Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697641809320.pdf (Australia)
16 August 2019 Committee Secretary Senate Legal and Constitutional Affairs Committee PO Box 6100, Parliament House Canberra ACT, 2600 Dear Committee Secretary, Submission to the inquiry into the Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions] Thank you for the opportunity to provide a submission to the Legal and Constitutional Affairs Legislation Committee inquiry i nto the Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions].
The Migration Amendment (Regional Medical Transfers) Bill 2019 [Provisions] makes amendments to the Migration Act 1958 (Cth).

The Bill amends the Migration Act 1958 to repeal the medical transfer provisions inserted by the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the Medevac Bill).

It is Amnesty's position that this proposed amendment is unnecessary, cruel and contrary to international human rights law.
Amnesty International recommends that the Bill not be passed as it is not compatible with Australia’s international human rights obligations, will have a negative impact on those still on Manus and Nauru as well as those already transferred to Australia for medical treatment, and will undermine efforts for the closure of offshore processing.

1.

What is Medevac and why was it necessary?

The Medevac Bill was passed by Australia’s parliament and became law on 1 March 2019.
Before discussing the serious human rights impact of repealing the Medevac Bill it is important to highlight what it does and why it was introduced.

The legislation enables asylum seekers and refugees held under Australia’s offshore detention arrangements to be transferred to Australia for medical treatment or assessment if two doctors say it is necessary, unless the Minister Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 refuses it on character or security grounds.
There were a number of reasons why the Medevac legislation was deemed, and remains, necessary.

As highlighted by the Refugee Council of Australia: 1 ● Many people came into detention with pre-existing injuries and trauma.

This has been compounded by a widespread deterioration of the mental and physical health of the people detained as a result of the offshore detention conditions.

● 12 people have died in offshore detention to date.
The inquiry into the case of Hamid Khazaei showed that he died as a direct result of the Australian Government’s refusal to follow medical orders.

● There has been an epidemic of self harm, suicides and suicide attempts, some of which have even been made by young children.

In 2016, UNHCR found that 88% of people on Manus Island were suffering from depression, anxiety and/or post-traumatic stress disorder.
● The medical facilities on Manus Island and Nauru are grossly inadequate for dealing with this crisis.

Furthermore, the Australian Government has made drastic cuts to the support services and monitoring previously in place.

2 Following the passing of the Medevac legislation, a process was implemented to ensure medical decisions on where best a patient in critical need should get the treatment they required was put, first and foremost, in the hands of doctors.
As the Coroner’s findings into the death of Hamid Khazei, which were handed down in July 2018, clearly stated: “Decisions about medical transfers should be based on clinical considerations.” The Medevac legislation ensures this is the case.
3 To date, with the introduction of the Medevac legislation we have seen the creation of: a) an independent medical process, based on the orders of two independent Australian doctors, taking medical decisions out of the hands of politicians and bureaucrats; and b) a process that is clear, transparent, enforceable and timely.
Prior to this, medical transfers had been hampered or blocked by delays and/or political obstruction, or required costly legal interventions, the vast majority of which found in favour of those in need of transfer.

4 Under the Medevac Bill, families are able to stay together during medical treatment.

The Medevac Bill does not change Operation Sovereign Borders, boat turn backs, or other elements of either Coalition or Labor’s border policy, and does not provide for permanent resettlement in Australia.
5 It is worth noting that 1,246 individuals were returned to Australia from Manus and Nauru, for medical and other reasons, prior to the introduction of the Medevac Bill.

This has occurred over a number of years, under the Government’s own medical transfer process.

While 282 were returned back to Manus and Nauru, the vast majority have remained in Australia.
6 1 https://www.kaldorcentre.unsw.edu.au/sites/default/files/Factsheet_Medevac_8Mar2019.pdf 2 https://www.refugeecouncil.org.au/umt-bill-facts/ 3 See https://www.courts.qld.gov.au/__data/assets/pdf_file/0005/577607/cif-khazaei-h-20180730.pdf , p4 4 For greater detail on the process see: https://merg.org.au/process/ 5 https://www.refugeecouncil.org.au/umt-bill-facts/ 6 https://www.kaldorcentre.unsw.edu.au/sites/default/files/Factsheet_Medevac_8Mar2019.pdf , p2 Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 A significant number of those transferred back to Australia came in the second half of 2018, in order to get children (and their families) off Nauru.
Despite the fact that it took a number of legal challenges, in the face of government opposition, to achieve this outcome, the Federal Government ultimately celebrated the fact that all children were off the island.
Coupled with the recent statement from the PNG Prime Minister, calling 8 for a timetable to end the housing of men on Manus, it is difficult to understand why the Government is so determined to return vulnerable individuals in need of medical care, back to the offshore environments that have been directly responsible for harming many of them.
7 One of the stated aims, outlined in the Explanatory Memorandum for the Migration Amendment (Regional Medical Transfers) Bill 2019 [Provisions] , is the perceived inability of the Medevac Bill to ensure the Government has the ability to return back to Manus and Nauru those transferred here for treatment.

