The Australian Greens would like to thank everyone who made a public submission and/or public representation to this inquiry.
Seeking asylum in Australia
Seeking asylum in Australia is legal under both Australian and international law. As submitted by the Law Council of Australia (the Law Council):
asylum seekers and refugees have committed no illegal action by virtue of coming to Australia by boat for the purpose of seeking asylum.
The Parliamentary Library, in its 2015 research paper Asylum seekers and refugees: what are the facts?, found:
There is no offence under Australian law that criminalises the act of arriving in Australia [irrespective of their mode of arrival] or the seeking of asylum without a valid visa.
Rights of people seeking asylum from Australia
As submitted by the United Nations High Commissioner for Refugees (the UNHCR), all people who seek asylum in Australia are owed:
rights to which they are entitled under the Refugee Convention and other relevant international instruments.
This convention and other relevant international instruments provide not only for the rights of people seeking asylum, but also the receiving state's duty of care.
Australia's duty of care
Numerous submissions from legal experts and others raised the matter of Australia's duty of care for people it has transferred and detained offshore. As submitted by the UNHCR:
The physical transfer of asylum‑seekers from Australia to Papua New Guinea and Nauru does not extinguish Australia's legal responsibility for their protection…the primary responsibility for providing protection rests with the State from which asylum is sought.
This is because, as submitted by the Andrew and Renata Kaldor Centre for International Refugee Law (the Kaldor Centre):
the arrangements with Nauru and PNG do not meet the conditions for full 'transfer' of legal responsibility for those affected and their futures.
What's more, this duty of care is, according to the Kaldor Centre, 'non‑delegable'.
Australia's duty of care for people it has detained offshore is a legal obligation of both domestic and international laws. This duty of care, as submitted by the Kaldor Centre, has been acknowledged by the Minister and the Commonwealth in cases brought before the Federal Court.
Due to multi-state arrangements between the Commonwealth of Australia, Papua New Guinea (PNG), and the Republic of Nauru (Nauru), issues regarding sovereignty have been raised. On this matter, the Kaldor Centre found no conflict regarding Australia's duty of care obligations, and the sovereignty of other State actors, referring to Bromberg J stating that:
he 'would expect that the Commonwealth is subject to a duty of care in many situations which have the capacity to touch on relations with sovereign states' and that '[t]here can be no general rule against the existence of a duty of care owed by the Commonwealth simply because the existence of the duty may give rise to a possibility of some impact on Australia's relations with other sovereign states'.
After 11 months working on Nauru, Médecins Sans Frontières (MSF) released its 2018 report Indefinite Despair: The tragic mental health consequences of offshore processing on Nauru. This report presented independent medical data demonstrating extreme mental health suffering of detainees due to Australia's policy of indefinite offshore processing. It found:
the mental health suffering on Nauru is among the most severe [it] has ever seen around the world, including in projects providing care for victims of torture…Close to half (47%) of the 64 Nauruan patients seen by MSF had psychosis…[and that] in total, 135 (65%) refugee and asylum seeker patients seen by MSF had suicidal ideation and/or engaged in self‑harm or suicidal acts…[including] children as young as nine.
This corresponded with two 2016 reports: one by Amnesty International that conditions the conditions were 'tantamount to torture', causing 'severe mental anguish'; and another by the U.N. Special Rapporteur for the Human Rights of Migrants which described the detention as 'cruel, inhuman and degrading'.
The latest data on the health of refugees and asylum seekers in offshore detention comes from Drs Townend, Thurtle, and Janakiramanan, who are three of the lead doctors implementing the medevac transfers as part of the Medical Evacuation and Response Group (MERG). Through their assessments of individuals and audits of records they have found the burden of the last six years on the physical health of refugees and asylum seekers detained offshore by the Australian Government to be significant. Of the cases reviewed by MERG, as submitted to this inquiry by Townend et al., they found:
97 per cent have a confirmed physical ailment;
On average each patient has 4.6 distinct physical ailments, with the maximum counted in a single patient being 15;
91 per cent experienced one or more psychiatric health problems;
57 per cent have been actively considering suicide;
The great majority of patients (88 per cent) are experiencing both physical and psychiatric health problems.
On-island health services
It has been argued many times, and by many experts and NGOs, that the health services on PNG and Nauru, including those funded and/or provided onshore by the Australian Government, are ill‑equipped and unable to cope with the clinical needs of people detained offshore by the Australian Government.
