The Minister for Home Affairs and the Department of Home Affairs (the department) have identified a number of key issues with the medical transfer provisions introduced from March 2019 by the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (the miscellaneous measures bill). These include:
the absence of a process for returning transferees once treatment has concluded;
limitations in the legislation on the criteria available to the minister to refuse a transfer;
tight timeframes for decisions;
impacts on the sovereignty of regional processing countries;
impacts on regional processing arrangements more broadly;
the lack of remuneration for the Independent Health Advice Panel (IHAP); and
an alleged increase in self-harm incidents.
The Migration Amendment (Repairing Medical Transfers) Bill 2019 (the bill) is intended to address these issues by repealing the medical transfer provisions from the Migration Act 1958 (the Act).
This chapter explores the issues listed above. It then concludes by discussing evidence regarding the adequacy of the system of assessment and transfer that existed prior to March 2019.
No process of return
The medical transfer provisions enacted in March 2019 provide a process for transferring asylum seekers to Australia for medical assessment, medical treatment, or both. They do not include any provisions relating to returning transferees to regional processing countries following medical assessment or treatment in Australia.
The department submitted that the medical transfer provisions 'extend the [length of time a transferee is] in Australia as there are currently no return mechanisms to effect their removal from Australia and return to a regional processing country'.
Professor Kerryn Phelps AM proposed that specific transfer provisions in the medical transfer legislation were not required because these already exist elsewhere in the Act. Professor Phelps added that 'it is a temporary transfer, so it is up to the minister whether somebody stays in Australia or is returned'.
The Castan Centre for Human Rights Law (the Castan Centre) disputed the department's assertion that the medical transfer provisions limit the ability for transferees to be returned to regional processing countries. Deputy Director, Dr Maria O'Sullivan elaborated:
Whilst there is no explicit provision governing the return of this particular cohort as a matter of technical and legal requirements, as a matter of normal statutory interpretation the general removal provisions in the Migration Act would operate in relation to this cohort.
The Law Council of Australia acknowledged there may be 'some ambiguity' regarding the legal basis for returning transferees, but said, according to its interpretation, those transferred under the medical transfer provisions 'can be removed and returned under the law as it stands'.
The department's legal representative, Ms Pip De Veau, disputed the suggestion that existing provisions for return are adequate, saying:
I've seen that the Law Council…articulated some form of potential analysis around an alternative legal basis on the assumption that, because 198B is for a temporary purpose, as is the new 198C, you could then perhaps see that it's piggybacking on 198B….That was looked at in February and dismissed as a basis of a power to take back to the regional processing country.
Ms De Veau also stated that 'the general powers under 198 were also considered' as a mechanism for returning transferees, and:
…all of the advice has been that there is a real and significant risk that if the use of these was attempted we'd find ourselves in court and probably on the worse end of the argument.
Despite believing existing laws to be adequate, the Law Council suggested Parliament could 'remove this ambiguity by making minor technical amendments to the act', rather than by repealing the medical transfer provisions, which the Law Council opposed. Dr O'Sullivan said the Castan Centre agreed with submissions from the Law Council and the Kaldor Centre for International Refugee Law (the Kaldor Centre) that any ambiguity could 'be remedied through a very simple technical amendment to the Migration Act'.
Asked if it would support such an amendment, the Law Council replied:
To the extent that it's required to remove ambiguity, the Law Council is supportive of that. There's no suggestion in the Law Council's submission that the law should be used for anything other than temporary transfers for medical purposes and, to that extent, is supportive of any ambiguity being remedied.
Professor Phelps, however, expressed concern about the idea of returning asylum seekers to regional processing countries after treatment.
Witnesses from the medical sector were also concerned the bill contains provisions for return that may take decisions away from medical professionals once again. Royal Australian and New Zealand College of Psychiatrists (RANZCP) representative, Dr Kym Jenkins, elaborated:
The RANZCP is also concerned that the new bill allows for the removal of a person before medical treatment may be completed or may be adequate. We feel that decisions such as this should always be medical decisions, not ministerial ones.
The department said that two members of the IHAP, Dr Brendan Murphy and Dr Parbodh Gogna, had prior to 2 March 2019 assisted departmental officials, providing them with a considerable amount of advice regarding medical decisions. The department noted that both Dr Murphy and Dr Gogna have been taken out of the process as a result of their appointment to the IHAP.
The department stressed that medical decisions have always been made by medical practitioners, and that the introduction of the medical transfer provisions did not bring about any change in this standard.
