RAC opposes repeal of the Medevac Laws

Extract of the Submission to the Senate Enquiry

Download a copy of the full submission

Executive summary

When Senator the Hon Zed Seselja moved the second reading of the Migration Amendment (Repairing Medical Transfers) Bill 2019 (the Bill) in the Senate on July 29th this year, he was granted leave to use the Second Reading speech delivered by the Hon Peter Dutton MP, Minister for Home Affairs, in the House of Representatives on July 4th this year, to provide the rationale for the Bill. In summary, that rationale suggests the Medevac Law:

  1. was unnecessary at its proclamation and remains so; and
  2. weakens the protection of Australia’s borders.

We believe, on the contrary, that the Medevac Law was necessary at its proclamation, is even more so today, and that it presents neither a threat to our national security nor to public safety. Accordingly, this submission disputes both of these propositions and further asserts that the repeal of the Medevac Law’s provisions, which are currently operating effectively and efficiently, would negatively impact not only refugees and asylum-seekers in Regional Processing Centres but also the Australian community at large.

The Medevac Law was, and still is, necessary 

That Australia owes a non-delegable duty of care to refugees and asylum seekers under its effective control was affirmed by this very committee in April 2017¹. As a nation, we are also bound to provide ‘the highest attainable standard of physical and mental health’ for them under Article 12 of the International Covenant on Economic, Social and Cultural Rights.² The Medevac Law seeks to provide no more than the minimum standard of medical assistance that Australia owes to any of those for whom it has a duty of care: citizen, refugee, asylum seeker or even convicted criminal.

The Medevac Law was introduced to address well-documented and serious deficiencies in the medical treatment available to refugees and asylum-seekers detained in the Regional Processing Centres of Manus Island and Nauru. There had been 12 avoidable deaths in these centres prior to December 2018, often by suicide and mostly involving poor local medical care and/or delays in medical evacuation. It was clear that medical services in both Papua New Guinea (PNG) and Nauru were limited and unable to provide appropriate care for a large number of people with serious health conditions, including a very high number of people with severe mental health issues. 

One of our members, Tim McKenna, who visited Manus Island and Port Moresby both before and after the introduction of the Medevac Law to provide support to detainees, was able to see the results of that inadequacy first hand. His report ‘The Medical Situation on Manus: An Eye Witness Account’ is attached as an addendum to this submission. Many reputable organisations, such as the Australian Medical Association and Medecins Sans Frontières, confirmed that the situation amounted to a medical emergency.

The record prior to the existence of the Medevac Law shows that, far from facilitating the provision of medical care required by our duty of care, doctors’ recommendations for medical evacuations were frequently overruled by non-medically trained bureaucrats, causing dangerous delays and denials of appropriate medical treatment. Many people waited months, even years, to be evacuated for urgently needed medical treatment. Many medical transfers occurred only after a court so ordered, because the Department of Home Affairs contested the transfer. This has involved significant and unnecessary legal expense from the public purse.

The medical emergency is not yet over, as is clearly confirmed by our member’s experience on his visit to PNG just last month and documented in the attached report. As he notes, ‘Since my visit in January the medical situation had deteriorated, particularly the mental health of the men. However, Medevac had provided safety for those who have been evacuated, hope to those who have been approved for evacuation and re-assurance to those who have not been approved that, should their medical problems warrant evacuation, it will happen as long as the law remains in force’. 

The Governor of Manus Island has acknowledged that they are not able to manage the extreme mental health crisis now being experienced among the refugees and asylum seekers there. Recent reports from Nauru also confirm the extremely high level of acute mental illness among refugees and people seeking asylum in that country.

The principal cause of mental health problems and resulting cases of self-harm among refugees and asylum-seekers detained in Regional Processing Centres, as well as those held on the Australian mainland, is loss of hope due to the indefinite term of their detention. While Minister Dutton, in his July 4th speech, claimed that increases in self-harm behaviours since the introduction of the Medevac Law have been ‘undertaken for the explicit purpose of manipulating the system and gaining access to our country’, no credible evidence has been presented to support such a claim. 

The Medevac Law is working effectively

Since its proclamation in March this year, the Medevac Law has proved effective. 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.

Our member, Tim McKenna, notes in his report ‘Given my recent experience on Manus I provided an update to some of the doctors who were volunteering to assess patients’ health for the Medical Evacuation Response Group (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.³  During my July visit I saw the positive difference this group is making on Manus and in Port Moresby.’

Now is not the time for the Medevac Law to be repealed. That time can only come when the need for it no longer exists because no one, for whom we are responsible, is at risk of mental or physical harm due to indefinite offshore detention.

The Medevac Law is not a risk to national security or community safety

The provisions of the Medevac Law apply only to refugees and asylum-seekers who were in Regional Processing Centres on Manus Island and Nauru on March 1st 2019. Those to whom the law applies have been under Australia’s effective control for up to six years and it is hard to imagine a cohort of people of whose character and activities we know more.

Transfer to Australia under the Medevac Law must be recommended to the Minister for Home Affairs by two independent, qualified doctors. The Minister has full discretion at this stage to refuse the transfer if: 

  1. the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979; or
  2. the Minister knows that the person has a substantial criminal record and reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.  

In addition, the Minister can refer the transfer to the Independent Health Advisory Panel (IHAP), whose members are nominated by peak medical bodies and approved by the Minister, if he believes the transfer is unnecessary on medical grounds. If the IHAP upholds the transfer recommendation, the Minister can still prevent it on national security or community safety grounds, without appeal, within 24 hours of notification of the panel’s decision. In any event, the law prescribes that transferees under these arrangements remain in detention while in Australia. 

