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Navigating the post-Medivac ugliness

  • 15 February 2019


This week, the Australian House of Representatives and the Senate passed amendments to the Migration Act 1958 to do what should have never have been needed: evacuate asylum seekers and refugees from Manus Island and Nauru in desperate need of medical care. Broadly speaking, the act facilitating the amendment was born as the Medivac Bill.

The gratingly contorted provisions in the bill merely provide a lawful basis for the refugees and asylum seekers in question to be transferred to Australia for 'medical or psychiatric assessment or treatment'. Nicholas Proctor and Mary Anne Kenny, of medical health and law backgrounds respectively, see the bill in glowing terms. 'Aside from being a circuit breaker to current arrangements, the bill is a new opportunity to establish agreed governance arrangements and a clinical pathway for recognising and responding to medical need without political interference.'

One aspect of the legislation does something hitherto avoided on the subject of refugee health: privileging, though hardly giving exclusive rein, to medical opinion. The assessment for such treatment is to be conducted by two doctors, either in person or remotely, considering psychiatric and treatment needs, the lack of adequate facilities in Nauru or Manus Island, and the necessity for transfer for appropriate medical or psychiatric assessment or treatment.

The provisions are, however, not plain sailing in their humanitarian import and Proctor and Kenny show undue confidence in Australia's political representatives. While being given a 72-hour window, the Minister for Home Affairs retains power of approval or refusal over the recommendations. He may not, for instance, accept the gravity of medical grounds as requiring a transfer. (An independent health advice panel, in true bureaucratic fashion, would then be asked to reassess the recommendation.) Traditional grounds for refusal are also available to Peter Dutton, be it in the case of a person having a 'substantial criminal record' or facing an adverse security assessment.

The attempts from the Morrison government to frustrate the change to the Migration Act are worth noting in their spectacular ugliness. While Labor and various assisting crossbenchers can hardly chortle in their success, government representatives proved positively ugly in response.

For one, the Coalition was hoping that opposition members would be cowed into submission before legal advice of the Commonwealth Solicitor General suggesting that the proposal was in breach of Section 53 of the Constitution. The breach would occur, argued the advice, as Senate amendments passed last December had increased expenditure from a