The Secretary of the Department of Home Affairs, Mr Michael Pezzullo, argued that while people may be transferred for temporary purposes, returning them to regional processing countries has proven difficult. Mr Pezzullo explained:
There are currently over 320 matters before the courts which have been commenced by transitory persons in Australia—those here for medical and associated purposes—involving just under 1,000 individuals. Approximately 500 of these persons are now considered to have an effective barrier to their return, and it's anticipated that any attempts to return the remainder would result in the initiation of legal proceedings. What has commenced as medical transfer actions under various sections of the act has, over time, been transformed into legal blocking actions to keep these persons in Australia, irrespective of their medical status.
On notice, the department confirmed that the last time a person was transferred from Australia 'to a regional processing country was on 15 April 2018'.
Questioned about why the government has not regularly or recently returned any transferees to regional processing countries, Mr Pezzullo replied:
…there is a calculation in relation to the efficacy of seeking a removal action when one hasn't been successfully achieved for potentially two or three years…Then, over and above that—it's like a Venn diagram of problems—there is the lack of an express removal provision attached to section 198E.
Limited grounds for refusal and security issues
The medical transfer provisions provide grounds upon which the minister may refuse a transfer to Australia, including on medical grounds (paragraph 198E(4)(a) of the Act), national security grounds (paragraph 198E(4)(b)), or because the person has a substantial criminal record (paragraph 198E(4)(c)). Refusals made on medical grounds are reviewable by the IHAP. Those made on security or criminal grounds are not reviewable.
The department submitted that the grounds for refusal available to the minister on the basis of security concerns are too limited and not in line with other parts of the Act. The department wrote:
The term 'security' is not defined in similar terms to the character test set out under section 501(7) of the Migration Act, and is not equivalent to an unacceptable threat to the community…Security, as defined under section 4 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), involves the protection of Australia from specific matters. Such matters do not extend to criminal conduct generally in the same way as those identified under the character provisions of the Migration Act…The definition of security in section 4 of the ASIO Act sets a very high bar and is relatively narrow given it sits within the broader context of ASIO's operations. The definition of security within the ASIO Act therefore may not cover all the national security concerns the Minister may have.
Ms De Veau contended that 'security' is defined in section 4 of the ASIO Act, and is 'limited to espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia's defence system or acts of foreign of interference whether directed from, or committed within, Australia or not'.
The department further contended that paragraph 198E(4)(c) limits refusal related to character to those persons with a substantial criminal record, which means the minister 'may not be able to refuse the transfer of all persons of character concern'. Persons who are currently the subject of charges or court action, or have been found guilty of offences but discharged without conviction, 'may not be captured by this ground'.
Mr Pezzullo argued that the medical transfer provisions prevent the department from being able to access 'the full range of tools that we have under section 501—and not just section 501(7)—that would allow us to look at broader character questions'. This means transfers may not be able to be refused for persons on grounds such as 'possession of child pornography and being charged with—not even convicted of—child sexual offences'.
Witnesses who oppose the repeal argued the grounds for refusal were adequate. Professor Phelps proposed that the legislation contains appropriate safeguards to ensure that persons are not transferred if there are concerns around national security, 'evidence of serious criminal conduct', or 'if the minister reasonably believes that a transitory person…is a risk to the Australian community'. Dr Neela Janakiramanan echoed this view, adding that she believes none of the cases refused under the medical transfer provisions thus far have involved 'security issues'.
The Australian Human Rights Commission was concerned with the idea of widening the criteria for refusal, drawing the committee's attention to the legal principle that persons who have been accused but not convicted of a crime should be considered 'innocent until proven guilty'. The Commission pointed out that refugees detained on the mainland have access to medical treatment under strict security conditions, even those convicted of crimes:
We acknowledge the very stringent protections that already exist, and what we say is that they provide adequate protection for the community while still enabling someone to be provided with urgent medical treatment.
Also arguing against the view that the medical transfer provisions unduly limit the minister's powers of refusal, Refugee Legal said:
There is significant scope under the existing legislation for refusal based on character grounds. It is actually a power held by the minister personally, so it is a personal power of the minister. Further to that, just on the security grounds issue, there have been no matters raised in relation to security at all, so I think it's a real mischaracterisation of the legislation to say that it's too narrow. It conforms with the ordinary protections under Australian law, including of the community, in relation to security or character matters. The power is vested in the minister. It is a vast power.
