Labor Senators' dissenting report

This bill, like several other bills to amend the Migration Act introduced in the 46th Parliament, is solely an expression of the Government's political agenda.
The bill's provisions are not necessary to maintain or improve the existing border protection system, under which asylum seekers who arrive in Australia by boat and without valid entry documents are detained and processed offshore.
Even the name of the bill is seriously misleading, because it refers to a problem that does not exist.
The medical transfer provisions of the Migration Act, the socalled medevac law introduced earlier this year, do not need to be "repaired".
They are working well, as expert witnesses have attested in evidence to the committee.
Labor supported the enactment of these provisions so that sick people could get the medical care they need, and because the Minister for Home Affairs retained the discretion to refuse transfers on grounds of national security or serious criminality.
That is still the case.
When the provisions were introduced, the Government claimed that they were a green light to people smugglers and would result in a new surge of boat arrivals.
That has not happened.
We argued that it was possible both to maintain rigorous border surveillance and security and to fulfil Australia's obligation to provide full and appropriate medical care for people detained in Australianfunded facilities.
That is what the operation of the medevac law has demonstrated.
These transfer provisions have shown that it is not necessary to resort to cruelty, the abuse of asylum seekers' rights and the flouting of Australia's international obligations in order to maintain a strict border protection regime.
The Minister for Home Affairs, Peter Dutton, has claimed that restoration of the previous medical transfer system is necessary to prevent an influx into Australia of undesirable persons, including rapists and pornographers.
This contention is as spurious as the notion that medevac sends a green light to people smugglers.
Even before medevac, the Government was transferring significant numbers of people from Nauru and PNG to Australia.
As Mr Dutton's department noted in its submission to the committee, from November 2012 to the end of July 2019 there were a total of 1343 transfers (717 medical and 626 accompanying family).
There has been no spike in sexual and other crimes because these 1343 people entered Australia, and there is no reason to suspect that the medevac process is likely to cause the predicted increase either.
The Government's own practice in the matter of transfers has been inconsistent. Two Rwandan refugees who went to the US, and who had been accused of murdering tourists, were accepted into Australia as part of the US refugee swap deal.
Under medevac, the essential change from previous medical transfer arrangements is that the medical profession has the primary responsibility for assessing the need for transfer, as is appropriate.
Before the medevac law was enacted, transfers were authorised solely by the Home Affairs Minister or the Immigration Minister, and those who wished to challenge the ministers' decisions had to do so in court.
By seeking to repeal the medevac law, the Government is effectively trying to undermine the role of medical profession and to question their independence.
As the Human Rights Commissioner at the Australian Human Rights Commission, Mr Edward Santow, said in evidence:
The current law enables a medical transfer where two or more treating doctors believe it is necessary. The minister can refuse a transfer on medical, security or community safety grounds. [Independent Health Advice Panel (IHAP)] can review the minister's decision but only on the ground of medical necessity. IHAP cannot challenge the minister's decision if it relates to security or community safety. In other words, as the government retains primary control over medical transfer decisions, the commission considers that the bill is not necessary to achieve the stated aim of ensuring the integrity and efficacy of the regional processing framework and returning decision-making power to government.1
Mr Santow commented on the likely consequences of returning to the previous system for medical transfers, if the bill is passed:
Before the introduction of the current medical transfer provisions, decisions to transfer a person for medical reasons often did not occur in a timely manner or in line with medical advice. In many cases, Federal Court proceedings were needed to secure urgent medical transfers. The Federal Court found the processes for assessing individuals for medical transfer from Nauru or PNG were neither adequate nor sufficiently quick. As you have heard this morning, one deeply concerning case involved 24-year-old Hamid Khazaei, who contracted a leg infection that was not properly treated on Manus Island. Despite medical advice that he receive treatment in Australia, the Australian government refused to do so. He was taken instead to Port Moresby, where delays in critical care led to him suffering a major heart attack. This precipitated his transfer to the Mater Hospital in Brisbane, where he was declared brain dead and his life support was withdrawn.
If this bill is passed, medical transfers will be subject to the previous section 198B regime. We know the underlying health of asylum seekers and refugees in Nauru and PNG is precarious and that local healthcare facilities are limited. By making it more difficult for these people to obtain timely and appropriate health care, this bill would have a significant negative affect on their right to health. The commission considers this is not justified under international law.2
At the time of writing, 132 people have been transferred to Australia under the medevac provisions, and all of these transfers were explicitly approved by the Minister for Home Affairs, Peter Dutton, the Minister for Immigration, Peter Coleman, or by ministerialappointed doctors.
Of this number, 23 were transferred after being initially refused by the ministers. These individuals were only transferred to Australia after assessment by the Independent Health Advice Panel – the expert panel of doctors appointed by the minister.
Only one case has been rejected on security or character grounds.
