The Medevac Bill will save people’s lives. We know this because of what we hear – from doctors treating them, from those who have been working with men, women and children in Nauru and Papua New Guinea, and from those tireless and brave advocates who have been supporting these people for over five years. Over and over again, we hear people tell us that what is now happening in Nauru and Manus Island is worse than anything they have ever seen – worse than in conflict zones, worse than in refugee camps across the world, worse than anything they have come across in years of professional practice as counsellors and psychiatrists.
It is absolutely clear that there is an urgent need for better health care on both islands. In Medicins sans Frontiere’s report in December 2018, the mental health suffering it saw on Nauru was among the most severe it had ever seen around the world, with 124 out of 208 people it had treated having suicidal thoughts and 63 having attempted suicide. In UNHCR’s last factsheet on the situation of Manus Island, it stated that there was an “urgent need for outreach medical care, enhanced general medical and specialist mental health care”, and highlighted the inadequacy of support and the current hospitals.
The previous process for transferring people to Australia was grossly indequate, as is shown by over 30 court cases in which courts were forced to order the Australian government to transfer a person in urgent circumstances. Whistleblowers, and even the former Australian Border Force commander, have confirmed that obstruction of medical transfers was a routine practice. The death of Omid Masoumali proves that people have died because they have not been transferred in time.
For far too long, Ministers and bureaucrats have refused to listen to what doctors have been saying. Their decisions – or failures to make decisions – have been secret, and people have been transferred far too late. Far too often, it has taken legal action to make sure that the government discharges its legal duty to care for these men and women that it has chosen to punish for trying to seek safety.
This Bill requires the Minister to listen to doctors’ clinical advice, and not just the doctors that they choose to employ. Ultimately, the question is who should be in charge of health care – doctors, or the Minister for Immigration and departmental staff who are not doctors?
No. All it will do is to put in place a better and more transparent process for doing what is already being done – transferring people temporarily for medical treatment, because they are so sick that they cannot be treated in Nauru or PNG.
The most important thing is to save the lives of who have spent more than five years being punished because they tried to seek safety here. This is both our moral obligation and our legal obligation. Morally and legally, the principle is clear: saving lives always comes first.
These are people who are so sick they cannot be treated in Nauru or in Papua New Guinea. They live in pain, with complex and chronic needs, that small island communities are simply not equipped to deal with.
Our national security is not threatened by a few hundred extremely ill people coming to Australia temporarily so they can be treated by doctors. Indeed, the Bill makes it clear that the Minister can and should consider national security when considering whether to transfer them. Previously, the Minister’s power to transfer was virtually unlimited and did not include or require any process to ensure that decisions to transfer people are based on medical evidence, or to ensure that security is considered before a person is transferred.
First, it is wrong to suggest that all of these people are criminals. People seeking asylum by boat are not committing a crime by entering Australia.
Second, it is wrong to suggest that medical care should only be given to those who deserve it. Doctors do not, and should not, withhold care from people that have committed crimes. In fact, governments have a duty when people are in their control to ensure appropriate medical care, under both Australian and international law.
Third, it is very misleading to suggest that the Australian Government ‘doesn’t know who these people are’. In fact, there are more security checks and controls for these people than for most Australians or indeed those coming to Australia on a visa. They have already undergone security checks at least once, and many of them more than once, including through the US resettlement process.
After years of detention, often in Australia as well as in Nauru or PNG, Australia has more information on these people than almost anyone else.
Fourth, the Bill also includes a final veto by the Minister for security reasons or in cases where the person has a substantial criminal record. The definition of national security under this Act is a broad one, and is the same as that which applies to refugees and other people who come to Australia.
Finally, even if they are transferred to Australia, they are still required to be detained by law unless the Minister decides otherwise (on virtually unlimited grounds). Even if they are released into the community by the Minister, they can be re-detained again even if they are only suspected of anti-social behaviour.
The government still will have much more control over these people than almost everyone else in Australia, even though these people have committed no crime. The Bill does not stop offshore processing, and it does not mean that once these people are in Australia they can ever become Australian or live here other than through the Minister’s virtually unlimited discretion. Unfortunately, their suffering will not end once they leave Nauru or Manus Island – all this Bill does is mean they can at least get the medical help they need.
Before the Bill was finally passed, the Australian Government significantly stepped up resettlement and medical transfers due to a successful public campaign that had been going on for months before the Bill was finally passed. On 31 August 2018, several days after the #KidsOffNauru campaign began, there were 109 children on Nauru, and these numbers had not changed significantly in the past few years. The pressure of the KidsOffNauru campaign and the gap of several months over summer between the Bill not passing in December gave the government time to finally ensure all children were off, precisely so they could claim the Medivac Bill had achieved nothing.
The government also continues to say no one is in ‘offshore detention’, because they are no longer physically detained behind bars. However, they remain confined to islands which they cannot, for all practical purposes, leave. People leaving Manus Island are still required to get permission even to leave Manus Island, let alone Papua New Guinea. Refugees on Nauru and PNG are entitled to travel documents as refugees, but in order to leave they need to get permission from another country to enter – which has in practice proven virtually impossible, since most countries understand that these people are unlikely to return to Nauru or PNG.
