Doctors and AMA representatives advocate for the medivac bill at Parliament House (Image: AAP/Mick Tsikas)

On Tuesday, a Federal Court judge stifled attempts by the Department of Home Affairs to stop a seriously ill Iraqi asylum seeker coming to Australia from Nauru for medical treatment.

Justice Mordecai Bromberg’s ruling was crucial because it now means that, under the recently passed medivac laws, doctors can make a medical assessment of an asylum seeker by simply looking at their file rather than examining them in person. The government warned that the ruling would “open the floodgates”, while Peter Dutton labelled the judgment “a mess entirely of Labor’s own making”.

The government’s alarmist response to a ruling which concurs with standard medical practice is not new. For years, doctors and medical groups have raised concerns about the treatment of asylum seekers on Nauru and Manus Island. For years, they have been ignored, dismissed and attacked.

Gags, delays and warnings ignored

Peter Dutton has never been particularly popular in the medical community. In 2015, a survey of readers by Australian Doctor magazine rated him the worst health minister of the last 35 years. But it was in his handling of immigration and Home Affairs where this dislike crystallised into utter hostility.

By 2015, it was already apparent to many in the medical profession that health services for asylum seekers on Nauru on Manus Island were desperately inadequate. Dutton’s response was to pass draconian changes to the Border Force Act which meant doctors could face up to two years in jail for speaking out about conditions in offshore detention camps. Of course it wasn’t just Dutton — Labor voted in favour of the changes without blinking an eye. The laws would put doctors in an unenviable position whereby their professional obligations to advance their patients’ interests could be in tension with the new laws. The government eventually watered down the laws after being threatened with a High Court challenge.

Still, offshore processing continues to pit Home Affairs against much of the medical establishment, which has regularly criticised the regime. Last year, the Australian Medical Association called the situation on Nauru a “humanitarian emergency”. The Royal Australian College of General Practitioners seems to be sounding the alarm about the surge in incidents of suicide and self harm every few weeks.

Meanwhile, doctors who worked in the camps said conditions were worse than war zones in the Balkans and Middle East, a situation exacerbated by the government consistently delaying the evacuation of sick patients. The complaints fell on deaf ears.

Secret court battles

Last year, the Coalition tried to claim a rare bit of moral high ground in the refugee debate. After years of concerns about Nauru and Manus, the government committed to removing all children from Nauru by Christmas. Scott Morrison praised the government for removing children quietly, without “showboating”.

In reality, the government had been spending thousands fighting in the Federal Court to stop sick children being evacuated to Australia for medical treatment. In over half the cases where people were removed from Nauru for treatment last year, the government sought to challenge the evacuation in court, even though the court upheld the initial medical assessment in every case.

Undermining medivac

In February this year, the medivac bill passed despite the government opposing it. The law essentially streamlines the process by which a person can be evacuated from offshore detention for medical treatment. While the law does not make any meaningful changes to the architecture of the offshore processing regime, it has still caused considerable hysteria among the government, who are calling to repeal it within days of parliament returning next month.

Short of repealing the law, however, the government has done everything in their power to neutralise its effects. As the laws were dramatically pushed through parliament, they tried to bring legal advice showing the bill was unconstitutional, an issue quickly fixed by an amendment.

Within days of the law passing, Scott Morrison announced that the Christmas Island detention centre would be reopened, and soon after Home Affairs boss Mike Pezzullo said people removed under the laws would first be taken there, rather than to the mainland. Christmas Island does not, however, have facilities for complex medical care. Then, after spending $185 million reopening the centre, and not taking a single asylum seeker, Morrison decided to shut it down again.

The Coalition also delayed transferring patients, and took its time appointing doctors to the medical review panel. And just to complicate matters further, Nauru’s government passed its own laws banning medical transfer out of the country based on overseas telehealth assessments.

But despite these barriers, the medivac process appears to be working, just not nearly as “effectively” as the government said it would. The medivac laws were meant to send hundreds of asylum seekers flooding into Australia; undermining our borders and giving a green light to people smugglers. Dutton went so far as to suggest refugees would kick Australians off hospital waiting lists. But Dutton recently admitted just 30 people had been transferred to Australia under the laws.

Regardless of what happens to medivac, the fight between doctors and Home Affairs will likely continue. The medical community is alarmed by a system that drives children to suicide and depression. Yet their concerns are consistently treated with contempt, and their attempts to bring a touch of humanity to a bleak system frequently fought.