3.1
The majority of the evidence to the inquiry argued that the medical transfer provisions enacted in March 2019 should not be repealed from the Migration Act 1958 (the Act). Inquiry participants highlighted several arguments against repeal, and therefore against the Migration Amendment (Repairing Medical Transfers) Bill 2019 (the bill), including that:
the medical transfer provisions facilitate and support medical decisions being made by medical professionals;
the provisions are working as intended to ensure individuals in Nauru and Papua New Guinea (PNG) receive medical treatment;
the contribution of the Independent Health Advice Panel (IHAP) is beneficial, particularly its oversight, monitoring and reporting functions; and
repealing the provisions would adversely affect Australia's ability to meet its international legal obligations, particularly its human rights obligations.
3.2
This chapter discusses each of these issues in turn and concludes with the committee's view and recommendation.
3.3
Where this chapter refers to 'medical transfer provisions', it is referring to the medical transfer provisions enacted in March 2019 that would be repealed by the bill (as distinct from the medical transfer provisions in section 198B that applied prior to March 2019).
Who should make decisions on medical issues?
3.4
As outlined in chapter 1, the medical transfer provisions enacted in March 2019 stipulate that in order for a medical transfer to occur, two treating doctors must give an opinion that a transitory person requires medical or psychiatric assessment or treatment which they are not currently receiving and that transfer to Australia is necessary to enable the required assessment or treatment to occur.
3.5
Evidence to the inquiry expressed support for a framework that facilitates medical decisions being made by medical professionals. Professor Niki Ellis from the Royal Australasian College of Physicians (RACP) explained:
The medevac legislation allows medical experts to make decisions about health care for seriously ill individuals and enables Australia's independent medical oversight of a health system, contracted by the Australian government and funded by Australian taxpayers, arising as a result of Australian immigration policy.
3.6
When discussing the importance of doctors playing a key role in the decision making for medical transfers, the expertise and professional standards that doctors bring to the process were highlighted. Dr Tony Bartone, President, Australian Medical Association (AMA) emphasised that 'medical practitioners in Australia…are guided and regulated by some of the strongest ethics and regulations anywhere in the world'. Similarly, Professor Ellis recognised the expertise of the medical profession:
Medical practitioners have a professional duty of care to patients and undertake years of medical training. It's therefore highly concerning when medical recommendations are overruled by persons without medical expertise.
3.7
The Royal Australian College of General Practitioners (RACGP) said the medical transfer provisions provide:
…a process whereby skilled medical professionals undertake objective health assessments of a person and make subsequent clinical recommendations about required treatments, individuals with significant medical, surgical and psychiatric conditions can access appropriate and timely health care.
3.8
Other inquiry participants also highlighted the importance of doctors being key decision makers in the medical transfer process. World Vision emphasised that the medical transfers legislation is 'not about resettlement, but rather about ensuring appropriate and often lifesaving medical care for refugees and asylum seekers (transitory persons, per the legislation), as directed by qualified medical professionals'. The Castan Centre for Human Rights Law explained that a benefit of the medical transfer provisions 'is that the decision is in the hands of clinicians and is more likely to avoid unnecessary and costly litigation'.
3.9
When discussing the importance of doctors' decisions being respected, several submitters and witnesses referred to the 2014 death of Iranian asylum seeker Hamid Khazaei and the subsequent coronial inquest in 2018. On this matter, Professor Kerryn Phelps AM submitted:
The coroner made a very strong recommendation that the system be changed and that doctors rather than bureaucrats or politicians make the decision about medical transfers. That's as it should be, because medical decisions should be made by people with medical qualifications. The delays that were put in place were done for political reasons.
3.10
The Victorian Refugee Health Network argued that the medical transfer provisions enable 'a rapid, potentially life-saving response to the health care needs' of those individuals in PNG and Nauru. Furthermore:
Because the law ensures recommendations made for medical transfer are based on the objective health assessments by highly trained medical experts, people's health needs are placed above political and policy decisions.
3.11
Refugee Legal emphasised the medical transfer provisions 'are an effective and robust statutory mechanism which places medical expertise at the heart of decision making'. It was also noted that the provisions have allowed 'seriously ill men and women to access necessary medical treatment'.
3.12
The Department of Home Affairs (the department) emphasised that '[d]octors and medical professionals have always been, and always will continue to be, part of the transfer system and its associated decision-making processes'. The department provided further details about the role of medical officers prior to March 2019:
Departmental officials do not make medical decisions; we are not medical practitioners. We do have a chief medical officer. Prior to the medevac bill's royal assent, on 2 March, the chief medical officer of the department, Dr Gogna, would provide advice and support to the medical officers of the Commonwealth, who work also in the Health Services Division. Those are the medical officers who provide advice, with IHMS [International Health and Medical Services] and the Pacific International Hospital, to determine who needs to be transferred, for what reason and for what treatment, and what receiving hospital the person should go to.