Those in Manus Island are still confined during the evening as there is a curfew in place from 6pm to 6am in the morning – that is, half the day. Those on Nauru are confined to an island the size of Melbourne Airport.
Our first duty is to save people’s lives. This is why, according to the Government, they started offshore processing to begin with – to stop people from drowning. They said, rightly, that Australians did not want people to die seeking safety.
Now, as predicted, offshore processing itself is killing people, just more slowly. This time, it isn’t because we failed to help them, but because we punished them for years and years.
This is a very modest Bill, one that we know can save lives.
The Government is arguing that the Bill is bad because there is a risk that boats may return . This doesn’t pass the pub test. Would you want to come to Australia if you thought you would be sent to suffer in Nauru or Papua New Guinea for more than five years, until your pain became so unbearable doctors said the only way to treat you would be to send you to Australia? Would you still want to come even if you knew that, once you got to Australia, you could be locked up forever? Would you still want to come if, even if you managed to get out of detention, you still had to live forever in fear of being returned to detention, or would be left destitute in the streets?
Even if you still wanted to come, it would be almost impossible for you to do so. The Bill doesn’t change the fact that the Australian navy would be sent out to stop them from coming, by force, or any of the other many measures our government takes to ensure that people cannot seek safety in Australia.
Both major political parties have pandered to our fears about boats for too many years. The boats are not the problem. They are the result of much bigger problems – conflicts, persecution, oppression – and, specifically, the result of ever stricter border control policies that make it harder and harder for people who need safety to find it.
The cost of the Bill depends entirely on how the Government chooses to implement it.
Most of this headline figure is based on the argument it would have to reopen Christmas Island ($1.2 billion), which is the most expensive and punitive possible option for the Government.
When a person is transferred for medical treatment, there are several ways they could be housed:
- In a hospital, which is often the first place they will be transferred to, or other designated ‘alternative place of detention’ such as a motel
- In one of the seven detention facilities in Australia, which (as of 31 December 2018) house 1,285 people
- In community detention
- Released into the community to live either on a level of support lower than those on Newstart, or without any income or other support at all.
The Australian Government has already transferred hundreds of people for medical treatment before the Bill passed. Most of the people who have already been transferred for medical reasons are now in community detention, so it is clear that it is not necessary for them to be in a detention centre, let alone in a remote detention centre on Christmas Island.
Of course, the Government doesn’t mention that we have already spent over $6 billion (conservatively) on offshore processing, and that it already has a legal duty to transfer people to Australia and has already done so in many cases.
The Bill sets strict conditions before a person can be transferred to Australia for medical treatment. Two independent doctors must consider that the person is sick and that the person needs medical treatment or assessment that they are not appropriately receiving in Nauru or in Papua New Guinea, and that it is necessary to transfer the person from Nauru or Papua New Guinea for treatment or assessment.
It’s simple: is the person getting the medical treatment they need on Nauru or Manus Island? If the person can get that help, including being assessed on island, then it’s not necessary to transfer them. If there are adequate medical facilities on these islands, then they won’t be needed to be transferred unless they are seriously ill. If they do need to be transferred even if they aren’t seriously ill, then clearly there are inadequate medical facilities – you can’t have it both ways.
The Bill allows people to be transferred if they need ‘assessment’, as well as treatment. This is because there are some kinds of specialist assessment that simply aren’t available in either country and can’t be conducted remotely. However, if the assessment can be done in Nauru or Manus Island, then they won’t be transferred.
It is true that those transferred will be transferred with their families or another support person (where, as is common, they have no family), as is now the practice. This avoids people making the terrible choice of having to decide whether to get treatment or potentially not seeing their children or their parents for months or years. It is also good medical practice to ensure that patients have support networks when they are undergoing medical treatment, as every Australian would no doubt want to have in their time of need.
The problem of course is that you can have all the mental health professionals in the world, but if you have no hope of ever getting out of a place where there is no future for you, there is not much any mental health professional can do to address the main problem – indefinite detention itself.
People seeking safety choose whatever routes are available to them, and these are choices that are largely dictated by our visa requirements and smuggling networks. People are smuggled by plane as well as boat, and this is very common around the world. In both cases, this is driven by the fact that it is often very difficult to seek protection lawfully. Refugees are refugees, whether they come by boat or plane, and as the Refugee Convention requires, we should not be making distinctions based on their mode of arrival.
While it is true that people coming by plane do have to go through a visa application process, it is also true that by now we know far more about those on Nauru and Manus Island than we would about people who have come, for example, on a tourist visa. People living on Nauru and Manus Island have extensive files on them as a result of over five years of detention and management of every aspect of their lives. We probably have more data on these people than any other person in Australia.
