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Migration Amendment (Urgent Medical Treatment) Bill 2018



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ISSN 1328-8091

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BILLS DIGEST NO. 56, 2018-19 11 FEBRUARY 2019

Migration Amendment (Urgent Medical Treatment) Bill 2018 Claire Petrie Law and Bills Digest Section Harriet Spinks Social Policy Section

Contents

Scope of digest .......................................................... 3

Purpose of the Bill ........................................................... 3

Background ..................................................................... 3

Overview of regional processing arrangements ......... 3 Health care services in regional processing countries .................................................................... 5

Key issues and provisions ................................................ 7

Existing statutory scheme ........................................... 7

Medical transfer power ............................................... 8

Legacy minors ............................................................ 8

Relevant transitory persons ...................................... 9

Transfer of family members ...................................... 9

Minister’s approval ................................................... 10

Refusing transfer on security grounds .................... 10 Refusing transfer on medical grounds .................... 11 Reasons for decisions .............................................. 11

Independent Health Advice Panel ............................. 11

Review of adverse transfer decision ....................... 12

Other functions and powers ................................... 12

Committee consideration .............................................. 12

Selection of Bills Committee ..................................... 12

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 13

Date introduced: 3 December 2018

House: House of Representatives

Portfolio: Private Member's Bill

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2019.

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Policy position of non-government parties/independents.................................................... 13

Position of major interest groups................................... 13

Financial implications .................................................... 13

Statement of Compatibility with Human Rights.............. 14

Parliamentary Joint Committee on Human Rights ... 14

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Scope of digest The Migration Amendment (Urgent Medical Treatment) Bill 2018 was introduced in the House of Representatives on 3 December 2018 by crossbenchers Kerryn Phelps, Andrew Wilkie, Adam Bandt, Julia Banks and Rebekha Sharkie. On 6 December 2018, an amended version of the Bill’s provisions passed the Senate as Schedule 6 of the Government’s Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, following amendments moved by Senators Tim Storer and Nick McKim. The Miscellaneous Measures Bill, including the Senate’s amendments, will now return to the House for consideration.

This digest discusses both the Urgent Medical Treatment Bill as introduced, and the amended version of the Bill’s provisions contained in Schedule 6 of the Miscellaneous Measures Bill.

Purpose of the Bill The purpose of the Migration Amendment (Urgent Medical Treatment) Bill 2018 (the Bill) is to amend the Migration Act 1958 (Cth) (the Act) to require the temporary transfer to Australia of minors and other ‘transitory persons’ in regional processing countries for the purpose of receiving medical or psychiatric assessment or treatment.

Background

Overview of regional processing arrangements The policy of transferring asylum seekers who arrive in Australia unauthorised by boat to processing centres in Nauru and Papua New Guinea (PNG) has a long and complex history. Regional processing of asylum seekers was originally introduced by the Howard Government in 2001.1 It was ended by the Rudd Government in 2008, but reintroduced by the Gillard Government in August 2012, following the recommendations of the Report of the Expert Panel on Asylum Seekers.2

On 29 August 2012 the Australian Government signed a Memorandum of Understanding (MOU) with the Government of Nauru and, on 8 September 2012, the Government signed an updated MOU with the Government of PNG.3 Under these arrangements, any asylum seeker who arrived in Australia by boat could be (but did not necessarily have to be) transferred to a Regional Processing

1. For information on regional processing under the Howard Government see J Phillips, The ‘Pacific Solution’ revisited: a statistical guide to the asylum seeker caseloads on Nauru and Manus Island, Background note, Parliamentary Library, Canberra, 4 September 2012.

2. The Expert Panel on Asylum Seekers was established by the Gillard Government to consider options on the best way forward for asylum seeker policy. One of its recommendations was that offshore processing be reintroduced as a short term ‘circuit-breaker’ while longer term cooperation measures were pursued with regional partners. See A Houston, Report of the Expert Panel on Asylum Seekers, [Department of the Prime Minister and Cabinet, Canberra], 2012.

3. C Bowen (Minister for Immigration and Citizenship), Australia signs memorandum of understanding with Nauru, media release, 29 August 2012; and Australia and Papua New Guinea sign updated memorandum of understanding, media release, 8 September 2012.