As submitted by the Castan Centre, the UN High Commissioner for Human Rights has stated:
Among the myriad of actors that provide services to the migrants, private security and other service providers have reportedly failed to facilitate access to health care in a number of instances.
In its submission to this inquiry, MSF noted:
There are…no acute inpatient treatment facilities [in Nauru], nor is there a permanent psychiatrist amongst the Ministry of Health staff. Patients who pose a risk to themselves or others are detained by police.
As submitted by Townend et al.:
Upgrades to the Republic of Nauru Hospital are noted by the monetary expenditure on them, and not by reference to their quality or suitability for use.
A similar lack of appropriate healthcare exists in PNG too. In East Lorengau the Shamrock Compound is used to accommodate refugees and asylum seekers who have self‑harmed. This compound is a former police barracks, which is guarded by non‑clinical staff. According to Townend et al., this compound has been used to accommodate at least 17 mentally unstable men at a time.
The Independent Health Advice Panel (IHAP) stated in its first quarterly report, which was completed without external membership, that it was impressed with the facilities at the Pacific International Hospital (PIH) in Port Moresby. However, Townend et al. argue:
it is not clear whether the panel has been provided with, or asked for, any outcome data from PIH; whether they have been provided with, or asked for, any quality control or governance information for PIH; or whether the panel has engaged any patient groups for feedback about the services provided, which would be the standard of care at an Australian institution were it being evaluated. For these reasons, in our view the IHAP's statement that they were impressed with the PIH facilities should be treated with caution [emphasis added].
A failed pre-medevac process
It is Australia's pre-medevac process for medical transfers of offshore detainees that has led to the need for medevac legislation. As submitted by the Kaldor Centre:
If Australia acts promptly to identify people with critical health needs and ensure they are appropriately met – be it in Australia or elsewhere – the medevac system will not come into play.
But the critical health needs of this cohort were not met by the Australian Government prior to the medevac legislation being enacted. The Australian Government created living conditions for people in offshore detention that could only further traumatise an already vulnerable cohort, which led to local health services being overwhelmed. As submitted by MSF:
Despite the number of healthcare staff on [Nauru] the reality is that it cannot meet the need as shown by the ongoing health crisis, and the number of transfers to Australia in the past 9 months.
The Australian Government also repeatedly ignored recommendations from its own contracted medical staff regarding medical transfers. Put simply by the Human Rights Law Centre (HRLC):
Despite [its] clear legal responsibility, the Australian Government has demonstrated that it cannot be relied upon to act on medical recommendations appropriately and in good faith when decisions about care are left entirely to Ministerial discretion.
Witnesses to this inquiry have raised numerous examples of people in offshore detention whose treating doctors had recommended a medical transfer, only to have those recommendations ignored by the Australian Government. These medical recommendations would sometimes be ignored by Government for many years. In the 2018 case EWR v Minister for Home Affairs, Justice Thawley of the Federal Court noted that:
the Minister did not respond to a single letter that had been written requesting the urgent transfer of the applicants from Nauru and indicating that proceedings would be commenced.
According to the Kaldor Centre:
There was no clear statutory guidance for how people in need of urgent medical care should be brought to the attention of the Minister, nor how decisions about such transfers should be made. There was no requirement that transfer decisions be made by people with appropriate medical qualifications, nor that they respond to identified clinical needs.
the Australian Government's failure to transfer seriously unwell people held on Manus and Nauru to Australia for treatment meant that those people were forced to take legal action to access appropriate medical care.
As submitted by the HRLC, every single court case compelling the Australian Government to transfer a detainee for urgent medical care that couldn't be provided offshore was successful. Sometimes medical transfers would be authorised without court proceedings, but only after lawyers intervened and threatened legal action. Legal actions resulted in over 340 people being transferred for serious and unmet medical needs.
The pre-medevac transfer process was not only a lengthy process, but also a costly process. As submitted by the Law Council:
prior to the commencement of the Medevac Law, the only means of compelling the transfer of an asylum seeker requiring medical treatment was to commence injunctive proceedings in court. Such proceedings were unnecessarily adversarial, time and resource-intensive. The Medevac Law avoids the significant amount of resources that were previously expended by the pro bono legal community, the Government and the Federal Court of Australia in dealing with claims for medical transfer on behalf of refugees and asylum seekers. It provides a more efficient process achieving the same result, and avoids potentially life-threatening delays.
