3 April 2019

CQX18 is the boat identification of an Iranian man, who applied for a visa in March 2018. This request was rejected, and that decision was reaffirmed in April. He appealed that decision in the Federal Circuit Court in July 2018. Judge Street heard the Iranian man’s appeal that day. Judge Street ruled against him, and ordered him to pay the Minister’s costs of $7328. Judge Street delivered his ruling orally. This presented a significant challenge to the Iranian man. He was not in the courtroom, but connected by video link from Yongah Hill Immigration Detention Centre.

In December last year, Wentworth MP Kerryn Phelps advanced a bill to provide for emergency medical evacuations for people on Manus or Nauru. After negotiations with the crossbench, she agreed on amendments with independent MP Tim Storer and the Greens. These amendments were passed by the Senate with Labor’s support.

The bill provided that if two doctors agreed a person needed medical attention, they should be brought to Australia.  The Minister can refuse to do so for security reasons related to ASIO assessment. If the Minister believes that the person does not need medical evacuation, an Independent Health Advice Panel would evaluate the question. The Minister could not overrule their conclusions on medical grounds: the Minister could only refuse medical evacuation if the person was judged prejudicial to Australia’s security. The Bill also provided for 24 hour limits on each step of the process, in recognition of the medical emergency involved.

Labor and the cross-bench found sufficient common ground to achieve a significant victory for decency and humanitarian values in the Australian Parliament yesterday. The medical evacuation amendment was further amended and then passed in the House of Representatives by a vote of 75-74. It was also an historic victory in that it is the first time in 75 years that a Government has lost a substantive vote in the lower house.  

This was achieved in the face of an extraordinary and increasingly desperate onslaught by the Government.

The saga is however ongoing. The Bill must return to the Senate today. It’s passage there is not guaranteed. The Government may repeat its December tactics and filibuster to block its consideration. Derryn Hinch is reported as ‘considering his position’ on the amendments. His vote is crucial.  

It will be another tense day for supporters of the amendment.

The positives so far

Under extreme pressure the cross bench and Labor were sufficiently sure-footed to negotiate a workable amendment.

The agreed amendment remains strong enough to achieve speedy medical evacuation for those requiring urgent medical care which cannot be provided in Manus or Nauru – albeit with several caveats.

The amendment addresses the central scare-mongering Government claim- a renewed wave of asylum seeker boats – by restricting the provisions to persons on Manus and Nauru at the commencement of the legislation.

Tony Smith brought some dignity and propriety to the house and enhanced his status as a fair and non-partisan speaker by refusing what reads like an instruction from the Attorney General Christian Porter to block discussion of the amendment on constitutional grounds and by making this ‘instruction’-  and the underpinning advice from the solicitor general -  public despite a specific request from the AG to keep it private.

Some caveats

Minister Dutton retains greater discretionary power to exercise his veto on medical transfers than initially proposed in the cross-bench amendment which leaves open the possibility of misuse/abuse of the provisions.

The restriction of the provisions to only those detained at the commencement of the legislation leaves an obvious future problem if we continue with off- shore processing of asylum seekers.

We are also left with an ethical/moral issue in relation to those who will be excluded from the new provisions because they are deemed a threat to national security and have committed serious crimes. Do we think it is acceptable to allow them to die or suffer from serious illness?

Desperate government tactics

The Government ran an all-out attack on the amendment (in fact on any amendment to the existing legislation) and on Labor yesterday. There was little or no mention of the cross-benchers who were the initiators of the amendment. Though we are all familiar with disregard for truth or logic in parliamentary debates, the Government pushed the boundaries on such behaviour yesterday. Their tactics seemed to be driven both by increasing desperation about losing the vote and ‘smart’ forward thinking about effective election tactics.

As the commentators say, we are getting a preview of the pivotal role border protection will have in the forthcoming election- if the Government has its way.

The surprise of the day was the revelation by the speaker at the end of question time that he was in receipt of a letter from the AG - including advice from the solicitor general that there was an argument that the underlying amendment passed in December 2018 was unconstitutional and that the AG considered that on these grounds the speaker should not allow the amendment to be considered at this stage. And that he should keep the advice private.  

The speaker’s calm rejection of both these requests was a high point in the parliamentary day.

