Purpose of the Bill

The purpose of the Migration Amendment (Urgent Medical Treatment) Bill 2018 (the Bill) is to amend the Migration Act 1958 (Cth) (the Act) to require the temporary transfer to Australia of minors and other ‘transitory persons’ in regional processing countries for the purpose of receiving medical or psychiatric assessment or treatment.

Background

Overview of regional processing arrangements

The policy of transferring asylum seekers who arrive in Australia unauthorised by boat to processing centres in Nauru and Papua New Guinea (PNG) has a long and complex history. Regional processing of asylum seekers was originally introduced by the Howard Government in 2001.[1] It was ended by the Rudd Government in 2008, but reintroduced by the Gillard Government in August 2012, following the recommendations of the Report of the Expert Panel on Asylum Seekers.[2]

On 29 August 2012 the Australian Government signed a Memorandum of Understanding (MOU) with the Government of Nauru and, on 8 September 2012, the Government signed an updated MOU with the Government of PNG.[3] Under these arrangements, any asylum seeker who arrived in Australia by boat could be (but did not necessarily have to be) transferred to a Regional Processing Centre (RPC) in a designated regional processing country for processing.[4] The first transfer of asylum seekers to Nauru occurred on 14 September 2012 and to PNG on 21 November 2012.[5]

Following his return to the Prime Ministership in June 2013 Kevin Rudd announced a new arrangement whereby all, not just some, asylum seekers who arrived by boat would be transferred to PNG for processing. Further, those found to be refugees would also be settled in PNG, or elsewhere in the region—the clear policy intention was that they would never be resettled to Australia.[6] A similar agreement was made with the Government of Nauru in August 2013.[7]

Upon forming Government in 2013 the Coalition continued with the policy of regional processing of asylum seekers in Nauru and PNG, and has held fast to the commitment to not allow any asylum seekers processed in RPCs to settle in Australia. It has consistently argued that resettling this cohort in Australia would act as a pull factor to other asylum seekers wishing to come to Australia.[8]

Responsibility for processing refugee claims in Nauru and PNG rests with the Governments of those countries, not Australia. Those found to be refugees have various options available in relation to their long-term resettlement:

• those assessed as refugees in Nauru may receive a visa to remain in Nauru for 20 years[9]
• those assessed as refugees in PNG may be resettled permanently in PNG[10] and
• those assessed as refugees in either Nauru or PNG may apply for resettlement in the United States (US) under the resettlement arrangement agreed between Australia and the US in 2016.[11]

The vast majority of people transferred from Australia to an RPC have now had their refugee claims assessed, and those found to be refugees have either been settled in Nauru, PNG or the US, or are awaiting resettlement. Those found not to be refugees have either returned to their country of origin (voluntarily or involuntarily) or are waiting to be returned. The RPC in PNG was closed in October 2017, and those awaiting return or resettlement were moved to transit centres elsewhere on Manus Island.[12] The RPC in Nauru remains open, with people still residing there, but has operated since 2015 as an ‘open centre’ (meaning residents are free to come and go from the centre and move around the island without formal restriction).[13]

As at October 2018, there were 652 people in Nauru who had been sent there under Australia’s offshore processing arrangements—541 had been found to be refugees, 88 were still having their refugee claims processed, and 23 had had their refugee claims rejected.[14] A further 276 people had been resettled from Nauru to the US.[15] As at 31 December 2018 there were 10 people residing in the Nauru RPC.[16]

As at October 2018 there were 626 people in PNG who had been sent there under Australia’s offshore processing arrangements—495 had been found to be refugees, and 131 had had their refugee claims rejected. A further 146 people had been resettled from PNG to the US.[17]

Health care services in regional processing countries

Regional processing of asylum seekers has been criticised by refugee advocates and human rights groups on many grounds.[18] One of the major points of contention has been the adequacy of health care, which has been called into question by doctors and medical bodies as well as by refugee and human rights groups. This is the issue to which the current Bill relates. The premise of the Bill is that the health care provided in Nauru and PNG is frequently inadequate, and people requiring urgent medical care should be transferred to Australia to receive that care.