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Centre (RPC) in a designated regional processing country for processing.4 The first transfer of asylum seekers to Nauru occurred on 14 September 2012 and to PNG on 21 November 2012.5

Following his return to the Prime Ministership in June 2013 Kevin Rudd announced a new arrangement whereby all, not just some, asylum seekers who arrived by boat would be transferred to PNG for processing. Further, those found to be refugees would also be settled in PNG, or elsewhere in the region—the clear policy intention was that they would never be resettled to Australia.6 A similar agreement was made with the Government of Nauru in August 2013.7

Upon forming Government in 2013 the Coalition continued with the policy of regional processing of asylum seekers in Nauru and PNG, and has held fast to the commitment to not allow any asylum seekers processed in RPCs to settle in Australia. It has consistently argued that resettling this cohort in Australia would act as a pull factor to other asylum seekers wishing to come to Australia.8

Responsibility for processing refugee claims in Nauru and PNG rests with the Governments of those countries, not Australia. Those found to be refugees have various options available in relation to their long-term resettlement:

• those assessed as refugees in Nauru may receive a visa to remain in Nauru for 20 years9

• those assessed as refugees in PNG may be resettled permanently in PNG10 and

• those assessed as refugees in either Nauru or PNG may apply for resettlement in the United States (US) under the resettlement arrangement agreed between Australia and the US in 2016.11

The vast majority of people transferred from Australia to an RPC have now had their refugee claims assessed, and those found to be refugees have either been settled in Nauru, PNG or the US, or are awaiting resettlement. Those found not to be refugees have either returned to their country of origin (voluntarily or involuntarily) or are waiting to be returned. The RPC in PNG was closed in October 2017, and those awaiting return or resettlement were moved to transit centres elsewhere on Manus Island.12 The RPC in Nauru remains open, with people still residing there, but

4. Currently only Nauru and PNG are designated as regional processing countries under section 198AB of the Migration Act. See: Migration Act 1958 - Instrument of Designation of the Republic of Nauru as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958 - September 2012 and Migration Act 1958 - Instrument of Designation of the Independent State of Papua New Guinea as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958 - October 2012.

5. C Bowen (Minister for Immigration and Citizenship), First transfer to Papua New Guinea, media release, 21 November 2012; Nauru designated for regional processing, media release, 10 September 2012; and Asylum seeker transfer to Nauru, transcript, 14 September 2012.

6. K Rudd (Prime Minister), Australia and Papua New Guinea Regional Settlement Arrangement, media release, 19 July 2013; and Department of Immigration and Citizenship (DIAC), ‘Regional resettlement arrangements’, DIAC website, July 2013. 7. K Rudd (Prime Minister), New arrangement with Nauru Government, media release, 3 August 2013. 8. For example see P Dutton (Minister for Home Affairs), Transcript: interview with Kieran Gilbert, Sky News, media release,

10 December 2018. 9. Senate Legal and Constitutional Affairs References Committee, Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional

Processing Centre, The Senate, Canberra, April 2017, p. 118. 10. Ibid., p. 118. 11. M Turnbull (Prime Minister) and P Dutton (Minister for Immigration and Border Protection), Refugee resettlement from

regional processing centres, media release, 13 November 2016. A small number of people (seven) processed in Nauru were resettled in Cambodia under an agreement reached with Cambodia in 2014, however that arrangement ceased in 2018. See SBS News, ‘Cambodia refugee deal to lapse this year’, SBS News website, 31 May 2018. 12. P Dutton (Minister for Immigration and Border Protection), Manus RPC closure, media release, 31 October 2017.

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has operated since 2015 as an ‘open centre’ (meaning residents are free to come and go from the centre and move around the island without formal restriction).13

As at October 2018, there were 652 people in Nauru who had been sent there under Australia’s offshore processing arrangements—541 had been found to be refugees, 88 were still having their refugee claims processed, and 23 had had their refugee claims rejected.14 A further 276 people had been resettled from Nauru to the US.15 As at 31 December 2018 there were 10 people residing in the Nauru RPC.16

As at October 2018 there were 626 people in PNG who had been sent there under Australia’s offshore processing arrangements—495 had been found to be refugees, and 131 had had their refugee claims rejected. A further 146 people had been resettled from PNG to the US.17

Health care services in regional processing countries Regional processing of asylum seekers has been criticised by refugee advocates and human rights groups on many grounds.18 One of the major points of contention has been the adequacy of health care, which has been called into question by doctors and medical bodies as well as by refugee and human rights groups. This is the issue to which the current Bill relates. The premise of the Bill is that the health care provided in Nauru and PNG is frequently inadequate, and people requiring urgent medical care should be transferred to Australia to receive that care.