3.13
It was also noted that since the commencement of the medical transfer provisions in March 2019, the role of the Commonwealth Chief Medical Officer and the departmental chief medical officer has changed given that they are now both members of the IHAP:
In terms of 2 March, the Chief Medical Officer of the Commonwealth, who is Dr Brendan Murphy, and the chief medical officer of the department, Dr Gogna, have now been removed from that ability. I can no longer use, in my line, Dr Gogna to provide me with advice in regard to how we should manage medical services on Nauru or Manus Island because he is now a part of the Independent Health Advice Panel. In terms of managing his conflict of interest as somebody who will make a decision once the minister may have declined a transfer, he is involved in that process, so it's very difficult for him also to be involved in the advisory process. The medevac legislation has taken that line, plus Dr Brendan Murphy. They are two people who we use for a considerable amount of advice, which, as you'd imagine, is why we have that position. Both of them have been taken out of the process. That being said, the medical officers of the Commonwealth underneath the health services are the people who provide the information to us in regard to the clinical referral to transfer somebody. They're the people who advise us, as they now advise the minister.
3.14
The department also explained the contribution that departmental officials have made to the consideration of medical transfers which 'require a judgement to be made about resources, efficacy and Australia's interests or otherwise'. For example, this could include assessing whether the treatment, subject to the medical advice, could be provided in a hospital in PNG or in a clinic or hospital in Taiwan. Furthermore:
From a policy point of view, going beyond coordination of individual transfer actions, are we seeing a pattern and—this has been our experience for seven years, having lived it for the entire period in various roles—should we perhaps be thinking about providing more systemic support in relation to particular conditions? If we're seeing presentations through the standard medical transfer assessment process of individuals, maybe there's a suggestion—to Ms Moy's earlier point—that you need to put a particular type of speciality into, for instance, the Nauru general hospital. So, as part of a team, doctors quite properly—and we really respect the role that doctors perform in our society—talk about bringing everyone together in terms of domestic care, not just medical professionals but public servants, police officers and all sorts of folks, in a team approach.
Who should make decisions to remove people from Australia?
3.15
A related matter concerned the provisions in the bill that would extend existing powers in the Act to provide for the return or removal of persons who had previously been transferred to Australia for medical treatment.
3.16
Doctors for Refugees argued that:
…removal power should remain the responsibility of medical staff with a more complete understanding of the prognosis, management and treatment options for the patient. It is inefficient and medically unsafe to provide officers without a medical background and complete understanding of the nature of the health condition to remove persons brought to Australia for health complications.
3.17
Dr Kym Jenkins of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) expressed the view that such decisions 'should always be medical decisions, not ministerial ones'.
Are the medical transfer provisions working as intended?
3.18
During the parliamentary debate for the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (the miscellaneous measures bill) which established the medical transfer provisions, reference was made to 'an urgent medical crisis in Australia's offshore detention centres'. Inquiry participants reiterated these views to the committee noting that the medical transfer provisions were established in recognition of the health challenges faced by the population and the need to streamline the processes for transfer to Australia for medical treatment.
3.19
This section discusses the evidence received detailing how the medical transfer provisions are working in practice and considers claims that they have led to improvements in timely access to medical assessment and treatment.
How are the medical transfer provisions working?
3.20
A view put to the committee several times emphasised that the medical transfer provisions are working as intended and should continue. Professor Phelps argued that the provisions have streamlined the process and are 'saving lives'; the Kaldor Centre for International Refugee Law (Kaldor Centre) stated that the provisions provide 'clearer guidance of how people should be brought to the attention of the minister' and are 'fit for purpose'.
3.21
The Canberra Refugee Action Campaign submitted that the medical transfer provisions have 'proved effective' and furthermore:
It provides a clear framework for assessing the needs of vulnerable people and taking timely medical action where necessary. It avoids unnecessary politicisation of medical transfers from detention centres and saves taxpayer funds by reducing the legal costs incurred under the previous regime.
3.22
Drs Neela Janakiramanan, Natalie Thurtle and Sara Townend, three independent doctors who have undertaken medical assessments of refugees and asylum seekers and made subsequent applications to the minister, described the operation of the medical transfer provisions:
The assessment and application process laid out in the legislation has been utilised in a way which is respectful both to the patients and the Government. Health assessments have been rigorous, undertaken by fully qualified specialist doctors working who assess patients within their areas of medical specialty, and are conducted to Australian health standards. Doctors have fully investigated the capacity of local health services in PNG and Nauru to address the needs of the patient before recommending medical transfer. Assessments have been undertaken in volunteers' spare time, resulting in no negative impact on Australian patients.
3.23
In addition, Drs Townend and Janakiramanan explained how they have been responsible for 'data collection and the auditing of the [medical] records of the patients involved'. The committee was advised that 'a number of medical professionals' had volunteered their time and effort to create a process for assessing referrals that would be up ‘to Australian standards'.
3.24
The committee also heard about the important coordinating role being undertaken by the Medical Evacuation Response Group (MERG). Following the commencement of the medical transfer provisions in March 2019, a number of specialist refugee organisations developed the MERG to 'create a pathway by which refugees and asylum seekers in offshore processing locations can access health assessment by independent Australian doctors'. Professor Phelps explained that the group was established 'because the government provided no mechanism for transfer requests to be managed and there was a need for an independent, robust and efficient process'.
