Nine facts about the medical evacuation bill

With the medical evacuations bill now cleared by the Senate, and with politicians coming off the long run with all kinds of misleading claims about what this package does, let’s spell out some basic facts.

How do the medical evacuation procedures work?

The new legislation sets out the conditions by which sick people on Nauru and Manus Island can be transferred to Australia for medical treatment. In the event there is medical advice from two or more treating doctors that a person needs to be evacuated, the home affairs minister has grounds for refusal.

What discretion does the responsible minister have?

Ministerial discretion applies in three areas.

First, the minister can refuse the transfer if he or she disagrees with the clinical assessment.

The second grounds for refusal is if the minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security “within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act”.

Sticking with security, the transfer can also be knocked back if Asio advises the minister that transfer of the person to Australia may be prejudicial to security “and that threat cannot be mitigated”.

The third grounds for refusal is if the minister knows that the transferee has a substantial criminal record (I’ll give you some definitions on that in a minute) and the minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

The decision needs to be made within 72 hours.

If the minister denies the transfer request on health grounds (as opposed to security or criminal grounds), then the issue goes to an Independent Health Advice Panel “as soon as practicable”.

The panel then conducts a second assessment and reports within 72 hours. If the panel reports the person should be transferred on health grounds, and the other vetoes I’ve mentioned are not in force, then the view of the panel prevails.

What is a substantial criminal record for the purposes of this legislation?

There has been lots of talk since the political temperature has started to rise around this issue about rapists, paedophiles and murderers coming to Australia for medical treatment – courtesy of this law.

To define a substantial criminal record, the bill references section 501(7) of the Migration Act. That definition says a substantial criminal record applies for the purposes of a character test if the person has been sentenced to death; life imprisonment; a term of imprisonment of 12 months or more; has been in prison for two or more terms where the total is 12 months or more; if the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or the person has been found by a court to not be fit to plead in relation to an offence, and the court has nonetheless found that on the evidence available the person committed the offence, and as a result the person has been detained in a facility or institution.

Who is on the independent medical panel?

The panel will be made up of the commonwealth chief medical officer, the home affairs department’s chief medical officer, and at least six others (a nominee of the president of the Australian Medical Association, of the Royal Australian and New Zealand College of Psychiatrists and of the Royal Australasian College of Physicians, and an expert in paediatric health). They will not be paid for their service to avoid a constitutional problem with the bill.

Who do these new procedures apply to?

Despite what you might hear in the political debate, the answer to this is simple. The new procedures only apply to the cohort of asylum seekers currently on Nauru and Manus Island, not to any new boat arrivals. The legislation says a person is “a relevant transitory person if the person is in a regional processing country on the day this section

Will people be out of detention once they arrive in Australia for medical treatment?

No. The legislation says any transitory person who is brought to Australia for a temporary purpose must be kept in immigration detention while in Australia. “That immigration detention must continue until the time of removal from Australia or until the minister determines that immigration detention is no longer required.”

Do the new medical evacuation procedures destroy the border protection regime?

People will make all sorts of contentions about this point, but the facts don’t point to that conclusion. The architecture of offshore detention remains in place. Boat turn backs remain in place.

The new legislation has one job. It codifies the means by which people can be medically transferred to Australia, and makes clinicians more central in decisions about duty of care than they are currently. The government has already transferred a number of people to Australia for medical treatment, often after contested court proceedings. Doctors have more influence in this system than under the status quo, but we are not inventing the wheel here.

Will the people smugglers view the change in Australia as a green light to restart operations?

That’s entirely possible – particularly given some of the misleading claims flying around in the public debate at the moment and being amplified on social media and in some news outlets.

Given those febrile, hyperbolic conditions, it is entirely possible that the change in Australian law will be used in marketing by people smugglers.

The home affairs department is clearly very concerned about the impact of the changes according to a ministerial brief that was released by the Morrison government over the weekend.

But the departmental language on the specific point of whether people smugglers would be activated or not was nuanced.

“People smugglers pay particular attention to perceived or actual changes in Australia’s policy. Although people smugglers may claim there has been a shift in Australian policy and entry to Australia is now possible with just the opinion of two doctors, the resumption of large-scale people smuggling to Australia will remain dependent on a shift in Potential Illegal Immigrant (PII) intent – not smuggler marketing,” home affairs officials said.

“PIIs will probably be interested in any perceived or actual pathway where resettlement in a western country is guaranteed, even if such a pathway includes a period spent in detention. However, PIIs will probably remain sceptical of smuggler marketing and await proof that such a pathway is viable, or that an actual change of policy has occurred, before committing to ventures.”