When regional processing recommenced in 2012, International Health and Medical Services (IHMS) was contracted to provide health care in both the Nauru and PNG centres.19 Health care services for those transferred to Nauru continue to be provided by IHMS, however the IHMS contract for health care services on Manus Island ended in April 2018—health care for people who have been transferred to PNG is now provided by Pacific International Hospital (PIH), and through the local PNG hospital system.20 Advocates have expressed concern that, under the new arrangements, the standard of health care provided to refugees in PNG has declined significantly. In particular, critics are concerned that the health care provided is inadequate to deal with the mental health services required by refugees who have experienced torture, trauma, and prolonged detention.21

Similarly, refugee and human rights advocates, as well as medical groups, have expressed concern over the adequacy of health care arrangements in Nauru, particularly in relation to the mental

13. P Dutton (Minister for Immigration and Border Protection), Australia welcomes Nauru open centre, media release, 5 October 2015. 14. Senate Legal and Constitutional Affairs Legislation Committee, Supplementary Budget Estimates, Home Affairs portfolio, 22 October 2018, p. 143. 15. Ibid., p. 144. 16. Department of Home Affairs (DHA), Immigration detention and community statistics summary, DHA, 31 December 2018. 17. Senate Legal and Constitutional Affairs Legislation Committee, Supplementary Budget Estimates, Home Affairs portfolio,

22 October 2018, p. 149. 18. For an overview of these issues see Senate Select Committee on the Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru, Taking responsibility: conditions and circumstances at Australia's

Regional Processing Centre in Nauru, The Senate, Canberra, August 2015. For an example of these criticisms see Amnesty International, This is still breaking people: update on human rights violations at Australia’s asylum seeker processing centre on Manus Island, Papua New Guinea, Amnesty International, May 2014. 19. R de Boer, Health care for asylum seekers on Nauru and Manus Island, Background note, Parliamentary Library, Canberra, 2013. 20. Senate Legal and Constitutional Affairs Legislation Committee, Budget Estimates, Home Affairs portfolio, 21 May 2018, p. 160. 21. Amnesty International, Health care cuts: Australia’s reduced health care support for refugees and asylum seekers in Papua New Guinea, Amnesty International, May 2018.

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health needs of children.22 The provision of health care operates differently for those still residing in the RPC and those who have been found to be refugees and resettled in the community—the health care provided in the RPC is expected to be broadly commensurate with the level of health care available in Australia, while for those resettled in the Nauruan community the standard is broadly commensurate with the level of health care available to the Nauruan population.23

Under current arrangements, asylum seekers and refugees in Nauru and PNG may be brought to Australia24 for medical treatment or assessment following a request by the contracted health care provider, or the Government of PNG or Nauru.25 Requests for medical transfer to Australia are considered by the Department of Home Affairs’ Transitory Persons Committee (comprising senior officers from the Department), which makes a recommendation concerning the transfer to the Australian Border Force Assistant Commissioner, Offshore Operations Command. That officer then makes the decision to transfer or not transfer the person to Australia.26 People transferred from Nauru or PNG to Australia for medical treatment are only permitted to remain in Australia for the duration of that treatment, and are then returned to the relevant regional processing country. There is no provision for them to remain in Australia permanently (see the ‘Key issues and provisions’ section of this digest below for an explanation of the existing statutory scheme).

Concern about the adequacy of health care in Nauru and PNG has mounted over the last several months.27 Attention on the issue came to the political fore when Dr Kerryn Phelps was elected as the Member for Wentworth in a by-election on 20 October 2018, and identified the removal of children and their families from Nauru as one of her top priorities.28 In her maiden speech to Parliament on 28 November 2018 Dr Phelps affirmed her commitment to this issue, stating ‘I cannot be an idle bystander to the reports of the shocking mental and physical state of children held on Nauru, helpless victims of Australia's offshore processing policy’.29 Dr Phelps subsequently moved quickly to introduce the Bill, with the support of several other members of the cross bench.

On 4 February 2019 the Government announced plans for a new Medical Transfer Clinical Assurance Panel, which it states would provide ‘an additional layer of oversight of decisions for the medical transfer of individuals from regional processing countries’.30 The Panel would be appointed by the Minister, chaired by a nominee of the Commonwealth Chief Medical Officer, and

22. For example Australian Human Rights Commission (AHRC), Children on Nauru, media release, 23 October 2018; Medecins Sans Frontieres (MSF), Indefinite despair: the tragic mental health consequences of offshore processing on Nauru, MSF, December 2018.