Ms Madeline Gleeson of the Kaldor Centre submitted that the introduction of the medical transfer provisions 'didn't repeal any of [the minister's] powers'. Ms Gleeson concluded: 'Doctors are deciding on medical care and those who need to are deciding on any character concerns. Those powers are separate.'
The department provided information on notice that indicates that, as at 26 August 2019, applications have been made for 'six individuals who are of character or security concern' to be transferred to Australia under the medical transfer provisions. None of these six were refused on security grounds, because:
…the limited nature of the character grounds upon which the Minister may refuse a transfer means the Minister may not be able to refuse the transfer of all persons of character concern.
Timeframe for security advice
The medical transfer provisions impose upon the minister a strict timeframe of 72 hours for approving transfer decisions. In addition, within that timeframe ASIO must 'advise the Minister if the transfer of the person to Australia may be prejudicial to security'.
The department submitted that the timeframe available to ASIO to provide security advice is unreasonable:
The operation of these provisions severely limits the Australian Security Intelligence Organisation's ability to provide security advice to the Minister. Such constraints have the potential to impact the quality of advice, noting full analysis is unable to be undertaken within the legislated timeframe.
Mr Pezzullo referred to statements by ASIO Director-General, Mr Duncan Lewis, in February 2019 that 'it's not possible within the 72 stipulated hours to conduct a security assessment' for a transferee. It was Mr Pezzullo's view that this is reason alone to repeal the medical transfer provisions.
Mr Pezzullo went further, arguing that:
ASIO has made it amply clear that you cannot do a security assessment—as they would do for anyone crossing our border upon referral from my department—adequately in 72 hours. So whoever says there are sufficient grounds in the provisions that were passed under the miscellaneous measures, or medevac, provisions that give the minister and the Crown generally the full range of security and character powers—I regret to inform the committee, and I'm sorry to say it in these terms—is factually wrong and inconsistent with the construction of the act as it passed, was given royal assent and, therefore, modified the Migration Act.
The department argued that the medical transfer provisions impinge on the sovereignty of Papua New Guinea (PNG) and Nauru. The department submitted:
The provisions do not expressly consider the sovereignty of Nauru and Papua New Guinea. The new medical transfer provisions require actions to be taken by Commonwealth officers in sovereign nations, to individuals under arrangements that are the responsibility of those nations.
According to the department, the provisions create a 'conflict' by mandating that Commonwealth officers remove a person from a foreign country and bring them to Australia, without reference to the 'applicable laws and procedures [to] be followed in respect to the removal of persons from [the foreign country's] territory'. As such, the provisions 'are not enforceable against the Governments of Nauru and Papua New Guinea'. However, the department confirmed that both countries 'have committed to work with the Government of Australia to administer the medical transfer provisions'.
The Government of Nauru introduced new regulations in February 2019 to codify medical transfer processes. The Health Practitioners (Overseas Medical Referrals Compliance) Regulations 2019 (OMR Regulations) and the Health Practitioners (Telemedicine Prohibition) Regulations 2019 relate to both Nauruan citizens and asylum seekers. These regulations require referrals for medical transfer to be made to a Nauruan body, the Overseas Medical Referral Committee, by medical practitioners registered in Nauru. They also prohibit:
…a health practitioner located outside Nauru from practising health and medical services using any form of telecommunications, electronic audio and video communications or any other communications with respect to any patient who is resident in Nauru.
The department reported that these restrictions are operating to require that transfer recommendations from the minister be locally re-assessed in Nauru, and the recommendation to transfer be made directly to the Overseas Medical Referral Committee by the contracted health service provider on the ground, International Health and Medical Services (IHMS), whose practitioners are registered in Nauru.
This process sets up a potential conflict of interest for the practitioners employed by IHMS, who are, according to the department, under 'significant pressure' to recommend transfers, even if they don't agree that the transfer is necessary. The department reported that 'this has resulted in increased tension between [IHMS] and local government authorities'.
In June 2019, the Federal Court ruled that medical assessment of transitory persons under the medical transfer provisions 'does not require personal engagement between the "treating doctor" and the transitory person', paving the way for remote assessments. However, the Nauruan regulations prohibit these kinds of assessments.
Ms Gleeson of the Kaldor Centre disputed the department's 'claim that medevac impinges upon the sovereignty of Nauru and PNG', saying:
I wish simply to note that, under international law, the sovereignty of Nauru and PNG prevents Australia from imposing its own laws and it prevents Australia from exercising government functions in the territories of those states without their consent but does not in any way extinguish Australia's obligations under both Australian and international law. Australia cannot circumvent its duty of care simply by acting outside of its territory; that is not how the law works.
