Senate debates

Monday, 2 December 2019


Migration Amendment (Repairing Medical Transfers) Bill 2019; Second Reading

1:21 pm

Photo of Kristina KeneallyKristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | | Hansard source

I rise to speak on the Migration Amendment (Repairing Medical Transfers) Bill 2019. I say from the outset that the name of this bill is a fallacy. There is nothing to repair when it comes to the medical transfers of sick people from regional processing countries to Australia. The name of this bill, like so many pieces of legislation from this visionless government in the post-truth era, is untruthful, misleading and misdirected. I will speak to those matters shortly.

Last week I received an email from an Australian doctor. His name is Dr Chris Jones. He is a doctor who worked on Nauru in August last year, only 16 months ago. Let's remember Dr Jones was working on Nauru only six months before the law, now known as 'medevac', came into existence. Having worked an earlier stint on Nauru, Dr Jones kept a diary during his second stint—a diary I have now read. It shines a light on the conditions he was working in and the pressures he faced, including from officials of the Australian Border Force and the Department of Home Affairs, as well as on the lengths that Dr Jones had to go to in securing medical transfers for patients.

On 18 August last year, after less than two weeks on Nauru, he wrote about his experience: 'It is like being witness to people dying on a palliative care ward—slowly fading away, physically and emotionally. The only difference here is they do not have the dignity of palliative care.' The diary records a teleconference update Dr Jones had with an orthopaedic surgeon who had operated on a child to remove metalwork from their left forearm. He wrote: 'The operation went really well, but the surgeon could only remove one of the two plates due to a 12-month delay in the procedure. The remaining plate had become embedded in bone and attempting to remove it would do more damage. The call didn't go well, with the family distraught, venting their anger and frustration against the surgeon.'

This diary sheds light on how doctors, contracted by Australia and being paid with Australian taxpayer dollars, were being disregarded by departmental bureaucrats. Let's reflect on that for a moment. Doctors—the people we all trust when we're sick, where we're unwell, when we're struggling mentally—were being ignored by people with no medical qualifications. How did we get here? How did we in Australia end up in this position?

In June 2015, the secretary of the then Department of Immigration and Border Protection issued a directive to the staff of the then Australian Customs and Border Protection Service. It said:

Unless there are compelling medical reasons, supported by second opinions, to do with life and death situations, or situations involving the risk of life time injury or disability, transfers to Australia should be avoided as a general rule and should in any event become increasingly rare.

I repeat: a general rule that providing medical treatment to people should become increasingly rare in any event. That was over four years ago. It was before the Australian Border Force came into existence on 1 July 2015. It was before Minister Dutton was handed his custom-made Department of Home Affairs. It was before prime ministers Morrison and Turnbull; Tony Abbott at this time was still Prime Minister. And it was only the beginning of the medical transfer process for sick people and asylum seekers and refugees in Australia's care on Nauru and PNG being frustrated by the current government.

Minutes from internal meetings at the then Department of Immigration and Border Protection in 2016 revealed this directive effectively stopped medical transfers to Australia. The documents released under freedom-of-information laws described the impact of this measure as 'significant'. There was a 92 per cent drop in medical transfers. Transfers dropped from close to 550 in 2014-15 to approximately 50 in 2015-16. That's a drop of 550 to just 50 in one year. In those same minutes from the Department of Immigration and Border Protection, they admitted that they and the government had in fact created a problem. Quote:

Despite the work done to reduce the instance of transfer to Australia for medical care, the cases we continue to see are unique and complex (physical health, mental health and child protection all combined) and there exists a high likelihood that they will become the subject of legal proceedings.

The alarm bells were sounding back in 2016, and what did the Minister for Home Affairs do? Nothing. Just like with many of his ministerial responsibilities, Mr Dutton did nothing.

In fact, the secretary of the department doubled down in April 2016 and issued another directive. It stated:

… the aim should be to avoid to the maximum extent possible such transference to Australia ... This instruction is to be overridden only if and when there is a reasonable apprehension that inaction would result in an immediate threat to life, or the occasioning of permanent debilitating injury.