3.25
The Canberra Refugee Action Campaign referenced reports from Dr Tim McKenna, a member of the group who has visited Manus Island and Port Moresby, and has interacted with doctors who are part of MERG:
I was deeply impressed with the calibre of these volunteers and with the organisation of MERG. This group has provided all the men with independent, trusted support and hope that their many medical problems will finally be addressed. The group also provides a medical assessment independent of Government funded doctors, but the group's assessments are also subject to independent review by the Government's panel if the Minister requests it. This is no 'two doctors from Nimbin' approach. During my July visit I saw the positive difference this group is making on Manus and in Port Moresby'.
3.26
When discussing the medical transfer provisions, many submissions argued that the provisions are working more effectively than the system prior to March 2019. That prior system is discussed in detail in chapter 2.
3.27
A key measure to demonstrate the successful operation of the medical transfer provisions referenced by submitters was the high number of approved transfer applications. The Victorian Refugee Health Network submitted:
Since the Medevac law came into effect, over 80% of applications for transfer have been approved, demonstrating that the requirement for two doctors' medical opinions, along with the anticipated review process, has ensured that valid applications are brought before the Minister.
3.28
Professor Phelps noted that the majority of transfers have been approved by the minister in the first instance. Furthermore, 'only a handful of cases' have been overturned by the IHAP and 'in the majority of cases it has upheld the Minister's decision'.
3.29
Inquiry participants argued that medical transfers are taking place in an efficient, timely and systematic way. Maurice Blackburn Lawyers submitted that the medical transfer provisions have 'successfully provided clear guidelines for how sick people can and should be assessed for treatment...[as well as providing] necessary timeframes which did not exist before'. Furthermore, Maurice Blackburn Lawyers stated:
Importantly, the Medevac legislation provides a requirement for transparency in decision making. There are review processes in place for independent, expert reviews of Ministerial decisions, as well as setting clear processes for review by the Administrative Appeals Tribunal. This provides necessary transparency, accountability and due process which did not exist before.
3.30
The NSW Council for Civil Liberties supported the mandated time limits for decisions to be made for a medical transfer. The RACP also submitted support for the legislated timeframes:
The timeframes specified within the legislation for review and response compel the Department and the Minister to act so that the patient's health is prioritised, and ensure medical decisions are reviewed by medical professionals.
3.31
In its second quarterly report covering operations from 1 April to 30 June 2019, the IHAP reported that it met and made recommendations on 15 cases and all recommendations were made 'within the legislated 72 hour timeframe'.
3.32
Section 198C of the Act enables family members to accompany individuals who are being transferred to Australia for medical treatment. Amnesty International noted that 'families are able to stay together during medical treatment', and Maurice Blackburn Lawyers argued that 'the beneficial impact of allowing for familial support on healing and recovery cannot be understated'. The Refugee Council of Australia also discussed the importance of avoiding family separation:
Section 198C of the Medevac legislation ensures family separation does not happen. The passage of this legislation has enabled fathers who were left behind on Nauru, sometimes for years, to be reunited with their families in Australia and see their children for the first time.
3.33
The Human Rights Law Centre stated:
The Medevac laws are working. The laws have ensured people who are extremely unwell have better access to vital medical care. Removing a fair, transparent and doctor-led process for accessing essential, and in many cases, life-saving medical care is illogical and unnecessary. Without the Medevac laws, we are extremely concerned that the Australian Government's failure to provide appropriate and timely medical care will result in more preventable deaths offshore.
3.34
Medecins Sans Frontiers commented that the medical transfer provisions have been an effective pathway for patients from PNG; however, the medical transfer process:
…is currently handicapped in its operation for patients in Nauru by the Nauruan Government's unwillingness to authorise timely transfers or Tele-Health consultations from Australia.
What are the healthcare needs of the relevant population?
3.35
Doctors Townend and Janakiramanan argued that there remains a significant 'unmet health need' among the offshore cohort and referred to an 'independent doctor-led audit' of the disease prevalence affecting the cohort of refugees and asylum seekers who have made an application for medical assessment under the medical transfer provisions. Of the 581 individuals who applied for medical assessment, 338 patients had 'adequate reliable, objective medical information' to include in the audit. Of the 338 individuals included in the study, 256 (76 per cent) were located in PNG and 82 (24 per cent) were located in Nauru. It was acknowledged that the analysis applies only to this cohort of individuals and 'cannot be more broadly extrapolated to the whole group'.
3.36
Dr Janakiramanan summarised the results:
We have found…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.
3.37
The department responded to the findings, noting that:
Drs Townend, Thurtle and Janakiramanan undertook something similar to a cohort study where they catalogued the health matters notified by their clients, not the entire transferee population on Manus and Nauru.
It is therefore expected that the data would indicate a statistically high‑level of health matters.
3.38
Several witnesses expressed concern about the mental health issues being experienced by refugees and asylum seekers on Nauru and PNG. Sister Jane Keogh, a member of the Canberra Refugee Action Campaign noted that 'ongoing physical pain exacerbates the mental health problems'. Mr Paul Power, Chief Executive Officer, Refugee Council of Australia referred to two reports co-published with Amnesty International and the Asylum Seeker Resource Centre which analysed publicly available information from governments, international bodies, NGOs, doctors, advocates and also people who are held on Nauru and PNG:
What was clear from the information that was available in public, including from the Australian government, was really that the scale of the mental health crisis on Manus Island and Nauru was quite overwhelming. In fact, [the United Nations High Commissioner for Refugees] last year summed it up quite well when they reported that more than 80 per cent of people held on the two islands had been diagnosed as suffering PTSD, trauma or depression. This is consistent with what we've seen in Australia and other countries over more than 20 years from the impacts of long-term detention or confinement.