Dr Jenkins from RANZCP argued that repealing the medical transfer provisions may 'put extra pressure on the medical and health staff back in Nauru and PNG…to provide medical care that they are not resourced or equipped to provide'.
While discussing sovereignty issues triggered by the medical transfer provisions, the department acknowledged that tensions existed with Nauru in relation to medical transfers prior to the new regime. Specifically, court ordered transfers under the pre-existing system resulted in 'strained relations with the Government of Nauru as it insists that the Commonwealth must adhere to its processes and procedures'.
In relation to PNG, witnesses referred to reports that 'failed' and unassessed asylum seekers had allegedly been moved to Bomana, a prison complex in Port Moresby. Dr Sara Townend reported that persons involved in the medical transfer process were 'caught up' in this group, saying:
A significant number of the transitory persons in Bomana had engaged with the medevac process prior to being placed in there…There is at least one patient who had been approved who was moved to Bomana subsequent to approval for the medevac process. Since they have been in there, there are…two or three patients who have been approved subsequent to their detainment. Certainly, out of the 50 or so remaining, 33 patients have applications which we would consider that we would be able to progress because we have substantial information and prior telehealth assessments with two independent specialists.
The department confirmed that one person who has been approved for transfer under the medical transfer provisions has indeed been detained in PNG and prevented from being transferred to Australia. Senior Assistant Secretary of Regional Processing and Resettlement, Ms Alana Sullivan said:
We have requested transfer from PNG a number of times, and they have refused to approve the transfer to Australia. They have advised that they have their own medical provider. That individual has been assessed as being able to receive treatment in PNG.
On notice, the department provided the following additional comments about persons detained in the Bomana complex in Port Moresby:
The management of the Bomana Immigration Centre and the detention of failed asylum seekers in Papua New Guinea is a matter for the Papua New Guinea Government. The Department understands that such detention has been undertaken in accordance with the Papua New Guinea Migration Act 1978.
Impacts on regional processing arrangements
The explanatory memorandum to the bill states that the medical transfer provisions 'undermine the Australian Government's regional processing arrangements'. The minister's second reading speech elaborates on this claim, saying that the provisions 'effectively remov[e] the ability of the Government to decide who comes into Australia'.
The department was concerned that, in applying to 'persons born in a regional processing country', the medical transfer provisions also apply to 'those born in the future', including to children born to any new asylum seekers who come by boat and are transferred to regional processing countries in the future. Further, because the provisions allow the transfer of relevant family members, along with those children, the department argued that future asylum seekers could use this as a way to get to Australia. The department submitted:
This seriously undermines the Government's border protection policies and arguably incentivises people smuggling operations.
The definition of a relevant transitory person also places ongoing obligations on the Minister. For example, the provisions would continue to apply to refugees permanently settled in Papua New Guinea, long after Australia's regional processing arrangement with Papua New Guinea ends.
World Vision submitted that, because the medical transfer provisions only apply to the existing cohort and any children they have, 'the legislation in no way creates an incentive for "people smugglers"'.
The Law Council also disputed the department's argument, pointing out that '[t]here is no pathway to permanent residency in Australia' for those transferred. The Law Council's view was that 'border management concerns' should be addressed by the fact that the Act prevents transferees from applying for any visa while in Australia, unless the minister makes a specific exception.
Professor Phelps argued that the medical transfer provisions have 'nothing to do with undermining the policy of stopping the boats' and does not undermine Operation Sovereign Borders or create a 'pull factor'.
Refugee Legal criticised comments made by the government around the time of the enactment of the medical transfer provisions, saying:
…the sky hasn't fallen in…nor have the boats resumed, as was clearly a concern stated by government. In fact, we've seen people being resettled to the US from Nauru and from PNG. We've seen many people being brought back for the critical medical treatment they need. What we see is not in fact the problems that those fears sought to provoke. They just haven't materialised.
Mr Pezzullo conveyed the government's view that the medical transfer provisions 'sit at odds with the objectives and processes established under Operation Sovereign Borders'. Mr Pezzullo elaborated:
It is the firm contention of the government that it is possible to support [Operation Sovereign Borders] or to support these provisions, but it is not possible to support both, as a result of the statutory requirements that were introduced into the Migration Act by way of the miscellaneous measures act.