23. Department of Immigration and Border Protection (DIBP), Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the conditions and treatment of asylum seekers and refugees at the regional processing centres in the Republic of Nauru and Papua New Guinea, March 2016, p. 13.

24. Or transferred to a third country—for example, some people have been transferred to Taiwan for medical treatment, and transfers also occur from Nauru to Port Moresby in PNG. See Legal and Constitutional Affairs Legislation Committee, Supplementary Budget Estimates, Home Affairs portfolio, 22 October 2018, p. 160. A number of those who have been transferred under existing arrangements have only been able to do so following commencement of legal proceedings. See H Davidson, ‘Eleven refugee children transferred from Nauru to Australia in one day’, The Guardian, (online edition), 23 October 2018.

25. DIBP, Transitory Persons Committee Terms of Reference, DIBP, April 2018, documents released under Freedom of Information. 26. Ibid.

27. See for example, United Nations High Commissioner for Refugees (UNHCR), ‘UNHCR urges Australia to evacuate off-shore facilities as health situation deteriorates’, 12 October 2018; ‘UNHCR appeals to Australia to act and save lives at immediate risk’, 23 October 2018. Also, the 2018 coroner’s report into the death of Iranian asylum seeker Hamid Khazaei found his death was ‘preventable’ and that ‘a series of clinical errors, compounded by failures in communication that led to poor handovers and significant delays in his retrieval from Manus Island’ contributed to Mr Khazaei’s death. The Queensland Coroner’s Court recommended that doctors working offshore, not bureaucrats in Australia, should approve medical transfers to Australia. See Coroners Court of Queensland, Inquest into the death of Hamid Khazaei, 30 July 2018.

28. B Packham, ‘Phelps flags support for refugees’, The Australian, 26 October 2018, p. 5. 29. K Phelps, ‘Statements’, House of Representatives, Debates, 28 November 2018, p. 11383. 30. D Coleman (Minister for Immigration, Citizenship and Multicultural Affairs), Stronger regional processing assurances, media release, Canberra 4 February 2019.

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would include clinicians with torture and trauma counselling experience. It would be required to report to Parliament twice a year. However the Panel would perform an advisory role only, and the final decision on whether a person should be transferred for medical treatment would continue to rest with the Government. Some supporters of the Bill have welcomed this move as an improvement on current arrangements, however continue to voice their support for a system which would place the decision-making power in the hands of medical professionals, as provided for in this Bill.31

In a related announcement, on 3 February 2019 the Government issued a media release reporting that it had successfully gotten all asylum seeker and refugee children off Nauru—specifically, that the last four remaining children, along with their families, had been approved for resettlement to the US and would shortly be departing Nauru.32 Given that much of the concern around health care in regional processing countries has focused on the needs of children, this announcement could be viewed as a significant milestone. However, the Minister for Immigration has stated that there are children currently in Australia who have been removed from Nauru for medical treatment, who will not be permitted to remain in Australia when their treatment is complete.33 Medical transfers to Australia are for a temporary period only, so those currently in Australia still face the possibility of being returned to Nauru following their treatment. This will continue to be the case even if the Bill is passed.

Key issues and provisions

Existing statutory scheme The Act currently provides that unauthorised maritime arrivals—those who enter Australia by sea and without a valid visa—must be removed from Australia and taken to a regional processing country.34 Such persons, as well as their children born in a regional processing country or in Australia, are referred to as transitory persons.35

A transitory person is not entitled to apply for a visa unless the Minister permits them to do so.36 There is a statutory bar against legal proceedings being brought against the Commonwealth in relation to the status, detention or removal of transitory persons from Australia, though this does not prevent proceedings being brought in the High Court under its original jurisdiction.37

Section 198B currently provides that an officer may bring a transitory person to Australia for a ‘temporary purpose’. A person brought to Australia under this provision must be removed as soon as reasonably practicable after they no longer need to be in Australia for this purpose, whether or

31. T Storer, Independent medical review panel, media release, 4 February 2019; N McKim, Manus and Nauru medical evacuation legislation, media release, 4 February 2019. 32. S Morrison (Prime Minister) and D Coleman (Minister for Immigration, Citizenship and Multicultural Affairs), Asylum seeker children off Nauru, media release, Canberra, 3 February 2019. 33. D Coleman (Minister for Immigration, Citizenship and Multicultural Affairs), Transcript of press conference: Sydney: 3 February