People who come by plane, as well as those who come by boat, are both subject to detention and deportation if they are found not to be refugees. While historically a much higher proportion of people who came by boat have been found to be refugees than those who come by plane, the main variation.
Yes. Under both international law and Australian law, Australia has responsibilities (together with Nauru and PNG) for the refugees and asylum seekers it transferred there. Australia cannot avoid or ‘contract out’ of its obligations under international law simply by sending people to other countries, delegating refugee processing to those countries, and outsourcing their welfare and health care to those countries. This is known as the law of State responsibility.
The law of State responsibility means that a State remains responsible under international law if a person or group is in fact acting on the instructions of, or under the direction or control, of the State carrying out the conduct. While Australia may share legal responsibility with Nauru and PNG, it cannot devolve it. Even if officials in Nauru or PNG go beyond the authority they have been given by Australia, or act contrary to instructions, that is immaterial – Australia retains responsibility.
The view of legal experts in Australia and overseas, including the UN treaty monitoring bodies, is that Australia remains responsible for the people it has transferred offshore, given its core role in the establishment, funding and services provided there.
Australia has a range of legal obligations under international human rights and refugee law that are relevant to people transferred to Nauru and PNG. Most importantly, international law prohibits Australia from expelling or returning asylum seekers and refugees to any place where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion, and from sending people back to places where they would face a real risk of being arbitrarily deprived of their life, tortured or exposed to other cruel, inhuman or degrading treatment or punishment. Australia would be in violation of these obligations if Nauru or PNG were to send asylum seekers or refugees on to other countries where they are at risk.
UNHCR has repeatedly affirmed that Australia has obligations to find humane and appropriate solutions for the people it has transferred to Nauru and PNG, such as settlement in Australia or another appropriate country for everyone recognised as refugees.
Under Australian law, the Australian government can continue to owe a duty of care to people overseas, provided there is a sufficient connection to those people. This is the basis on which courts have ordered people to be transferred to Australia to receive medical care.
Yes, but it depends on the nature of the crime. A petty thief is not excluded from refugee protection, but someone who has committed a very serious crime may be.
Article 1F of the Refugee Convention says that a person cannot be granted refugee status if there are serious reasons for considering that they have committed a crime against peace, a war crime or a crime against humanity; or a serious non-political crime outside the country of refuge prior to admission to the country as a refugee; or have been guilty of acts contrary to the purposes and principles of the United Nations. These entail very serious crimes, such as genocide, torture, murder, rape and terrorism.
In international law, torture is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions (Convention against Torture, art 1).
This sets a very high threshold. While all the circumstances of a person’s situation can be considered cumulatively, the challenges in the context of Nauru and Manus include: (a) whether pain and suffering is sufficiently ‘severe’; whether it is intentionally inflicted for one of the specified purposes (information, confession, punishment, intimidation or coercion, or discrimination); and whether it is inflicted by, or with the acquiescence of, a public official. It is unclear whether these conditions could be sufficiently established.
It is more feasible that the ill-treatment of refugees and asylum seekers held offshore could be considered to amount to ‘cruel, inhuman or degrading treatment’, which is also prohibited under international human rights treaties which Australia has ratified. While there is no formal definition of cruel, inhuman or degrading treatment, it can be constituted by one or more acts or omissions that create physical and/or mental suffering. Each individual case must be assessed on its own merits, because a person’s particular circumstances, (age, gender, religion, etc) may affect whether the treatment experienced is cruel, inhuman or degrading.
The UN Committee against Torture has suggested that the ‘combination of the harsh conditions, the protracted periods of closed detention and the uncertainty about the future reportedly creates serious physical and mental pain and suffering’ may together amount to cruel, inhuman or degrading treatment.
Key UN human rights bodies and legal experts have repeatedly found that the conditions for refugees and asylum seekers offshore breach numerous provisions of international law. These include violations of the principle of non-refoulement; exposure to harms including rape, sexual and other physical abuse; acts of intimidation, taunting and provocation; long, indefinite periods in detention; acute isolation; suicide and self-harm; separation of families; limited access to basic services, including social, education and health services; unlawful discrimination between refugees on the basis of mode and date of arrival; a lack of access to justice; overcrowded living conditions; severe restrictions on physical access; severe restrictions on access to information; a lack of independent oversight; and a lack of durable solutions. These conditions are particularly dire for children and vulnerable people, such as pregnant women, people with disabilities or other complex health needs, or survivors of torture and trauma. Australia’s Parliamentary Joint Committee on Human Rights and the Australian Human Rights Commission have similarly found that the conditions for refugees and asylum seekers offshore do not meet minimum human rights standards under international law. Even the Australian government conceded that a consequence of removing asylum seekers offshore for processing could result in Australia failing to meet its international obligations – and yet it still continues the policy.
We cannot return refugees to their countries because they have a well-founded fear of being persecuted. That is the basic premise of refugee protection: people must not be sent back to a risk of harm. In some cases where people have been found not to be refugees, they cannot be returned because there are practical impediments. For instance, Iran refuses to accept anyone who is repatriated against their will.