Bills Digest No. 56, 2018–19
PDF version [673KB]
Law and Bills Digest Section
Social Policy Section
Purpose of the Bill
Key issues and provisions
Policy position of non-government
Position of major interest groups
Statement of Compatibility with Human
Date introduced: 3
House: House of
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at February 2019.
Scope of digest
The Migration Amendment (Urgent Medical Treatment) Bill
2018 was introduced in the House of Representatives on 3 December 2018 by crossbenchers
Kerryn Phelps, Andrew Wilkie, Adam Bandt, Julia Banks and Rebekha Sharkie. On
6 December 2018, an amended version of the Bill’s provisions passed the
Senate as Schedule
6 of the Government’s Home
Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, following amendments moved by Senators Tim Storer and
Nick McKim. The Miscellaneous Measures Bill, including the Senate’s
amendments, will now return to the House for consideration.
This digest discusses both the Urgent Medical Treatment
Bill as introduced, and the amended version of the Bill’s provisions
contained in Schedule 6 of the Miscellaneous Measures Bill.
Purpose of the
The purpose of the Migration Amendment (Urgent Medical
Treatment) Bill 2018 (the Bill) is to amend the Migration Act 1958
(Cth) (the Act) to require the temporary transfer to Australia of minors and
other ‘transitory persons’ in regional processing countries for the purpose of
receiving medical or psychiatric assessment or treatment.
regional processing arrangements
The policy of transferring asylum seekers who arrive in
Australia unauthorised by boat to processing centres in Nauru and Papua New
Guinea (PNG) has a long and complex history. Regional processing of asylum
seekers was originally introduced by the Howard Government in 2001.
It was ended by the Rudd Government in 2008, but reintroduced by the Gillard
Government in August 2012, following the recommendations of the Report of the
Expert Panel on Asylum Seekers.
On 29 August 2012 the Australian Government signed a
Memorandum of Understanding (MOU) with the Government of Nauru and, on 8
September 2012, the Government signed an updated MOU with the Government of PNG.
Under these arrangements, any asylum seeker who arrived in Australia by boat
could be (but did not necessarily have to be) transferred to a Regional
Processing Centre (RPC) in a designated regional processing country for processing.
The first transfer of asylum seekers to Nauru occurred on 14 September 2012 and
to PNG on 21 November 2012.
Following his return to the Prime Ministership in June
2013 Kevin Rudd announced a new arrangement whereby all, not just some, asylum seekers
who arrived by boat would be transferred to PNG for processing. Further, those
found to be refugees would also be settled in PNG, or elsewhere in the
region—the clear policy intention was that they would never be resettled to
A similar agreement was made with the Government of Nauru in August 2013.
Upon forming Government in 2013 the Coalition continued
with the policy of regional processing of asylum seekers in Nauru and PNG, and
has held fast to the commitment to not allow any asylum seekers processed in
RPCs to settle in Australia. It has consistently argued that resettling this
cohort in Australia would act as a pull factor to other asylum seekers wishing
to come to Australia.
Responsibility for processing refugee claims in Nauru and
PNG rests with the Governments of those countries, not Australia. Those found
to be refugees have various options available in relation to their long-term
assessed as refugees in Nauru may receive a visa to remain in Nauru for 20 years
assessed as refugees in PNG may be resettled permanently in PNG
assessed as refugees in either Nauru or PNG may apply for resettlement in the
United States (US) under the resettlement arrangement agreed between Australia
and the US in 2016.
The vast majority of people transferred from Australia to
an RPC have now had their refugee claims assessed, and those found to be
refugees have either been settled in Nauru, PNG or the US, or are awaiting
resettlement. Those found not to be refugees have either returned to their
country of origin (voluntarily or involuntarily) or are waiting to be returned.
The RPC in PNG was closed in October 2017, and those awaiting return or
resettlement were moved to transit centres elsewhere on Manus Island.
The RPC in Nauru remains open, with people still residing there, but has operated
since 2015 as an ‘open centre’ (meaning residents are free to come and go from
the centre and move around the island without formal restriction).
As at October 2018, there were 652 people in Nauru who had
been sent there under Australia’s offshore processing arrangements—541 had been
found to be refugees, 88 were still having their refugee claims processed, and
23 had had their refugee claims rejected.