3.39
Dr Jenkins explained that length of time in detention, the uncertainty and separation 'have a very deleterious effect on people's mental health'. It was also noted that many have mental health problems prior to entering detention 'and prolonged periods of detention can only make their mental health worse'.
3.40
Referring to observations made by colleagues who have made multiple visits to both sites, Dr Lara Roeske from RACGP reported that the physical and psychological health of the asylum seekers is deteriorating' and what is occurring is 'a raft of physical comorbidities that are now accompanying psychological and psychiatric conditions'.
3.41
The Australian Human Rights Commission advised that 'the underlying health of asylum seekers and refugees in Nauru and PNG is precarious and that local healthcare facilities are limited'.
3.42
The IHAP assessed the physical and mental health conditions of transitory persons in Nauru in its First Quarterly Report:
During Quarter 1 2019 there were 5908 consultations to 237 persons provided at the Nauru Regional Processing Centre Medical Centre. 2352 consultations were provided at the IHMS Nauru Settlement Medical Centre. The commonest reason for consultation was for psychological reasons. There were a wide range of other conditions treated with no unusual pattern of disease or disability.
There were 73 admissions to 43 individuals at the RPC Medical Centre, the majority were for mental health admissions and ranged from 1-44 days.
There is an electronic medical record with updated immunisation tracking including typhoid.
There were no patterns of disease that were noted to be unusual by the panel, it was noted there was a high number of psychological presentations and mental health admissions for respite or treatment at the RPC Medical Centre.
3.43
The IHAP also provided an assessment of the physical and mental health conditions of transitory persons in PNG (Port Moresby and Manus Island):
During Quarter 1 2019 there were 1134 primary health consultations, 472 mental health consultations and 375 specialist consultations performed at East Lorengau Refugee Transit Centre (ELRTC) Manus. Visiting specialists in Cardiology, ENT surgery, Dermatology, Orthopaedics, General Surgery, Internal Medicine and Dental also performed consultations.
There were 21 admissions to Lorengau General Hospital for 17 individuals, there were predominately for mental health concerns. Transfers to Port Moresby occurred for a range of medical and mental health concerns.
It was noted during a number of clinical reviews that some individuals had rapid testing that was positive for typhoid, stool and water testing was negative and a community vaccination program was not required, the Panel will continue to monitor. There are no other patterns of disease that were unusual.
Availability of healthcare
3.44
Representatives from peak medical bodies argued that the availability of specialist health services is limited in PNG and Nauru. Dr Roeske of the RACGP advised that primary and secondary healthcare services are available. However, 'there are inadequate services available across a range of medical conditions' such as medical, surgical and psychiatric services. Dr Jenkins of the RANZCP emphasised that the available facilities are likely to be insufficient 'for people with more severe mental illnesses', for example, 'people have severe depression or psychotic depression, where their physical health as well as their mental health is put at risk'.
3.45
Other submitters and witnesses similarly discussed the availability and adequacy of healthcare facilities in Nauru and PNG. The United Nations High Commissioner for Refugees (UNHCR) observed that '[d]espite efforts that have led to isolated improvements in the provision of care in some circumstances', there are 'many cases in which locally available services continue to be inadequate'. The Refugee Council of Australia referenced its 2018 report which found that a range of health issues, many related to women's health could not be treated or managed in Nauru. It also submitted:
The situation in PNG in many aspects has been worse than on Nauru. Since late 2017, the Australian Government has cut back the health care offered to people there, and shifted the responsibility of healthcare provision to local contractors and PNG's strained public health system. There has been no torture and trauma counselling since October 2017, and the number of mental health staff has halved.
3.46
Medecins Sans Frontieres, which provided free psychological and psychiatric treatment to Nauruan nationals as well as refugees and asylum seekers in Nauru from November 2017 until October 2018, argued that the mental health services available on Nauru were not able to deal with the level of 'mental health crisis'.
3.47
With reference to the IHAP assessments of healthcare facilities in Nauru and PNG provided in the first IHAP Quarterly Report, Doctors Townend, Thurtle and Janakiramanan cautioned against 'drawing any firm conclusions about the standard of care' in Nauru and PNG from the IHAP's assessment because it is unclear whether any patient outcome data, quality control or governance information or whether any feedback has been provided by patient group.
3.48
The department emphasised that the governments of Nauru and PNG are responsible for the healthcare of transitory persons residing in their countries under regional processing arrangements. It was noted that since the re‑establishment of regional processing arrangements in 2012, health services in Nauru and PNG have significantly expanded. The government has invested approximately $197.76 million to support the delivery of primary health services on Nauru, including $51.9 million in medical service upgrades. Approximately $194.7 million has been invested by the government to support the delivery of primary health services in PNG, including $44.5 million for the establishment and expansion of the medical clinic at the former Manus Regional Processing Centre.
