DISSENTING REPORT BY
THE AUSTRALIAN GREENS
Introductory remarks
1.1
This bill, the Migration Amendment (Health Care for Asylum Seekers) Bill
2012, seeks to create an independent panel of experts with the expertise,
resources and necessary powers to investigate and report on the health and
wellbeing of asylum seekers under the care of the Commonwealth in offshore
detention facilities. Because of the fragile mental and physical health of
asylum seekers, the stresses of detention and the remoteness of the locations
where offshore detention is maintained, ensuring adequate care of these people
is both an urgent responsibility and an extremely difficult task. The
Australian Greens maintain that unless the system that cares for such
vulnerable people is transparent, accountable and subject to independent
oversight, then the health of these people will inevitably suffer.
1.2
Evidence received during the inquiry overwhelmingly supports this view.
Although some made suggestions for strengthening the bill, medical experts –
including those familiar with immigration detention oversight through previous
involvement with the Detention Health Advisory Group (DeHAG)[1]
– were strongly supportive of the need for an offshore detention oversight body
as proposed by the bill. We therefore recommend the bill be passed with the
amendments outlined below.
1.3
Further evidence, such as that given by Amnesty International Australia,
highlighted the unacceptable conditions already present at the detention centre
in Nauru.[2]
This evidence underscores the need for timely and robust intervention,
especially given the complexity, political sensitivity and gravity of the
situation faced by asylum seekers transferred to Nauru and Papua New Guinea.
Merits of an Independent Panel over a Departmental Advisory Group
1.4
Some evidence presented to the Committee focussed on the previous work
of DeHAG and on the Immigration Health Advisory Group (IHAG) which is yet to be
properly established. The Department and others canvassed the idea that IHAG
could fulfill the role intended for the Panel provided for in the Bill. This
proposal forms the bulk of the recommendations in the majority report.
1.5
The Australian Greens do not support this model. The overwhelming
majority of evidence received, including from former members of DeHAG,
indicates that such a body will not have the capability or remit to properly
safeguard the health of asylum seekers in detention offshore. Most critically,
it will not have the independence to properly highlight deficiencies in care provided
under the auspices of the Department. Dr Choong-Siew Yong of the AMA pointed
out the 'clear distinction' between an internal body and one that sits outside
the Department.[3]
As noted in their submission, the independent group of health experts made clear
the importance of oversight separate to IHAG:
We believe that this should include independent review and
monitoring processes of health services and the establishment of a separate,
independent body to the Departmental health advisory group (IHAG) which can
provide the results of its review and monitoring to the Secretary of the
Department of Immigration and Citizenship, the Chief Medical Officer of the
Department and the IHAG on health service provision and risk mitigation
strategies.[4]
1.6
The Australian Greens also have concerns about the ability of IHAG to
focus on the particular challenges inherent in offshore detention. Evidence was
heard by the Committee that IHAG's role is much broader than this and deals
with health and mental health in the immigration system more broadly. In
evidence from the Department, Mr Ken Douglas said:
Building on the good work that has been done by DeHAG, which
has been in operation for six years, the incoming secretary has said, 'I would
like to build on that and create a group that looks more broadly across the
immigration spectrum, not just in the detention environment, and looks at it
not solely from a clinical perspective but also from a broader health policy
and systems perspective.' That is what he is working to do in establishing the
new IHAG.[5]
1.7
Because of the urgency and sensitivity of overseas detention, a panel
dedicated to safeguarding the welfare of people under those circumstances is
necessary to achieve the required level of timely and detailed oversight.
1.8
The need for an independent panel is reinforced by evidence regarding
the fate of previous recommendations made by DeHAG. Without the necessary
transparency, these recommendations are likely to languish with the Department
or the Minister.[6]
An independent body, whose reports are made public via reports to Parliament,
and whose remit includes oversight of the response to and implementation of
recommendations, has a greater chance of seeing changes effected in a timely
manner.
Powers and terms of reference of the Independent Panel
1.9
Several witnesses called for the powers of the Panel to be further
enumerated and clarified in the legislation.[7]
The Australian Greens agree with this suggestion, particularly with regard to
establishing the powers of the Panel to visit and monitor operations in
offshore detention facilities.
1.10
The Committee also heard evidence from the Department that no medical
experts were consulted in the design of the existing facilities on Nauru,[8]
which the Committee heard are inadequate and already leading to serious health
problems.[9]
To the degree that it is possible to do so, the bill should therefore
ensure that the Panel is consulted proactively in the design of systems to
accommodate asylum seekers in the challenging conditions of offshore processing
centres in remote locations. Failing this, another body composed of medical
experts, such as IHAG, should be consulted.
