On 4 July 2019, the Senate referred the provisions of the Migration Amendment (Repairing Medical Transfers) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 18 October 2019.
The Senate Selection of Bills Committee recommended that the bill be referred to examine 'the contents of the bill and allow stakeholders to inform the committee of detailed concerns'. The committee also noted that the bill repeals legislation passed in 2019 with the support of a number of parties and independents.
Conduct of inquiry
In accordance with usual practice, the committee advertised the inquiry on its website and wrote to organisations inviting submissions by 16 August 2019. The committee received 104 submissions, listed at Appendix 1. The committee held a public hearing in Canberra on Monday, 26 August 2019. A list of witnesses is provided at Appendix 2.
Questions on notice and other material received by the committee are listed at Appendix 2. Submissions and the Hansard transcript of evidence may be accessed through the committee website.
The committee thanks the organisations and individuals who gave evidence at the public hearing as well as those who made written submissions.
Structure of this report
This report comprises three chapters as follows:
Chapter 1 outlines the administrative details of the inquiry, background to the inquiry, the key provisions of the bill and an overview of the operation of the medical transfer provisions.
Chapter 2 explores keys issues with the medical transfer provisions as well as discusses the evidence received regarding the medical transfer process in place prior to 2 March 2019.
Chapter 3 discusses the evidence received supporting the medical transfer provisions and the arguments presented that the provisions be retained. The chapter concludes with the committee's view and recommendation.
Purpose of the bill
The bill would amend the Migration Act 1958 (the Migration Act) to repeal the medical transfer provisions, which were inserted by Schedule 6 to the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019.
The bill also includes provisions to extend existing powers in the Migration Act to provide a mechanism for the ‘return or removal’ of persons transferred to Australia under the medical transfer provisions once ‘they no longer need to be in Australia for the temporary purpose for which they were brought’.
According to the explanatory memorandum, the government is seeking to repeal the medical transfer provisions for the following key reasons:
there is no process for returning transferees to regional processing countries following medical assessment and/or treatment in Australia;
the provisions have 'broad application' and the grounds for refusal are too limited;
the legislation imposes impractical timeframes for making decisions; and
the provisions 'undermine the Australian Government's regional processing arrangements' and impinge on the sovereignty of Papua New Guinea and Nauru.
On 3 December 2018, during the 45th Parliament, crossbench members Dr Kerryn Phelps MP, Mr Andrew Wilkie MP, Mr Adam Bandt MP, Ms Julia Banks MP and Ms Rebekha Sharkie MP introduced legislation into the House of Representatives containing provisions which would facilitate the transfer of minors and other 'transitory persons' from regional processing countries to Australia for medical or psychiatric treatment or assessment (medical transfer provisions).
The original bill did not progress past the second reading stage. However, on 6 December 2018, an amended version of the medical transfer provisions passed the Senate as Schedule 6 of the government's Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, following amendments moved by Senator Tim Storer and Senator Nick McKim.
On 12 February 2019, the Speaker of the House of Representatives reported a message from the Senate returning the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 to the House of Representatives with Senate amendments, which included the medical transfer provisions.
The Attorney-General moved to have consideration of the Senate's amendments deferred, citing possible constitutional issues with the provisions. However, opposition and crossbench members voted together against the government to bring on the immediate consideration of the Senate's amendments.
The House then agreed the Senate's amendments with further amendments circulated in the name of the then Leader of the Opposition, the Hon Bill Shorten MP. Government members voted against the amendments but were defeated.
The Senate agreed the House's amendments and the bill passed both houses on 13 February 2019. The medical transfer provisions have been in operation since 2 March 2019.
Key provisions of the bill
The bill would repeal subsection 198B(4) and sections 198C to 198J of the Migration Act. These sections established the medical transfer provisions to create a legislative framework that provides for transfer of 'relevant transitory persons' and minors from regional processing countries to Australia for medical or psychiatric assessment or treatment on the advice of two treating doctors.
The bill would also repeal subdivision D of the Migration Act. Subdivision D established the Independent Health Advice Panel (the IHAP) to 'monitor, assess and report' on the physical and mental health of transitory persons in regional processing countries, the standard of available health services and review decisions made by the minister to refuse the approval of a transfer on medical grounds.
Power to remove individuals from Australia
The bill would provide for the removal from Australia and/or return to a regional processing country of individuals who are brought to Australia under the medical transfer provisions. This would be achieved by amending two sections of the Migration Act. Existing subsection 198(1A) provides for the removal of unlawful non-citizens who have been brought to Australia under section 198B for a temporary purpose. The bill would amend this section to include reference to an unlawful non-citizen brought to Australia under repealed section 198C.