Major General Furini outlined the view that the medical transfer provisions create confusion around the government's resolve:
I think that, ultimately, we need to deliver clear and unambiguous messaging offshore to all of the potential illegal immigrants of the future. We have seen, throughout the course of [Operation Sovereign Borders'] history, people smugglers peddle falsehoods and create false hope and misconstrue the policy position of the Australian government. So, the more we can be emphatic and unambiguous about our position, the better off we will be and the easier my mission will be, in terms of delivering that deterrence message offshore.
Remuneration for the Independent Health Advice Panel
The medical transfer provisions specifically exclude remuneration for IHAP panel members. This issue was raised by submitters on both sides of the debate.
The department explained that it is able to provide secretariat support to the IHAP, including organising travel and facilitating meetings. However, attendance at IHAP meetings and associated activities are 'subject to members' ability to take leave from their paid employment or business'. Panel members are also unable to be 'indemnified by the Commonwealth', leaving members to organise their own insurance coverage.
In its Second Quarterly Report, the IHAP reported that the department had provided assistance for travel by IHAP members. The IHAP also made the following comments about insurance coverage:
The Department encourages Panel members to undertake their own assessment of the possible implications being an IHAP member may have on any existing insurance. IHAP members have requested further information and assistance from the Department regarding indemnification and insurance for IHAP members. To date, the Department has advised Panel members to consider acquiring personal or private insurance coverage and has undertaken to continue exploring options and to update Panel members accordingly.
The President of the Australian Medical Association (AMA), Dr Tony Bartone, was concerned that a lack of remuneration 'for the considerable time and expertise' provided by panel members represents a 'flaw' in the medical transfer provisions. However, he confirmed that the AMA does not believe this issue is 'a game-breaker', or a reason to repeal the provisions.
Dr Bartone provided a description of the work conducted by IHAP members:
Dr Di Dio, as an example, has performed all of that activity and due diligence, reading the case files. Of course each application could amount to many, many hundreds of pages of clinical notes that have been brought together for the brief of the application. It would take several hours to go through that meticulously for each case…I contend that the panel may in due course fatigue purely under weight of numbers or weight of obligation, because, as I say, this is all being done at the expense of their own professional day-to-day lives.
Despite the lack of remuneration, the Royal Australasian College of Physicians (RACP) reported that it had over 30 people express interest in being on the IHAP. The AMA similarly argued that the lack of remuneration 'does not diminish the role the panel is playing in ensuring appropriate health care is provided'.
Witnesses did, however, argue that the government should consider remuneration for the members of the IHAP. The Royal Australian College of General Practitioners (RACGP) identified a need to provide 'adequate resourcing of the process and sufficient legal indemnity' for medical practitioners conducting assessments under the medical transfer provisions. Similarly, the AMA said 'IHAP or any such body should be appropriately resourced to ensure that it carries out its functions in a way that is appropriate, timely and efficient'. The Law Council agreed that the panel should be remunerated.
When asked about what would constitute appropriate remuneration, the AMA suggested this be based on remuneration levels for involvement by medical practitioners in other Commonwealth government activities where they provide expert advice.
Alleged increase in self-harm
One reason provided by the department for the proposed repeal was related to the issue of self-harm among the regional processing cohort. The department argued that the medical transfer provisions have led to an increase in incidents of self-harm. This assertion was refuted by other witnesses, including Dr Phelps, Dr Janakiramanan, and Ms Gleeson of the Kaldor Centre.
The department submitted that incidents of self-harm among the PNG cohort saw an 'upwards trend' from late 2018 through 2019:
Notably, self-harm incidents increased during the parliamentary debate on the Miscellaneous Measures Act, and more significantly since the Australian Federal Election. Of the 72 transitory persons transferred to Australia under the Miscellaneous Measures Act, 39 had undertaken an act of self-harm and 19 had threatened self-harm since the implementation of the Act.
In addition, the department explained that the government is 'concerned that self-harm is perceived as the most expedient means of accessing medical transfer under the provisions'.
Professor Phelps disputed the department's claims, saying:
The incidents of self-harm related to declining mental health were increasing before medevac and was one of the reasons it was needed. The government's rhetoric and statements about repealing the legislation triggered another level of hopelessness and a new round of self-harm and suicide attempts after the last election.
