Election 2019: What Australia's 'medevac' legislation means

CANBERRA — The first sitting week of the Australian Parliament in 2019 saw a huge defeat for the government. Legislation was passed in both houses requiring the government to transfer asylum seekers in need of medical treatment on Papua New Guinea’s Manus Island and Nauru to Australia, where two or more doctors will recommend whether further treatment is required. This was despite the government being opposed to the bill.

Known as “medevac,” the legislation applies only to asylum seekers currently in a regional processing country or a child who was born there. This means it is limited in its ability to protect asylum seekers trying to arrive by boat in the future. But its key objective is to address the physical and psychological welfare of asylum seekers who have been trapped in limbo — some for over five years — waiting for a new home, a concern that has been raised for years by medical doctors, NGOs, and the United Nations.

There are other limitations. Ministers can object to the medical assessment, requiring an independent panel of medical experts to review the finding and provide a final recommendation. They can also object to the transfer on security grounds, if the person has a known criminal record or based on the advice of the Australian Security Intelligence Organisation. These objections need to occur within 72 hours of the recommendation to transfer the asylum seeker to Australia.

Despite the limitations and the exemptions provided in the legislation, advocates warn of a scare campaign in the lead up to the Australian federal election, which must take place by May 18. Prime Minister Scott Morrison and his government are using media opportunities to warn of impending boat arrivals and the risk of Australia being flooded with “rapists and murderers.” This is despite the most recent government statistics showing the majority of people held in immigration are there for overstaying visas or having their visa canceled after arriving by air.

This suggests national security and border protection will again be a key element of the upcoming election. Speaking with Devex last week from her home base in South Australia, Assistant Minister for International Development and the Pacific Anne Ruston discussed medevac and what can be expected from her government on this issue as it seeks re-election.

Response to the legislation

On Wednesday following the passing of the medevac legislation in both houses of parliament, Morrison and foreign minister Marise Payne were engaged in a range of meetings in response to the legislation.

Though Ruston was not directly involved in the meetings, she said “the response to and the implications of the response [to] the medevac bill is something that is being worked [on] within various agencies that have direct responsibilities — whether they be the Attorney-General’s [department] that [has] to deal with the legislative implications but also Home Affairs, who are the lead agency.”

While the government would be implementing the will of the parliament, she added, “in doing so, we need to make sure we put every protection that is legally possible and legislatively available to us [in place] to continue to protect Australians and Australia’s borders.”

On Monday, home affairs secretary Michael Pezzullo said asylum seekers would first be sent to Christmas Island for medical treatment, and would only be transferred to the mainland if medically necessary.

Ruston recently visited Nauru and Papua New Guinea as part of the government’s new Pacific “step up” strategy, with both regional processing countries impacted by the medevac legislation.

“The concerns that were expressed by Nauru were largely around the government and the people of Nauru being tremendously offended by some of the commentary going on in Australia that was denigrating their island and their community, including comments that Nauru was the Guantanamo Bay of the Pacific,” Ruston said.

“These people are rightfully offended by comments like that. They are ... opening their doors, island and homes to welcome these people. I don’t think Australian commentators and activists think about them, their island and their hospitality. And they were very offended.”

The government of Nauru has limited media scrutiny of conditions on the island. Soon after the conversation with Ruston, it passed legislation to give its own health minister oversight of all overseas medical transfers, which could undermine medevac.

Papua New Guinea closed its Manus Island detention center in 2017, with remaining asylum seekers moved to other accommodation. Australia continues to invest in Papua New Guinea to provide protection to asylum seekers, including a security contract worth over 400 million Australian dollars ($284 million) currently being scrutinized by parliament.

Will this legislation help with the concerns of the international community?

It has been almost two years since U.N. special rapporteur on the human rights of migrants, François Crépeau, released a report highlighting the responsibility of the Australian government to ensure that all detained migrants have access to proper medical care. Mental health was among his greatest concerns, with his mission finding devastating impacts of an uncertain future on detainees.

The Australian government has been largely silent on international criticism such as this. But the medevac legislation could be seen as an important avenue for responding to concerns of human rights abuses, particularly as Australia is currently a member of the U.N. Human Rights Council.

Yet Ruston did not want to discuss the larger international response. “I’m not going to get into the debate about some of the commentary that we’ve seen from around the world,” she said. “I can only comment on what I’ve seen first hand.”

Instead, she quickly moved to echo the government’s argument against the medevac legislation: “The thing that bothers me more than anything ... is that the parliament passed a piece of legislation that is constitutionally incorrect because it hadn’t been through appropriate processes in the Senate.”

The legislation “will give a signal to people who were architects of such horror and misery when the boats [were] coming to suggest Australia has outsourced its border protection policy in the large extent to medical practitioners, requiring only two of them [to approve treatment] — and they could easily be activist doctors who sign off and request someone be brought from Nauru or Manus into Australia for a medical assessment,” she added.

“The other thing that we mustn’t forget is that in the haste of November, when they tried to force this piece of legislation through the Senate, even [opposition leader] Bill Shorten has admitted that if it had been successful in its form [it] would have allowed paedophiles, rapists and murderers to come into Australia on the say-so of a couple of activist doctors.”

“We do have to have a look at what was motivating this particular piece of legislation.”

The comments from Ruston were an exaggeration of Shorten’s explanation for the amendments, which he said removed “any doubt that the minister has the power to keep criminals out of Australia.” Objections to the legislation on constitutional grounds had been assessed and ruled on by the house speaker prior to the final vote.

But the discussion has helped to highlight the political battle lines that are being drawn, the role that humanitarian and development issues might play in the election campaign, and the potential opportunities for Australian NGOs to impact the discussion as Australia decides on the make-up of its next federal government.