Referral of inquiry
The Migration Amendment (Health Care for Asylum Seekers) Bill 2012
(Bill) is a private senators' bill introduced by Senator Sarah Hanson-Young and
Senator Richard Di Natale on 11 September 2012.
On 13 September 2012, the Senate referred the Bill to the Legal and
Constitutional Affairs Legislation Committee (committee) for inquiry and report
by 20 November 2012.
The reporting date was subsequently extended to 7 December 2012.
Purpose of the Bill
According to the Explanatory Memorandum (EM), the purpose of the Bill is
'to help safeguard the health and wellbeing of asylum seekers under the care of
The Bill seeks to amend the Migration Act 1958 (Cth)
(Migration Act) to create an independent panel of medical, psychological
and other health experts to monitor, assess and report to the parliament on the
health of asylum seekers who are taken to regional processing countries.
The EM states:
The [panel] is intended to have the expertise and
independence to make a thorough investigation and deliver findings in a way
that is not subject to interference by the Minister, the relevant Department
and other organisations responsible for the provision of health services and
the care of detainees.
Key provisions of the Bill
Section 198AB of the Migration Act provides that the Minister may, by
legislative instrument, designate a country as a 'regional processing country'. The Minister for Immigration and Citizenship, the Hon Chris
Bowen MP, designated Nauru as a regional processing country on 10 September
2012, and designated Papua New Guinea as a regional processing
country on 9 October 2012.
A designation takes effect immediately after both houses of the parliament
have passed a resolution approving the designation (paragraph 198AB(1B)(a) of
the Migration Act). In the cases of Nauru and Papua New Guinea, this
occurred on 12 September 2012 and 10 October 2012
Item 1 of Schedule 1 of the Bill proposes to amend the Migration Act by
inserting new section 198ABA – 'Health advisory panel' (Panel). Proposed
new subsection 198ABA(1) provides that the Minister must establish a Panel
to 'monitor, assess and report on the health of 'offshore entry persons'
who are taken to regional processing countries'.
Each member of the Panel must be appointed by the Minister by written
instrument and would hold office on the terms and conditions determined in the
The Minister must not appoint a person as a member of the Panel unless
satisfied that the person has expertise in one or more of the following areas:
- the medical profession;
- the psychology profession;
- the dental profession;
- public health; or
- child health.
Proposed new paragraph 198ABA(3)(b) provides that the Minister can only
appoint a person to the Panel if they have been nominated by one, or more, of
the following bodies:
- the Australian Medical Association;
- the Royal Australian College of General Practitioners;
- the Royal Australian and New Zealand College of Psychiatrists;
- the Royal Australasian College of Physicians; or
- the Australian Psychological Society.
The Panel would be responsible for determining how its functions are to
be carried out.
Proposed new subsection 198ABA(5) outlines activities that the Panel may
undertake in performing its functions, specifically:
- assigning Panel members to monitor and assess the health of
offshore entry persons in different regional processing countries;
- travelling to regional processing countries to carry out
monitoring and assessment activities;
- assessing the health of an offshore entry person when they first
arrive at a regional processing country; and
- monitoring an offshore entry person's health on an ongoing basis
for as long as they remain in the regional processing country.
At least every six months, the Panel must prepare a written report on
the health of offshore entry persons who have been taken to regional processing
A copy of the Panel's report must be given to the Speaker of the House of
Representatives and the President of the Senate for presentation to the House
of Representatives and the Senate.
The report must not include any information that may identify an offshore entry
The Panel may also make recommendations to the Minister in respect of
the health of offshore entry persons who have been taken to a regional
Proposed new subsection 198ABA(8) provides that, where the Panel
believes that a Commonwealth department or prescribed authority (a 'relevant
agency'), or a consultant or contractor to a relevant agency, has information,
documents or other records relevant to the Panel's performance of its
functions, then the Panel may require that the information, documents or other
records be given to the Panel.
Item 2 of Schedule 1 of the Bill seeks to amend section 499 of the
Migration Act. Section 499 of the Migration Act provides for the Minister
to give directions to a person or body having functions or powers under the
Migration Act. The amendment in item 2 specifically excludes the Panel as a
body to which the Minister can give directions.
Conduct of the inquiry
The committee advertised the inquiry in The Australian on 26 September 2012.
Details of the inquiry, including links to the Bill and associated documents,
were placed on the committee's website at www.aph.gov.au/senate_legalcon. The
committee also wrote to a number of organisations and individuals, inviting
submissions by 17 October 2012. Submissions continued to be accepted after that
The committee received 20 submissions, which are listed at Appendix 1.
All submissions were published on the committee's website.
The committee held a public hearing on 23 November 2012 at
Parliament House in Canberra. A list of witnesses who appeared at the
hearing is at Appendix 2, and the Hansard transcript is available
through the committee's website.
Scope of this report
The committee received a number of submissions which focussed on broader
issues in relation to the Australian Government's policy of regional processing
for asylum seekers. The broader issues raised in submissions include:
- opposition to offshore processing of asylum seeker claims on the
basis that it breaches Australia's human rights obligations;
- the impact of detention on the health of asylum seekers,
particularly in relation to their mental health;
the poor conditions in processing centres in Nauru and
Manus Island (Papua New Guinea) and the impact that these conditions
have on the health of asylum seekers;
- inadequacy of health services for detainees in immigration
detention in Australia and asylum seekers in regional processing countries.
In this report, the committee has limited its consideration to the Bill
only, and has not examined the broader policy debate relating to regional
The committee thanks those organisations and individuals who made
submissions and gave evidence at the public hearing.
Note on references
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard
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