2019: Asylum seeker children off Nauru; offshore processing and resettlement, media release, 3 February 2019. 34. Migration Act 1958 (Cth), sections 5AA (definition of unauthorised maritime arrival), 198AD. 35. Ibid., subsection 5(1). 36. Ibid., section 46B. 37. Ibid., section 494AB. The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate

jurisdiction, when a higher court has the power to review a lower court's decision. The original jurisdiction of the High Court of Australia is provided for in sections 75 and 76 of the Constitution. Section 75(v) states that the High Court has original jurisdiction to hear all matters ‘in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’, subject to limited exceptions, enabling it to review the lawfulness of decisions and actions of government officials.

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not it has been achieved.38 The Act does not currently define or provide guidance on what may be captured by the term ‘temporary purpose’.

Item 2 of the Bill inserts proposed subsection 198B(4) into the Act, to specify that a temporary purpose may include (but is not limited to) the following:

• medical or psychiatric assessment or treatment or

• accompanying a transitory person being brought to Australia under the Act for a temporary purpose, who is either a member of the same family unit or as otherwise recommended by a medical practitioner.

This amendment is retained in the Senate amendments to the Miscellaneous Measures Bill.

Medical transfer power Item 3 of the Bill inserts proposed section 198C, which provides for the transfer of certain transitory persons for medical treatment purposes. As discussed below, these provisions have been amended by the Senate in Schedule 6 of the Miscellaneous Measures Bill. Both versions of the proposed legislation provide for the transfer of three categories of persons in regional processing countries:

• ‘legacy minors’—transitory persons aged under 18

• ‘relevant transitory persons’—transitory persons who require medical assessment and/or treatment and

• family members of ‘relevant transferees’.

Proposed section 198C operates in addition to the broader transfer power under existing section 198B.39 Although it makes transfer mandatory in certain circumstances, the Bill expressly provides that this must not occur without the transferee’s consent.40

Legacy minors Under the Bill, proposed subsection 198C(1) states that, where an officer knows or reasonably suspects a transitory person is a legacy minor, the officer must, as soon as practicable, bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

The Bill defines legacy minor as any transitory person who, at the Bill’s commencement, is in a regional processing country, is under 18, and has not previously been the subject of the transfer power under proposed subsection 198C(1).41 The inclusion of this third limb appears to mean that a child previously brought to Australia for medical treatment under this provision will no longer be a ‘legacy minor’, even if they have been returned to a regional processing country and are still under 18 years old.

The Senate amendments to the Miscellaneous Measures Bill alter this definition of legacy minor to remove the third limb—that is, that the person has not previously been subject to a medical transfer under proposed subsection 198C(1). A person will be a ‘legacy minor’ if they are a

38. Migration Act, subsection 198(1A). Sections 198AD and 198AH provide that an unauthorised maritime arrival brought to Australia from a regional processing country for a temporary purpose under section 198B must be removed from Australia and taken to a regional processing country once they no longer need to be in Australia for the temporary purpose.

39. Urgent Medical Treatment Bill, proposed subsection 198C(6) states that nothing in proposed section 198C shall affect the operation of section 198B. 40. Urgent Medical Treatment Bill, proposed subsection 198C(7) of the Act. 41. Urgent Medical Treatment Bill, proposed subsection 198C(8).

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transitory person and at the date of the provision’s commencement, are in a regional processing country and aged under 18.42

The amendments also introduce a stricter precondition for exercise of the power under proposed subsection 198C(1), by requiring the Minister to approve the transfer before it can take place.43 Provisions relating to the Minister’s approval are discussed further below.

Relevant transitory persons Proposed subsection 198C(2) of the Bill relates to the transfer of relevant transitory persons, defined as transitory persons in a regional processing country who:

• are assessed by a treating doctor as requiring medical or psychiatric assessment or treatment and

• are not receiving appropriate assessment or treatment in the regional processing country.44

A treating doctor is a medical practitioner registered or licensed to provide medical or psychiatric services in Australia or a regional processing country, and who has assessed the person, whether remotely or in person.45

A relevant transitory person must be brought to Australia as soon as practicable for the temporary purpose of receiving medical or psychiatric assessment or treatment where the Secretary is notified that the person has been assessed by two or more treating doctors as being a relevant transitory person.46

