Refugee policy changes a battle between asylum seeker health and national security consequences
Peter Dutton says a policy change risks national security, but others say it’s about health. (ABC News: Matt Roberts)
Which should weigh heavier: health or character?
This is the essence of the political argument between Labor and the Coalition over new arrangements for asylum seeker medical evacuation.
The Government argues that Labor, in supporting crossbencher Tim Storer’s amendments to the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, risks undermining offshore processing by putting border control into the hands of activist doctors.
Labor’s counter is that the amended bill only serves to give greater weight to advice from medical professionals about the wellbeing of refugees and asylum seekers on Nauru and Manus Island. It insists ministerial discretion is preserved.
They can’t both be right.
It’s about more than children
First things, first. If the bill ever becomes law, it is unlikely to apply to children on Nauru, because by the time it gets debated in the House of Representatives in February, either all relevant children will have been removed from the island or those remaining will be there because they want to remain.
So this is about what to do with adult asylum seekers. And the most contentious cohort are the hundreds of men on Nauru, many of whom are Iranian, most of whom have been found not to be refugees.
There may no longer be any children on Nauru once the bill is debated in Parliament. (Supplied: World Vision)
Let’s turn to the bill, which refers to a person in Nauru or Manus as a “transitory person”.
Under section 198E of the proposed, if two or more “treating doctors” for a transitory person notify the Home Affairs secretary that the person needs medical or psychiatric assessment and, in their opinion, is not receiving appropriate care, the Home Affairs Minister must approve or refuse transfer to Australia within 24 hours.
They may be refused transfer if the minister either reasonably believes it not necessary or if the minister believes bringing them to Australia would be “prejudicial to security” within the meaning of the Australian Security Intelligence Organisation Act, including because the person is subject to an adverse security assessment under the ASIO Act.
The Government argues that this significantly narrows ministerial discretion, precluding him or her making assessment of the person’s character when deciding whether to allow a transfer on medical or psychiatric grounds.
Labor says the discretion remains appropriately broad.
A “treating doctor” is defined under the bill as someone registered or licensed to provide medical or psychiatric services in a regional processing country or Australia.
Although that’s potentially 70,000-plus Australian doctors alone, they must have assessed the transitory person in person or “remotely” — explaining why the Government asserts that this allows doctors to make assessment by Skype.
But that’s not quite the full story. The bill goes further.
Medical needs versus national security
Under section 198F, if the minister does refuse a transfer on the basis he or she deems it unnecessary, the decision is referred to an independent panel which, within 24 hours, must conduct a further clinical assessment of the person and then inform the minister.
The proposed Independent Health Advice Panel would be a high-powered bunch, comprising the chief medical officer of Home Affairs, the surgeon-general of the Australian Border Force, the Commonwealth’s chief medical officer plus no fewer than six other health professionals, including nominations from the Australian Medical Association, the Royal Australian and New Zealand College of Psychiatrists and the Royal Australasian College of Physicians.
A medical opinion from such an eminent panel would, you’d think, carry significance, but even at this stage the minister would be able to defy the advice, but not on medical grounds.
The minister would be given another 24 hours to reconsider the matter and either accept the panel’s recommendation or again refuse the transfer to the Australian mainland, if the minister reasonably believes that the transfer of the person to Australia would be prejudicial to security, as defined under the ASIO Act.
It all sounds a bit circular, but the process foreshadowed by the bill effectively stops the minister being the final arbiter of whether evacuation to the mainland is reasonable on medical or psychiatric grounds.
However, the bill does not stop the minister refusing transfer on security grounds, even if the majority of the expert panel agrees with the two treating doctors that evacuation is necessary.
Which means the definition of “security” becomes central.
Parties at odds over proposed changes
Under the ASIO Act, security means protection from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia’s defence system or acts of foreign interference.
Obviously, this is high-end stuff, which the Government argues effectively curtails the ministerial discretionary power.
But Labor points to the fact that “security” under amendments it made to the act in 2010, also refers to the “protection of Australia’s territorial and border integrity from serious threats”.
It argues that this broadens the definition of security, albeit not quite as far as existing grounds of character, which the Government would like to preserve.
So, does the bill limit the ability of the minister to refuse, on security grounds, transfer to Australia of people needing medical evacuation? Yes, but slightly.
Would it lead to more people being brought to Australia from Nauru and Manus? Probably.
But can the Government reasonably argue, as Home Affairs Minister Peter Dutton has, that the bill would “trash” offshore processing? No, not reasonably.