Medivac: the unneeded bill we sorely needed



During the debates about the bill regarding the transfer of people from Nauru or Manus to Australia for medical treatment, the Prime Minister stated it was 'unnecessary and superfluous'. Legally this should have been the case.

Independents Cathy McGowan, Adam Bandt, Andrew Wilkie, Kerryn Phelps, Julia Banks and Rebekha Sharkie celebrate passing the Medivac Bill in the House of Representatives. Photo by Tracey Nearmy/Getty ImagesAsylum seekers sent to Nauru or Manus Island are termed 'transitory persons' in the Migration Act. Section 198B provides for the power to bring a transitory person to Australia for temporary purposes. Once in Australia, the person is barred by s46B from applying for any visa at all, unless the Minister personally intervenes on their behalf. So as people could be transferred to Australia for urgent medical treatment already, it is fair to ask, was the bill which passed the House of Representatives 'unnecessary and superfluous'?

There has been some confusion about the actual bill partly because there are two separate bills in Parliament. One, proposed by Dr Phelps, is the Urgent Medical Treatment Bill, and the other is the Home Affairs Miscellaneous Amendment Bill. Interestingly it is the latter that passed the Senate late in December 2018 and was amended in the House on Tuesday 12 February. The amended bill was then passed by the Senate on 13 February.

Medical services in Nauru and Manus Island for the refugees are provided under a memorandum of understanding between the Commonwealth and an entity called 'International Health and Medical Services' (IHMS). IHMS medical staff recommended people be sent to Australia for urgent medical treatment because the services available in Nauru or Manus were inadequate. The problem was that Border Force bureaucrats were refusing to transfer these people to Australia and tried to have them treated elsewhere in Papua New Guinea, or Taiwan.

Australia has entered an agreement with Taiwan to provide medical treatment for refugees from Manus or Nauru, but if the person does not consent to go to Taiwan, Taiwan will not agree to the transfer. The refugees were also able to get reports from medical staff not with IHMS, including a psychiatrist with MSF, until Nauru cancelled the visas for MSF staff in Nauru.

A number of cases were brought in the Federal Court for injunctions to allow people to be transferred to Australia for urgent medical treatment, and in nearly all the reported cases the orders for transfer to Australia were given. The Federal Court stated that because Australia has sent the people to Nauru and Manus, a duty of care is owed by Australia. Some of the 2018 cases include AYX18, a 17 year old accepted as a refugee in Nauru, but doctors believed he needed urgent psychiatric treatment because he was assessed at high risk of self-harm. He was assessed by eight psychiatrists, including the MSF psychiatrist. The court decided that the necessary treatment was not available in Nauru. The court ordered that he and his mother be brought to Australia from Nauru within 48 hours.

In DJA18 and DIZ18, The Federal Court held that a two year old born in Nauru be urgently transferred for medical treatment within 48 hours. The girl had a preliminary diagnosis of meningoencephalitis. The Department of Home Affairs tried to have her sent to PNG or Taiwan, whereas doctors recommended transfer to a tertiary hospital in Australia which could manage a paediatric emergency and had a paediatric ICU. The girl was sent first to PNG with her mother; her father was not allowed to accompany her. Interpreters in PNG were provided by the Iranian community, not necessarily an official interpreter, as would be required in Australia. The court ordered the girl and both her parents be moved to Australia within 48 hours.


"The unnecessary legislation was made necessary because of the government's determination to maximise the punishment for coming by boat and establish cruel deterrents to prevent people coming to Australia and seeking asylum."


EMK18 is a 16 month old girl born in Nauru, whose parents were from Somalia. Both mother and child had a range of concerning medical conditions, some of which required urgent medical treatment. The mother's diagnosis included a severe depressive illness that is psychotic in nature, and post-traumatic stress disorder. A doctor with a background in internal medicine, who was working as an emergency doctor in Broome, examined the medical records and noted a rapid loss of weight and BMI at a level 'significantly below WHO Guidelines', and that the mother required urgent access to an ENT specialist.

The doctor stated that if the patient had presented at Broome, he did not believe they could manage her there and she would have to be sent to a larger hospital. Again Immigration wanted to send them to Taiwan but the woman was afraid to go there due to reports she had heard from others sent to Taiwan. Direct contact with the Minister failed to get a result and urgent proceedings were commenced in the Federal Court. The court ordered the parents and child be sent to Australia as soon as possible.

These are but a sample of the cases that illustrate why the supposedly unnecessary Bill was actually necessary. The Australian government was found to owe a duty of care, and that required people under our care be treated in Australia.