Similarly, the bill would amend paragraph 198(AH)(1A)(a) to include individuals transferred to Australia under repealed section 198C. This amendment would mean that section 198AD would apply to that person. Section 198AD provides that an officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to a regional processing country.
The explanatory memorandum notes that this amendment would extend 'the existing return power to allow for the return to a regional processing country of those transferred to Australia under section 198C…'.
Application of the amendments
The provisions of the bill would commence the day after receiving Royal Assent.
The provisions of the bill would apply to unlawful non-citizens and transitory persons brought to Australia under repealed section 198C of the Migration Act before, on or after the commencement of the provisions.
The medical transfer provisions
The medical transfer provisions require that before a person can be transferred, two treating doctors for the person must give an opinion that:
a transitory person requires medical or psychiatric assessment or treatment, and;
they are not receiving such treatment in the relevant regional processing country; and
it is necessary for them to be transferred to Australia for such assessment or treatment.
The framework also includes allowance for family or other persons to accompany the transferee, and provide for the transfer of minors to Australia, 'irrespective of any medical or psychiatric condition'.
The treating doctors must notify the secretary of the Department of Home Affairs of their opinion and the secretary must notify the minister as soon as possible. In accordance with section 198E of the Migration Act, the minister must approve, or refuse to approve, the person's transfer to Australia no later than 72 hours after being notified. If a decision is not made within 72 hours, the minister is taken to have approved the transfer.
The minister must approve the transfer unless:
the minister reasonably believes that it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment; or
the minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or
the minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.
As soon as practicable, the minister must notify the IHAP if a transfer is being refused on medical grounds. The Panel then has 72 hours to conduct a further clinical assessment of the person and to inform the Minister of the findings of that assessment, including its recommendation on whether decision to refuse the person's transfer be confirmed, or the person’s transfer be approved. The Minister then has 24 hours to reconsider the decision to refuse to approve the person’s transfer and either confirm the decision to refuse, or approve the person’s transfer. If the Panel recommends the transfer be approved, the Minister can only refuse the transfer on national security or character grounds.
Independent Health Advice Panel
Section 199B of the Migration Act sets out the membership of the IHAP which shall comprise:
the person occupying the positions of Chief Medical Officer of the Department and the Surgeon‑General of the Australian Border Force;
the person occupying the position of Commonwealth Chief Medical Officer; and
not less than 6 other members, including:
at least one person nominated by the President of the Australian Medical Association;
at least one person nominated by the Royal Australian and New Zealand College of Psychiatrists;
at least one person nominated by the Royal Australasian College of Physicians; and
at least one person who has expertise in paediatric health.
The IHAP has two functions:
a general function to monitor, assess and report on the physical and mental health of transitory persons in regional processing countries and the standard to health services provided to them (in accordance with s199A(2) of the Migration Act); and
a specific function under s198F of the Migration Act to review a decision by the minster to refuse to approve a relevant transitory person's transfer to Australia on the ground set out in s198E(4)(a).
In accordance with section 199E of the Migration Act, the IHAP is required to provide a quarterly report to the minister on its operations during that three month period. A summary of that report must be tabled by the minister in both the House of Representatives and the Senate within three sitting days after the report is given to the minister.
The IHAP has prepared two quarterly reports since being established. For its first reporting period (2–31 March 2019), the panel comprised two members:
Dr Parbodh Gogna, Chief Medical Officer of the Department and the Surgeon‑General of the Australian Border Force; and
Professor Brendan Murphy, Commonwealth Chief Medical Officer.
During its second reporting period (1 April–30 June 2019), three additional members had been appointed:
Dr Antonio Di Dio (nominated by the Australian Medical Association);
Associate Professor Susan Evelyn Moloney (nominated by the Royal Australasian College of Physicians); and
Associate Professor Neeraj Sing Gill (nominated by the Royal Australian and New Zealand College of Psychiatrists).
Medical transfers since 2 March 2019
The Department of Home Affairs (the department) reported on the operation of the medical transfer provisions between 2 March and 31 July 2019. During this period there have been:
154 notifications for medical transfer under section 198E of the Migration Act. (130 of the 154 notifications have been deemed valid); and
72 transitory persons from Papua New Guinea and Nauru have transferred to Australia for medical treatment, as have four accompanying family members.