A further 276 people had been resettled from Nauru to the US.
As at 31 December 2018 there were 10 people residing in the Nauru RPC.
As at October 2018 there were 626 people in PNG who had
been sent there under Australia’s offshore processing arrangements—495 had been
found to be refugees, and 131 had had their refugee claims rejected. A further
146 people had been resettled from PNG to the US.
services in regional processing countries
Regional processing of asylum seekers has been criticised
by refugee advocates and human rights groups on many grounds.
One of the major points of contention has been the adequacy of health care,
which has been called into question by doctors and medical bodies as well as by
refugee and human rights groups. This is the issue to which the current Bill
relates. The premise of the Bill is that the health care provided in Nauru and
PNG is frequently inadequate, and people requiring urgent medical care should
be transferred to Australia to receive that care.
When regional processing recommenced in 2012,
International Health and Medical Services (IHMS) was contracted to provide
health care in both the Nauru and PNG centres.
Health care services for those transferred to Nauru continue to be provided by
IHMS, however the IHMS contract for health care services on Manus Island ended
in April 2018—health care for people who have been transferred to PNG is now
provided by Pacific International Hospital (PIH), and through the local PNG
Advocates have expressed concern that, under the new arrangements, the standard
of health care provided to refugees in PNG has declined significantly. In
particular, critics are concerned that the health care provided is inadequate
to deal with the mental health services required by refugees who have
experienced torture, trauma, and prolonged detention.
Similarly, refugee and human rights advocates, as well as
medical groups, have expressed concern over the adequacy of health care
arrangements in Nauru, particularly in relation to the mental health needs of
The provision of health care operates differently for those still residing in
the RPC and those who have been found to be refugees and resettled in the
community—the health care provided in the RPC is expected to be broadly
commensurate with the level of health care available in Australia, while for
those resettled in the Nauruan community the standard is broadly commensurate
with the level of health care available to the Nauruan population.
Under current arrangements, asylum seekers and refugees in
Nauru and PNG may be brought to Australia
for medical treatment or assessment following a request by the contracted
health care provider, or the Government of PNG or Nauru.
Requests for medical transfer to Australia are considered by the Department of
Home Affairs’ Transitory Persons Committee (comprising senior officers from the
Department), which makes a recommendation concerning the transfer to the
Australian Border Force Assistant Commissioner, Offshore Operations Command. That
officer then makes the decision to transfer or not transfer the person to
People transferred from Nauru or PNG to Australia for medical treatment are
only permitted to remain in Australia for the duration of that treatment, and
are then returned to the relevant regional processing country. There is no
provision for them to remain in Australia permanently (see the ‘Key issues and
provisions’ section of this digest below for an explanation of the existing
Concern about the adequacy of health care in Nauru and PNG
has mounted over the last several months.
Attention on the issue came to the political fore when Dr Kerryn Phelps was
elected as the Member for Wentworth in a by-election on 20 October 2018, and
identified the removal of children and their families from Nauru as one of her
In her maiden speech to Parliament on 28 November 2018 Dr Phelps affirmed her
commitment to this issue, stating ‘I cannot be an
idle bystander to the reports of the shocking mental and physical state of
children held on Nauru, helpless victims of Australia's offshore processing
Dr Phelps subsequently moved quickly to introduce the Bill, with the support of
several other members of the cross bench.
On 4 February 2019 the Government announced plans for a
new Medical Transfer Clinical Assurance Panel, which it states would provide ‘an
additional layer of oversight of decisions for the medical transfer of
individuals from regional processing countries’.
The Panel would be appointed by the Minister, chaired by a nominee of the
Commonwealth Chief Medical Officer, and would include clinicians with torture
and trauma counselling experience. It would be required to report to Parliament
twice a year. However the Panel would perform an advisory role only, and the
final decision on whether a person should be transferred for medical treatment
would continue to rest with the Government. Some supporters of the Bill have
welcomed this move as an improvement on current arrangements, however continue
to voice their support for a system which would place the decision-making power
in the hands of medical professionals, as provided for in this Bill.