Nauru
3.49
International Health and Medical Services (IHMS), the government's contracted service provider in Nauru, provides general practitioner, nursing and mental health care clinicians seven days a week. After-hours medical staffing is also available to respond to medical emergencies. Mental health care is delivered by mental health nurses, clinicians, psychologists, psychiatrists and counsellors, including counsellors with torture and trauma counselling expertise. Specialist health services are also provided, including psychology, psychiatry, dentistry, obstetrics, radiography and pharmacy services.
3.50
According to departmental data to 31 July 2019, there were 47 contracted medical professionals in Nauru, including 12 mental health professionals, providing services to 304 transitory persons. This is a ratio of one health care professional to every six transitory persons and one mental health professional to every 25 transitory persons.
3.51
IHMS also detailed its continued presence in Nauru:
As well as IHMS' continued presence (currently 59.2 Full Time IHMS Employees including 50.2 health professionals of whom nine are doctors), clinical services at the Republic of Nauru Hospital (RONH) are also available to refugees and asylum seekers.
3.52
In its First Quarterly Report, the IHAP provided an assessment of health services provided to transitory persons in Nauru:
Regarding the available services in Nauru, the IHAP believes that there are reasonable quality primary and secondary care [services]. These are supplemented on a periodic basis by the availability of specialist services namely physiotherapists, optometrists, ophthalmologists, cardiologist/internal physicians, speech and language therapists, gastroenterologist, neurologists, ENT surgeons, orthopaedic surgeons and infectious disease physicians. Special medical care is not reliably available on the island.
In respect of mental health services there are significant numbers of mental health workers but (unlike PNG) there is no access to high quality inpatient psychiatric care in Nauru and patients with severe mental illness an at high risk of suicide should be transferred to a hospital with appropriate inpatient psychiatric care.
Papua New Guinea
3.53
IHMS was contracted by the Australian government to provide health services in Manus and Port Moresby until 30 April 2018. Currently, Pacific International Hospital, as the government's contracted health service provider, provides access to certified general practitioners, nursing and mental health care through dedicated clinics. In Manus Province, the Pacific International Hospital delivers health services at the general practitioner-led clinic located at the East Lorengau Refugee Transit Centre. Health care at that clinic is delivered by medical officers, primary care nurses, a paramedic, laboratory technician, mental health nurses, psychiatrists, radiologist, general nurses and emergency trained medical officers. In circumstances when medical treatment is required that is not available in Manus, Pacific International Hospital may temporarily medically transfer transitory persons to Port Moresby for inpatient or outpatient care where a range of services are available.
3.54
According to departmental data to 31 July 2019, there were 29 contracted medical professionals in PNG, including 11 mental health professionals, providing services to 409 transitory persons. This is a ratio of one health care professional to every 14 transitory persons and one mental health professional to every 37 transitory persons.
3.55
In its First Quarterly Report, the IHAP provided an assessment of health services provided to transitory persons in PNG (Port Moresby and Manus Island):
The Panel's view is that these services provide a reasonable range of primary care at the ELRTC [East Lorengau Refugee Transit Centre] with some limited secondary services at the Lorengau Hospital. Specialist medical care is not reliably available on the island. Mental health services on the island consist of psychologist, mental health nurses and a visiting psychiatrist, sufficient only for ambulatory treatment.
The Panel was impressed with the physical facilities and the range of medical and investigative services available at PIH in Port Moresby. The Panel was further impressed with the quality of cultural understanding of the two psychiatrists working a PIH. The IHAP was reasonably confident that acute inpatient mental health treatment can be provided at PIH but noted no access to Electroconvulsive therapy (ECT) or psychiatric intensive care.
Contribution of the Independent Health Advice Panel
3.56
As outlined in chapter 1, the medical transfer provisions established the Independent Heath Advice Panel (IHAP) with two functions:
a general monitoring, assessing and reporting function; and
a specific function to review decisions by the minister to refuse to approve medical transfers to Australia.
3.57
Chapter 2 discusses issues relating to the remuneration of IHAP members. This section discusses the evidence received about the IHAP, with particular reference to its activities to date.
3.58
Witnesses spoke positively about the contribution and work being undertaken by the IHAP. Refugee Legal submitted that '[t]he actions by the Panel show it is an appropriate oversight mechanism and that it is necessary and appropriate that decisions of a medical nature are reviewed by an expert medical panel.'
3.59
The AMA recognised the level of skill and expertise of the members of the IHAP:
We have a well constituted panel. The Chief Medical Officer of Australia sits on that panel, as does Dr Gogna. They are extremely experienced doctors in their own right, through very different aspects of medical care and in different theatres of medical care. They're then supported by the other stipulated members of that panel.
3.60
The RACP argued that the processes operating under the medical transfer provisions are 'improving the situation on a case-by-case basis' as the IHAP learns from each case, which is 'improv[ing] the system'.
3.61
Dr Bartone, President of the AMA, informed the committee:
From all reports, I believe that the IHAP process is working well. Applications are being brought to the panel in an appropriate manner and in an appropriate time frame, and all applications presented to the panel have been assessed and appropriately acted upon in due course. As I've said, from our point of view and from the information that we have—which obviously is not direct information—it is working as intended.