The Independent Health Advice Panel includes some of Australia's most highly qualified and experienced medical practitioners, including the Commonwealth's Chief Medical Officer Professor Brendan Murphy; the SurgeonGeneral of Australian Border Force Dr Parbodh Gogna; Australian Medical Association (AMA) representative and the AMA's ACT President, Dr Antonio Di Dio; Paediatric health expect Associate Professor Susan Moloney; and Royal Australian and New Zealand College of Psychiatrists representative Associate Professor Neeraj Singh Gill.
As the president of the Australian Medical Association, Dr Tony Bartone, said in evidence to the committee:
From all reports, I believe that the Independent Health Advice Panel process is working well…I haven’t seen any of the applications that have come before the panel, However, I am led to believe that all the cases that have been brought to the panel have been meritorious and worthy of consideration, and the panel's assessment has been duly followed through. In that respect, I have nothing but faith in the process, and the outcomes, and its execution by the panel.3
Labor is confident that the Australian people can see through the Government's political rhetoric on this issue.
The need for the transfer system introduced by the medevac law reflects the baleful consequences of the Government's failure to resettle people who have been held in offshore processing centres for up to six years.
Dr Neela Janakiramanan, one of the lead doctors implementing the medevac transfer provisions, provided the committee with the results of a health audit of asylum seekers in PNG and Nauru:
So 581 patients have written to us and said that they have unmet health needs. We have obtained the medical records or conducted direct teleconference health assessments for 338 of those patients. Those direct telehealth assessments range in time from 50 minutes to 170 minutes in length, so they are significant health consultations.
We have gone through these medical records and documented the current health conditions that these patients have. Where there was any uncertainty about whether a diagnosis could be made it was not coded for. These are diagnoses that are based on standard diagnostic criteria and standard objective test findings—things like x-rays. If there's a broken bone, you can see it. It's very straightforward.
We have found—and I will reiterate the numbers—that 97 per cent of people have physical health complaints and 91 per cent of people have psychiatric health complaints. On average, each patient has 4.6 discrete organ systems that are involved with disease. There are a number of reasons for this. Part of the reason for it is the conditions in which they have lived for the last six years. There are certain diseases that are more common in disadvantaged populations. The second thing is because there has been no resolution to many of these health issues.
So even though $400 million has been spent by the department on providing healthcare services to patients in Papua New Guinea and Nauru, as far as we can tell from the submission that the department has made there has been no audit of the outcomes that these services have actually provided. If we funded an Australian health service that delivered these sorts of outcomes, it would be shut down immediately. The numbers are absolutely gobsmacking.4
The audit results are a shocking indictment of the way this Government has conducted the offshore processing of boat arrivals.
The system was never intended to consign people into indefinite detention with little or no hope of permanent resettlement. But that is what it has become.
In this situation, it is not surprising that health outcomes for the asylum seekers in offshore centres continue to deteriorate.
The need for a medical transfer system that gives due weight to medical assessments, which the medevac law has created, has been abundantly confirmed.
No matter how much money is spent to ameliorate life in an unhealthy environment, the result is likely to be unhealthy people.
As Professor Kerryn Phelps, a former AMA president and one of the architects of the medevac law, said in evidence to the committee:
You say that the government say they've spent a lot of money. We can spend a lot of money on something that is not appropriate. For example, if you don't have a culturally and linguistically appropriate psychiatric service, you are not going to be able to treat people with serious mental illness—mental illness which is created by the situation from which people quite often have fled, whether that be persecution or torture or war, and then they are detained indefinitely with no understanding of what their future might be or if indeed they have a future. They then become more unwell and have to fight through lawyers whom they have not met and are working on a pro bono basis to try to get them to a country where they can receive appropriate care. This is not the way that Australia should be treating people seeking asylum.5
The Government, however, has ignored these independent medical assessments.
Despite the clear evidence that the combination of turnbacks and offshore processing has stemmed the flow of boats, the Minister continues to try to incite fears in the wider community about a new influx of boat arrivals.
Labor is deeply concerned about the Minister's reputation as the boy who cried wolf, and what that will mean for the Department he leads.
The Minister must be held to account for his continuing mismanagement, and his attempt to wind back the clock on medical transfer must be rejected.


That the bill not be passed.
Senator the Hon Kim Carr
Deputy Chair
Labor Senator for Victoria
Senator Anthony Chisholm
Labor Senator for Queensland

  • 1
    Mr Edward Santow, Human Rights Commissioner, Australian Human Rights Commission (AHRC), Committee Hansard, 26 August 2019, p. 27.
  • 2
    Mr Santow, AHRC, Committee Hansard, 26 August 2019, p. 27.
  • 3
    Dr Tony Bartone, President, Australian Medical Association (AMA), Committee Hansard, 26 August 2019, p. 2.
  • 4
    Dr Neela Janakiramanan, Committee Hansard, 26 August 2019, p. 11.
  • 5
    Professor Kerryn Phelps AM, Committee Hansard, 26 August 2019, p. 10.

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