manus asylum seeker refugee

This week, the Senate is holding inquiries into the possible repeal of the controversial medivac laws — the process that allows doctors to transfer sick offshore detainees to Australia — that passed against the minority Coalition government’s wishes earlier this year.

With the Coalition retaking the lower house in May and passing the very on-the-nose Migration Amendment (Repairing Medical Transfers) Bill 2019 in July, it all comes down to Senator Jacqui Lambie, who has announced she will only make a decision after the inquiry process.

So far, medical, legal and community representatives at the Senate inquiry have overwhelmingly called to retain the laws; critics cite attempts by Home Affairs to block applications for emergency transfers, or the preventable death of Hamid Khazaei from a foot infection in 2014, as examples of the pre-existing system failing sick people detained offshore.

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But even if Lambie holds and medivac remains, is the new system really enough? Crikey examines the many loopholes of a scheme that, at best, was designed as a bandaid.

Policy loopholes 

Another practical barrier for medivac is that, to work, detainees have to be able to access lawyers. That Nauru, coincidentally, introduced a ban on “telemedicine” — teleconferencing with doctors — immediately after the legislation passed has meant transfers for that cohort have been limited. 

For when transfers absolutely are required, Australia and Nauru also have a Turnbull-era deal that sees detainees swept away to Taiwan for treatment then plonked right back in detention, free from all those refoulement laws that have kept some people in Australia. According to Senator Kim Carr on Monday, one example saw $300,000 spent on transporting and treating a detainee having kidney stones removed.

The cohort on Manus Island found themselves with their own immediate hurdle on August 12 when the Papua New Guinea government suddenly announced it would imprison those not found to be refugees in the brand new, secretive Bomana prison. At least 53 men — some of whom advocates say have only not been found to be refugees because they refused to be processed on PNG rather than in the country in which they sought asylum (Australia) — have been imprisoned and had their phones confiscated, stripping them of their primary means of legal and medical communication .

A letter to asylum seekers from the PNG government.

As doctors at yesterday’s Senate inquiry made clear, this cohort of prisoners includes one person approved for medivac prior to imprisonment, two that have been approved since, and 33 who were working through the program. None of these people have been heard from since August 12.

While a supreme court verdict in 2016 establishing that Papua New Guinea cannot detain a group of innocent human beings indefinitely means this stay likely is not permanent, with the medivac timeframe tightening, it might as well be. 

Medical, legal, and activist burnout

First up at Monday’s inquiry was the President of the Australian Medical Association, Dr Tony Bartone, who called on the government not just to retain the system but provide funding for the health group overseeing the process.

A key, last-minute argument by the Coalition in February against Phelps and co’s original legislation — that the Senate cannot put up a money bill — saw a hasty amendment to remove any ongoing funding before the bill was passed in February.

This didn’t entirely phase doctors and lawyers submitting the medivac applications — groups from the multi-party Medical Evacuation Response Group had been doing pro-bono work for years anyway, and Bartone has said this is not a “game-breaker and does not negate the need for a medical body independent of government”. But it does mean that the group conducting assessments, the eight-person Independent Health Advice Panel, has been swamped. Bartone yesterday warned the system could prove unsustainable without some form of remuneration.

And while the medivac process was somewhat slow to begin with — likely to rebuff Dutton’s claims that it would open a floodgate, and with some hope at the time of a Labor government — the potential repeal means both doctors and human rights lawyers are now working overtime.

The offshore ticking clock

Finally, medivac was never meant to be a permanent solution; detainees are confined to either detention centres or Alternative Places of Detention (APODS i.e. hotels, houses etc), are subject to return to Manus and Nauru post-treatment, and cannot be given an Australian visa.

It bears repeating that, after just three years of indefinite detention, detainees were found to have some of the highest rates of recognised mental illnesses on earth, and six years in, doctors told yesterday’s inquiry 91% of detainees have a psychiatric illness and 97% have a physical ailment.

Home Affairs can cite “concern” that medivac fosters self-harm as a way of sneaking into Australia all it wants, but tell that to the man flown from Nauru to Brisbane over the weekend with critical, self-inflicted burns.

With the US refugee swap coming to a grinding halt under Donald Trump’s “extreme vetting”, transferred detainees at risk of deportation, and the Coalition both continuing to reject New Zealand’s offers of resettlement and attempting to permanently ban anyone who has sought Australia’s help by boat, medivac might be a necessary stop-gap. But is far from the end of the matter.

For anyone seeking help, Lifeline is on 13 11 14 and Beyond Blue is 1300 22 4636.

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Peter Fray
Peter Fray
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