The costs of these lengthy legal processes are to community, government, and life.
Cost to community
Numerous witnesses have provided this inquiry with evidence that the pre‑medevac process for urgent medical transfers involved significant legal costs and resources. One significant benefit of the medevac process is that medical decisions are now made by independent medical professionals, which avoids the need for costly litigations. As submitted by the Law Council:
The Medevac Law avoids the significant amount of resources (which could be elsewhere better allocated) that were previously expended by the legal community, the Government and the Federal Court of Australia in dealing with claims for medical transfer on behalf of refugees and asylum seekers.
Cost to Government
The pre-medevac process also resulted in substantial legal costs for Government, as it fought in court against individual applications for urgent medical transfers. Costs borne by the Government have been provided, under scrutiny, to the Legal and Constitutional Affairs Committee. These include the following excerpts from the Hansard:
Ms de Veau: It looks like in 2017-18 [the legal costs, how much the department has spent in court opposing applications to transfer people out of our offshore detention system here to Australia] was in the vicinity of $275,000. This is legal expenses in relation to medical transfer interlocutory proceedings. From July to September—so year to date to the end of September, first quarter—it looks like it's in the vicinity of $480,000. So that's a total of $753,000 (Supplementary Estimates, October 2018).
Ms de Veau: …for the current financial year—so, July 2018 to 31 January—the figure is $1.373 million [spent by the department in the courts to prevent transfers of people from Manus Island and Nauru] (Additional Estimates, February 2019).
Cost to life
The greatest cost of the pre-medevac process for urgent medical transfers, which could result in litigation that lasted for years, was to life: the lives of people under Australia's duty of care. As submitted by the HRLC:
The Australian Government's failure to provide access to appropriate medical care has led to tragic consequences. Twelve people died in offshore detention before the Medevac laws were passed. Most of those deaths involved untreated physical or mental health conditions and included cases in which the Australian Government ignored medical advice recommending urgent transfer to Australia.
Medevac legislation works
Against this backdrop of detainee deaths in custody, unprecedented numbers of children with resignation syndrome, and untold human misery, an amendment (sheet 8619) to the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 was moved by Senators Storer and McKim, which passed both houses. This amendment introduced what we now refer to as medevac legislation, which the Migration Amendment (Repairing Medical Transfers) Bill 2019 seeks to repeal.
Under this medevac legislation, a transfer on medical grounds needs to be recommended to the Minister by two (2) doctors. The Minister than has 72 hours to approve or refuse this recommendation. A refusal can be issued on security and/or character grounds, or on medical grounds (except when a minor). If the refusal is made on medical grounds, this decision is then referred to an eight‑person medical panel—the IHAP—which has a further 72 hours to review the case.
If the panel supports the doctors' recommendation for a transfer, this decision goes back to the Minister, who can still refuse on security and/or character grounds. If there are no security and/or character grounds on which to refuse a transfer, the transfer recommended by both the attending doctors and medical panel is approved.
As part of the medevac legislation, the independent MERG was established to oversee the triage of people in offshore detention in need of urgent medical care. MERG is made up of caseworkers, counsellors, and lawyers from non‑governmental organisations who work directly with medical professionals.
According to Townend et al., doctors conducting medical assessments of people in offshore detention make their assessments in regards to the patient's medical needs, and the capacity of local health services to meet these needs. Where a patient has a problem relating to a single organ or specialty field, a medical specialist in that organ or field is allocated to make the assessment.
Where patients have a major presenting problem related to a single organ system, then a specialist who is an expert in that organ system is most appropriate to undertake the assessment and provide their medical opinion.
The need and success of medevac legislation can be demonstrated by the number of approvals that have occurred under it. As submitted by Townend et al.:
As of Thursday August 15 , 121 patients have been approved for medical evacuation. This indicates the level of unmet health need among the cohort of refugees and asylum seekers still in PNG and Nauru. A majority of approvals have been given by the either the Minister for Home Affairs or the Minister for Immigration…Only twenty-two applications were referred to IHAP. Eight of these applications have been approved for medical transfer by IHAP, and fourteen patients were not approved for medical transfer.