The department further advised that of the 72 transitory persons medically transferred to Australia since 2 March 2019:
three people have been admitted to a hospital for a period of more than seven days;
one person has refused treatment;
14 people are receiving outpatient care; and
54 people are having their health concerns managed by International Health and Medical Services in detention.
At the public hearing on 26 August 2019, the department provided updated data on the operation of the medical transfer provisions:
167 valid notifications have been received: 112 people have been transferred to Australia, 18 applications have been refused, 19 applications have been approved with transfer pending and a number of submissions are still being drafted;
Of the individuals transferred to Australia, no-one is currently in hospital:
one person has refused treatment;
40 are outpatients or potential outpatients; and
The department explained that medical transfers had occurred where regarded necessary prior to the implementation of the medical transfer provisions on 2 March 2019. Indeed, in the period from November 2012 to 31 July 2019, some 1,343 people (717 medical and 626 accompanying family transfers) had been transferred to Australia for medical treatment from offshore processing.
Referrals to the Independent Health Advice Panel
The department also submitted that as at 31 July 2019, 23 cases have been referred to the IHAP following the minister's refusal to approve transfer on medical or psychiatric grounds. The Panel recommended transfer to Australia in 10 cases and supported the minister's refusal to transfer in the other 13 cases.
At the 26 August 2019 public hearing, the department provided updated numbers of referrals to IHAP. It was reported that the IHAP considered 28 applications; ten were recommended for transfer and the minister's decision to refuse transfer was upheld in 18 cases. In relation to those 18 cases, nine applicants subsequently reapplied and eight of those have been approved.
In its first two quarterly reports, the IHAP advised the number of reviews it has undertaken for each of the reporting periods:
for the 2 March to 31 March 2019 reporting period, the IHAP did not conduct any reviews and made no recommendations as the minister did not make a decision to refuse a transfer under 198E of the Migration Act.
for the 1 April to 30 June 2019 reporting period, the IHAP conducted further clinical assessment of 15 cases. Of those 15 cases, the IHAP recommended transfer to Australia for medical treatment in six cases and refused transfer to Australia for medical treatment in nine cases.
The IHAP reported each recommendation was made within the legislated 72 hour timeframe and in all 15 cases; the IHAP members reached a unanimous decision.
Consideration of the bill by other committees
Scrutiny of Bills Committee
The Senate Standing Committee for the Scrutiny of Bills drew attention to sub-item 15(1) of Schedule 1 to the bill which provides that subsection 7(2) of the Acts Interpretation Act 1901 (Acts Interpretation Act) does not apply to the repeal of the medical transfer provisions. The scrutiny committee explained:
Subsection 7(2) of the Acts Interpretation Act provides that if an Act is repealed, then the repeal does not affect the previous operation of the Act or any rights, privileges, liabilities or obligations accrued or incurred under the Act prior to its repeal. Subsection 7(2) also ensures that any investigations or legal proceedings that were instituted prior to the repeal may continue as if the Act was still in force.
The scrutiny committee noted that the explanatory memorandum 'does not appear to explain why it is necessary to exclude the application of subsection 7(2) of the Acts Interpretation Act and requested an explanation from the minister, including whether sub-item 15(1) of Schedule 1 to the bill will trespass on the rights and liberties of any person.
The response from the Acting Minister for Home Affairs noted:
By expressly excluding the applicability of subsection 7(2) of the Acts Interpretation Act, any right, privilege, obligation or liability acquired, accrued or incurred under the medical transfer provisions, including those acquired, accrued or incurred by a relevant transitory person, will be extinguished on commencement of the Bill other than those rights preserved by sub-item 15(2)…
The acting minister also posited that sub-item 15(1) 'does not trespass on the rights of any person'.
After considering the response from the acting minister, the scrutiny committee drew its concerns to the attention of senators and stated it 'leaves to the Senate as a whole the appropriateness of extinguishing any right, privilege, obligation or interest accrued under the medical transfer provisions inserted by the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019'.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (the human rights committee) indicated concerns with a number of aspects of the bill including whether the measures in the bill are compatible with non-refoulement obligations and the right to an effective remedy, and the right to health.
At the time of adopting this report, the human rights committee had not published any further comments on the bill.
Note on references and terminology
In this report, references to Committee Hansard are to the proof transcript. Page numbers may vary between proof and official transcripts.
Some of the evidence referenced in this report refers to the 'medevac legislation'. This is the term which has been broadly used to refer to the medical transfer provisions.