Reasons of the ruling

The crux of this matter turns on the “satisfaction” of the Minister as provided for by s 133C(3)(a) of the Act that there is a ground for cancelling the visa under s116(1)(e)(i) of the Act and the Minister is satisfi ed that it would be in the public interest to cancel the visa (s133C(4).

As ruled by the Court, “[t]he satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute”27:

The Court further ruled in paragraphs 25 to 26 and 28, so long as the Minister in exercising his power to cancel the visa “do so based on some evidence, rather than no evidence or no material, unless the fi nding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known”: The High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 and does “not act dishonestly, capriciously or arbitrarily”, then the “Courts of law cannot and ought not interfere” : Starke J in Boucaut Bay Company Ltd (in Liq) v Commonwealth [1927] HCA 59; 40 CLR 98

The Minister in cancelling Djokovic’s visa provided a 10-page Statement of Reasons. The Minister did not have the obligation to provide the statement of reasons28 but perhaps in anticipation of a legal challenge and the publicity of the case, did so.

In the Minister’s Statement of Reasons, the Minister noted among others, that: 1. Djokovic is a high-profi le personality; 2. who is unvaccinated; 3. has publicly declared that he was opposed to being vaccinated; 4. Djokovic has disregarded precautionary requirements to stop the spread of

COVID-19 by attending an interview and photoshoot after receiving his positive COVID-19 test result.29

The Minister in his reasons noted the Djokovic’s presence in Australia may foster anti-vaccination sentiment and may persuade the undecided against getting the COVID-19 vaccine or the booster at the time when there is a surge in the number of COVID-19 infections in Australia.30

Djokovic’s arguments failed because as the Court ruled the legal requirement was whether the Minister is “satisfi ed” that the “presence” of the visa holder may be a risk to the health, safety or good order of the Australian community. The Minister is not required to consider the effects of deporting the visa holder.31

The Court also ruled that it was open for the Minister to fi nd that it was perceived by the public that Djokovic was not in favour of vaccinations and not necessarily about Djokovic’s views.

Further, it was noted that it was not that Djokovic’s actions and statements were/are a threat to public health, safety or good order but it is his presence in Australia may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

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Therefore, all the Minister has to show is that he is satisfied that Djokovic is a possible influence, a hero for anti-vaxxers.

THE MINISTER’S “GOD-LIKE” POWERS

The Court’s decision highlights the powers vested on the Minister of Home Affairs which has been described as “god-like”.

To give us an idea of how broad and substantial the powers of the Minister are, a report, “Playing God, The Immigration Minister’s Unrestrained Power”32 published by Liberty Victoria in 2017 noted that the Minister for Immigration and Border Protection (as the Minister was then known) has the most discretionary powers of any Cabinet Minister. The Minister for Immigration is responsible for the administration of 20 Acts but has 47 ‘national interest’ or ‘public interest’ powers. Compare this to the Prime Minister who is responsible for 43 acts but only has 3 ‘national interest’ or ‘public interest’ powers.33

It may be a surprise for most Australians to know that the Minister for Immigration has powers that are not subject to natural justice.

Quoting the Liberty Victoria’s report:

“The concept of natural justice is so fundamental to Australian law that the courts have repeatedly held that it cannot be excluded from such a decision without ’plain words of necessary intendment’, a ‘clear manifestation’ of the legislature’s intention to deny it. Without such plain words, legislation will always be read to include natural justice and decisions must be made in accordance with its requirements.” 34

Section 133(C) of the Migration Act is just one of the many powers conferred upon the Minister for Immigration. While the exercise of the power is reviewable, the threshold for the court to overrule the Minister’s decision is low as can be seen in Djokovic’s case.

WHY DID DJOKOVIC LEAVE SO PROMPTLY AFTER THE SECOND CANCELLATION?

The timing of the second cancellation meant that there was not enough time to effectively mount a legal challenge to the decision of the full Federal Court.

The 2022 Australian Open was to commence the day after the decision of the court.

There are cost implications in relation to having been held in immigration detention and also in relation to be being deported35 .

Further time in immigration detention would also have undermined Djokovic’s ability to maintain his physical fitness. With potential cost implications and the possibility of prolonged detention, it is not surprising that Djokovic left promptly.

FUTURE IMPACTS FOR DJOKOVIC FROM THE VISA CANCELLATION

Djokovic faces is three-year bar pursuant to public interest criteria (PIC) 4013 and 4014 in Schedule 4 of the Migration Regulations 1994 from applying for a further Australian visa due to the cancellation under s116.

He could also face problems from public interest criteria 4020 related to providing false or misleading information, which applies to most Australian visas, including the subclass 408 Sports Stream visa. If Djokovic wants to play the 2023 Australian Open, he will need to successfully be granted a 408 visa. There is significant potential for information provided as part of his most recent 408, to be found to be misleading. This includes his Australian Travel Declaration in which he said he had not travelled in the 14 days prior to his flight to Australia.36 There is, allegedly potential evidence to suggest Djokovic did travel during that time.