It is unclear, however, how this group differs in any way, practically and legally speaking, from those who have been transferred prior (and concurrent) to the introduction of the Medevac Bill.
Many, as noted above, have been in Australia for years, living in the Australian community under Residence Determination.

10 9 Amnesty International is gravely concerned at any suggestion that those currently in Australia with chronic mental health conditions, serious medical conditions and survivors of sexual and other violence would be returned to Manus and Nauru.

2.
2.

Amnesty International’s research on Manus and Nauru Amnesty International has been able to visit both Nauru and Manus over a number of years, since the facilities were re-opened in late 2012.

We are one of the only independent organisations, with the ability to report publicly, that has been able to do so.

Between 2012 and 2019, following each investigation, we released a number of reports which consistently highlighted the inadequate health care provisions on both Manus and Nauru.
These reports include: ● This is Breaking People, Human Rights Violations at Australia’s Asylum Seeker Processing Centre on Manus Island, Papua New Guinea (December 2013) 11 ● This is Still Breaking People (May 2014) 12 ● Island of Despair, Australia’s “Processing” of Refugees on Nauru (October 2016) 13 7 https://www.sbs.com.au/language/english/last-refugee-children-to-leave-nauru-as-calls-mount-to-address- medical-crisis 8 https://www.smh.com.au/politics/federal/png-calls-for-end-of-offshore-processing-on-manus-island-20190 722-p529hi.html 9 https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6343_ems_1a615ff8-fbf6-41ba-8ccb-5a02d 997cfa1/upload_pdf/711194.pdf;fileType=application%2Fpdf 10 Amnesty International understands other submissions, such as the submission from the UNSW Kaldor Centre, will provide a detailed legal analysis and as such it will not be covered here.
11 https://www.amnesty.org.au/wp-content/uploads/2016/09/Amnesty_International_Manus_Island_report.pd f 12 https://www.amnesty.org.au/wp-content/uploads/2016/09/This_is_still_breaking_people_update_from_Ma nus_Island.pdf 13 https://www.amnesty.org/en/documents/asa12/4934/2016/en/ Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 ● Punishment Not Protection Australia’s Treatment of Refugees and Asylum Seekers in Papua New Guinea (January 2018) 14 ● Health Care Cuts, Australia’s Reduced Health Care Support for Refugees and Asylum Seekers on PNG (May 2018) 15 ● Until When, The Forgotten Men of Manus Island (co-written with RCOA, November 2018) 16 It is telling that Amnesty International released three reports during the course of 2018 focusing primarily on the winding back of health care being provided to those being held offshore, at a time when their health needs, particularly their mental health was rapidly declining.
While the evidence, findings and recommendations of these reports are a matter of public record, a key concern for Amnesty International, which we again reiterated across our 2018 reports, were the delays in transferring those in need of critical medical care, which could not be provided offshore, back to Australia.
For instance in our May 2018 report, specifically focusing on the health care on Manus, we recommended Australia: “Continue to facilitate the transfer of refugees to Australia when medical treatment or diagnosis cannot be undertaken in Papua New Guinea and ensure that the procedures on transfers are clear, and determined by medical professionals based on medical needs.” Ultimately Amnesty International welcomed the introduction of the Medevac Bill as it provided precisely this outcome.
17 Amnesty International was not alone in documenting the escalating health care crisis towards the end of 2018.

Others who were also gravely concerned included the UNHCR in October and November 2018.

