Unforced Errors: Novak Djokovic, Tony Jones, and the Human Rights Commission
Summer in Melbourne serves up the Australian Open at the start of each year, bringing in the world’s very best tennis players to compete for grand slam glory. Whilst Aperol Spritzes and heat waves are non-negotiables at the Open, in recent years, so is controversy – especially whenever 24-time Grand Slam Champion Novak Djokovic is in Australia. His love-hate relationship with the country where he has found the most grand slam success continues to develop, with this year’s Australian Open being no different.
Pre-match Analysis – what happened between Novak Djokovic and Tony Jones?
Late in Week 1 of the Australian Open, Channel 9 Broadcaster Tony Jones made some remarks live on television which provoked a strong reaction from the Djokovic team. Gathering a small crowd of passionate Serbian fans adorned in flags to cheer loudly behind him for the camera, Jones chanted along with them, “Novak, he’s overrated; Novak’s a has-been; Novak, kick him out”. Pretending that is what the Serbian fans were chanting, Jones then states “Boy, I’m glad they can’t hear me”. These comments by Jones led to Djokovic boycotting official interviews and media obligations with Channel 9, including the customary post-match on-court interview, until a public apology was issued by Channel 9 and Jones. Both were promptly delivered the next morning.
However, on the 19th of January, the Serbian Council of Australia (‘SCOFA’) issued a media statement revealing that they had lodged a formal complaint with the Human Rights Commission (‘HRC’). They are also demanding the suspension and dismissal of Tony Jones, alongside a public apology to be delivered on their media platforms.
This is only the latest drama to envelop Djokovic at Melbourne Park. In 2022, incredibly tumultuous events saw him deported from Australia after being kept in quarantine for providing false information on his travel form, and refusing to be vaccinated against COVID19 – a requirement for all competing tennis players at that year’s Australian Open. This debacle is closely tied in to the complaint made by the SCOFA to the HRC.
SCOFA to Serve - what is SCOFA’s complaint to the HRC?
An ABC interview with SCOFA Board Member, Dr Nina Markovic, gives greater insight into the complaint made to the HRC. Markovic expresses that the SCOFA were ‘deeply concerned’ about the comments made, asserting that Jones’ remarks were ‘absolutely offensive to all sports fans.’ [1] Their claim to the HRC is predominantly based on Section 18C of the Racial Discrimination Act (Cth) 1975. This legislation makes it unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely to “offend, insult, humiliate or intimidate another person,” and that the act is done because of the “race, colour or national or ethnic origin of the other person”. [2]
Advantage Server – what does a successful S18C claim need to have?
Any claim under the often-disputed Section 18C law needs to have 3 elements, as affirmed by Stewart J in Faruqi v Hanson [3] –
(1) the relevant act must be done “otherwise than in private”
(2) the act must be “reasonably likely” to “offend, insult, humiliate or intimidate”
(3) the act must be done “because of the race, colour or national or ethnic origin of a person or group of people.”
The SCOFA’s claim is predominantly based on the third comment made by Jones – “Novak, kick him out.” This comment, the SCOFA maintains, is racially vilifying to Serbian Australians because it perpetuates the racism that many of them suffered in 2022 when Djokovic was “kicked out” of the country. Markovic notes that surveys conducted by them reveal that many Serbian Australians faced some sort of racial discrimination due to Djokovic’s deportation. [4] These comments by Jones return these feelings and trauma, suggesting once more that they are not welcome in the country, and as such, are offensive and racially discriminating. [5]
Where element (1) is easily achieved given the live, on-air public broadcast in which the comments were made, elements (2) and (3) may be harder to prove.
Forehand Winners – what are some previous successful S18C claims?
Interestingly, a very recent high-profile case between Senators Mehreen Faruqi and Pauline Hanson shed light on the approach on such cases. Whilst the claim did not progress with the HRC due to Senator Hanson’s unwillingness to cooperate, it did allow Senator Faruqi to pursue the case in a Federal Court. Here, the court found that Hanson’s tweet telling Faruqi to “piss off back to Pakistan” was a breach of S18C and amounted to racial discrimination. This is because, among other reasons, the dysphemistic statement was “a variation of an age-old racist trope” of telling people to “go back to where they came from.” [6] In their judgement, Stewart J gives particular attention to such comments elucidating a sentiment of anti-immigration and “nativist” as a “common form of racism”. [7] There are parallels to be drawn here with the claims made by SCOFA.
In Bharatiya v Antonio, following another failed conciliation with the HRC, the Federal Court found that insults of “cockroach” and “parasite” were breaches of S18C. [8] This is because they were contextually used to mean that the plaintiff and his family were not welcome in the country, alluding to their status as immigrants. In this, the court also reiterates that race, colour, national or ethnic origin must be a reason for why the comments are made, as per the legislation, but need not be “the dominant reason or a substantial reason.” [9] Again, a theme seems to exist against even the simplest of language that can be racially vilifying.
Tiebreaker – what does all this mean for SCOFA?
There appears to be scope within the judicial system to pursue claims successfully regarding offensive comments made to, or about, someone - but the requirements are strict. The SCOFA will need to show that the comments made by Tony Jones, particularly to “kick him out,” were directly, at least in part, related to his ethnicity as a Serbian – rather than as a reference to his deportation in 2022 due to his vaccination status.
Whilst the SCOFA waits to see if the HRC progresses to investigate the issue, Novak Djokovic has his sights set squarely on his 11th Australian Open crown. The undisputed king of Melbourne Park, will it once more be, game, set, Djokovic?
References
[1] Interview with Dr Nina Markovic (Raf Epstein, ABC Melbourne, 20 January 2025).
[2] Racial Discrimination Act 1975 (Cth) s18C.
[3] Faruqi v Hanson [2024] FCA 1264, [25].
[4] Interview with Dr Nina Markovic (Raf Epstein, ABC Melbourne, 20 January 2025) https://www.abc.net.au/listen/programs/melbourne-mornings/serbian-council-of-australia-refers-tony-jones-to-human-rights-c/104837622?fbclid=IwY2xjawH-59dleHRuA2FlbQIxMQABHRvqsHbAXPVQcAzLMXLeaQV6QREAM937u2b6xBo6X1OJqe153BkN6pQnwA_aem_n0td-9S-6N04WlmMdhapWQ.
[5] Ibid.
[6] Faruqi v Hanson [2024] FCA 1264, [57].
[7] Ibid [222].
[8] Bharatiya v Antonio [2022] FCA 428.
[9] Ibid [50].