3.62
Dr Bartone spoke highly of the conduct of the IHAP members noting that 'under exceptionally difficult circumstances, all the doctors on the IHAP have been executing their task in the most professional, ethical and capable manner'.
Broad oversight and monitoring role
3.63
The AMA observed that the IHAP has been able to provide an overview of health services available in PNG and Nauru and the IHAP intends to visit to provide further assessments of the 'physical and mental health conditions of asylum seekers and refugees and the standards of health care provided'. The AMA noted that these are important functions central to the 'provision of proper and appropriate care'.
3.64
The UNHCR recognised the value of the IHAP in terms of transparency and accountability:
While the effectiveness of the work of the Independent Health Advice Panel will become clearer with time, this statutory oversight function is consistent with the requirement that Australia regularly monitor and review relevant conditions in Nauru and Papua New Guinea to ensure they meet international standards. By abolishing this function, the Bill would permit weaker governance and accountability in respect of the provision of health services. To describe those provisions that would be repealed by the Bill as the "medical transfer provisions" tends to minimise the importance of this monitoring and oversight function, which is independent of the legal mechanism for transfers to Australia.
3.65
The RANZCP supported the continuation of the IHAP with reference to its independent role 'including the perspective of psychiatry in monitoring, assessing and reporting on the health services and care provided to those in offshore detention'. Furthermore:
The panel provides a valuable referral process and safeguard for those being held in offshore detention to access health services in a timely manner, and the panel has potential to provide greater transparency in the provision of health care.
3.66
The RANZCP also suggested that 'more time is needed in order to ascertain its value' given that the 'the IHAP is such a recent innovation that it has not yet been reviewed…'.
3.67
The RACP observed that, to its knowledge, the IHAP is the only functioning current independent advisory to the department related to offshore processing:
Previous advisory groups, such as the former Detention Health Advisory Group (DeHAG, 2006-2012) and the Immigration Health Advisory Group (IHAG, 2013) and the previous iteration of the Independent Health Advice Panel (2016-2018), have not been sustained, and have not reported publicly. Other Australian healthcare oversight mechanisms, such as the Australian Health Practitioner Regulation Agency (AHPRA) and Australian health service standards do not have immediate jurisdiction/applicability in the offshore setting, however, as noted by the Queensland Coroner, the "Australian Government retains responsibility for the care of persons who are relocated, for often lengthy periods, to offshore processing countries where standards of health care do not align with those in Australia".
3.68
The IHAP's reporting requirements were also discussed by the RACP noting that the IHAP's summary reports must be provided to the parliament on a 'specified quarterly timeline' and the minister is required to respond within three sitting days of the summary report being tabled. In the context of the IHAP's function to monitor, assess and report on the standard of services provided to transitory persons in regional processing countries, the RACP submitted that repealing the medical transfer provisions 'will make it more difficult for the Australian Parliament and public to be able to scrutinise the adequacy of the services that are provided.
3.69
The Kaldor Centre observed that when presenting the reasons to repeal the medical transfer provisions, there was 'almost no mention of the IHAP's monitoring and oversight functions' which was an unfortunate oversight 'as these functions are crucial to 'ensuring Australia meets its obligations with respect to the health and wellbeing of people transferred offshore'. The Kaldor Centre posited that '[i]ndependent oversight is a vital part of responsible and accountable governance'. The Kaldor Centre recommended that if the bill was passed, which they did not support, then 'at a very minimum…the IHAP's monitoring and oversight functions be retained'.
3.70
Cabrini Health suggested that IHAP's role be expanded:
The IHAP also has an important role in monitoring and reporting on health service provision and conditions in the regional processing countries. We recommend that this monitoring role be expanded to improve transparency and access for IHAP doctors to health clinics, hospital and other clinical environments in the regional processing countries so that meaningful recommendations can be made.
Australia's legal and human rights obligations
3.71
Evidence to the inquiry discussed Australia's legal and human rights obligations, with witnesses and submitters arguing that the Australian government has a duty of care to individuals it has transferred to regional processing countries.
3.72
The Law Council argued that:
[U]nder Australian law, as well as international law, the Commonwealth of Australia has responsibility for the health and safety of asylum seekers transferred to other countries for offshore processing and assessment.
3.73
The Australian Human Rights Commission advised that 'under international law, Australia has human rights obligations outside of its territory when it exercises effective control over people or territory'. Noting that the question of whether Australia exercises 'effective control' in relation to asylum seekers and refugees subject to regional processing arrangements has been considered by two parliamentary committees, the Commission:
…considers that transferring asylum seekers to third countries does not release Australia from its obligations under international human rights law. Australia must ensure adequate safeguards are in place in those countries to ensure that the human rights of the people transferred are upheld.
3.74
Issues related to effective control and effective protection were also raised by other submitters and witnesses. For example, the Human Rights Law Centre referred to the position of United Nations treaty bodies that 'the Australian Government continues to exercise effective control over [refugees and asylum seekers held in offshore detention] and is responsible for their welfare'. Similarly, Australian Lawyers for Human Rights argued that the government's 'actions demonstrate that it maintains effective control over the people who have been transferred to Nauru and Papua New Guinea'.