Since the introduction of the Medevac Bill, Amnesty International has maintained contact with individuals on Manus and Nauru and has actively participated in the MERG coalition to ensure those most critical are prioritised for urgent health care that cannot be provided on the islands.
It is important to note that the healthcare environment (particularly, though not exclusively, as it relates to mental health) has not improved during the course of 2019, as evidenced by the dramatic upsurge in suicide attempts and self harm incidencts following the May 2019 election.

19 18 As evidenced in Amnesty International’s reports, Amnesty International has been gravely concerned with the numerous international human rights law breaches resulting from Australia’s offshore processing regime.
This includes Australia’s obligation to realise the right to the highest attainable standard of health for the refugees and asylum seekers it has sent offshore.
As such, Amnesty International is particularly concerned with the “Statement of 20 14 https://www.amnesty.org.au/wp-content/uploads/2018/02/Manus-briefing-FINAL4.pdf 15 https://www.amnesty.org.au/wp-content/uploads/2018/05/AMNESTYINTL-Manus-Health-Care-Cuts-REP ORT-18052018.pdf 16 https://www.refugeecouncil.org.au/manus-island-report/ 17 https://www.amnesty.org.au/wp-content/uploads/2018/05/AMNESTYINTL-Manus-Health-Care-Cuts-REP ORT-18052018.pdf , p11 18 See, https://www.unhcr.org/en-au/news/briefing/2018/10/5bc059d24/unhcr-urges-australia-evacuate-off-shore-f acilities-health-situation-deteriorates.html and https://www.unhcr.org/en-au/news/press/2018/11/5bff8f237/unhcr-appeals-for-urgent-medical-intervention -by-australia.html 19 See for instance, refugee-suicide-attempts-spike-manus-australia-election-190523022124718.html 20 See for instance, https://www.amnesty.org.au/wp-content/uploads/2018/05/AMNESTYINTL-Manus-Health-Care-Cuts-REP ORT-18052018.pdf , p3 Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 Compatibility with Human Rights, Migration Amendment (Repairing Medical Transfers) Bill 2019” (Compatibility Statement) provided by the Minister.
21 3.

Breach of Human Rights Law The Government claims in the Compatibility Statement that the Repairing Medical Transfer Bill meets Australia’s Human Rights obligations in respect of: ● Non-refoulement ● Respect for family and children ● Right to Health Amnesty International does not agree with this assessment.
Non-refoulement Australia has obligations under the International Covenant on Civil and Political Rights (ICCPR) (Articles 6 and 7) the Convention Against Toture (CAT) (Article 3) and the 1951 Convention relating to the Status of Refugees (the Refugee Convention) (Article 33.1).

The Compatibility Statement states that the Minister and the Commonwealth has the power to return persons to a regional processing country that have been brought to Australia for a temporary purpose.
Although the Compatibility Statement notes exemptions can apply, we remain gravely concerned that by exercising such powers (to return) Australia will be in breach of its non-refoulement obligations on two counts if it begins forcibly returning the over 1000 individuals, including families and children, who have been brought here for medical care: 22 1.
The fact that individuals are likely to face human rights abuses on Nauru and Manus if returned, which is in of itself a breach of Australia’s non-refoulement obligations; and 2.

The fact that it is likely that individuals will agree to return home, despite being recognised as refugees, with an acknowledged fear that they will face human rights violations on return, rather than face ongoing abuses on Manus and Nauru.

This is known as “constructive refoulement” .


23 On the first count, Amnesty International is aware that a number of individuals who have experienced human rights abuses, often a key factor contributing to the need to be medically evacuated, could again be subject to similar abuses if forcibly returned to either Manus or Nauru.
These include, for instance: ● Individuals who have experienced sexual or physical violence (including where the perpetrator is still at liberty on the island) ● Homosexual men facing being returned to PNG, where homsexuality is illegal 21 See, Attachment A, https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6343_ems_1a615ff8-fbf6-41ba-8ccb-5a02d 997cfa1/upload_pdf/711194.pdf;fileType=application%2Fpdf p9 22 Ibid, p11 23 For a discussion on what is “constructive” refoulement see, for instance, https://www.amnesty.org/download/Documents/ASA2321572015ENGLISH.pdf Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 ● Arbitrary arrest and deprivation of liberty 24 ● Right to health (detailed below) 25 On the second count, Amnesty International has previously expressed concerns with the “voluntariness” of returns off Nauru (and Manus) for individuals from common source countries for refugees, such as Afghanistan, Iraq, Somalia, 26 Sri Lanka, Sudan and Syria.
To date over 811 people have been voluntarily repatriated from Manus and Nauru.