In a related announcement, on 3 February 2019 the
Government issued a media release reporting that it had successfully gotten all
asylum seeker and refugee children off Nauru—specifically, that the last four
remaining children, along with their families, had been approved for
resettlement to the US and would shortly be departing Nauru.
Given that much of the concern around health care in regional processing
countries has focused on the needs of children, this announcement could be
viewed as a significant milestone. However, the Minister for Immigration has stated
that there are children currently in Australia who have been removed from Nauru
for medical treatment, who will not be permitted to remain in Australia when
their treatment is complete.
Medical transfers to Australia are for a temporary period only, so those
currently in Australia still face the possibility of being returned to Nauru
following their treatment. This will continue to be the case even if the Bill
Key issues and
The Act currently provides that unauthorised maritime
arrivals—those who enter Australia by sea and without a valid visa—must be
removed from Australia and taken to a regional processing country.
Such persons, as well as their children born in a regional processing country
or in Australia, are referred to as transitory persons.
A transitory person is not entitled to apply for a visa
unless the Minister permits them to do so.
There is a statutory bar against legal proceedings being brought against the
Commonwealth in relation to the status, detention or removal of transitory
persons from Australia, though this does not prevent proceedings being brought
in the High Court under its original jurisdiction.
Section 198B currently provides that an officer may bring
a transitory person to Australia for a ‘temporary purpose’. A person brought to
Australia under this provision must be removed as soon as reasonably
practicable after they no longer need to be in Australia for this purpose,
whether or not it has been achieved.
The Act does not currently define or provide guidance on what may be captured
by the term ‘temporary purpose’.
Item 2 of the Bill inserts proposed subsection
198B(4) into the Act, to specify that a temporary purpose may include (but
is not limited to) the following:
or psychiatric assessment or treatment or
a transitory person being brought to Australia under the Act for a temporary
purpose, who is either a member of the same family unit or as otherwise
recommended by a medical practitioner.
This amendment is retained in the Senate amendments to the
Miscellaneous Measures Bill.
Medical transfer power
Item 3 of the Bill inserts proposed section 198C,
which provides for the transfer of certain transitory persons for medical
treatment purposes. As discussed below, these provisions have been amended by
the Senate in Schedule 6 of the Miscellaneous Measures Bill. Both
versions of the proposed legislation provide for the transfer of three
categories of persons in regional processing countries:
minors’—transitory persons aged under 18
transitory persons’—transitory persons who require medical assessment and/or
members of ‘relevant transferees’.
Proposed section 198C operates in addition to the broader
transfer power under existing section 198B.
Although it makes transfer mandatory in certain circumstances, the Bill
expressly provides that this must not occur without the transferee’s consent.
Under the Bill, proposed subsection 198C(1) states
that, where an officer knows or reasonably suspects a transitory person is a legacy
minor, the officer must, as soon as practicable, bring the person to
Australia for the temporary purpose of medical or psychiatric assessment or
The Bill defines legacy minor as any
transitory person who, at the Bill’s commencement, is in a regional processing
country, is under 18, and has not previously been the subject of the transfer
power under proposed subsection 198C(1).
The inclusion of this third limb appears to mean that a child previously
brought to Australia for medical treatment under this provision will no longer
be a ‘legacy minor’, even if they have been returned to a regional processing
country and are still under 18 years old.
The Senate amendments to the Miscellaneous Measures Bill
alter this definition of legacy minor to remove the third
limb—that is, that the person has not previously been subject to a medical
transfer under proposed subsection 198C(1). A person will be a ‘legacy
minor’ if they are a transitory person and at the date of the provision’s commencement,
are in a regional processing country and aged under 18.
The amendments also introduce a stricter precondition
for exercise of the power under proposed subsection 198C(1), by requiring
the Minister to approve the transfer before it can take place.
Provisions relating to the Minister’s approval are discussed further below.
Relevant transitory persons
Proposed subsection 198C(2) of the Bill relates to
the transfer of relevant transitory persons, defined as
transitory persons in a regional processing country who:
assessed by a treating doctor as requiring medical or psychiatric assessment or
not receiving appropriate assessment or treatment in the regional processing
A treating doctor is a medical practitioner
registered or licensed to provide medical or psychiatric services in Australia
or a regional processing country, and who has assessed the person, whether
remotely or in person.