As noted by numerous submissions, rather than replace the pre‑2019 medical transfer process, what the medevac laws have done is improve the pre‑existing process by putting in place clear timeframes for decisions based on expert medical advice to ensure urgent medical care is provided when needed for people detained offshore and owed a duty of care by the Australian Government. Moreover, as submitted by the Law Council:
the Medevac Law overcomes the existing adversarial approach to medical transfers…[with medical recommendations] based on giving appropriate weight to the views of qualified and objective medical professionals, as a key element of decision-making, reflecting Australia's common law and international obligations.
Depoliticising medical evacuations
A critical outcome of the medevac legislation, both from medical and policy perspective, is the depoliticisation of the medical transfer process. Although the Minister still has oversight of medical transfers, the medevac legislation has depoliticised the process by ensuring decisions regarding healthcare for offshore detainees are made by independent medical professionals, not bureaucrats or politicians.
As submitted by Townend et al., as lead doctors working with the MERG:
The medical assessments we have undertaken [under medevac law] are independent, and absent of any broader advocacy agenda.
This view is echoed by the Kaldor Centre, which submitted the medevac legislation:
minimises the risks of delay, uncertainty, and politicisation of medical decisions.
In the Queensland Coroner’s inquest into the death of Hamid Khazaei, an Iranian asylum seeker who died of sepsis and cardiac arrest from a leg infection, the Coroner found:
It appeared that the medical staff were working primarily to clinical imperatives while the DIBP officers were working primarily to bureaucratic and political imperatives to keep transferees on Manus Island, or in PNG.
As demonstrated by submissions to this inquiry, the medevac legislation and its medical evacuation process is overwhelmingly supported by Australia's peak medical and legal organisations.
Standard operating procedures
Medical experts have also noted that medical transfers provided under medevac legislation are consistent with standard practices within Australia. As submitted by Townend et al.:
Doctors are required by the Australian Health Practitioners Regulation Agency Code of Conduct for Medical Professionals to ensure that patients are referred for appropriate care…In Australia, the balance is typically in favour of transferring patients where there is an indication that might be required, rather than waiting until a patient is catastrophically unwell before escalating their care provision.
Townend et al. also noted that the use of telehealth by medical practitioners to remotely assess patients, and the use of medical records and test results without physical examinations to inform recommendations for complex care is commonplace in Australia.
The medevac legislation does not remove ministerial oversight, or introduce additional risks to national security or public safety. As submitted by the Law Council:
The Minister can prevent a transfer where he or she reasonably suspects that a transfer would be prejudicial to security, or where the person has a substantial criminal record and he reasonably believes that the transfer would expose the community to a serious risk of criminal conduct…[and] the Minister ultimately retains the discretion as to whether a person is detained in the community or in a detention centre.
Medevac legislation only provides offshore detainees with a temporary transfer to Australia, for so long as that person requires medical care that cannot be provided by offshore medical facilities. As submitted by the Law Council:
any transitory person who is brought to Australia from [a regional processing centre] once again becomes an unlawful non‑citizen and must be detained under section 189 of the Act. This detention must continue until the time of removal from Australia.
As submitted by the Castan Centre:
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.
These legal opinions are supported by the Department of Home Affairs. On 22 October 2018, Secretary of the Department of Home Affairs, Mr Michael Pezzullo, told the Senate Standing Committee on Legal and Constitutional Affairs:
Upon transference to Australia, and there's something in the order of over 600 people here on temporary transfers, the law states quite clearly that when their period of treatment is concluded they're expected to return. So we try to make that clear to people. We don't want to create a situation where people think that medical transference to Australia is a pathway to residency, because that could incentivise the kinds of perverse behaviours…so medical transfers are not a solution to the migration challenge or migration issue of one day finding these people permanent homes under our Migration Act. Under the laws this parliament has passed they can't settle here in Australia.
The medevac legislation has saved lives, and delivered people health care they had previously been deliberately deprived.
The government's refusal to transfer sick people from offshore detention to Australia under previous arrangements caused death, mental anguish and untold suffering among refugees and people seeking asylum.
The medevac repeal Bill shows that the government puts political imperatives ahead of people's medical needs.
They have made the crass calculation that some lives are worth sacrificing for broader political outcomes, despite their legal and moral obligations.
This calculation should be intolerable in a liberal democracy like Australia.
Decisions about medical care should be made by medical experts, not politicians or bureaucrats.
The recommendation of the Australian Greens is that this bill should not proceed.
Senator Nick McKim
Greens Senator for Tasmania