All week I've had the Jeopardy think music going around in my head. Today it's that song from The Good, The Bad & The Ugly.
Independent senator Jacqui Lambie has suggested Immigration Minister Alex Hawke is "missing in action" as the world awaits a decision from him on Novak Djokovic's visa. From @domgiannini_ and @AndrewBrownAU
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It's now past 5pm on Friday. If the minister decides to cancel Djokovic's visa and he decides to challenge it in court again, I would absolutely not want to be the lawyer appearing in front of Judge Kelly to explain that.
There's a directions hearing happening now for Novak Djokovic. You can watch it here:
We're back with Judge Kelly in the Federal Circuit Court. Stephen Lloyd is appearing with Christopher Tran for the minister. Nick Wood and Paul Holdenson are back for Novak Djokovic.
His Honour has begun pointing out that all federal courts should seek to ensure justice is delivered effective and efficiently. "To that end, I invited the parties in effect to keep in communication with the court if any further proceedings were likely as seems to be the case."
He says it's a centuries old practice that the court be allowed to make orders before an application has formally been filed in the court. It seems again that the case has been foreshadowed but nothing has been formally done.
I've gone from a pool to a pres conference in 10 minutes before, but this is the first time I've gone from the pool to the courtroom in 5 minutes.
Judge Kelly says it seems at least one document from the first proceeding was given to the Immigration Minister in order to make his decision. He says it's not uncommon in these courts for a succession of appeals.
He's talking about the possibility of the case being transferred to the Federal Court.
"While I have what seems an unappealable power to transfer this proceeding to another court, its qualified by the requirement ... that the Federal Curt of Australia confirms the order I make."
"While I have what seems an unappealable power to transfer this proceeding to another court, its qualified by the requirement ... that the Federal Curt of Australia confirms the order I make."
"I think it is uncontroversial at this time of year that cases of this kind fall to duty judges," he said.
He's suggesting a brief injunction on Novak Djokovic's deportation until 4pm tomorrow, unless there's an earlier request for his removal from Australia.
He says Djokovic has been "invited to an interview tomorrow".
He's also contemplated Djokovic's lawyers file an application and affidavit by tomorrow also.
Nick Wood SC says Novak Djokovic is seeking the same relief as in the earlier proceeding - that the decision be quashed and he be released from detention.
He says they can be more ambitious on timing and think they can file a formal application by 10.15pm today.
He says they can be more ambitious on timing and think they can file a formal application by 10.15pm today.
Wood is worried about chewing up time which is "precious" in the "extraordinary situation" Djokovic is in. He's worried about unnecessary delay.
He says the Federal Court would need to confer the decision, which he thinks is an unnecessary hurdle.
He says any judge given the case would need to contemplate their own procedural directions.
He says any judge given the case would need to contemplate their own procedural directions.
Wood says they've come to court now, ready to go in the time they've got available.
He says if the judge is worried about any apprehension of bias, it's not something they think would apply.
He says if the judge is worried about any apprehension of bias, it's not something they think would apply.
Wood says it's an entirely separate process that's led to Immigration Minister Alex Hawke's decision, compared to the previous decision His Honour was required to consider.
There doesn't appear to be any suggestion or proposal to detain Novak Djokovic in immigration detention tonight.
Wood has suggested the judge could make an order that Djokovic allowed to be with his lawyers tomorrow to assist with the case. He says it would be "somewhat absurd" if Djokovic is allowed to stay at his accommodation tonight, that something different would happen Saturday night.
There's one particular ground they've got in mind for the challenge and others that may be contemplated. He's proposing they file their submissions early tomorrow and the govt respond by 10pm tomorrow.
He doesn't see that arguments in court would need to take more than 60 minutes.
Wood says he understands Djokovic may be scheduled to play Monday or Tuesday night and that may become clearer as time goes on. He says time is of the essence.
He's critical that they only got the reasons for Mr Hawke's decision after 6pm today. He's also hit out media reports that the minster was "burdened" by material Djokovic's lawyers were sending him.
Wood: "We are where we are because of the time the minister has taken. We are moving as fast as we can."
He's keen to be sure there's a result in court that would ensure if Djokovic's successful he can play Monday night.
He's keen to be sure there's a result in court that would ensure if Djokovic's successful he can play Monday night.
Not sure if anyone else is experiencing a tech issues with the stream - mine seems to be cutting in and out periodically. There's currently more than 45,000 people watching on YouTube.
Judge Kelly has asked for a clue as to the grounds.
Wood says the reasons of the minister "stand in stark contrast the reasons that were promulgated by the delegate at the airport".
Wood says the reasons of the minister "stand in stark contrast the reasons that were promulgated by the delegate at the airport".