A relevant transitory person must be brought to
Australia as soon as practicable for the temporary purpose of receiving medical
or psychiatric assessment or treatment where the Secretary is notified that the
person has been assessed by two or more treating doctors as being a
relevant transitory person.
The Senate amendments to the Miscellaneous Measures Bill
introduce an additional limb to the definition of relevant transitory
person, being that, in the opinion of the person’s treating doctor,
it is ‘necessary’ to remove them from a regional processing country for ‘appropriate
medical or psychiatric assessment or treatment’.
The amendments also add the requirement that the
transfer be approved by the Minister before it can take place.
Proposed subsections 198C(3) to (5) of the Bill provide
for the mandatory transfer of family members of transitory persons, and other
accompanying persons, in three circumstances. These are where an officer knows
or reasonably suspects that a transitory person in a regional processing
a member of the same family unit as another transitory person being brought to
Australia for a temporary purpose
been recommended by a treating doctor to accompany another transitory person
being brought to Australia for a temporary purpose
a member of the same family unit as a minor who is in Australia.
Under the Migration Act and Regulations, the term member
of the family unit has a different meaning in relation to different
As a general rule, the term captures a spouse or de facto partner of another
person (the family head), or a child or step-child of the family
head or their partner (who is either under 18 or dependent on the family head
The Senate amendments to the Miscellaneous Measures Bill
add the requirement that the Minister approve the family member’s transfer to
The Senate amendments in Schedule 6 of the
Miscellaneous Measures Bill include an amended version of proposed section
198C which makes it a prerequisite for all transfers that the Minister has provided
approval. The requirements for the Minister’s approval are set out in proposed
sections 198D (for legacy minors), 198E (for relevant
transitory persons) and 198G (for members of the same family unit).
In all cases, the Minister has 24 hours to decide whether
to approve or refuse to approve a transfer after being notified of a person falling
into one of the three categories discussed above.
If the Minister fails to make a decision within 24 hours about the transfer of a
legacy minor or relevant transitory person, they will be taken to have approved
Most approval decisions are non-delegable, though there is no express
restriction against the Minister delegating the power to approve family member or
accompanying person transfers.
transfer on security grounds
A transfer can be refused if the Minister reasonably
believes it would be prejudicial to security within the meaning of the Australian Security
Intelligence Organisation Act 1979 (ASIO Act), including because
there is an adverse security assessment in respect of the person in force.
For legacy minors and family members/accompanying persons, this is the sole
ground on which the Minister can refuse to approve a transfer.
The provision does not specify when a transfer will be
prejudicial to security; however, the ASIO Act defines security
protection of the Commonwealth, states and territories and the Australian
people from espionage, sabotage, politically motivated violence, promotion of
communal violence, attacks on Australia’s defence system or acts of foreign
of Australia’s territorial and border integrity from serious threats and
carrying out of Australia’s responsibilities to any foreign country in relation
to any of the above matters.
There is a somewhat similar provision already in the Migration
Act in the context of the character test—a person will not pass the
character test if they are assessed by ASIO as a direct or indirect risk to
security, within the meaning of the ASIO Act.
However, under Schedule 6 of the Miscellaneous Measures Bill, the
Minister’s power to refuse to approve the transfer does not require an actual
security assessment by ASIO but turns on the Minister’s own reasonable belief
as to whether the transfer will be prejudicial to security.
The Minister’s decision to refuse a transfer on security
grounds is not subject to merits review, but may be subject to judicial review.
transfer on medical grounds
In relation to transfers of a relevant transitory person
on medical grounds, the Minister may also refuse to approve the transfer if
they reasonably believe it is not necessary to remove the person from a
regional processing country for appropriate medical or psychiatric assessment
A decision to refuse a transfer on this basis is subject
to review by the Independent Health Advice Panel, which is discussed below.
Unlike a refusal on security grounds, it may also be subject to merits review
by the Administrative Appeals Tribunal.
Reasons for decisions
Schedule 6 of the Miscellaneous Measures Bill also
inserts proposed section 198J into the Act. This states that if refusing
to approve a transfer, the Minister must cause a refusal statement—a
statement of reasons for the Minister’s decision—to be laid before each House
of Parliament within three sitting days after making the decision. This statement
must not include information which may identify any person.