Other submissions also disputed the government's claims about the cohort's intentions around self-harm. For example, Grandmothers Against Detention of Refugee Children submitted:
The figures will show that the distressing spate of self-harming by more than 90 people held on Manus Island began in response to the hopes for a change in refugee policy dashed by the re-election in May 2019 of the Morrison Government…To characterise the self-harm, including an act of self-immolation, as a manipulation of the system is misleading the Parliament and deserves to be called out as such by the Committee.
Ms Gleeson of the Kaldor Centre said historical data indicates there have been 'peaks in self-harm behaviour and mental health deterioration around critical moments', specifically around political decisions made in Australia that impact upon the regional processing cohort.
The department addressed the debate around the issue of self-harm at the hearing. Major General Furini said:
Senator, as you did hear earlier today from another witness, external factors do drive behaviours and attitude amongst the cohort in PNG and Nauru. Historically over time we've seen that such things as visits to the regional processing centres, public and political debate in Australia and changes to policy have all contributed to the creation of expectations, false or otherwise, of a particular future which then in turn influences behaviours and attitudes of transferees.
Major General Furini also suggested that 'influential transferees are coaching others to self-harm in order to get to Australia'.
The department was asked to provide evidence of an increase in self-harm related to the passage of the miscellaneous measures bill. Major General Furini said:
In December 2018, about the time the bill was introduced, for example, 66 cases of self-harm occurred in Nauru, compared to 15 in December 2017, the same period a year before. In June 2019, following the election and the signal of a clear intent to push forward with the repeal of the bill, in PNG there were 101 cases of self-harm versus one for the same period in 2018.
Dr O'Sullivan from the Castan Centre observed 'an upwards trend' in self‑harm incidents, but argued that the trend 'cannot be legally linked to anything related to the medevac laws'. Mr de Kretser from the Human Rights Law Centre agreed, saying:
There is overwhelming evidence of the mental harm that's been inflicted by six long years of people being held offshore, and I don't agree with the suggestion that it's linked to the medevac laws.
On notice, the department provided the following graph to support its assertions:
Figure 2.1: Graph provided by Department of Home Affairs showing the number of incidents of self‑harm
Source: Department of Home Affairs, answers to questions on notice, 26 August 2019 (received 27 September 2019), [p. 2].
In addition, the department submitted:
As at 26 August 2019, 112 people had transferred to Australia under the Miscellaneous Measures provisions. In assessing this transferred cohort, it was identified that in the 11 months prior to the initial discussions in Parliament on the new medical transfer provisions (1 November 2017 – 30 September 2018) there were 18 incidents of actual self-harm involving nine individuals amongst this cohort. From 1 October 2018 to 26 August 2019, there were 121 incidents of actual self‑harm involving 50 individuals in this cohort. This is an increase of 572 per cent on the previous period.
Doctors Janakiramanan and Townend argued that the statistics and medical reports do not indicate that self-harm rose in response to the debate and implementation of the medical transfer provisions. Dr Janakiramanan added:
In fact, the medevac bill became law on 1 March, and between 1 March and the middle of May, when the election was held, the rates of self-harm were actually extremely low.
The doctors and Professor Phelps pointed to the federal election as a more significant factor, with Professor Phelps saying that individuals in regional processing centres are 'not trying to make a point; they're trying to kill themselves because they've lost hope'.
The department stated that it is working with service providers to address mental health issues and self-harm by supplying 'enhanced mental health services', which include:
more welfare support and psychology services;
new programs and activities;
more 'data and information sharing' and 'close observations' of persons deemed to be 'at risk'; and
more 'offshore medical accommodation'.
Additional mental health facilities have also been added at Pacific International Hospital in Port Moresby, including 'a dedicated mental health ward comprising 12 beds, with an adjoining activity room' and more mental health staff.
Adequacy of the medical transfer provisions prior to March 2019
The minister and the department proposed that the medical transfer provisions that applied prior to March 2019 (and which remain in the Act) are satisfactory for the purpose of bringing transitory persons to Australia for medical assessment or treatment.
Section 198B of the Act provides a power to bring transitory persons (and accompanying persons) to Australia for a temporary purpose, using restraint or force 'as is necessary and reasonable'. A 'temporary purpose' includes 'medical or psychiatric assessment or treatment'. Transfers under section 198B are 'supported by clinical advice provided by a Medical Officer of the Commonwealth'.
The department provided statistics for the numbers of people who were transferred to Australia under these provisions. From November 2012 to 31 July 2019, 1,343 transitory persons were transferred from Nauru and PNG to Australia under section 198B. This comprised 717 patients and 626 accompanying family members. In addition, 1,176 of the 1,343 persons were from Nauru and 167 were from PNG. As at 26 August 2019, the total figure had risen by five to 1,348.