The Senate amendments to the Miscellaneous Measures Bill introduce an additional limb to the definition of relevant transitory person, being that, in the opinion of the person’s treating doctor, it is ‘necessary’ to remove them from a regional processing country for ‘appropriate medical or psychiatric assessment or treatment’.47

The amendments also add the requirement that the transfer be approved by the Minister before it can take place.48

Transfer of family members Proposed subsections 198C(3) to (5) of the Bill provide for the mandatory transfer of family members of transitory persons, and other accompanying persons, in three circumstances. These are where an officer knows or reasonably suspects that a transitory person in a regional processing country:

• is a member of the same family unit as another transitory person being brought to Australia for a temporary purpose49

• has been recommended by a treating doctor to accompany another transitory person being brought to Australia for a temporary purpose50 or

42. Miscellaneous Measures Bill, Schedule 6, proposed paragraph 198D(1)(a). 43. Miscellaneous Measures Bill, Schedule 6, proposed subsection 198C(1). 44. Urgent Medical Treatment Bill, proposed subsection 198C(8). 45. Ibid. 46. Urgent Medical Treatment Bill, proposed subsection 198C(2). 47. Miscellaneous Measures Bill, Schedule 6, proposed paragraph 198E(2)(c). 48. Miscellaneous Measures Bill, Schedule 6, proposed subsection 198C(2). 49. Urgent Medical Treatment Bill, proposed subsection 198C(3). 50. Urgent Medical Treatment Bill, proposed subsection 198C(4).

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• is a member of the same family unit as a minor who is in Australia.51

Under the Migration Act and Regulations, the term member of the family unit has a different meaning in relation to different visa types.52 As a general rule, the term captures a spouse or de facto partner of another person (the family head), or a child or step-child of the family head or their partner (who is either under 18 or dependent on the family head or partner).53

The Senate amendments to the Miscellaneous Measures Bill add the requirement that the Minister approve the family member’s transfer to Australia.54

Minister’s approval The Senate amendments in Schedule 6 of the Miscellaneous Measures Bill include an amended version of proposed section 198C which makes it a prerequisite for all transfers that the Minister has provided approval. The requirements for the Minister’s approval are set out in proposed sections 198D (for legacy minors), 198E (for relevant transitory persons) and 198G (for members of the same family unit).

In all cases, the Minister has 24 hours to decide whether to approve or refuse to approve a transfer after being notified of a person falling into one of the three categories discussed above.55 If the Minister fails to make a decision within 24 hours about the transfer of a legacy minor or relevant transitory person, they will be taken to have approved the transfer.56 Most approval decisions are non-delegable, though there is no express restriction against the Minister delegating the power to approve family member or accompanying person transfers.57

Refusing transfer on security grounds A transfer can be refused if the Minister reasonably believes it would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), including because there is an adverse security assessment in respect of the person in force.58 For legacy minors and family members/accompanying persons, this is the sole ground on which the Minister can refuse to approve a transfer.

The provision does not specify when a transfer will be prejudicial to security; however, the ASIO Act defines security as:

• the protection of the Commonwealth, states and territories and the Australian people from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia’s defence system or acts of foreign interference

• protection of Australia’s territorial and border integrity from serious threats and

• the carrying out of Australia’s responsibilities to any foreign country in relation to any of the above matters.59

51. Urgent Medical Treatment Bill, proposed subsection 198C(5). 52. Migration Act, subsection 5(1) (definitions of member of the family unit and member of the same family unit), Migration Regulations 1994 (Cth), section 1.12. 53. Migration Regulations, sections 1.03 (definitions of dependent and dependent child) and 1.12. 54. Miscellaneous Measures Bill, Schedule 6, proposed subsections 198C(3)-(5). 55. Miscellaneous Measures Bill, Schedule 6, proposed subsections 198D(2), 198E(3), 198G(2). 56. Miscellaneous Measures Bill, Schedule 6, proposed subsections 198D(5), 198E(5). 57. Miscellaneous Measures Bill, Schedule 6, proposed subsections 198D(6) and 198E(6). 58. Miscellaneous Measures Bill, Schedule 6, proposed subsections 198D(3), 198G(3) and proposed paragraph 198E(4)(b). 59. Australian Security Intelligence Organisation Act 1979 (Cth), section 4 (definition of security).

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There is a somewhat similar provision already in the Migration Act in the context of the character test—a person will not pass the character test if they are assessed by ASIO as a direct or indirect risk to security, within the meaning of the ASIO Act.60 However, under Schedule 6 of the Miscellaneous Measures Bill, the Minister’s power to refuse to approve the transfer does not require an actual security assessment by ASIO but turns on the Minister’s own reasonable belief as to whether the transfer will be prejudicial to security.