On Manus Island, broader PNG and Nauru, requests for medical transfer by hardworking, honest and committed doctors started being ignored. People without medical knowledge were deciding if sick people received any treatment or not. Over time the problem grew, and medical transfers were denied time and time again. People's physical injuries were left to worsen, often to the stage where people were facing lifelong disabilities. Children were denied transfers because they didn't want to be separated from their parents, quite understandably. Women were denied the opportunity to have their reproductive health seen to. Mental health across the greater cohort of Manus, and later border PNG and Nauru, diminished terribly. It is because of all these circumstances that Labor and the crossbench moved to put provisions in place—medevac—to fix the issues this third-term Liberal-National government created all on its own.

For those who aren't familiar with medevac, I want to explain how the process works, particularly because the government has been loose with the truth about these important provisions. Under medevac, two treating doctors can recommend a transfer to the Secretary of the Department of Home Affairs. The request is then considered by the Minister for Home Affairs. The minister can deny on national security grounds as defined within the ASIO Act or if they have concerns on serious character grounds as defined in the Migration Act. The decision does not get reviewed and cannot be overturned. If the minister denies on national security or character grounds, that request for transfer is rejected.

The minister can also deny a transfer on health grounds if they think the treatment can be provided in PNG or Nauru, including via telemedicine or by flying a specialist to the patient. If the minister denies it on health grounds, it goes to the Independent Health Advice Panel, or IHAP, for review. The IHAP includes the Commonwealth Chief Medical Officer, the Home Affairs chief medical officer, doctors from Australia's peak medical bodies, including the Australian Medical Association and the royal colleges. All of these doctors are appointed by the minister. The panel is able to review cases on medical grounds only. If they believe a medical transfer is necessary, they can require the transfer to happen. At the end of the day, the government or government appointed doctors control who comes to Australia under medevac, and that is why Labor supports medevac. Medevac allows sick people to get the medical care they need and ensures that the minister or doctors appointed by the minister control these transfers.

On 4 July 2019, the bill now before the Senate was referred to the Legal and Constitutional Affairs Legislation Committee for inquiry, which reported on 18 October 2019. Like all legislation referred to committees, the government agreed to this bill being sent to an inquiry, along with the timing of the inquiry. The Minister for Home Affairs has described this important inquiry process as 'a tactic' and a way of 'delaying the bill'. He ignores the fact that the government agreed to the reporting time line for the bill and could have changed it, if they wanted to. I want to thank my fellow senators for their involvement in the committee's inquiry, as well as Senator Lambie's commitment that she wanted that important process to be followed before the legislation was debated in the Senate.

The Senate inquiry highlighted the evidence that medevac should not be repealed. Don't take my word for it. By the government's own admission—in the report that the government senators agreed to—it states:

The majority of the evidence to the inquiry argued that the medical transfer provisions enacted in March 2019 should not be repealed…

Of the submissions made to the inquiry, only one submission recommended that medevac be repealed. Whose was the one submission? Who supports the repeal of medevac? Surprise surprise, it is Minister Dutton's own department, the Department of Home Affairs—the people who wrote this bill on behalf of the government. All other stakeholders said that medevac should not be repealed.

Despite this wait, the government dominated committee only made one recommendation: that the Senate pass this bill. Labor senators, Greens senators and Centre Alliance senators all made dissenting reports. They actually listened to the evidence presented at the inquiry, and all three parties made separate recommendations to oppose this bill. In the past week, my crossbench colleagues and I accepted a petition of 51,000 Australians who are in support of medevac. A letter from over 5,040 doctors in support of these provisions was also delivered to this place last week. And a newly released Guardian Essentialpoll shows that 62 per cent of Australians support medevac. The evidence continues to grow, despite the Morrison government's brazen, desperate and dishonest attempts to discredit medevac.