He says the minister only considers the potential for "exciting anti-vax sentiment" if Djokovic is allowed to remain in Australia. But he says the minister gives no consideration to the effect forcing Djokovic out of the country would have. He says that's "patently irrational".
He says Djokovic is a high profile person with medical contraindication to vaccination who is of "negligible risk" and of good standing.
Stephen Lloyd for Alex Hawke is up now. He says the minister is prepared to give an undertaking that he will not seek to have Djokovic deported until a final decision is made (in whichever court hears it).
I just saw someone tweet "my ears are bleeding". Welcome to the federal courts - that feeling never quite goes away. It's a different world here.
Mr Lloyd says there want Djokovic to go to immigration offices at 8am tomorrow. He notes there's a requirement that access to lawyers be provided in detention, so he'll still have access to his team if he's detained at 8am.
Judge Kelly is now talking about ATAGI's guidance and definitions about what "fully vaccinated" means. "I think it's important to recognise that issue was never determined on Monday," he says.
He says the general rule as he understands is a general obligation to be vaccinated and an exception to that is a medical exemption.
"There seems to be some confusion still necessary to be addressed in this case, for the purposes of appreciating whether there was a correct understanding of the applicable principles."
"If there was an exception, and if he had an Australian Travel Declaration which had been assessed and given the green light, that part of the case, I think, remains unresolved."
"This pandemic has had a very significant impact worldwide and in Australia, including in particular on the Australian economy ,.. on its peoples and in particular on their livelihoods and their physical and mental health."
"I just wonder whether this is effectively an important foundational aspect of this case," Judge Kelly has questioned.
Nick Wood says that's not relevant because the Minister says he made his decision assuming that Djokovic ticked all the right boxes.
He says the minister took a "radically different" approach to the decision, basing it on the prospect Djokovic would "excite anti-vax sentiment".
He says the minister took a "radically different" approach to the decision, basing it on the prospect Djokovic would "excite anti-vax sentiment".
He says immigration detention is "flexible" and even though Djokovic was with his lawyers in their office for the hearing on Monday he was effectively in immigration detention because there was Border Force officials in the building making sure he didn't leave.
Tonight's reporting is brought to you by an espresso martini and pizza.
Stephen Lloyd proposes that Djokovic be allowed to be with his lawyers tomorrow, as long as ABF officers are allowed to be on the same floor as him. Afterwards he would be taken back into detention.
Judge Kelly is clarifying that Mr Lloyd is proposing Djokovic be "in detention" at his lawyers office until midday tomorrow while they prepare their submissions, and then taken back on Sunday for the hearing.
He's be in actual immigration detention (presumably the Park Hotel again) on Saturday night.
"That's what my client is prepared to agree to," Mr Lloyd says.
Judge Kelly has temporarily adjourned.
Judge Kelly is back. He's ordering Djokovic's lawyers file and serve their formal application and affidavit (including a copy of the minister's reasons for the decision) as soon as reasonably practicable.
He also wants an undertaking from the minister that until a final decision, or an application otherwise, he not take or attempt to take any steps to remove Djokovic from Australia.
He says Djokovic should be taken to the interview with immigration officials at 8am tomorrow, then to his lawyers office from 10am until 2pm. Then from 9am Sunday he should be taken back to his lawyers offices for the court hearing - supervised by two ABF officers.
Sunday's hearing will be by videolink again.
The case will be transferred to the Federal Court of Australia.
Mr Wood says he's got one "legitimate concern" about the 8am order tomorrow. He says Mr Lloyd gave the address of where that interview would happen. "We have a genuine concern about security and a potential media circus to be frank," he said.
He's suggesting that Djokovic be taken into immigration detention at a location agreed by the parties which hasn't been revealed "to the world".
Judge Kelly says he will not be a party to, or in any way somehow inveigled into the very real possibility of a media circus if that's what the parties anticipate.
He says "on mature reflection the obviousness of that circus might have occurred to everyone before 10.55pm on Friday".
"Don't put this at my feet," he said.
"Don't put this at my feet," he said.
Judge Kelly says it'll be noted that arrangements re: Djokovic's detention have been agreed by the parties, but there's been a bit of a disagreement about that because nothing has been formally signed.
"You can't ask me to broker this," Judge Kelly says - he's stood down for five minutes so they can sort themselves out.
Mr Wood says it's agreed that the judge should add the words "any other location agreed between the parties" to the order about where Djokovic will be interviewed/detained.
Judge Kelly is thanking the parties for their work tonight. He says he'll publish ex tempore reasons tomorrow morning explaining how he's arrived at the orders that have been agreed.
One last update for tonight - the case will now go before Justice Davi O'Callaghan in the Federal Court. A hearing has been scheduled for 10.15am tomorrow. It'll be live streamed here: youtube.com/user/FederalCo…
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