Without Medevac, seriously unwell individuals have been left offshore, with a choice of staying in a situation where they have been told they will suffer long term physical consequences (for instance blindness), or return to a country where they face human rights violations.

Amnesty International documented one such case in our 2016 report on Nauru.
The Medevac legislation ensures these individuals are not left to make a choice of suffering human rights violations offshore or return to face human rights violations at home.

Helping to ensure Australia does not breach its non-refoulement obligations.
27 Amnesty International also has grave concerns that vulnerable refugees, many of whom have been living in Australia for years, recovering from abuses on Manus and Nauru, will feel compelled to return to the recognised dangers they face in their own countries, rather than again face the abuses they have previously suffered in offshore facilities on Manus and Nauru.

A clear breach of Australia’s non-refoulement obligations.
Amnesty International does not believe the current discretionary “exemptions” provide adequate safeguards against either of these forms of refoulement and the “Repairing Medical Transfers Bill” does nothing to address this fact.
Respect for the family and children As noted in the Compatibility Statement, the rights Australia is obliged to uphold relating to respect for the family and children are contained in the ICCPR (Articles 17(1), 23(1) and 24) and the Convention on the Rights of the Child (CRC) (Articles 3, 9 and 10).
Without going into a detailed analysis of each of these Articles, when looking at the history of how children and families have actually been treated on Nauru, two issues are immediately apparent: first, with regards to children, the human rights violations linked to their particular status as minors both with respect to their health, and their safety were significant; second, the separation of families, often deliberately, prior to the introduction of the Medevac Bill, was a common practice (with the sick individual often transferred, either alone or with one family member, while other family members were forced to remain behind).
28 In the first case, Amnesty International, and others , have consistently outlined the appalling conditions and abuses faced by refugee and asylum-seeker children on Nauru.

In 2016 Amnesty International went so far as to say “Nauru 30 is a horrific place for refugee and asylum-seeker children.” Despite this, children remained on Nauru until February 2019.

It took a concerted campaign, backed with litigation that demonstrated the failing health needs of these children, to finally end this practice.
Ironically, as noted above, the Government celebrated this event.
While the 29 24 See for instance, Island of Despair, https://www.amnesty.org/en/documents/asa12/4934/2016/en/ , p39 25 See, for instance, Island of Despair, https://www.amnesty.org/en/documents/asa12/4934/2016/en/ , p23 26 https://www.asyluminsight.com/statistics#.XVT8LCOWaUk 27 Island of Despair, https://www.amnesty.org/en/documents/asa12/4934/2016/en/ , p23 28 Amnesty International first highlighted this practice in 2016, see Island of Despair, https://www.amnesty.org/en/documents/asa12/4934/2016/en/ , p27 29 See, for instance, Committee on the Rights of the Child, Concluding observations on the initial report of Nauru , Convention on the Rights of the Child, CRC/C/NRU/CO/1, 28 October 2016 30 Island of Despair, https://www.amnesty.org/en/documents/asa12/4934/2016/en/ , p29 Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 Compatibility Statement notes the Medevac Bill was not responsible for bringing children to Australia, it is clear that had this legislation existed prior, a great deal of time, litigation and suffering could have been avoided.
Secondly, as noted by the Compatibility Statement: “The scope of the right to respect for the family and the right to freedom from interference with the family requires countries to adopt legislative, administrative and other measures to protect families, and to refrain from arbitrary interference in families.” It is clear that the Medevac Bill provides exactly the legislative measure needed, in a way previous practice clearly did not.
While the Compatibility Statement was explicit in stating no children have been transferred under the Medevac Legislation, what it failed to acknowledge was that family members have been reunited under Medevac, in keeping with Australia’s human rights obligations.

To state that the “Repairing Medical Transfers Bill” supports family unity is a serious mischaracterisation of the previous practice prior to the introduction of the Medevac Bill.
Amnesty International strongly believes that repealing the Medevac Bill would again put Australia at risk of breaching its obligations under both the ICCPR and the CRC, with regards to the rights of families and children.
31 Right to Health With regard to the Right to Health the Compatibility Statement highlights Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), specifically: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The response the Compatibility Statement outlines is that while in Australia those transferred will continue to receive medical care consistent with Article 12 of the ICESCR.