On notice, the department also confirmed that, as at 26 August 2019, there were 46 requests for a transfer under section 198B 'pending outside of the medevac process'.
A number of inquiry participants argued that section 198B has been insufficient as a transfer mechanism because its application has been inconsistent. The Australian Human Rights Commission was concerned that 'it does not state how the power should be exercised' and that there are 'real concerns about how this power has been exercised in the past'.
The Australian Human Rights Commission elaborated on these concerns, saying that under the old provisions, transfer decisions 'often did not occur in a timely manner or in line with medical advice' and many cases led to Federal Court proceedings. In most of these cases, the Federal Court determined that 'processes for assessing individuals for medical transfer from Nauru or PNG were neither adequate nor sufficiently quick'.
Refugee Legal expressed opposition to relying solely on section 198B of the Act:
…because there is no clear and transparent process for section 198B to be triggered; there are no time frames for consideration of transfers, and we are aware of transfers taking months to be effected under this power; there is no clear review process, leaving desperate people to resort to complex and resource-intensive legal proceedings in the Federal Court of Australia; and crucial decisions are made by bureaucrats and politicians, not those with independent medical expertise.
Other witnesses shared these concerns, including the Castan Centre and the New South Wales Council for Civil Liberties, which described the process under section 198B as 'slow, cumbersome, [and] bureaucratic'.
The Human Rights Law Centre argued that 'the transfer system in place before medevac was not working'. Mr de Kretser elaborated:
Before the medevac law, the Human Rights Law Centre was forced to take legal action, on behalf of people who were at risk of death or serious injury, to secure transfers for medical treatment in Australia. We gathered medical reports and expert medical evidence, undertook legal advocacy for our clients with the government, were forced to threaten court cases and, on many occasions, were forced to bring cases in the Federal Court.
The Australian Human Rights Commission provided a graph with the numbers of persons transferred each year, and the country to which they were transferred:
Figure 2.2: Graph provided by the Australian Human Rights Commission showing the number of medical transfers from Nauru and Manus Island, PNG, by year
Source: Document tabled by Australian Human Rights Commission at the public hearing in Canberra on 26 August 2019.
The Australian Human Rights Commission observed that the dramatic drop in transfers to Australia from 2015-16 to the end of 2017-18, followed by a spike with the introduction of the medical transfer provisions, indicates that the government adopted a policy in 2015 of refusing transfers, and concluded:
…the previous regime under section 198B and the government's policy position since July 2015 were not sufficient to ensure that people received the medical care they needed.
Alleged delays for medical transfers under section 198B prior to March 2019
Witnesses from the legal and refugee support sectors provided evidence about delays in the medical transfer system under section 198B prior to March 2019. Director of the National Justice Project, Mr George Newhouse, offered a case study of:
…a young man who waited two years before medevac for an urgent hand operation. After medevac was introduced, he was medevaced within 24 hours. He was being recommended for that operation by IHMS, and they were being ignored. We're told now that he will never regain the full use of his hand because of the delay. So there is delay.
The AMA said the process prior to March 2019 was 'a bit ad hoc'. Dr Bartone provided this detailed description of the process from the point of view of doctors involved:
The IHMS was the organisation that was overseeing the provision of medical services in the refugee camps. It would make a recommendation, often discussing it with colleagues back home, and then have to go through the appropriate legal channels. That is not my area of expertise or knowledge, but suffice it to say that it was on an ad-hoc basis and there was really no clear formal process. It was all ad hoc and the oversight was at times completely lacking.
[F]rom feedback from doctors at the front line, that they were quite distressed at times about patients who did need to be transferred and weren't able to access the appropriate transfer. They were very, very concerned, and I know that, for some members of the medical profession performing services at that front line, it was so distressing that they had to leave that service because of that.
Dr Bartone further described the processes as 'torturous', involving 'long periods of delay' and lacking 'the appropriate oversight'. Dr Bartone added:
There was no independent way of verifying, or not, any of the approaches or the transfers. The information wasn't being provided to the parliament in the appropriate time. This [medevac] process brings rigour to the process and information transparency to the government.