3.75
The Kaldor Centre argued that in exercising control and authority over refugees and asylum seekers, Australia 'has a duty of care with respect to the health and well-being of people transferred offshore to Nauru and PNG' under international law. Ms Kate Ogg, Visiting Scholar, Kaldor Centre noted the 'UNHCR has confirmed that effective protection includes the provision of health services'.
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A number of submissions contended that the Australian government, and the governments of the respective regional processing countries, share responsibility to ensure that international legal obligations are met.
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The Peter McMullin Centre on Statelessness strongly disagreed with the government's position as outlined in the explanatory memorandum and argued that it is 'not sustainable as a matter of international law'. The Asylum Seeker Resource Centre was also highly critical of the government's position describing the statement of compatibility with human rights 'as a cynical exercise to twist and avoid the content of its protection obligations'.
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The government's position is that in general, 'Australia does not exercise the degree of control necessary in regional processing countries to enliven Australia's international obligations'. The explanatory memorandum to the bill reiterates the government's 'long-standing view' that Australia's human rights obligations 'are essentially territorial [and] persons in regional processing countries are outside Australia's territory'. The circumstances in which international human rights law may be engaged were outlined in the statement of compatibility with human rights:
Australia has accepted that there may be exceptional circumstances in which the rights and freedoms set out under the International Covenant on Civil and Political Rights (ICCPR) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) may apply to persons beyond the territory of a State party, and the extent of the obligations that a State may owe under international human rights law where it is operating extra-territorially will be informed by the degree of control exercised by the State.
The medical transfer provisions and Australia's international obligations
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Notwithstanding the government's view that Australia's international obligations are not generally engaged with respect to regional processing countries, evidence to the committee argued that the medical transfer provisions are making a positive contribution to Australia meeting its international human rights obligations.
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The AMA supported the view that Australia has international obligations in relation to the medical care of asylum seekers and that, in its view, having an independent oversight body, such as the IHAP, is helping Australia meeting its obligations by facilitating timely assessment and transfer of asylum seekers.
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The Australian Medical Students' Association argued that the medical transfer provisions 'are consistent with international treaties to which Australia is a signatory' and furthermore:
These treaties make clear that offshore processing does not relieve Australia of its obligations under international human rights law, which include a duty of care to provide appropriate healthcare for asylum seekers undergoing processing.
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The Peter McMullin Centre on Statelessness argued:
Given the concrete risk of human rights violations inherent in the scheme of offshore processing, the current provisions must be maintained as they provide a safeguard to ensure the most vulnerable asylum seekers and refugees can be transferred to Australia for essential medical treatment. It is vital that an independent body, such as the Independent Health Advice Panel, has the capacity to assess individual cases in order to ensure that Australia's obligations are respected.
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The Australian Human Rights Commission observed that the bill would limit the right to health:
There is clear evidence by the United Nations and other independent bodies that many of these people have serious health problems, especially relating to mental health. The bill would significantly limit their right to the highest attainable standard of physical and mental health. The commission considers that repealing the medical transfer provisions would be a retrogressive measure in realising their health rights. This would contravene Australia's international human rights law obligations.
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It was recognised that the medical transfer provisions should be viewed as just one mechanism by which Australia 'ensures it is meeting its obligations with respect to the health and well-being of people transferred offshore'. The Law Council argued that the provisions should be maintained 'as merely one tool in a toolkit…to permit people who require medical assistance in regional processing countries and can't receive it there the means to be given that medical treatment'. The Kaldor Centre submitted:
The medevac system operates as a safety net. It only becomes relevant if and when: (i) adequate healthcare is not available locally in Nauru or PNG; and (ii) critically ill people are not otherwise identified and transferred to places where they can receive the necessary care. As such, the medevac system should be maintained as a safeguard against preventable harm, triggered only when these other two mechanisms fail.
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Similarly, the UNHCR observed:
The medical provisions should not be understood as a comprehensive response to medical needs, or the primary means by which Australia should ensure the health and wellbeing of people transferred to Nauru or Papua New Guinea. Rather, the safeguards established by the medical provisions complement other measures that may provide for refugees and asylum-seekers to enjoy the rights to which they are entitled under the Refugee Convention and other relevant international instruments. These other measures include variously the general power to facilitate timely transfers to Australia and the local provision of adequate healthcare and other services, pending the realisation of durable solutions.
Human rights implications of the power to return provisions
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In the context of the provisions in the bill that would 'empower the Government to return persons to a regional processing country or remove persons from Australia who have been brought to Australia for a temporary purpose', the statement of compatibility notes that the bill engages the following rights:
respect for family and children; and
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These matters are outlined below. The statement of compatibility concludes that the measures proposed in the bill are compatible with human rights.