There is no express requirement for the Minister to
provide reasons to the person who is the subject of the decision.
However, item 6 amends existing subsection 474(4) of the Act to provide
that the Minister’s decisions regarding transfers are not privative clause
decisions. This brings them within the scope of the Administrative Decisions
(Judicial Review) Act 1977, which allows a person to request reasons for a
Proposed subsections 198D(7), 198E(8) and 198G(6)
state that the Regulations may prescribe processes to be complied with in
relation to the exercise of the Minister’s powers under these sections.
Health Advice Panel
The amendments in Schedule 6 of the Miscellaneous
Measures Bill establish an Independent Health Advice Panel, with the objective
of monitoring, assessing and reporting on the health of transitory persons in
regional processing countries, and the standard of health services provided to
The Panel will consist of at least eight members, including the Commonwealth
Chief Medical Officer and the Department’s Chief Medical Officer and
Surgeon-General of the Australian Border Force. Other members are appointed by
the Minister based on nominations by various professional medical bodies.
adverse transfer decision
The Panel is responsible for conducting an immediate
review of a decision by the Minister to refuse to approve a transfer of a ‘relevant
transitory person’ on the basis that it is not medically necessary. The
Minister must notify the Panel of the refusal ‘as soon as practicable’. The
Panel then has 24 hours to conduct a clinical assessment of the person (this
may be done remotely) and advise the Minister of its findings, including a
recommendation as to whether the Minister’s decision should be confirmed.
The recommendation must be agreed by a majority of the Panel’s members.
If the Panel recommends that the person’s transfer should
be approved, the Minister is required to follow this unless satisfied there are
security grounds for refusing the transfer.
functions and powers
The proposed provisions give the Panel broad discretion as
to how it will perform its functions.
It has the power to obtain information and documents from relevant agencies and
The Panel may make recommendations to the Minister in regards to the health of
transitory persons in regional processing countries ‘at any time it considers
It is required to produce a three-monthly report for the Minister on its
operations, with the first report to include an assessment of:
physical and mental health conditions of transitory persons in regional
processing countries and
standards of health services provided to such persons.
Within three sitting days of receiving the Panel’s reports,
the Minister must cause a summary to be laid before each House of Parliament. Within
three sitting days of doing so, the Minister must also prepare, and lay before
Parliament, a response to the Panel’s report.
The Senate Standing Committee for the Selection of Bills
has not reported on the Bill at the time of writing.
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
has not commented on the Bill at the time of writing.
position of non-government parties/independents
The Government voted against the amendments to the
Miscellaneous Measures Bill 2018.
A joint media release by Minister for Home Affairs, Peter Dutton, and Minister
for Immigration, Citizenship and Multicultural Affairs, David Coleman, stated:
Today [the ALP’s] National Conference will confirm the end to
offshore processing via its support for legislation that contracts out
Australia’s border protection to activist doctors, who via Skype, will decide
that illegal arrivals in Manus and Nauru must come to Australia.
Minister Coleman has also said that a ‘character test’
should apply to transfers, to prevent persons with a criminal history from
being brought to Australia.
Independent Cathy McGowan has stated that she has not yet
made a final decision on the legislation, and has sought the views of her
constituents on the issue.
major interest groups
Outside Parliament, the Bill has received support from
several quarters, including in the medical, legal, human rights and refugee
From the medical community, the Australian Medical
Association (AMA) and the Royal Australian College of General Practitioners
(RACGP) have both voiced support for the Bill, stating that asylum seekers and
refugees have a right to appropriate medical care and that decisions about
medical care should be made by medical practitioners and clinical experts.
The Law Council of Australia has also voiced its support
for the Bill, stating that removing asylum seeker children from Nauru to
Australia, and ensuring the health and safety of adult asylum seekers in regional
processing countries, is not only medically necessary, but also necessary in
terms of Australia’s international obligations.
The Bill is also supported by many organisations in the
community sector, including refugee advocacy groups, who have been campaigning
for many years for an end to regional processing, and for those in RPCs in
Nauru and PNG to be brought to Australia.