When regional processing recommenced in 2012, International Health and Medical Services (IHMS) was contracted to provide health care in both the Nauru and PNG centres.[19] Health care services for those transferred to Nauru continue to be provided by IHMS, however the IHMS contract for health care services on Manus Island ended in April 2018—health care for people who have been transferred to PNG is now provided by Pacific International Hospital (PIH), and through the local PNG hospital system.[20] Advocates have expressed concern that, under the new arrangements, the standard of health care provided to refugees in PNG has declined significantly. In particular, critics are concerned that the health care provided is inadequate to deal with the mental health services required by refugees who have experienced torture, trauma, and prolonged detention.[21]

Similarly, refugee and human rights advocates, as well as medical groups, have expressed concern over the adequacy of health care arrangements in Nauru, particularly in relation to the mental health needs of children.[22] The provision of health care operates differently for those still residing in the RPC and those who have been found to be refugees and resettled in the community—the health care provided in the RPC is expected to be broadly commensurate with the level of health care available in Australia, while for those resettled in the Nauruan community the standard is broadly commensurate with the level of health care available to the Nauruan population.[23]

Under current arrangements, asylum seekers and refugees in Nauru and PNG may be brought to Australia[24] for medical treatment or assessment following a request by the contracted health care provider, or the Government of PNG or Nauru.[25] Requests for medical transfer to Australia are considered by the Department of Home Affairs’ Transitory Persons Committee (comprising senior officers from the Department), which makes a recommendation concerning the transfer to the Australian Border Force Assistant Commissioner, Offshore Operations Command. That officer then makes the decision to transfer or not transfer the person to Australia.[26] People transferred from Nauru or PNG to Australia for medical treatment are only permitted to remain in Australia for the duration of that treatment, and are then returned to the relevant regional processing country. There is no provision for them to remain in Australia permanently (see the ‘Key issues and provisions’ section of this digest below for an explanation of the existing statutory scheme).

Concern about the adequacy of health care in Nauru and PNG has mounted over the last several months.[27] Attention on the issue came to the political fore when Dr Kerryn Phelps was elected as the Member for Wentworth in a by-election on 20 October 2018, and identified the removal of children and their families from Nauru as one of her top priorities.[28] In her maiden speech to Parliament on 28 November 2018 Dr Phelps affirmed her commitment to this issue, stating ‘I cannot be an idle bystander to the reports of the shocking mental and physical state of children held on Nauru, helpless victims of Australia's offshore processing policy’.[29] Dr Phelps subsequently moved quickly to introduce the Bill, with the support of several other members of the cross bench.

On 4 February 2019 the Government announced plans for a new Medical Transfer Clinical Assurance Panel, which it states would provide ‘an additional layer of oversight of decisions for the medical transfer of individuals from regional processing countries’.[30] The Panel would be appointed by the Minister, chaired by a nominee of the Commonwealth Chief Medical Officer, and would include clinicians with torture and trauma counselling experience. It would be required to report to Parliament twice a year. However the Panel would perform an advisory role only, and the final decision on whether a person should be transferred for medical treatment would continue to rest with the Government. Some supporters of the Bill have welcomed this move as an improvement on current arrangements, however continue to voice their support for a system which would place the decision-making power in the hands of medical professionals, as provided for in this Bill.[31]

In a related announcement, on 3 February 2019 the Government issued a media release reporting that it had successfully gotten all asylum seeker and refugee children off Nauru—specifically, that the last four remaining children, along with their families, had been approved for resettlement to the US and would shortly be departing Nauru.[32] Given that much of the concern around health care in regional processing countries has focused on the needs of children, this announcement could be viewed as a significant milestone. However, the Minister for Immigration has stated that there are children currently in Australia who have been removed from Nauru for medical treatment, who will not be permitted to remain in Australia when their treatment is complete.[33] Medical transfers to Australia are for a temporary period only, so those currently in Australia still face the possibility of being returned to Nauru following their treatment. This will continue to be the case even if the Bill is passed.

Key issues and provisions

Existing statutory scheme

The Act currently provides that unauthorised maritime arrivals—those who enter Australia by sea and without a valid visa—must be removed from Australia and taken to a regional processing country.[34] Such persons, as well as their children born in a regional processing country or in Australia, are referred to as transitory persons.[35]

A transitory person is not entitled to apply for a visa unless the Minister permits them to do so.[36] There is a statutory bar against legal proceedings being brought against the Commonwealth in relation to the status, detention or removal of transitory persons from Australia, though this does not prevent proceedings being brought in the High Court under its original jurisdiction.[37]

Section 198B currently provides that an officer may bring a transitory person to Australia for a ‘temporary purpose’. A person brought to Australia under this provision must be removed as soon as reasonably practicable after they no longer need to be in Australia for this purpose, whether or not it has been achieved.[38] The Act does not currently define or provide guidance on what may be captured by the term ‘temporary purpose’.

Item 2 of the Bill inserts proposed subsection 198B(4) into the Act, to specify that a temporary purpose may include (but is not limited to) the following:

• medical or psychiatric assessment or treatment or
• accompanying a transitory person being brought to Australia under the Act for a temporary purpose, who is either a member of the same family unit or as otherwise recommended by a medical practitioner.

This amendment is retained in the Senate amendments to the Miscellaneous Measures Bill.