It does not address the healthcare situation on Manus and Nauru that Medevac addresses.
Amnesty International and others have consistently highlighted that Australia not only has an obligation to those transferred here but Australia also has an obligation to realise the right to the highest attainable standard of health for refugees and asylum seekers it has sent to Manus and Nauru.

It is clear that they are entirely dependent on the Australian government to provide and pay for their health care.
If that care cannot be provided on Manus and Nauru then Australia has a duty of care to bring them here for treatment.

This duty of care was reiterated, for instance, by the findings of the Federal Court of Australia in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 ( Plaintiff S99 ).
34 33 32 In order to meet this duty of care and to ensure Australia does not further breach its obligations under Article 12 of the ICESCR, the Medevac Bill is clearly necessary, reasonable and appropriate.
31 Compatibility Statement, Attachment A, https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6343_ems_1a615ff8-fbf6-41ba-8ccb-5a02d 997cfa1/upload_pdf/711194.pdf;fileType=application%2Fpdf p12 32 https://www.unhcr.org/en-au/news/press/2018/11/5bff8f237/unhcr-appeals-for-urgent-medical-intervention -by-australia.html 33 See, for instance, Health Care Cuts, https://www.amnesty.org.au/wp-content/uploads/2018/05/AMNESTYINTL-Manus-Health-Care-Cuts-REP ORT-18052018.pdf , p3 34 Amnesty International understands others, including the UNSW Kaldor Centre, will be making submissions outlining Australia’s duty of care to those offshore, with regards to health care and as such Amnesty International will not go into further details in this submission.
Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 Amnesty International understands that as of August 10, 2019, 114 individuals have been approved under Medevac with only a very small number of applications being rejected.

There is no evidence that this legislation has undermined the Australian Government’s regional processing arrangements, or that it has impinged on the sovereignty of Papua New Guinea or Nauru.
Particularly in circumstances where the Australian Government’s own transfer processes have continued in paralell with the Medevac process.

Rather, a sensible medical process, where clinical decisions are being made by doctors rather than bureaucrats, or through litigation, has been implemented.
And while it does not absolve Australia of all the continued human rights breaches associated with offshore processing it does go some way to ensure the Right to Health can be realised, at least for those in critical need.

4.
4.

There are alternatives There are better alternatives for refugees than: ● Unwinding the necessary, reasonable and appropriate Medevac legislation (that is fit for purpose), ● having people drown at sea off our coast, or ● being hopelessly stuck in open-air prisons run by the Government.

That’s why Australia needs a better plan.

Australia is a decent country.

We’ve got it in us to show common sense and to solve problems.
Australia’s recent policies have failed at delivering a fair, safe and orderly system for refugees.

Australia can protect our borders while offering safety to those who need our help.

And we can benefit from the contributions new Australians make to our community.

There is a better plan for refugees that the Committee and the Parliament should consider: 1.

Boost Australia’s aid program to help neighbouring countries better protect and support refugees.
When people are legally recognised, have safe accommodation, can send their kids to school, and can work and access health services, they won’t be forced to make dangerous journeys to Australia.

2.

Make sure the most vulnerable people are resettled within our region and globally .

We can reduce the pressure on individual countries by working closely with New Zealand, Japan, the USA, Canada and others to ensure everyone does their bit.

3.

I nclude refugees in existing visa programs .


In addition to our core resettlement program, let’s recognise the valuable skills and qualifications of many refugees by including them when we allocate student, work & family reunion visas.

Also, ensuring any private sponsorship program is in addition to the Government’s allocation.

4.

Assess refugee applications within a defined time period .
When people know they will be assessed in an efficient and orderly way, they are less likely to make a dangerous boat journey.

5.

Undertake timely search and rescue operations .

Instead of hazardous push-backs of boats at sea, we can run proper search and rescue operations to save lives.
Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 It’s time Australia stopped playing politics with people’s lives and got on with a long-term, common sense plan for the fair treatment of refugees.

Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35 RECOMMENDATIONS Amnesty International Australia recommends that: 1.
2. the Bill not be passed; and the Government and the Parliament focus their efforts on better policy alternatives for refugees.

Yours sincerely Dr Graham Thom Refugee Adviser Amnesty International Australia Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions]Submission 35