The Explanatory Memorandum states that the Bill will have
no financial impact.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Bill’s proponent has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act, and
considers that the Bill is compatible.
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights has not
reported on the Bill at the time of writing.
information on regional processing under the Howard Government see J Phillips, The
‘Pacific Solution’ revisited: a statistical guide to the asylum seeker
caseloads on Nauru and Manus Island, Background note, Parliamentary
Library, Canberra, 4 September 2012.
Expert Panel on Asylum Seekers was established by the Gillard Government to
consider options on the best way forward for asylum seeker policy. One of its
recommendations was that offshore processing be reintroduced as a short term
‘circuit-breaker’ while longer term cooperation measures were pursued with
regional partners. See A Houston, Report
of the Expert Panel on Asylum Seekers, [Department of the Prime
Minister and Cabinet, Canberra], 2012.
Bowen (Minister for Immigration and Citizenship), Australia signs memorandum of understanding with Nauru, media release, 29 August 2012; and Australia and Papua New Guinea sign updated memorandum of understanding, media release, 8 September 2012.
only Nauru and PNG are designated as regional processing countries under
section 198AB of the Migration Act. See: Migration Act 1958 -
Instrument of Designation of the Republic of Nauru as a Regional Processing
Country under subsection 198AB(1) of the Migration Act 1958 - September 2012
and Migration Act
1958 - Instrument of Designation of the Independent State of Papua New Guinea
as a Regional Processing Country under subsection 198AB(1) of the Migration Act
1958 - October 2012.
. C Bowen (Minister for Immigration and Citizenship), First transfer to Papua New Guinea, media
release, 21 November 2012; Nauru designated for regional processing,
media release, 10 September 2012; and Asylum seeker transfer to Nauru,
transcript, 14 September 2012.
. K Rudd (Prime Minister), Australia and Papua New Guinea Regional Settlement Arrangement, media release, 19 July 2013; and Department of Immigration and
Citizenship (DIAC), ‘Regional resettlement arrangements’, DIAC
website, July 2013.
. K Rudd (Prime Minister), New arrangement with Nauru Government,
media release, 3 August 2013.
example see P Dutton (Minister for Home Affairs), Transcript:
interview with Kieran Gilbert, Sky News, media release,
10 December 2018.
Legal and Constitutional Affairs References Committee, Serious
allegations of abuse, self-harm and neglect of asylum seekers in relation to
the Nauru Regional Processing Centre, and any like allegations in relation to
the Manus Regional Processing Centre, The Senate, Canberra, April 2017,
Turnbull (Prime Minister) and P Dutton (Minister for Immigration and Border
resettlement from regional processing centres, media release, 13
November 2016. A small number of people (seven) processed in Nauru were resettled
in Cambodia under an agreement reached with Cambodia in 2014, however that
arrangement ceased in 2018. See SBS News, ‘Cambodia
refugee deal to lapse this year’, SBS News website, 31 May 2018.
Dutton (Minister for Immigration and Border Protection), Manus
RPC closure, media release, 31 October 2017.
Dutton (Minister for Immigration and Border Protection), Australia
welcomes Nauru open centre, media release, 5 October 2015.
Legal and Constitutional Affairs Legislation Committee, Supplementary
Budget Estimates, Home Affairs portfolio, 22 October 2018, p.
of Home Affairs (DHA), Immigration
detention and community statistics summary, DHA, 31 December 2018.
Legal and Constitutional Affairs Legislation Committee, Supplementary
Budget Estimates, Home Affairs portfolio, 22 October 2018, p.
an overview of these issues see Senate Select Committee on the Recent
Allegations Relating to Conditions and Circumstances at the Regional Processing
Centre in Nauru, Taking
responsibility: conditions and circumstances at Australia's Regional Processing
Centre in Nauru, The Senate, Canberra, August 2015. For an example of
these criticisms see Amnesty International, This
is still breaking people: update on human rights violations at Australia’s
asylum seeker processing centre on Manus Island, Papua New Guinea,
Amnesty International, May 2014.
de Boer, Health
care for asylum seekers on Nauru and Manus Island, Background note,
Parliamentary Library, Canberra, 2013.
