The thwarting of the medical evacuation bill

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.

In February, the bill was brought to the federal House of Representatives. After a fear campaign by the Liberals, arguing that such amendments showed the ALP was soft on border protection, the ALP decided to water down the legislation. The time limits were increased to 72 hours for the initial decision to be made by the Minister, and for the health panel to make a recommendation. The Minister can also reject a person’s transfer if the person has a “substantial criminal record”, and would expose the public to a “serious risk of criminal conduct”. This compromise was passed by both houses by 13 February.

The government has responded to the new Act in two ways. Firstly, it has argued that this has undermined border security. The Attorney General claims that the new Act does not provide authority for the government to return those medically evacuated to Manus or Nauru after their medical treatment. Secondly, the government has said that medical evacuees will be transferred to Christmas Island. The Act provides that evacuees must be transferred to Australia. It is not clear that Christmas Island has adequate facilities to medically treat evacuees. Furthermore, Nauru has passed laws banning medical transfers for telehealth referrals. Thus, whilst the new legislation offered hope that people on Manus and Nauru might finally get the medical treatment they need, it appears that such treatment has not yet been legally established.