Many witnesses pointed to the case of Hamid Khazaei, who died after contracting an infection in his foot. The Chief Executive Officer of the Asylum Seeker Resource Centre, Mr Kon Karapanagiotidis, said:
The coroner…made it very clear that that young man who died at 24 from a foot infection should have been alive today. He set the standard. He said that if Australia is going to relocate people to an offshore camp, to an offshore prison, then the standard of medical care we should expect is the standard of care of the Australian health system. It is not normal for 24‑year‑olds to die of foot infections.
On notice, the National Justice Project provided a number of case examples it believes show that transfers were delayed against medical advice:
Figure 2.3: Graph provided by the National Justice Project showing delays in transfers against medical advice.
Source: National Justice Project, answers to questions on notice 26 August 2019 (received 1 October 2019), p. 2.
The Human Rights Law Centre reported that in a number of cases it worked on under the transfer provisions prior to March 2019, 'recommendations from the government's own doctors for transfers…had not been complied with'.
The department explained the process for transfers under section 198B. The department receives advice that an individual requires a medical transfer from the medical provider in PNG or Nauru. Cases are then triaged following consideration of the medical recommendation and then department and Australian Border Force officers meet and 'look at the holistic view of the transfer', which includes issues relating to accompanying persons and arrangements with PNG and Nauru.
In response to claims of deliberately delayed decision-making and transfers by the department, Mr Pezzullo said:
We assert very strongly that in no cases have we delayed a transfer where there was an evident medical need…I strongly deny in the most forceful terms possible that I can lay before this committee any kind of strategy of prolonged, deliberate, targeted suffering…
Further, the department stated that ‘as at 26 August 2019, there were 46 transfer requests (for the purposes of a transfer under section 198B of the Migration Act 1958) pending outside of the medevac process’.
Court action in relation to potential transfers
A number of witnesses proposed that the medical transfer provisions prior to March 2019 led to a significant amount of court action. For instance, the Australian Human Rights Commission claimed that in 2018-19, 536 people were brought to Australia for medical assessment or treatment, and 'approximately 60 per cent were transferred as a result of actual or prospective litigation'.
The department refuted this claim, saying:
It is not the case that the Australian government needed to be legally compelled to transfer persons from Nauru and Papua New Guinea to Australia to receive necessary health care. This is factually incorrect. Medical transfers informed by clinical advice have been available from the first day of regional processing arrangements in 2012 and will continue.
The department submitted that out of the 1,343 transitory persons transferred to Australia under section 198B between 2012 and 31 July 2019, 'only 96 were court ordered', which represented seven per cent of the caseload.
Mr Pezzullo reported that, in relation to some of the 39 cases in which court orders were made, legal proceedings were filed despite the department informing legal representatives 'of its intention to transfer their clients prior to proceedings being filed and that transfer would occur as soon as practicable'.
The department also acknowledged another 90 cases, involving approximately 220 transitory persons, in which 'legal representatives made representations to Home Affairs seeking medical transfer, including many foreshadowing litigation'. These cases resulted in transfer to Australian under section 198B of the Migration Act 'prior to any proceedings being filed'.
The Human Rights Law Centre did not dispute the numbers, but disagreed with the department's characterisation of them, saying that all-in-all around '350 people—over 100 kids—were brought as a result of legal interventions'. This, Mr de Kretser said, represents a significant pro bono case workload.
Professor Phelps concurred that the process was ad hoc, adding there were 'no protocols for urgent transfer', or for 'triaging of cases', and that average waiting times were over two years. Professor Phelps proposed that:
The department had a policy of dragging medical transfer cases through the courts. Refugees and people seeking asylum lacked the resources to fight their cases, so it was up to lawyers working pro bono to take their cases—hundreds of cases. In every case the Federal Court found in favour of the original medical recommendation.
The Human Rights Law Centre told the committee it had been involved in legal interventions resulting in the transfer of 180 people, 'and many more were transferred through the interventions of our partners'.
Witnesses from the medical sector were concerned that repealing the medical transfer provisions and retuning to the old system could result in greater mortality and morbidity amongst the cohort. Professor Phelps explained 'as doctors we fear a return to a slow, unpredictable and dangerous transfer system and further unnecessary deaths':
The fear that my colleagues and I have if we go back to the old system is that there will be other deaths. The system was broken. It wasn't working. It did not provide appropriate and timely care.
The department rejected this view and argued that the pre-existing provisions and processes were a more appropriate mechanism for facilitating transfers, and said:
…our preference is to transfer under [section 198B] rather than [section 198E, which would be repealed by the bill] any day of the week…B more properly represents sovereignty of both the government and the parliament, whereas E puts transfer beyond the sovereign control of the executive.