What are the changes that passed through Parliament, and what do they mean for sick refugees and people seeking asylum on Manus and Nauru?
1. What does the bill mean for people held on Manus and Nauru?
The Home Affairs Legislation Amendment (Miscellaneous Measures) bill, otherwise known as the “Medevac Bill”, allows for the temporary transfer of patients in offshore detention to Australia for the purpose of medical or psychiatric treatment or assessment.
It means that people on Manus Island, PNG and Nauru will be able to receive appropriate medical assessment and treatment within a reasonable timeframe that’s unavailable on the small pacific islands of Manus Island and Nauru.
2. What is the process at outlined in the bill?
Medical transfers will be triggered based on the recommendation of two independent treating doctors who in their clinical opinions believe the patient is not able to receive appropriate medical care on Manus or Nauru and require medical or psychiatric treatment or assessment.
Every single recommended transfer will have opportunity for the review by the Minister of Home Affairs. The Minister will have 72 hours to refuse the transfer. This can be on the grounds of:
- A belief that it is not necessary to remove the person from a regional processing country for treatment or assessment, or
- Belief that the patient is prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979.
- The Minister knows that the person has a substantial criminal record (as defined by subsection 501 (7)) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.
If the refusal is based on medical assessment, this is then referred to the Independent Health Advisory Panel (IHAP). If the Minister refuses someone citing section 501 (7), this is appealable at the Federal Circuit Court.
The Minister reserves the ministerial right to veto any case on security grounds (c) and this is not appealable. The bill’s amendments specify clear timeframes for each step to ensure that a patient treatment isn’t delayed by prolonged court cases and bureaucracy. The outer time limit is one week.
3. What was the process before?
The process previously relied heavily on cooperation from Home Affairs Department and resulted in highly taxing and resource intensive court cases that spanned months and years.
The Minister and the Department were forcing us to go to court to get severely ill people to Australia for medical treatment.
A recent audit of the ASRC case load where IHMS (the Government’s appointed doctors) had made transfer recommendations showed that the average time waiting time for transfer after recommendation was 2-3 years, with some people still waiting up to 5 years.
4. What are the key differences?
The new process provides clear timeframes for decisions and opportunities for transfer refusal at each step. It is also a far more rigorous, transparent and independent process to omit political interference and ensure doctors not bureaucrats are making decisions about patient’s healthcare.
The bill also provides for preservation of the family unit, ensuring that any members of the same family unit are also transferred.
5. What is the medical situation for people held on Manus and Nauru?
12 people have died in offshore detention over the past 5 years. Many of these deaths relate to treatable illnesses. An Australian coroner in 2018 found that at least one young refugee’s death was directly related to inadequate medical care and the Australian Government’s failure to transfer the young man to for appropriate medical treatment.
The medical situation continues to be urgent for ill men, women, and young adults who arrived in offshore detention as children. Medical experts, including doctors who have worked on Nauru and Manus Island, have spoken repeatedly about their concerns regarding the transfer system and identifying political interference in clinical recommendations.
6. Which doctors get to decide?
Two treating doctors must individually assess a patient and make a recommendation for transfer to Australia. They can provide this assessment in person or remotely and must deem the provision of appropriate medical or psychiatric treatment on Nauru or Manus unavailable.
In this instance that the Minister of Home Affairs refuses the transfer, the Independent Health Advice Panel (IHAP) would reassess the recommendation for transfer. The independent panel consists of at least nine members including the following:
- Chief Medical Officer for the government
- The Department of Home Affairs Chief Medical Officer
- The Surgeon-General of the Australian Border Force
- Representatives from the AMA and other royal colleges.
7. What happens to people once they are transferred to Australia?
Medical transfers to Australia are for a temporary period only and patients can still be returned to Manus Island and Nauru following their treatment. Anyone transferred to Australia will remain in detention during their treatment. The Medevac Bill does not give people seeking asylum a path to settlement in Australia.
8. Why has the government opened up Christmas Island detention center?
Since the passing of the bill, the Government announced that people transferred to Australia would be sent to Christmas Island. This has been criticised by many as it is well known that Christmas Island does not have appropriate medical treatment facilities and is not the intention of the bill.
9. Will it lead to more people coming to Australia by boat?
The Medevac Bill only applies to the current cohort of people seeking asylum detained on Manus Island and Nauru (this includes any babies born to people who are currently there). It will not apply to anyone who is not currently detained on Manus or Nauru and future arrivals are not covered by the law.
Additionally, over 870 people are currently in Australia who have been transferred from Nauru and Manus and over 500 people have been permanently resettled in the US. These transfers have not resulted in any more people coming to Australia by boat.
10. What about the kids who were evacuated from Nauru, where are they now?
At the start of the #KidsOffNauru campaign in August 2018, 119 children were detained by the Australian Government on Nauru. Some 75 of the children, together with their families, were transferred to Australia through successful legal intervention from humanitarian organisations, including the ASRC.
The remaining 43 children were transferred to Australia between October and December 2018 amidst rising public pressure. As of 3 February 2019 only 4 children remained on Nauru and they are due to leave Nauru for the USA with their families over the coming days.
The children and their families transferred to Australia for are in a mixture of immigration detention, community detention and in the community on bridging visas.
After the removal of children and their families, approximately 1,080 people remain on Manus and Nauru.
This win belongs to you, to us, to Behrouz and Aziz and Ellie and all of the men women and children who have survived offshore processing and now will get to see the doctors they need to heal.