The bill that passed the House really is very limited because it only applies to people now on Nauru or in PNG, and the multiple amendments make it hard to read clearly. It provides that if two doctors recommend transfer to Australia of someone who requires medical or psychiatric assessment or treatment because the relevant treatment in not available in Nauru or PNG, then the Minister has 72 hours to oppose this on the basis of limited reasons. Is the person an ASIO identified security risk? Has the person a substantial criminal record (has been sentenced to prison for at least 12 months)? Is the treatment available in Nauru or PNG?

If the Minister opposes the transfer, then the case is referred to a government-established medical panel who must decide within 72 hours whether the transfer should go ahead. The Minister then has another 24 hours to decide if the transfer should be stopped because of an ASIO assessment or the substantial criminal record assessment.

It is unclear if people found to be refugees in Nauru or PNG would be required to be in detention in Australia or not, however the Prime Minister announced plans to now reopen Christmas Island detention centre since the bill was passed. This is not near any major Australian hospital.

So in the end, the Minister can still prevent a transfer because of an ASIO assessment, or substantial criminal record. It is not clear what medical treatment such a person would receive, and whether they might be sent to Taiwan if the treatment were otherwise not available. The government states this will reopen the boats coming to Australia, despite the need for a person to be extremely unwell and in need of specialist medical care. This is despite the fact that once here, they cannot apply for any visa (including a bridging visa) without the express permission of the Minister. Arrangements to transfer around 1000 people to the US did not start the boats, however the offer of 150 people resettled a year in New Zealand will start the boats.

So the unnecessary legislation was made necessary because of the government's determination to maximise the punishment for coming by boat and establish cruel deterrents to prevent people coming to Australia and seeking asylum. The final version of the bill is complex, and not ideal in a human rights context. However it is better than what we have now. It was achieved by discussions and compromise between the opposition, minor parties and independents because the government refused to move from its hard-line position. Hopefully people in need of urgent medical care will not have to go to court again in order to get the medical treatment and care they require.



Kerry MurphyKerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.

Main image: Independents Cathy McGowan, Adam Bandt, Andrew Wilkie, Kerryn Phelps, Julia Banks and Rebekha Sharkie celebrate passing the Medivac Bill in the House of Representatives. Photo by Tracey Nearmy/Getty Images

Topic tags: Kerry Murphy, Manus Island, Nauru, asylum seekers, Medivac bill



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Existing comments

Good job Kerry. What a headache!!
Nola Randall | 13 February 2019

It is so good to see the facts laid out clearly. So sick and tired of the fear campaign beginning again.
Robyn | 14 February 2019

Kerry's penultimate sentence is the key one here: 'It was achieved by discussions and compromise between the opposition, minor parties and independents...'. When will the bully boys in the government realise that this is the sort of parliament that the people want? Instead, we get Morrison throwing a tantrum when he fails to get his own way. In kindergarten, that sort of behaviour would have him sat in the corner but in today's Liberal Party it's quite acceptable. Do we have to wait until May to put all this childish behaviour behind us?
Ginger Meggs | 14 February 2019

The Australian politicians who punish asylum seekers by sending them to off-shore hell-holes need to be punished by voters at the next election, and that includes Labor politicians as well as the Government. To our great shame, 12 of these desperate people have died because of the actions of politicians acting in our name, and more deaths will occur unless off-shore 'processing' is disbanded. We need to bring all the remaining refugees to Australia and resettle them here. Any boats that start up can be turned back so the argument about more drownings at sea occurring is a furphy! The Greens are the only party I know of that have humane immigration policies! Please check them out on the Australian Greens website. Ever since the Tampa crisis, our main party politicians have been playing politics with the lives of desperate people fleeing asylum. This is unconscionable!
Grant Allen | 14 February 2019

Yes Nola, indeed what a heartache!
Ian Fraser | 14 February 2019

Thank you Kerry for explaining the intricacies around this(these) bill(bills). I imagined I was up to date with the details as they unfolded. Now I see I was not, and my guess would be others are similarly confused, albeit unwittingly. Continue to help keep us 'in the know' Eureka Street!
Richard Jupp | 14 February 2019

The politicisation of this is issue is so reprehensible. I am grateful that Eureka Street can publish such a calm legal exposition of the situation by Kerry Murphy. Sad to say MSM (Main stream media) seem more interested in keeping the conflict going by not exposing the internal contradictions within the Government's policies. I find it hard to believe that the DG of ASIO would give his professional opinion that this Medivac Bill (now Law) would increase the threat to Australia's national security. Unless, Heaven Forbid!, ASIS will be tasked to recruit "agents provocateur" to get the people smugglers active again in order to fulfil Minister Dutton's prognostications. Shades of CIA tactics in Latin America.
Uncle Pat | 14 February 2019

The whole situation is horrific and a slur on our country. The Government's hysterical approach to Phelps's Bill is an example of desperation politics. sadly Labour is not much better. The quicker we go to an election the better!
Gavin O'Brien | 14 February 2019


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