Medical transfer power

Item 3 of the Bill inserts proposed section 198C, which provides for the transfer of certain transitory persons for medical treatment purposes. As discussed below, these provisions have been amended by the Senate in Schedule 6 of the Miscellaneous Measures Bill. Both versions of the proposed legislation provide for the transfer of three categories of persons in regional processing countries:

• ‘legacy minors’—transitory persons aged under 18
• ‘relevant transitory persons’—transitory persons who require medical assessment and/or treatment and
• family members of ‘relevant transferees’.

Proposed section 198C operates in addition to the broader transfer power under existing section 198B.[39] Although it makes transfer mandatory in certain circumstances, the Bill expressly provides that this must not occur without the transferee’s consent.[40]

Legacy minors

Under the Bill, proposed subsection 198C(1) states that, where an officer knows or reasonably suspects a transitory person is a legacy minor, the officer must, as soon as practicable, bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

The Bill defines legacy minor as any transitory person who, at the Bill’s commencement, is in a regional processing country, is under 18, and has not previously been the subject of the transfer power under proposed subsection 198C(1).[41] The inclusion of this third limb appears to mean that a child previously brought to Australia for medical treatment under this provision will no longer be a ‘legacy minor’, even if they have been returned to a regional processing country and are still under 18 years old.

Relevant transitory persons

Proposed subsection 198C(2) of the Bill relates to the transfer of relevant transitory persons, defined as transitory persons in a regional processing country who:

• are assessed by a treating doctor as requiring medical or psychiatric assessment or treatment and
• are not receiving appropriate assessment or treatment in the regional processing country.[44]

A treating doctor is a medical practitioner registered or licensed to provide medical or psychiatric services in Australia or a regional processing country, and who has assessed the person, whether remotely or in person.[45]

A relevant transitory person must be brought to Australia as soon as practicable for the temporary purpose of receiving medical or psychiatric assessment or treatment where the Secretary is notified that the person has been assessed by two or more treating doctors as being a relevant transitory person.[46]

Transfer of family members

Proposed subsections 198C(3) to (5) of the Bill provide for the mandatory transfer of family members of transitory persons, and other accompanying persons, in three circumstances. These are where an officer knows or reasonably suspects that a transitory person in a regional processing country:

• is a member of the same family unit as another transitory person being brought to Australia for a temporary purpose[49]
• has been recommended by a treating doctor to accompany another transitory person being brought to Australia for a temporary purpose[50] or
• is a member of the same family unit as a minor who is in Australia.[51]

Under the Migration Act and Regulations, the term member of the family unit has a different meaning in relation to different visa types.[52] As a general rule, the term captures a spouse or de facto partner of another person (the family head), or a child or step-child of the family head or their partner (who is either under 18 or dependent on the family head or partner).[53]

Minister’s approval

The Senate amendments in Schedule 6 of the Miscellaneous Measures Bill include an amended version of proposed section 198C which makes it a prerequisite for all transfers that the Minister has provided approval. The requirements for the Minister’s approval are set out in proposed sections 198D (for legacy minors), 198E (for relevant transitory persons) and 198G (for members of the same family unit).

In all cases, the Minister has 24 hours to decide whether to approve or refuse to approve a transfer after being notified of a person falling into one of the three categories discussed above.[55] If the Minister fails to make a decision within 24 hours about the transfer of a legacy minor or relevant transitory person, they will be taken to have approved the transfer.[56] Most approval decisions are non-delegable, though there is no express restriction against the Minister delegating the power to approve family member or accompanying person transfers.[57]

Refusing transfer on security grounds

A transfer can be refused if the Minister reasonably believes it would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), including because there is an adverse security assessment in respect of the person in force.[58] For legacy minors and family members/accompanying persons, this is the sole ground on which the Minister can refuse to approve a transfer.

The provision does not specify when a transfer will be prejudicial to security; however, the ASIO Act defines security as:

• the protection of the Commonwealth, states and territories and the Australian people from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia’s defence system or acts of foreign interference
• protection of Australia’s territorial and border integrity from serious threats and
• the carrying out of Australia’s responsibilities to any foreign country in relation to any of the above matters.[59]

There is a somewhat similar provision already in the Migration Act in the context of the character test—a person will not pass the character test if they are assessed by ASIO as a direct or indirect risk to security, within the meaning of the ASIO Act.[60] However, under Schedule 6 of the Miscellaneous Measures Bill, the Minister’s power to refuse to approve the transfer does not require an actual security assessment by ASIO but turns on the Minister’s own reasonable belief as to whether the transfer will be prejudicial to security.

The Minister’s decision to refuse a transfer on security grounds is not subject to merits review, but may be subject to judicial review.

