MEDEVAC LEGISLATION

The legislation

On 1 March 2019, the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the Medevac legislation) became law. This legislation allows for the temporary transfer of asylum seekers on Manus Island and Nauru to Australia for urgent medical treatment. The law requires two doctors to advise a transfer is necessary to allow someone to receive treatment that is otherwise unavailable in the offshore processing centres. This new process strictly applies to asylum seekers in the centres as at 18 February 2018. It is not available for future asylum seekers.

The Decision-Making Process

A transfer may be stopped if the Minister for Home Affairs decides that it is not necessary on medical grounds, or if it will be a threat to Australia’s security. The Minister must make this decision within 72 hours. Where there is no basis for these two grounds, the Minister must permit the transfer.

Medical grounds

The Minister may refuse a transfer if he or she believes it is not necessary on medical grounds, however the reasons for refusal will be reviewed by an eight-person independent medical panel. They have a further 72 hours within which to notify the Minister of their decision. At this point the Minister has 24 hours to permit the transfer, unless there are security or character grounds for refusing. A transfer of anyone under the age of 18 and their accompanying family member/person cannot be refused on medical grounds.

Security grounds

The Minister may also refuse a transfer on security or character grounds. The Minister has the power to refuse a transfer if he or she reasonably believes it will threaten national security, or if the person is assessed by ASIO to have failed the ‘character test’.

Factors that may undermine the Medevac legislation

In the time since the bill was introduced and passed, there have been international and national developments that could defeat the law’s intention of providing urgent medical treatment to asylum seekers, that is otherwise unavailable in offshore processing facilities.

Nauruan law

On 18 February 2019, Nauru passed a law which prevents medical transfers out of Nauru unless they have been physically examined by two doctors. This means a patient will be unable to be transferred if they have only consulted Australian doctors online through ‘telehealth assessments’. Nauru has prevented Australian court-ordered medical transfers in the past.

Reopening of Christmas Island facilities

The Department of Home Affairs and Prime Minister Scott Morrison have also announced that asylum seekers in need of medical treatment will be first transferred to the newly reopened detention centre on Christmas Island, barring ‘exceptional circumstances’, as a matter of ‘government policy’. The detention centre has been described as not suitable for immigration detention by the Australian Human Rights Commission.

 The Medevac Group

A Medical Evacuation Response Group, independent of the government and made up of various NGOs and medical professionals, has been created to ensure applications under the Medevac legislation will be processed in a timely and orderly manner.

 

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Last updated 21 March 2019