Non-refoulement
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As outlined in the explanatory memorandum, Australia has obligations under the ICCPR and the CAT not to return a person to a country in certain circumstances. These are in addition to obligations under the 1951 Convention relating to the Status of Refugees (the Refugee Convention). The provisions of the bill would ensure a person transferred to Australia under repealed section 198C could be returned to a regional processing countries or removed from Australia 'as soon as practicable after the Minister is satisfied that the person no longer needs to be in Australia for that temporary purpose'. A comparable power exists in the Migration Act for individuals transferred under section 198B. The government stated it would continue to meet its non‑refoulement obligations:
The Government takes Australia's non-refoulement obligations seriously, and will ensure administrative arrangements are in place to support Australia to meet its non-refoulement obligations to those individuals transferred under section 198C as it has done and continues to do for persons transferred under 198B. The amendments do not impact on the protections against refoulement, which already exist in Australia's legislation, policies and procedures. In making the amendments, the Government is not creating any new obligations or seeking to avoid obligations.
Australia will continue to meet its non-refoulement obligations through other mechanisms under the Migration Act, policies and procedures.
Respect for the family and children
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Rights relating to families and children are contained in several articles of the ICCPR and the Convention on the Rights of the Child.
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The explanatory memorandum states:
No children have been transferred to Australia under section 198C.
The Bill supports family unity as all persons transferred under section 198B and 198C were only intended to come for a temporary purpose. The introduction of return and removal measures to support the return or removal from Australia of persons brought to Australia under section 198C is respecting families by not splitting families when returning some (those transferred under section 198B), but not all to a regional processing country or otherwise removing them from Australia. It will ensure that those transferred consistent with 'spilt family' provisions (section 198G) can be managed in the same way as the rest of the family unit subject to any reason consistent with the above obligations to depart from the practice.
The Ministerial discretions contained within the Act for persons in Australia will not be affected and will consider the individual circumstances of the case including any international obligations, such as the best interest of affected children, where applicable.
Right to health
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The statement of compatibility states that to the extent that the provisions in the bill relate to a transitory person in Australia, the provisions may engage the right to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which states:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
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The statement of compatibility reiterates that transitory persons in Australia for a temporary purpose will continue to receive medical care in Australian medical facilities which is an arrangement, in the government's view, consistent with Article 12 of the ICESCR. Furthermore:
The Bill will not affect the existing provisions for the temporary transfer of transitory persons for medical treatment in a third country. Section 198B provides a standing authority for individuals in need of medical care not available in the regional processing country to be brought to a third county, including Australia, for medical treatment.
Committee view
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The committee acknowledges the strong and passionately held views expressed in evidence to this inquiry. The committee has carefully considered all the evidence provided to it, and has listened to all sides of the debate.
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The committee considers that the medical transfer provisions enacted in March 2019 are unnecessary, and that those provisions have significant flaws. These flaws include:
the absence of a process for returning transferees;
the imposition of strict grounds for refusal, which are not in line with other parts of the Act;
an unrealistic timeframe for assessing security and character concerns; and
a lack of remuneration for Independent Health Advice Panel members.
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Between 2007 and 2013, prior to the introduction of Operation Sovereign Borders, over 1,200 men, women and children died at sea attempting to come to Australia by boat. The government has implemented a series of policies to stop the people smuggling trade and since the start of 2014, there have been no recorded deaths at sea. Operation Sovereign Borders has been effective, and its integrity must be maintained.
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The medical transfer provisions restrict the government's ability to assess transfer requests on a case-by-case basis and make decisions in Australia's national interest. The provisions also impinge on the sovereignty of PNG and Nauru by dictating the terms upon which transfers must be made, with no flexibility to accommodate the legislative frameworks, procedures and processes of those countries.
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Of particular concern to the committee is the fact that the medical transfer provisions impose strictly limited grounds for refusal in relation to security and character concerns. The committee understands the minister has already been forced to approve the transfer of six individuals who were 'of security or character concern', because the concerns did not meet the strict grounds upon which the minister may refuse a transfer under the provisions.
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The committee acknowledges evidence received advocating for the medical transfer provisions to be retained. While recognising that there are circumstances that necessitate medical transfer from regional processing countries, the committee considers that the arrangements in place prior to March 2019 were appropriate and working effectively. Importantly, these processes incorporated medical assessment by medical professionals, while also ensuring the minister had the appropriate powers to refuse applications on security and community safety grounds. They also facilitated medical transfers without impinging upon the sovereignty of regional processing countries, or unduly limiting the government's ability to protect the community and maintain the integrity of Australia's border protection policies.
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These medical transfer processes would continue under section 198B of the Migration Act following repeal of the March 2019 medical transfer provisions. The committee highlights that from November 2012 to 31 July 2019, 1,343 individuals (717 medical and 626 accompanying family transfers) were transferred to Australia for medical treatment under these provisions, with only 39 cases involving 96 individuals being court ordered.
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The committee notes concerns raised about the health status of refugees and asylum seekers and the availability of health services in regional processing countries. The governments of Nauru and PNG are responsible for the healthcare of transitory persons residing in their countries under regional processing arrangements, and the Australian Government has invested significantly in the upgrade and delivery of health services in both countries.
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The committee does not believe that repealing the medical transfer provisions would impact Australia's ability to meet its international obligations in relation to the right to health. Repealing the provisions would not compromise access to medical services for the regional processing cohorts in PNG and Nauru.
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As such, the committee considers that the Senate should pass the Migration Amendment (Repairing Medical Transfers) Bill 2019 as soon as is practicable.
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The committee recommends that the Senate pass the bill.
Senator Amanda Stoker
Chair