Legal and Constitutional Affairs Legislation Committee, Budget
Estimates, Home Affairs portfolio, 21 May 2018, p. 160.
care cuts: Australia’s reduced health care support for refugees and asylum
seekers in Papua New Guinea, Amnesty International, May 2018.
example Australian Human Rights Commission (AHRC), Children
on Nauru, media release, 23 October 2018; Medecins Sans Frontieres
despair: the tragic mental health consequences of offshore processing on Nauru,
MSF, December 2018.
of Immigration and Border Protection (DIBP), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the conditions and treatment of asylum seekers and refugees at the
regional processing centres in the Republic of Nauru and Papua New Guinea,
March 2016, p. 13.
transferred to a third country—for example, some people have been transferred
to Taiwan for medical treatment, and transfers also occur from Nauru to Port
Moresby in PNG. See Legal and Constitutional Affairs Legislation Committee, Supplementary
Budget Estimates, Home Affairs portfolio, 22 October 2018, p. 160. A number
of those who have been transferred under existing arrangements have only been
able to do so following commencement of legal proceedings. See H Davidson,
refugee children transferred from Nauru to Australia in one day’, The
Guardian, (online edition), 23 October 2018.
Persons Committee Terms of Reference, DIBP, April 2018, documents
released under Freedom of Information.
for example, United Nations High Commissioner for Refugees (UNHCR), ‘UNHCR
urges Australia to evacuate off-shore facilities as health situation
deteriorates’, 12 October 2018; ‘UNHCR
appeals to Australia to act and save lives at immediate risk’, 23 October
2018. Also, the 2018 coroner’s report into the death of Iranian asylum seeker Hamid
Khazaei found his death was ‘preventable’ and that ‘a series of clinical
errors, compounded by failures in communication that led to poor handovers and
significant delays in his retrieval from Manus Island’ contributed to Mr
Khazaei’s death. The Queensland Coroner’s Court recommended that doctors
working offshore, not bureaucrats in Australia, should approve medical
transfers to Australia. See Coroners Court of Queensland, Inquest
into the death of Hamid Khazaei, 30 July 2018.
flags support for refugees’, The Australian, 26 October 2018, p. 5.
House of Representatives, Debates, 28 November 2018, p. 11383.
Coleman (Minister for Immigration, Citizenship and Multicultural Affairs), Stronger
regional processing assurances, media release, Canberra 4 February
medical review panel, media release, 4 February 2019; N McKim, Manus
and Nauru medical evacuation legislation, media release, 4 February
Morrison (Prime Minister) and D Coleman (Minister for Immigration, Citizenship
and Multicultural Affairs), Asylum
seeker children off Nauru, media release, Canberra, 3 February 2019.
Coleman (Minister for Immigration, Citizenship and Multicultural Affairs), Transcript
of press conference: Sydney: 3 February 2019: Asylum seeker children off Nauru;
offshore processing and resettlement, media release, 3 February 2019.
. Migration Act 1958
(Cth), sections 5AA (definition of unauthorised maritime arrival),
section 494AB. The original jurisdiction of a court is the power to hear a case
for the first time, as opposed to appellate jurisdiction, when a higher court
has the power to review a lower court's decision. The original jurisdiction of
the High Court of Australia is provided for in sections 75 and 76 of the Constitution.
Section 75(v) states that the High Court has original jurisdiction to hear all
matters ‘in which a writ of mandamus or prohibition or an injunction is sought
against an officer of the Commonwealth’, subject to limited exceptions,
enabling it to review the lawfulness of decisions and actions of government
Act, subsection 198(1A). Sections 198AD and 198AH provide that an
unauthorised maritime arrival brought to Australia from a regional processing
country for a temporary purpose under section 198B must be removed from
Australia and taken to a regional processing country once they no longer need
to be in Australia for the temporary purpose.
Medical Treatment Bill, proposed subsection 198C(6) states that nothing
in proposed section 198C shall affect the operation of section 198B.
Medical Treatment Bill, proposed subsection 198C(7) of the Act.
Medical Treatment Bill, proposed subsection 198C(8).
Measures Bill, Schedule 6, proposed paragraph 198D(1)(a).
Measures Bill, Schedule 6, proposed subsection 198C(1).