There is a permanent residency visa called the Distinguished Talent Visa, which allows for people in professions, sports and the arts to apply for permanent residency. The criteria includes that the person must be able to demonstrate that they are at the top of the field and that they could easily obtained employment within Australia.

Having struggled to meet the requirements for a temporary visa to enter Australia, Djokovic could potentially apply to become an Australian permanent resident through a Distinguished Talent Visa. But the question is would he want to?

IMPLICATIONS FOR HIGH PROFILE VISITORS TO AUSTRALIA WHO MAY POSE A RISK?

the question - Are the powers of the Minister of Immigration too wide?

The God powers of the Minister under the Migration Act 1958 in s116(e) i are not restrained to be exercised in favour of health issues such as in a pandemic.

The speculative and low level of potential risk is “may be, our would or might be, a risk to” provides great power to define the future risk.

The type of risk is to “the health, safety or good order of the Australian community or a segment of the Australian community”.

We have just seen an example of “health”, but “safety” is a wide concept and “good order” similarly vague.

Is being able to cancel someone’s visa based on something that might or may happen representing the best the interests of Australia?

There may be other public figures that could arrive to work in Australia and have their visa cancelled due to the possibility of arousing a strong public response in relation to a particular issue. For example, could Greta Thunberg represent a risk to Australia’s good order, if she “may” inspire many young people to go to environmental protests?

The next high profile visa cancellation could be just around the corner. Prime Minister Scott Morrison responded to a question about Kanye West by saying:

“the rules are you’ve got to be fully vaccinated.”37

WHAT ARE THE PRACTICAL LESSONS FROM THE SECOND CANCELLATION USING THE MINISTERIAL POWERS?

The involvement of the world’s number one tennis player is unusual but visa cancellations are actually fairly common in migration law. 1. Timing

Do not be fooled by the quick results in Djokovic. The speed as to when the case was listed and when the decision was handed out. This does not reflect the reality in immigration cases where normally matters takes months even years to be resolved. The Biloela family, the Sri Lankan Tamil family who has been in detention since 2018, is a case in point.

2. Re-cancellation

The re-cancellation of Djokovic’s visa raises the question of why appeal?

It is often difficult to justify to a potential client the expense and time involved in challenging a cancellation at the Federal Circuit Court.

When even if successful the Minister may and often does step in and cancel the person’s visa again.

What is the point in appealing when the Minister can re-cancel the visa under s133C. The Minister can also cancel visas not just on the grounds stated in s 116 (1) but also on character grounds under s 501 of the Migration Act.

As discussed above, how about other “high-profile” candidates or visa holders? Could their visa also be cancelled on the ground that they pose a risk to Australia’s “public order”. 3. Costs involved in appealing to the

Federal Court

The second Djokovic application to the full Federal Circuit Court was “dismissed with costs, which was to be agreed or failing agreement assessed”. Djokovic, being the world’s number tennis player with millions of dollars in career earnings can without a doubt afford to pay these costs.

However, potential clients who are also thinking of challenging the Minister’s decision to cancel should also be warned about the costs involved. Visa holders are often not aware that they are not only liable for their own costs (the court application fees, lawyers and barristers fees, etc) but are also at risk of having to pay the costs of the Minister which could be potentially substantial if they lose. 4. High-profile visa holders beware

The Full Federal Court decision underlines the Minister’s wide discretionary power under s133C. High profile personalities planning to come to Australia should think carefully if their profiles and views could lead to being cancelled. 5. Risk to all visa holders

The risk of having a visa cancelled is not just for temporary visa holders but also for permanent visa holders. Those that hold permanent resident visas should consider applying for Australian citizenship to avoid any visa cancellation. B

Endnotes 1 Federal Circuit and Family Court of Australia,

Novak Djokovic Online File, https://www.fcfcoa. gov.au/migration-law/online-file/djokovic at 30

January 2022. 2 OP Holdenson QC, N M Wood SC, N Dradojlovic, J

E Hartley, (The Applicant’s representatives) Applicant’s outline of submissions, 8 Jan 2022, p35, in Federal

Circuit and Family Court of Australia, Novak Djokovic

Online File, https://www.fcfcoa.gov.au/migration-law/ online-file/djokovic at 30 January 2022. 2 [1]. 3 Ibid, 1 [1]. 4 Ibid, 100 [26]. 5 Delegates Decision to Cancel under section 116 of the Migration Act 1958, Sudhir R, Position

Number 60063579, 06 January 2022, 7.29am 6 OP Holdenson QC, N M Wood SC, N

Dradojlovic, J E Hartley, (The Applicant’s representatives) Applicant’s outline of submissions, 8 Jan 2022, p35, in Federal Circuit and Family Court of Australia, Novak Djokovic

Online File, https://www.fcfcoa.gov.au/migrationlaw/online-file/djokovic at 30 January 2022. 7 Ibid, at 23 [3]. 8 Christopher Tran and Naomi Wootton, (The

Respondent’s representatives) Respondent’s outline of submissions, 9 Jan 2022, p35, in

Federal Circuit and Family Court of Australia,

Novak Djokovic Online File, https://www.fcfcoa. gov.au/migration-law/online-file/djokovic at 12