The Minister’s decision to refuse a transfer on security grounds is not subject to merits review, but may be subject to judicial review.

Refusing transfer on medical grounds In relation to transfers of a relevant transitory person on medical grounds, the Minister may also refuse to approve the transfer if they reasonably believe it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment.61

A decision to refuse a transfer on this basis is subject to review by the Independent Health Advice Panel, which is discussed below.62 Unlike a refusal on security grounds, it may also be subject to merits review by the Administrative Appeals Tribunal.63

Reasons for decisions Schedule 6 of the Miscellaneous Measures Bill also inserts proposed section 198J into the Act. This states that if refusing to approve a transfer, the Minister must cause a refusal statement—a statement of reasons for the Minister’s decision—to be laid before each House of Parliament within three sitting days after making the decision. This statement must not include information which may identify any person.64

There is no express requirement for the Minister to provide reasons to the person who is the subject of the decision.65 However, item 6 amends existing subsection 474(4) of the Act to provide that the Minister’s decisions regarding transfers are not privative clause decisions. This brings them within the scope of the Administrative Decisions (Judicial Review) Act 1977, which allows a person to request reasons for a decision.66

Proposed subsections 198D(7), 198E(8) and 198G(6) state that the Regulations may prescribe processes to be complied with in relation to the exercise of the Minister’s powers under these sections.

Independent Health Advice Panel The amendments in Schedule 6 of the Miscellaneous Measures Bill establish an Independent Health Advice Panel, with the objective of monitoring, assessing and reporting on the health of

60. Migration Act, paragraph 501(6)(g). 61. Miscellaneous Measures Bill, Schedule 6, proposed paragraph 198E(4)(a). 62. Miscellaneous Measures Bill, Schedule 6, proposed section 198F. 63. Miscellaneous Measures Bill, Schedule 6, proposed section 198H. 64. Miscellaneous Measures Bill, Schedule 6, proposed subsection 198J(4). 65. Existing provisions of the Act which require the decision-maker to provide reasons for their decision would not capture the

Minister’s transfer decisions proposed by the Urgent Medical Treatment Bill /Schedule 6 of the Miscellaneous Measures Bill— for example, existing section 66 requires reasons to be given in relation to the refusal of a visa; section 501G requires reasons to be given for a decision to cancel or refuse a visa on character grounds. 66. Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), section 13. Schedule 1, paragraphs (da) and (db) of the ADJR Act provide that it does not apply to privative clause decisions and purported privative clause decisions under the Migration Act.

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transitory persons in regional processing countries, and the standard of health services provided to them.67 The Panel will consist of at least eight members, including the Commonwealth Chief Medical Officer and the Department’s Chief Medical Officer and Surgeon-General of the Australian Border Force. Other members are appointed by the Minister based on nominations by various professional medical bodies.68

Review of adverse transfer decision The Panel is responsible for conducting an immediate review of a decision by the Minister to refuse to approve a transfer of a ‘relevant transitory person’ on the basis that it is not medically necessary. The Minister must notify the Panel of the refusal ‘as soon as practicable’. The Panel then has 24 hours to conduct a clinical assessment of the person (this may be done remotely) and advise the Minister of its findings, including a recommendation as to whether the Minister’s decision should be confirmed.69 The recommendation must be agreed by a majority of the Panel’s members.70

If the Panel recommends that the person’s transfer should be approved, the Minister is required to follow this unless satisfied there are security grounds for refusing the transfer.71

Other functions and powers The proposed provisions give the Panel broad discretion as to how it will perform its functions.72 It has the power to obtain information and documents from relevant agencies and consultants/contractors.73 The Panel may make recommendations to the Minister in regards to the health of transitory persons in regional processing countries ‘at any time it considers appropriate’.74 It is required to produce a three-monthly report for the Minister on its operations, with the first report to include an assessment of:

• the physical and mental health conditions of transitory persons in regional processing countries and

• the standards of health services provided to such persons.75

Within three sitting days of receiving the Panel’s reports, the Minister must cause a summary to be laid before each House of Parliament. Within three sitting days of doing so, the Minister must also prepare, and lay before Parliament, a response to the Panel’s report.76

Committee consideration

Selection of Bills Committee The Senate Standing Committee for the Selection of Bills has not reported on the Bill at the time of writing.