Medical Treatment Bill, proposed subsection 198C(8).
Medical Treatment Bill, proposed subsection 198C(2).
Measures Bill, Schedule 6, proposed paragraph 198E(2)(c).
Measures Bill, Schedule 6, proposed subsection 198C(2).
Medical Treatment Bill, proposed subsection 198C(3).
Medical Treatment Bill, proposed subsection 198C(4).
Medical Treatment Bill, proposed subsection 198C(5).
Act, subsection 5(1) (definitions of member of the family unit
and member of the same family unit), Migration Regulations
1994 (Cth), section 1.12.
Regulations, sections 1.03 (definitions of dependent and dependent
child) and 1.12.
Measures Bill, Schedule 6, proposed subsections 198C(3)–(5).
Measures Bill, Schedule 6, proposed subsections 198D(2), 198E(3), 198G(2).
Measures Bill, Schedule 6, proposed subsections 198D(5), 198E(5).
Measures Bill, Schedule 6, proposed subsections 198D(6) and 198E(6).
Measures Bill, Schedule 6, proposed subsections 198D(3), 198G(3) and proposed
. Australian Security
Intelligence Organisation Act 1979 (Cth), section 4 (definition of security).
Act, paragraph 501(6)(g).
Measures Bill, Schedule 6, proposed paragraph 198E(4)(a).
Measures Bill, Schedule 6, proposed section 198F.
Measures Bill, Schedule 6, proposed section 198H.
Measures Bill, Schedule 6, proposed subsection 198J(4).
provisions of the Act which require the decision-maker to provide reasons for
their decision would not capture the Minister’s transfer decisions proposed by
the Urgent Medical Treatment Bill /Schedule 6 of the Miscellaneous Measures
Bill—for example, existing section 66 requires reasons to be given in relation
to the refusal of a visa; section 501G requires reasons to be given for a
decision to cancel or refuse a visa on character grounds.
Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), section
13. Schedule 1, paragraphs (da) and (db) of the ADJR Act provide that it
does not apply to privative clause decisions and purported privative clause
decisions under the Migration Act.
Measures Bill, Schedule 6, proposed section 199A.
Measures Bill, Schedule 6, proposed section 199B.
Measures Bill, Schedule 6, proposed subsections 198F(1), (2) and (4). If
the Panel does not inform the Minister of its recommendations within 24 hours,
it will be taken to have recommended that the transfer be approved: proposed
Measures Bill, Schedule 6, proposed subsection 198F(8).
Measures Bill, Schedule 6, proposed subsection 198F(5).
Measures Bill, Schedule 6, proposed section 199C.
Measures Bill, Schedule 6, proposed section 199D.
Measures Bill, Schedule 6, proposed subsection 199C(3).
Measures Bill, Schedule 6, proposed subsections 199E(1), (8) and (9).
Measures Bill, Schedule 6, proposed subsections 199E(5) and (6).
137, 6 December 2018, pp. 4500–10.
Dutton (Minister for Home Affairs) and D Coleman (Minister for Immigration,
Citizenship and Multicultural Affairs), Labor
again weakens border policy, media release, 17 December 2018.
raises “character test” in refugee draft law’, The Age, 11 December
2018, p. 4.
says her record on refugees speaks for itself, media release, 16
January 2019; M Koslowski, ‘McGowan
consults voters on refugee care bill’, The Age, 17 January 2019, p.
supports Phelps Bill to protect the health of asylum seekers’, AMA website,
6 December 2018; RACGP, ‘RACGP
backs call for medical transfer of asylum seekers and refugees’, RACGP
website, 4 December 2018.
Council of Australia (LCA), ‘Law
Council backs parliamentary efforts to get asylum seekers off Nauru’, media
release, 6 December 2018.
example Save the Children, ‘Save
the Children Australia supports Urgent Medical Treatment Bill’, Save the
Children website, 4 December 2018; Asylum Seeker Resource Centre
Party MPs back bill that follows doctors’ orders for urgent medical treatment’,
ASRC website, 28 November 2018.
Memorandum, Migration Amendment (Urgent Medical Treatment) Bill 2018, p. 1.
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Urgent Medical Treatment Bill.
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