We saw the beginnings of this when an authorised disclosure of sensitive national security advice was made to The Australian newspaper—a leak that occurred for blatant political gain. Former head of ASIO Duncan Lewis described that leak as 'seriously damaging', adding 'it undermines all that we, ASIO, stand for'. When it comes to leaks, I have been appalled at the number of times the front pages of newspapers have been splashed with the personal medical records of vulnerable people. Can you imagine having your medical history, your most private details being leaked to the media for political gain? And yet this is exactly what has occurred under the Morrison government and under Minister Peter Dutton and his Department of Home Affairs. We have seen the names, the backgrounds, the ages and the ethnicities of asylum seekers and refugees published in papers. And let's not forget, these are people who—in the majority of cases—have fled persecution and have been found to be owed refugee protection. We've seen their medical conditions misconstrued and exploited for political gain. These people have had their photos published, the treatment they have undergone shared and their information exploited by the government without their permission. How would Minister Dutton feel if he woke up one morning to see his personal medical details on the front page of a national newspaper? An investigation would be launched within minutes. But when it comes to the private medical details of vulnerable people in Nauru or PNG who need medical transfers, there is clearly a different standard by this government.

And it doesn't take a genius to work out the origins of these leaks. To those people who have had their personal medical details shared in this fashion, I am sorry. It is clear that the government has been loose with the truth when it comes to medevac. They have falsely claimed that two doctors from Nimbin or doctors on Skype could approve transfers. They have claimed that Australians would be kicked off waiting lists at hospitals. They have even claimed Australia's border protection will fall apart—something that has not happened in the 10 months since these laws came into existence earlier this year.

Senate Estimates confirmed that the Morrison government has transferred 982 people to Australia outside of the medevac process. I note that the majority of these transfers were before the Department of Home Affairs issued their 2015 directive to stop transfers to Australia. This compares to some 160 transfers under medevac. The government has been blatantly—and I dare say purposely—misleading when it comes to matters of medevac. I have spoken at length in this place about the mistruths that the Minister for Home Affairs, the immigration minister and the Prime Minister have spread, and continue to spread, about medevac.

Here are the facts you won't hear the government say about medevac. All medevac transfers to Australia are done with Mr Dutton's permission or the permission of doctors that the minister has appointed. Minister Dutton has extensive powers to refuse a medevac transfer on national security and character grounds with no appeal. He has used these powers before and he can use them again. If a person doesn't require medical treatment the independent health advice panel would deny the transfer. All medevac transferees must be detained in immigration detention by law, unless Minister Dutton approves their release from detention in Australia. This is in fact designed to keep the Australian community safe. Medevac transfers are for a temporary purpose and Minister Dutton has the ability to return a transferee to a regional processing centre at any time. These are the facts.

The system is working as it was designed to do. No amount of protest or outlandish claims from the Minister for Home Affairs or the Prime Minister have proven otherwise. Despite the government's claims, this debate has nothing to do with border protection. Let's not forget that offshore processing was always intended to be exactly as its name suggests—processing. Instead, under this third-term Liberal-National government, it has become indefinite detention. The architecture of border protection includes boat turnbacks where safe to do so, offshore processing and regional resettlement—all of which Labor strongly supports. It works cohesively. It works well. All of those aspects are of equal importance. Former Prime Minister Kevin Rudd and Minister Morrison in his former role as immigration minister both put in place policies to stop people risking their lives crossing one of the most perilous oceans on leaky boats. However, since the member for Dickson, Mr Dutton, became the Minister for Immigration and Border Protection in 2014 he has failed, as in so many other areas of policy, to do his job. He has failed to deliver on third-country resettlement options such as the New Zealand offer, which has been on the table since 2013. Since 2013 this government has had the option to take up the New Zealand offer to move refugees from Manus and Nauru to New Zealand and it has failed to do so.