67. Miscellaneous Measures Bill, Schedule 6, proposed section 199A. 68. Miscellaneous Measures Bill, Schedule 6, proposed section 199B. 69. Miscellaneous Measures Bill, Schedule 6, proposed subsections 198F(1), (2) and (4). If the Panel does not inform the Minister of its recommendations within 24 hours, it will be taken to have recommended that the transfer be approved: proposed

subsection 198F(3). 70. Miscellaneous Measures Bill, Schedule 6, proposed subsection 198F(8). 71. Miscellaneous Measures Bill, Schedule 6, proposed subsection 198F(5). 72. Miscellaneous Measures Bill, Schedule 6, proposed section 199C. 73. Miscellaneous Measures Bill, Schedule 6, proposed section 199D. 74. Miscellaneous Measures Bill, Schedule 6, proposed subsection 199C(3). 75. Miscellaneous Measures Bill, Schedule 6, proposed subsections 199E(1), (8) and (9). 76. Miscellaneous Measures Bill, Schedule 6, proposed subsections 199E(5) and (6).

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Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills has not commented on the Bill at the time of writing.

Policy position of non-government parties/independents The Government voted against the amendments to the Miscellaneous Measures Bill 2018.77 A joint media release by Minister for Home Affairs, Peter Dutton, and Minister for Immigration, Citizenship and Multicultural Affairs, David Coleman, stated:

Today [the ALP’s] National Conference will confirm the end to offshore processing via its support for legislation that contracts out Australia’s border protection to activist doctors, who via Skype, will decide that illegal arrivals in Manus and Nauru must come to Australia. 78

Minister Coleman has also said that a ‘character test’ should apply to transfers, to prevent persons with a criminal history from being brought to Australia.79

Independent Cathy McGowan has stated that she has not yet made a final decision on the legislation, and has sought the views of her constituents on the issue.80

Position of major interest groups Outside Parliament, the Bill has received support from several quarters, including in the medical, legal, human rights and refugee sectors.

From the medical community, the Australian Medical Association (AMA) and the Royal Australian College of General Practitioners (RACGP) have both voiced support for the Bill, stating that asylum seekers and refugees have a right to appropriate medical care and that decisions about medical care should be made by medical practitioners and clinical experts.81

The Law Council of Australia has also voiced its support for the Bill, stating that removing asylum seeker children from Nauru to Australia, and ensuring the health and safety of adult asylum seekers in regional processing countries, is not only medically necessary, but also necessary in terms of Australia’s international obligations.82

The Bill is also supported by many organisations in the community sector, including refugee advocacy groups, who have been campaigning for many years for an end to regional processing, and for those in RPCs in Nauru and PNG to be brought to Australia.83

Financial implications The Explanatory Memorandum states that the Bill will have no financial impact.84

77. Australia, Senate, Journals, 137, 6 December 2018, pp. 4500-10. 78. P Dutton (Minister for Home Affairs) and D Coleman (Minister for Immigration, Citizenship and Multicultural Affairs), Labor again weakens border policy, media release, 17 December 2018. 79. D Crowe, ‘Coleman raises “character test” in refugee draft law’, The Age, 11 December 2018, p. 4. 80. C McGowan, MP says her record on refugees speaks for itself, media release, 16 January 2019; M Koslowski, ‘McGowan

consults voters on refugee care bill’, The Age, 17 January 2019, p. 5. 81. AMA, ‘AMA supports Phelps Bill to protect the health of asylum seekers’, AMA website, 6 December 2018; RACGP, ‘RACGP backs call for medical transfer of asylum seekers and refugees’, RACGP website, 4 December 2018. 82. Law Council of Australia (LCA), ‘Law Council backs parliamentary efforts to get asylum seekers off Nauru’, media release,

6 December 2018. 83. For example Save the Children, ‘Save the Children Australia supports Urgent Medical Treatment Bill’, Save the Children website, 4 December 2018; Asylum Seeker Resource Centre (ASRC), ‘Cross Party MPs back bill that follows doctors’ orders for

urgent medical treatment’, ASRC website, 28 November 2018.

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Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Bill’s proponent has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act, and considers that the Bill is compatible.85

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights has not reported on the Bill at the time of writing.

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84. Explanatory Memorandum, Migration Amendment (Urgent Medical Treatment) Bill 2018, p. 1. 85. The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Urgent Medical Treatment Bill.