The extreme scare-mongering rhetoric of the Government’s attack on the Labor Party for supporting any version of the medical evacuation bill is a disgraceful performance which will further damage the standing of the Australian Parliament.

Facts have been brushed aside in favour of absurd, illogical and totally fabricated threats to public safety allegedly posed by refugees. Wild and unfounded allegations about refugee murderers, rapists, pedophiles and bad characters abound, as do supposed threats to national security from the wave of refugee boats that temporary medical evacuations of seriously ill refugees will allegedly generate.

What a disappointment that Bill Shorten and Labor have again been spooked by a blatantly dishonest and scaremongering attack from the Government and are now seeking to water down the Bill they voted for in the Senate in December- when they know the Government’s arguments are ridiculous and dishonest.

Again they have failed to engage with and refute an absurd and extreme Government attack  which, given its patent dishonesty, should not have been beyond their capacity. And do they never learn the futility of succumbing in this way? Caving in and agreeing to weaken the Bill will not make any difference to the Government’s ongoing attack - they will just amend the line of attack as they have already this morning.

Last minute negotiations continue between Labor and the cross bench including the Greens. Hopefully a position can be agreed which will gain the support of all without significantly weakening the Bill - which would be the case if Labor's initial amendments were incorporated.

If this Bill is defeated today and the constructive cross bench initiative comes to nothing, Labor may have future cause to regret their lack of fortitude.

Australians will be deeply disappointed if this Bill fails or is seriously weakened today.

The New South Wales Council for Civil Liberties (CCL) has signed an open letter urging Members of Parliament to support the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. This Bill includes amendments advanced by MP Kerryn Phelps to provide for medical evacuations from Manus and Nauru.

CCL President Pauline Wright said “In the last five years, we have seen 12 deaths on Manus and Nauru. There are human beings who have died because Australian officials have refused to permit urgently needed medical transfers until it was too late. Medical treatment should be a medical question, not a political one. Doctors should be able to determine how to treat their patients, and what kind of care is needed.”

The New South Wales Council for Civil Liberties (CCL) has condemned the threatened deportation of Aboriginal man Brendan Thoms. The ABC reports he is the second Aboriginal man since September to appeal to the High Court when threatened with deportation.

President of the CCL, Pauline Wright said, “It is unacceptable that the immigration authorities have the power to cancel a visa and deport someone, or condemn them to a life of detention, without proper accountability. Such decisions can ruin a person’s life, yet there is no merits review when the Minister considers whether to intervene in the decision-making. The threatened deportation of an Aboriginal man who happened to be born overseas but came to Australia as a child demonstrates anew the dangers of such oppressive visa cancellation powers.”

According to the Department of Home Affairs, visa cancellations have increased by over 1400 percent between 2013-14 and 2016-17 financial years. This is at least partially due to legislative amendments to the Migration Act that have given greater powers to the Department and Minister, who can cancel or refuse visas for minor offences.  Wright said, "The Minister can even consider whether to refuse or cancel a visa, by ‘having regard to… the person’s past and present general conduct.’ No government official should have such broad discretion to ruin someone’s life.”

The NSW Council for Civil Liberties (NSWCCL) thanks the Legal and Constitutional Affairs Legislation Committee for its invitation to make a submission concerning the Migration Amendment (Clarification of Jurisdiction) Bill 2018.

Join us in protest against the treatment of asylum seekers and refugees by Australia, both in the offshore detention centres of Nauru and Manus Island and on the Australian mainland. The NSWCCL Committee is formally endorsing this rally and will be showing our solidarity marching behind the NSWCCL banner. 

Conditions for the refugees and asylum seekers dumped on Manus Island and Nauru remain intolerable. Though some refugees have been resettled in third countries, others remain in limbo not knowing when or if they will be resettled.

There are around 30,000 refugees within Australia seeking asylum. At present, most will at best receive temporary protection visas, leaving them in fear of forced return to danger, and unable to reunite with their families.  

Find us gathered near the eastern stone wall, on the Elizabeth St side of Belmore Park, at 1:45 pm, Sunday 25 March. Look for the white banner of the NSW Council for Civil Liberties.

We look forward to marching together.

Members of the Council for Civil Liberties Asylum Seekers Action Group, people wanting to be members, and interested others, are invited to our meeting on Wednesday February 14 at 7.00 p.m.

We plan to meet every second Wednesday of the month.