Thread by @karenlsweeney

New day, new judge, new thread. Justice David O'Callaghan is about to hold a procedural hearing in the Federal Cout over Novak Djokovic's visa cancellation and deportation. It starts at 10.15am AEDT.

To answer some questinos - today is purely a procedural hearing ahead of tomorrow's final hearing. I'm expecting Justice O'Callaghan will confirm the tranfer of the case to the Federal Court and some of the orders made last night around deadlines for filing documents.

Judge Kelly ordered last night that Djokovic be with his lawyers from 10am to 2pm today while they file submissions, so I expect he'll be watching this hearing with them or nearby. There'll also be two Border Force officers on the same floor so that he's technically in detention.

Today's reporting is brought to you by a lovely long walk with my dog. I might dive back into the hot cross buns later though.

And we're underway. While Judge O'Callaghan is sitting in court in person everyone else is online from remote location and he's made the formal order confirming that can happen. He's also reminding everyone it's illegal to record or screenshot the hearing.

He says the purpose of the hearing is to deal with confirming Judge Kelly's order transferring the case from the Federal Circuit Court to the higher Federal Court. Secondly is to deal with procedural isues.

Thirdly, he says the Chief Justice has asked him to find out from them if they think the proper jurisdiction is a single judge, or a full court. Justice O'Callaghan says a full bench could be convened tomorrow.

Paul Holdenson QC is speaking for Novak Djokovic today. He's appearing with Nick Wood SC again. He says he would like a few minute to consider a full court decision.

He says the other procedural matters are confirming Djokovic's application be filed an served by midday today, and the government's reponse by 10pm. There's also to be a decision on time limits for the hearing. Yesterday 60 minutes was suggested.

Mr Holdenson said there's an affidavit in support of the application being prepared. Ordinarily that wouldn't be made publily available unti lit's been "read" by the court - essentilly not before tomorrow's hearing. But he's not opposed to it being made public today.

Djokovic's lawyers are keen for a full court.

Holdenson: "I think three judges is appropriate. That matter can be dealt with, in our submission, by a full court."

Stephen Lloyd says the government is opposed to a full court referral and there's no justification for it.

"In the normal course, any party has a right of appeal. Having the matter referred to the full court would remove any party's right to appeal."

Just quickly - a decision of a single judge in the Federal Court can be appealed to a full bench of three judges. Djokovic's lawyers support skipping straight to the three judges, the government is against it.

Justice O'Callaghan says the parties will be notified later this morning whether it'll be one judge or three.

He's confirming the schedule now. The hearing will begin at 9.30am AEDT tomorrow, Sunday January 16.

Mr Lloyd says the immigration minister wants a live trancript of the hearing. That needs to be ordered.

"If that's what you want and the court needs to order it, we shall," Justice O'Callaghan says.

"I'll have my associate liaise with the parties on the question of whether the proceeding will be heard by a single judge or the full court during the course of this morning," Justice O'Callaghan says, ending the hearing.

A live transcript is exactly what it says on the box - a transcript that's done in real time and available to the parties. It means they can go back and check what was said straight away, rather than having to wait until the end of the hearing (or rely on super fast note taking).

So we know from the court documents that Djokovic’s lawyers were notified at 5.35pm yesterday that Immigration Minister Alex Hawke had cancelled his visa.

Documents including the minister’s reasons and a “rather large” document containing submissions to the minister, were emailed to Djokovic’s lawyers at 6.15pm.

In the reasons Mr Hawke notes Djokovic’s lawyers provided “lengthy submissions and supporting documentation”. He says Djokovic took issue with the personal power being use, rather than a process under which he could be heard before a decision is made.

“I chose to proceed under section 133C(3), having regard to the need to consider possible cancellation of the visa quickly, in light of the particular circumstances of the case and the public interest in resolving the matter expeditiously,” Mr Hawke says.

He notes the public interest includes a) the start of the Australian Open; b) the propped litigation challenging the decision and affording the court time to consider & decide; and c) a situation where Djokovic “may be a risk to health and good order” while free in the community.

On the matter of risk to health, Mr Hawke says Djokovic provided a “substantial volume” of journal articles, medical studies and evidence to show he is a “negligible threat of infection of others”.

The Chief Medical Officer also notes Djokovic “is likely to constitute LOW risk of transmitting (COVID) to others”.