Ever since Mr Dutton became the minister responsible, he has left refugees to languish in indefinite detention. They are now in their seventh year in PNG and Nauru. This languishing is the reason why the mental and physical health of asylum seekers and refugees have diminished so profoundly. It is why medevac was needed and required—to ensure people who are sick receive the medical attention they require. Denying people medical care is un-Australian. It is inhumane. It is uncompassionate. If any member of this Senate were sick, we would see a doctor. If any member of our family were sick, we would send them to a doctor. Vulnerable people who are in Australia's care who have already suffered significant trauma in their lives should not be forced to the brink of death to receive the medical treatment that they require. These decisions should never have been left in the hands of people without any medical training let alone concentrated in them. Labor strongly supports medevac. Medevac is working as intended. These laws should not be repealed.

I want to finish where I started, with Dr Chris Jones' diary of his time on Nauru. On 17 August he wrote: 'Does it really take the possibility of sudden death to persuade our government of the right thing to do?' Labor opposes this repeal bill for that very reason. I implore the crossbench to oppose this bill.

1:41 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I rise to speak on the Migration Amendment (Repairing Medical Transfers) Bill 2019. Well, this shouldn't actually be a contentious debate. In fact, we shouldn't even be debating this bill in this parliament because, at its heart, you can distil this legislation down to a fundamental and extremely simple question: do you think sick people should get the treatment that medical professionals say they need? If you answer yes to that question, you will join the Greens in opposing this legislation, because we believe when people are sick, they should get the medical treatment that doctors and medical professionals say they need. But if you are going to support this legislation as we know every single member of the LNP and both members of Pauline Hanson's One Nation party will do then you are basically saying that you do not believe that desperately ill people should get the medical treatment that doctors say that they need. That is the distillation of the question before us today.

The Greens, who, along with former senator Tim Storer, were co-sponsors of the legislation that became known as the medevac bill, will strongly oppose this attempt by the government to repeal that legislation. This bill is called the Migration Amendment (Repairing Medical Transfers) Bill 2019 but it doesn't repair medical transfers at all. Repairing medical transfers was what the medevac legislation did, co-sponsored by the Australian Greens. And we had to repair the medical transfer regime because, under the old way of doing things, people were dying as a result of not getting the medical treatment they needed. The medevac legislation has saved lives. It has delivered people the health care that they have so desperately needed and that they had previously been deliberately deprived of by mendacious ministers and bureaucrats, who were acting in political interest and self-interest rather than in accordance with human rights law, with humanitarian principles and with the principles of the medical profession. The government's refusal—and we have seen this on multiple occasions—to transfer sick people from Manus Island or Nauru here to Australia under previous arrangements caused death, mental anguish and untold suffering amongst innocent people who had done no wrong, who had committed no crime, who had stretched out a hand to ask our country for help, and in return had been imprisoned. Some of them remain in Port Moresby or on Nauru and are pretty close to clocking up seven years in indefinite offshore detention.

This repeal bill shows that the government is prepared to put what it believes are its political imperatives ahead of other people's genuine medical needs. The government has made a crass calculation that some lives are worth sacrificing—some human lives are worth sacrificing for broader political outcomes. They have made that crass calculation despite their legal and moral obligations. This calculation should be intolerable in a liberal democracy like Australia's. Fundamentally, decisions about medical care should be made by medical experts, not by politicians and not by bureaucrats.

When I speak about things that happened on Manus Island, I want to place on the record that I'm doing so based on numerous sources, including the findings of the inquest of the Coroners Court of Queensland into the death of Hamid Khazaei, which I will go into in more detail later in my speech. But I'm also relying on personal experience, because unlike any member of the LNP who is going to vote for this legislation in the Senate, unlike any member of Pauline Hanson's One Nation party, I've been to Manus Island. In fact, I've been to Manus Island five times, which of course means I know an awful lot more about what's happened on Manus Island than any of the people who are going to get up when the vote comes on—whenever that might be—and vote for this legislation. It is based on personal experience. I was there in the Lombrum detention centre, in November 2017, when the Australian government ordered that the food be cut off, the drinking water be cut off, the electricity be cut off and all medical supports be cut off from over 600 vulnerable people. I saw the human impact. I lived a very small part of the humanitarian calamity that those orders caused amongst so many people who had already suffered far too much and for far too long.