Under the Medevac Law, the government has, so far, approved approximately 90 transfers to Australia on medical grounds, and 20 cases have been referred to the IHAP. Of the 20 cases referred to the IHAP, the panel has upheld the Minister’s decision not to transfer the individual on 13 occasions and overturned the Minister’s decision on only 7 occasions. To date, no recommendations under the Medevac Law have been refused on the grounds of national security or due to a risk to the community.

The only mention of any issue arising from the drafting of the Medevac Law contained in Minister Dutton’s July 4th speech to the House was his statement that the Medevac Law fails to ’provide a mechanism to return or remove transitory persons brought to Australia under section 198C [of the Migration Act 1958] back to a regional processing country or third country.’4 

RAC recognises that legal bodies are best placed to respond to this assertion, however would note that it is not clear to RAC members how Section 198C of the Migration Act 1958, introduced with the Medevac Law, can be inconsistent with Section 198B, when 198C (6) states ‘Nothing in this section shall affect the operation of section 198B’ and the removal of transitory persons is clearly referenced in the notes. In any event, any inconsistency could surely be dealt with by amendment without the need for repeal of the entire law.

Implications for the Australian community – what’s at stake?

The enactment of the Medevac Law and the government’s determination to repeal these provisions has brought Australia to a crossroad.  As Australian Senators, you have a critical choice to make, the outcome of which will set the future pathway for Australia. As Dr Kerryn Phelps said recently, this is a fight for Australia’s soul.

The actions of our parliament and the policies it enacts have the effect of enriching or diminishing us as a community by setting and resetting the values that we uphold and live by. Over many years, our treatment of those who came seeking our protection, only to be met by forced removal to offshore detention, has not just caused immense harm to those directly impacted, but has diminished us all by normalising brutality to the most vulnerable people.

As outlined previously in this submission, the Medevac Law simply enables critically ill people to receive appropriate treatment. It does not, in any way, dismantle Australia’s immigration policy regime. If this legislation is repealed and this very basic instrument is removed, we urge you to consider the impact on our values, our country, and our international reputation. 

The fight for Australia’s soul

Australia once led the world in resettlement practices with the dignified and well managed resettlement of thousands of displaced persons from Indochina in the 1970s and 1980s. Australia sits proudly on the United Nations Human Rights Council and presents its credentials as a country that stands up for human rights.  But this reputation has been damaged due to its offshore detention regime on Manus Island and Nauru and the repeal of the Medevac Law will further entrench the international view that there is a widening chasm between Australia’s claims about its commitment to human rights and the reality of its policies.

Domestically, there is a growing shift in opinion in the community towards the view that the ongoing detention of the 800 people on Manus Island and Nauru is no longer necessary nor justifiable and there is increasing unease with their prolonged detention, particularly in light of the government’s continuing refusal to take up the New Zealand offer of resettlement. The fallacy that the Australian government has no responsibility for the men and women held on Manus Island and Nauru does not ‘pass the pub test’ in the Australian community, nor is it accepted by the PNG government, the United Nations High Commissioner for Refugees or the international community at large. The PNG government, under new Prime Minister James Marape, is increasing pressure on the Australian government to resettle all the men remaining in PNG.

Community sentiment in Australia in support of medical evacuations for critically needed care is even stronger and more widely held than at any previous point in time. It is incumbent on Australian Senators to acknowledge and be guided by this shift. 

It is time our political representatives acted to restore dignity to our treatment of the men and women being held in Australia’s offshore regime in PNG and Nauru. It is time that our political representatives acted to ensure that the provision of health care is a matter of human rights and not driven by political imperatives. 

Conclusion

The Medevac Law has proved effective in operation. It has placed medical decisions in the hands of medical professionals and improved the transparency and expedition of medical transfer processing, while retaining Ministerial discretion to intervene on the grounds of national security or risk to the community. RAC notes that no transfer has been challenged for these reasons and no increase in irregular maritime arrivals has been noted since the introduction of the Medevac Law. Consequently, there is no valid reason for the repeal of the Medevac Law.

In summary, the Canberra RAC believe the evidence outlined in this submission supports the case that: 

  1. the Medevac Law was, and still is, necessary; 
  2. it is working effectively; and 
  3. it contains sufficient safeguards to mitigate any risk to national security or community safety.  

Further, RAC holds grave concerns that repeal of the Medevac Law would undermine the values of compassion and justice that are indispensable to the Australian community and would further damage Australia’s international reputation and human rights record. 

Recommendation

  1. The Canberra Refugee Action Campaign calls on the Australian Senators to vote against the Migration Amendment (Repairing Medical Transfers) Bill 2019.

Sophie Singh
Canberra Refugee Action Campaign
Steering Committee Member
Email: mail@refugeeaction.org

1Parliament of Australia: Parliamentary Business 21 April 2017; Senate Legal and Constitutional Affairs Committee: Report: Chapter 7, Committee views and recommendations: Paras. 7.66 and 7.67.
2House of Representatives, Migration Amendment (Repairing Transfers) Bill 2019, Explanatory Memorandum, p13.
3https://www.theguardian.com/australia-news/2019/jun/23/peter-dutton-claims-asylum-seekers-refusing-resettlement-in-us-due-to-medevac-laws
4https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fce759aa1-47bf-467d-a58b-3bf640990032%2F0101%22

Image source: flickr.com, “But what’s a real Australian?” by Photographer Michael Coghlan, used under license