A strange thing happened to me this morning. I accompanied my elderly mother to Footscray so she could get her hair cut and buy a few things from the Greek Deli in the Footscray Market.
Afterwards, whilst we were waiting at Footscray station for the 406 bus, discussing when the next bus was due and whether it was better to walk to the tram stop, an elderly lady asked me if I was Italian (fairly easy to surmise given what language I was speaking in with my mother). Then she started asking me what I thought of Djokovic.
I said that I was not really interested in the matter. My mother, who had not really heard what she had said and who probably assumed this lady was a Jehovah’s Witness (my mother has often been accosted by elderly JWs when waiting for a bus) said something like ‘We have our own religion’ which is her default position for dealing with strangers accosting her like that.
The elderly lady then wandered off to accost someone else about the Djokovic business, reminding me somewhat of a cranky Italian man who used to grumble and swear a lot on my local bus (haven’t seen him for a while, so I presume either he is dead or his long suffering wife has committed him for a nursing home for the insane).
This got me thinking, when an eighty-something year old Serbian lady with limited English gets so worked up about something that she starts to approach strangers waiting for the same bus to try and engage them in conversation.
English common law has long held a principle of reasonability called ‘The Man on the Clapham omnibus’. This was first recorded in 1903 in McQuire vs Western Morning News, although the judge attributed it to a counsel in the infamous Tichburn claimant case of 1871, and it could be based on a phrase coined by the famous Victorian era journalist Walter Bagehot.
The test, which has been elaborated on many times (including in 1991 in Australia at the AAT as ‘the man on the Bourke Street tram’) is essentially that of what would a reasonably educated, intelligent but nondescript person think would be reasonable conduct.
I for one, am probably a tad too quirky and eccentric (which means I am definitely not ‘nondescript’) to fit the definition of the man on the Clapham (or more specifically in this case, Footscray) omnibus. Nor do I think that the elderly lady waiting for the same bus as myself would fit the definition – she probably has had more limited educational opportunities and would have less opportunity to become well informed on the issues.
But when looking at the Djokovic case (which I have intentionally avoided doing so in any great detail), I am fascinated by the unenviable conundrum faced by both the courts in hearing the new appeal and the Minister who has finally decided that it is appropriate to cancel Djokovic’s visa.
It is not a simple matter just of the facts, where there are apparent ambiguities between state and federal policies, and where it does appear that Tennis Australia has intentionally sought to get Djokovic into the country regardless of the rules. The matter is far too inflamed and high profile for that.
Commentators around the world, including politicians and journalists, have weighed in with many different opinions. It was one of the seven daily items in my roundup email from The Washington Post overnight. One analysis I read this morning suggested that this was the one matter which would, given its symbolism, cause the defeat of the federal government at the upcoming election.
On an existentialist level, I see the whole business as rather absurd. Someone with some highly eccentric views about medicine and who has a talent for hitting a green rubber ball over a net has been denied entry into Australia, and has exercised his rights to have that decision reviewed by the courts. That such a matter becomes a worldwide headline seems quite bizarre to me – after all, don’t we have other bigger matters to worry about (eg Putin’s Russia, ISIS, Communist China, the Taliban, North Korea’s ongoing nuclear armament program, and of course the Covid plague)? And since when is being a high profile anti-vaxxer grounds for messianic analogies?
However we are not existentialists. News cycles demand news, particularly stories which suggest that someone, or some people, have made some all too human mistakes.
The weary public does not always understand the nuances of our legal system and such important principles as due process. Often inflamed by populist politicians and journalists, parts of the public sometimes feel great outrage and want action.
Happily, in a system like ours, based on principles which were being built long before the codification offered in the Magna Carta, there is due process. We do have judges who are learned and fair minded and it is up to them, rather than the court of public opinion, to decide whether a decision is fair and reasonable and lawful.
And those judges will be asking themselves what would the man on the Clapham (or Footscray) omnibus think is reasonable in this case? It will be harder than usual to arrive at a just conclusion, given how inflamed and divided opinion is on the matter, including informed opinion.