1.11
As noted in the majority report, proposed paragraph 198ABA(5)(c) of the
Bill provides that the Panel may 'assess the health of an offshore entry person
when he or she first arrives in a regional processing country'. Several
witnesses commented on this clause and the potential difficulties it raises. For
example, Dr Singleton, representing The Royal Australian College of General
Practitioners, commented:
I cannot see how that would practically work. I think
ensuring that the processes are in place to ensure that people are being
assessed adequately is what is important.[10]
1.12
Although the Panel should have access to individuals and individual
medical histories, this is only appropriate within the context of identifying
or highlighting systemic problems and deficiencies. The bill should therefore
be clearer that the Panel will have no role in routine assessment or clinical
care.
Location of the group within the government
1.13
During the proceedings of the inquiry, there was some discussion between
the Committee and witnesses regarding the proper place of the Independent Panel
within the Government, and whether it should be managed by the Department or be
housed elsewhere in the bureaucracy.[11]
At the public hearing, the Chair canvassed with witnesses whether the Office of
the Commonwealth Ombudsman would be an appropriate auspicing body, following a
similar recommendation from the Palmer Inquiry.
1.14
Mr Karapanagiotidis OAM of the Asylum Seeker Resource Centre expressed
the opinion that the Panel should exist independently of all other agencies.
However, the Australian Greens accept that considerable overheads and delays
may result from constituting an entirely new body independent of the rest of
government. It is our view that, if properly resourced, the Panel could be
auspiced under the Office of the Commonwealth Ombudsman.
Access by the Panel to facilities in third countries
1.15
The Committee heard evidence to the effect that it is not within the
power of the government to assure access to offshore detention facilities by an
independent panel as granting such access lies within the domain of the
authorities in the offshore processing countries.
1.16
The Australian Greens do not consider this a legitimate objection to
establishing the Panel. The entire architecture of the offshore processing
system requires the Australian Government to gain access to the territories and
detention areas for a large and growing number of officials and service
providers, including serving military personnel. It is therefore difficult to
see how a panel of medical experts would be routinely denied access by the
officials of these countries.
Expertise represented on the Panel
1.17
During the inquiry, the question was raised of representation on the
panel by a representative of a disability organisation. The Australian Greens
note evidence from Associate Professor Amanda Gordon of the Australian
Psychological Society who raised no objection to this suggestion.
1.18
The Australian Greens therefore consider it appropriate that such a
representative should be eligible for membership of the Panel, in particular if
such expertise is not present amongst those members nominated by other
professional bodies.
Strengthening of IHAG
1.19
The Australian Greens note the recommendations in the majority report
regarding the strengthening of IHAG's role in overseeing the offshore detention
system. We maintain that, consistent with abundant evidence received by the
Committee, IHAG as envisioned is manifestly inadequate as a mechanism for
ensuring sufficient oversight of and action to safeguard the health and
wellbeing of asylum seekers housed offshore.
1.20
However, regardless of whether the Bill is passed or not, the
Australian Greens agree in principle with bolstering the role of IHAG,
especially as their remit includes the immigration system more broadly.
1.21
Evidence received suggests that DeHAG's recommendations were often
ignored. To remedy this situation, IHAG should report to the Minister, and this
report should be tabled in Parliament. The Minister should be obliged to
respond to this report within 45 days.
Recommendation 1
1.22
That the Senate should pass the bill.
Recommendation 2
1.23
That the bill be amended to further clarify the powers and
responsibilities of the Panel, including its power to access detention
facilities without notice and establishment of arrangements to monitor the
implementation of the Panel's recommendations.
Recommendation 3
1.24
That the bill be amended to establish the Independent Panel under the
office of the Commonwealth Ombudsman.
Recommendation 4
1.25
That the bill and explanatory memorandum be amended to clarify the role
of the Panel with regard to assessing the health of individuals, to make it
clear that this is to be done in the context of investigating system-wide
problems only and not on a routine or clinical basis.
Recommendation 5
1.26
That the bill be amended to allow for representation on the panel by
persons with expertise in disability.
Recommendation 6
1.27
That, if the bill is not passed, the terms and composition of the
Immigration Health Advisory Group be amended so that its reports and
recommendations to the Minister are tabled in Parliament, that the Minister is
obliged to respond to those recommendations, and that IHAG must be consulted on
the design of the offshore processing regime.
Senator Sarah Hanson-Young
Australian Greens |
Senator
Richard Di Natale
Australian
Greens |
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