February 2022 30-53 [5-9] 9 Ibid, 63 [10], Citing See Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30] (the Court, referring with approval to observations of Basten JA with whom Allsop P (as his Honour then was) agreed in Swift v SAS

Trustee Corporation [2010] NSWCA 182 at [45]);

Carrascalao v Minister for Immigration and Border

Protection (2017) 252 FCR 352 at [32] (the Court). 10 Ibid, para 15 [3]. 11 Ibid, 76, [12]. 12 Karen Sweeney, Judge: ‘What more could Djokovic do?’, (Web Article, 10 January 2022) https:// indaily.com.au/news/national/2022/01/10/ judge-what-more-could-djokovic-do/. 13 Ibid. 14 Aaron Patrick, Djokovic scored a judge who’s a fan, of his case, Australian Financial Review, 10 January 2022, (Web Article) https://www.afr.com/workand-careers/workplace/djokovic-scores-a-judgewho-s-a-fan-of-his-case-20220110-p59n1e. 15 Order of Kelly J, in Novak Djokovic v Minister for Home Affairs (Federal Circuit Court,

MlG35/2022, 10 January 20220. 16 Ibid, Notation, [2]. 17 Ibid, [2]. 18 Ibid, 1 [1]. 19 Ibid, 3 [1]. 20 Georgia Hitch and Stephanie Borys, ABC News,

Questions raised over Novak Djokovic travel declaration on entry form to Australia (Web Article, 12 January 2022) <https://www.abc.net.au/news/202201-11/questions-novak-djokovic-travel-entryform-australia/100750334> ; See also ESPN,

New wrinkle: Travel declaration made by top-ranked tennis star Novak Djokovic raising questions about his compliance with Australia’s COVID-19 rules (Web

Article 11 January 2022) https://www.espn. com.au/tennis/story/_/id/33039293/prime-

ministers-australia-serbia-speak-phone-novakdjokovic-disputed-visa. 21 Tumaini Carayol and Christopher Knaus, The

Guardian, Djokovic pictured maskless at public event one day after positive Covid test (Web Article 9

January 2022) https://www.theguardian.com/ sport/2022/jan/08/novak-djokovic-reliedon-december-covid-infection-for-vaccineexemption-court-documents-reveal 22 Djokernole (Instagram, 12 January 2022) < https://www.instagram.com/p/

CYnO7cDqbdj/> ; See also AlJeezera, Full text of

Novak Djokovic statement on his COVID-19 ‘errors’ (Web Article 12 January 2022) https://www. aljazeera.com/sports/2022/1/12/full-text-ofnovak-djokovic-statement-on-his-covid-19-errors 23 Order of Judge A Kelly, in Novak Djokovic v

Minister for Home Affairs (Federal Circuit Court,

MlG35/2022, 10 January 2022, Notation; see also Djokovic v Minister for Immigration, Citizenship,

Migrant Services and Multicultural Affairs [2022]

FCFC 3 [6]. 24 Novak Djokovic v Minister for Home Affairs (Federal

Circuit Court, MlG35/2022, 10 January 20220. 25 Applicant’s Application, 6 Jan 2022, pp4- 7, in

Federal Circuit and Family Court of Australia,

Novak Djokovic Online File, https://www.fcfcoa. gov.au/migration-law/online-file/djokovic at 12

February 2022; See also Djokovic v Minister for

Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2022] FCFC 3 [69] 26 Djokovic v Minister for Immigration, Citizenship,

Migrant Services and Multicultural Affairs [2022]

FCFC 3 [72]( Allsop CJ, Besanko and

O’Callaghan JJ). 27 Ibid [21]. 28 Ibid [103]. 29 Ibid [44-68]. 30 Ibid. 31 Ibid [95]. 32 Liberty Victoria’s Rights Advocacy Project,

Playing God, The Immigration Minister’s Unrestrained

Power (2017) 33 Ibid, 4-5 34 Liberty Victoria’s Rights Advocacy Project,

Playing God, The Immigration Minister’s Unrestrained

Power (2017) 9 quoting Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 352 [74] (French CJ, Gummow, Hayne, Heydon, Crennan,

Kiefel and Bell JJ) (‘Offshore Processing Case’) , Kioa v West (1985) 159 CLR 550, 584 (Mason J) and 610 (Brennan J) 35 For example, NZ born AARON GRAHAM who was a former bikie, had his visa cancelled three times, Graham v Minister for Immigration and Border Protection [2018] FCA 1012; see also 9News, NZ-born bikie’s visa cancelled again (Web Article, 6 September 2017) < https:// www.9news.com.au/national/nz-bikiedeportation-attempt-quashed/9cd633a3-dbc8404c-8e06-5c1b34762343> 36 Australian Travel Declaration for Novak

Djokovic, Affidavit of Natalie Bannister filed 8

January 2022, p35 37 Eden Gillespie, Kanye West warned he must have two vaccine doses ahead of concert tour in Australia, (2022),

SBS, https://www.sbs.com.au/news/kanye-westwarned-he-must-have-two-vaccine-doses-aheadof-concert-tour-in-australia/2313cfbe-4e4a-4cedb51f-cc8d32e865fc, at 29 January 2022.