The risk of transmission at the Australian Open was assessed as “VERY LOW”.

Mr Hawke also notes he will assume Djokovic interest Australia consistent with ATAGI advice. (This is where there’s been discussion about prior infection being a medical contraindication to vaccination or not.)

“I am aware that there was a dispute about it in the (Federal circuit Court) in relation to the delegate’s decision. For present purposes I will assume that Mr Djokovic’s position is correct rather than seeking to get to the bottom of this here.”

He says while he accepts Djokovic is a negligible individual risk of transmitting COVID-19 to others, he says Djokovic’s presence may be “a risk to the health of the Australian community”.

“I have given consideration to the fact that Mr Djokovic is a high profile unvaccinated individual who has indicated publicly that he his opposed to becoming vaccinated against COVID-19."

"Mr Djokovic has previously stated that he ‘wouldn’t want to be forced by someone to take a vaccine’ to travel or compete in tournaments."

He says he hasn’t sought Djokovic’s current views on vaccinations. “Even acknowledging this, the material before ehe makes it clear that he has publicly expressed anti-vaccination sentiment,” he says.

He talks about the Health Department advice on vaccination and the ATAGI advice about boosters being likely to increase protection against the Omicron variant.

“Because of this, I consider that Mr Djokovic’s presence in Australia may pose a health risk to the Australian community, in that his present in Australia may foster anti-vaccination sentiment…” he says.

He’s worried it may lead to other unvaccinated people refusing to be vaccinated, unvaccinated people heaving their views reinforced or a reducing in uptake of boosters.

He says given Djokovic’s high profile status and position as a role model, his continued presence in Australia might also encourage other not to comply with public health measures, including “precautionary requirements following receipt of a positive COVID-19 test in Australia”.

This is an obvious reference to Djokovic’s admission he went ahead with the L’Equipe interview after his positive test result.

In fact if I'd read that sentence properly I'd have noticed Mr Hawke specifically referred to the L'Equipe admission.

He also noted that in June 2020 Djokovic organised the Adria Tour. Media reports suggested there was a lack of social distancing that resulted in a covid cluster, infecting Djokovic and his wife among others. But he says while it's concerning he hasn’t given weight to it.

He goes on to the risk to “good order” again pointing to Djokovic’s status as a high profile individual and role model.

And then to the public interest. “I am concerned that his presence in Australia, given his well-known stance on vaccination, creates a risk of strengthening the anti-vaccination sentiment of a minority of the Australian community.”

He says in light of Djokovic’s position on vaccination and his failure to follow precautionary measures after a positive COVID-19 test, cancelling Djokovic’ visa would be consistent with the government’s strong stance on vaccination and measures to manage the pandemic.

On the Australian Travel Declaration Mr Hawke said he was aware Djokovic “has a false answer to question two” - about travel I note previous 14 days.

He says he assumes Djokovic didn’t break any laws in circumstances “where his agent says that she is to blame”.

“Mr Djokovic should have been more careful,” he says, noting that his decision would be the same without the false answer.

Mr Hawke says he considered that cancelling Djokovic’s visa is likely to cause him and his family “significant inconvenience and emotional hardship and distress”.

He says it is likely to result in “significant reputational, financial and professional implications for him” including his ability to compete in the #AustralianOpeu

There’s a long index of relevant material including one section labelled “What has Novak Djokovic actually said about vaccines”.

There’s other actions on “Media reporting on anti-vaccination civil unrest” and “Media reporting on anti-vaccine protests”.

Included in the information provided to the Minsiter by Djokovic's solicitors Hall & Wilcox on January 11 is a copy of a poll from The Age on whether he should be allowed to play:

This is the example of media reports on "anti-vaccination civil unrest"

There's also a statutory declaration sworn by a woman listed as Djokovic's "agent". Her name is redacted from teh document. She accept responsibility for writing "no" no his Australian Travel Declaration re: travel in the 14 days before he arrived in Melbourne.

"I am deeply sorry, distressed and very embarrassed," she says.

All up the document is 268 pages. There's a lot of stuff we've already seen before and some duplicates.

But that's just a rundown of the stuff I've found that's new and interesting.

UPDATE: Sunday’s hearing for Novak Djokovic will be heard by a full bench, comprised of Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan.