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Medivac: the unneeded bill we sorely needed

  • 13 February 2019


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.

Asylum 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