Refusing transfer on medical grounds

In relation to transfers of a relevant transitory person on medical grounds, the Minister may also refuse to approve the transfer if they reasonably believe it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment.[61]

A decision to refuse a transfer on this basis is subject to review by the Independent Health Advice Panel, which is discussed below.[62] Unlike a refusal on security grounds, it may also be subject to merits review by the Administrative Appeals Tribunal.[63]

Reasons for decisions

Schedule 6 of the Miscellaneous Measures Bill also inserts proposed section 198J into the Act. This states that if refusing to approve a transfer, the Minister must cause a refusal statement—a statement of reasons for the Minister’s decision—to be laid before each House of Parliament within three sitting days after making the decision. This statement must not include information which may identify any person.[64]

There is no express requirement for the Minister to provide reasons to the person who is the subject of the decision.[65] However, item 6 amends existing subsection 474(4) of the Act to provide that the Minister’s decisions regarding transfers are not privative clause decisions. This brings them within the scope of the Administrative Decisions (Judicial Review) Act 1977, which allows a person to request reasons for a decision.[66]

Proposed subsections 198D(7), 198E(8) and 198G(6) state that the Regulations may prescribe processes to be complied with in relation to the exercise of the Minister’s powers under these sections.

Independent Health Advice Panel

The amendments in Schedule 6 of the Miscellaneous Measures Bill establish an Independent Health Advice Panel, with the objective of monitoring, assessing and reporting on the health of transitory persons in regional processing countries, and the standard of health services provided to them.[67] The Panel will consist of at least eight members, including the Commonwealth Chief Medical Officer and the Department’s Chief Medical Officer and Surgeon-General of the Australian Border Force. Other members are appointed by the Minister based on nominations by various professional medical bodies.[68]

Review of adverse transfer decision

The Panel is responsible for conducting an immediate review of a decision by the Minister to refuse to approve a transfer of a ‘relevant transitory person’ on the basis that it is not medically necessary. The Minister must notify the Panel of the refusal ‘as soon as practicable’. The Panel then has 24 hours to conduct a clinical assessment of the person (this may be done remotely) and advise the Minister of its findings, including a recommendation as to whether the Minister’s decision should be confirmed.[69] The recommendation must be agreed by a majority of the Panel’s members.[70]

If the Panel recommends that the person’s transfer should be approved, the Minister is required to follow this unless satisfied there are security grounds for refusing the transfer.[71]

Other functions and powers

The proposed provisions give the Panel broad discretion as to how it will perform its functions.[72] It has the power to obtain information and documents from relevant agencies and consultants/contractors.[73] The Panel may make recommendations to the Minister in regards to the health of transitory persons in regional processing countries ‘at any time it considers appropriate’.[74] It is required to produce a three-monthly report for the Minister on its operations, with the first report to include an assessment of:

• the physical and mental health conditions of transitory persons in regional processing countries and
• the standards of health services provided to such persons.[75]

Within three sitting days of receiving the Panel’s reports, the Minister must cause a summary to be laid before each House of Parliament. Within three sitting days of doing so, the Minister must also prepare, and lay before Parliament, a response to the Panel’s report.[76]

Committee consideration

Selection of Bills Committee

The Senate Standing Committee for the Selection of Bills has not reported on the Bill at the time of writing.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills has not commented on the Bill at the time of writing.

Policy position of non-government parties/independents

The Government voted against the amendments to the Miscellaneous Measures Bill 2018.[77] A joint media release by Minister for Home Affairs, Peter Dutton, and Minister for Immigration, Citizenship and Multicultural Affairs, David Coleman, stated:

Today [the ALP’s] National Conference will confirm the end to offshore processing via its support for legislation that contracts out Australia’s border protection to activist doctors, who via Skype, will decide that illegal arrivals in Manus and Nauru must come to Australia.[78]

Minister Coleman has also said that a ‘character test’ should apply to transfers, to prevent persons with a criminal history from being brought to Australia.[79]

Independent Cathy McGowan has stated that she has not yet made a final decision on the legislation, and has sought the views of her constituents on the issue.[80]

Position of major interest groups

Outside Parliament, the Bill has received support from several quarters, including in the medical, legal, human rights and refugee sectors.

From the medical community, the Australian Medical Association (AMA) and the Royal Australian College of General Practitioners (RACGP) have both voiced support for the Bill, stating that asylum seekers and refugees have a right to appropriate medical care and that decisions about medical care should be made by medical practitioners and clinical experts.[81]

The Law Council of Australia has also voiced its support for the Bill, stating that removing asylum seeker children from Nauru to Australia, and ensuring the health and safety of adult asylum seekers in regional processing countries, is not only medically necessary, but also necessary in terms of Australia’s international obligations.[82]

The Bill is also supported by many organisations in the community sector, including refugee advocacy groups, who have been campaigning for many years for an end to regional processing, and for those in RPCs in Nauru and PNG to be brought to Australia.[83]

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[84]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Bill’s proponent has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act, and considers that the Bill is compatible.[85]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has not reported on the Bill at the time of writing.