Before the medevac regime came in place, 12 people died, either in offshore detention on Manus Island or Nauru or here in Australia after being transferred, too late, because mendacious politicians and bureaucrats got in the way of medical transfers. I'm going to read the names of the people who died. On 17 February 2014, Reza Barati was murdered on Manus Island. On 22 June 2014, Sayed Ibrahim Hussein died on Nauru. On 5 September 2014, Hamid Khazaei died in Australia after he was not transferred in a timely way when he was dying on Manus Island and in Port Moresby. On 29 April 2016, Omid Masoumali died on Nauru. On 18 May 2016, Rakib Khan died on Nauru. On 2 August 2016, Kamil Hussain died on Manus Island. On 24 December 2016, Faysal Ishak Ahmed died on Manus Island. On 7 August 2017, Hamed Shamshiripour died on Manus Island. On 2 October 2017, Rajeev Rajendran died on Manus Island. On 2 November 2017, Jahingir died on Nauru. On 22 May 2018, Salim Kyawning died on Manus Island. And on 15 June 2018, Fariborz Karami died on Nauru. These people died away from their families, their mothers, their fathers, their brothers, their sisters and, in some cases, their children. They died alone, without those supports near them, because of actions taken by the Australian government.

One of those cases, the death of Hamid Khazaei, is extremely instructive when you think about this legislation. I'm relying on the findings by the Coroners Court of Queensland, of Mr Terry Ryan, the state coroner. These findings were delivered on 30 July last year. I will place on the record in the Senate some of Mr Ryan's conclusions. Firstly, he said:

Mr Khazaei's death was preventable. Consistent with the evidence of the expert witnesses who assisted the court in this matter I—

that is, the coroner—

am satisfied that if Mr Khazaei's clinical deterioration was recognized and responded to in a timely way at the MIRPC clinic, and he was evacuated to Australia within 24 hours of developing severe sepsis, he would have survived.

But he wasn't evacuated to Australia in a timely way, was he? No, he wasn't. Why wasn't he evacuated to Australia in a timely way? It was because the mendacious bureaucrats and politicians and the system they created prevented that from happening. There's blood on people's hands here. The blood is on the hands of the LNP. And the blood will be on the hands of One Nation if they vote to support this legislation.

I will read further findings from Mr Ryan's report:

          … The clinicians who received Mr Khazaei at the PIH on that day—

          that is, the day he was transferred to Port Moresby—

          did not have the necessary clinical skills to deal with his presentation. The significant delay in responding to his critical care needs at the PIH led to cardiac arrest after which Mr Khazaei's condition became irretrievable.

          He should have been transferred to Australia straight from Manus Island, but he wasn't. His death, as Mr Ryan found, was entirely preventable. Mr Ryan also found that the health care that Mr Khazaei received on Manus Island was not commensurate with the care he would have received in a remote clinic on Cape York, which was the benchmark applied in this matter. Similarly, the health care he received from the Pacific International Hospital in Port Moresby was not adequate.

          Mr Ryan said he accepted Dr Little's evidence that if Mr Khazaei had been transferred directly from Manus Island to Cairns after Dr Muis's initial transfer request, he was likely to have survived. The coroner accepted the submission on behalf of the family that there was an obligation on the part of senior clinicians within IHMS and International SOS, who were aware that Mr Khazaei's transfer was being delayed, to proactively contact the clinicians who were left to manage his care within the limited resources available on Manus Island. He found that the fact that there were no further communications to or from the clinicians on Manus Island represented a systemic failure.

          And I've left the kicker until the end. This is Mr Terry Ryan, the State Coroner of Queensland, who said in the final sentence of his summary of recommendations:

          Decisions about medical transfers should be based on clinical considerations.

          There is not much more that needs to be added, is there? 'Decisions about medical transfers should be based on clinical considerations.'

          I wonder: Senator Cormann is going to vote for this legislation; if he got sick would he go to see a doctor or would he go to see the immigration minister or someone inside Home Affairs? Minister Cash is going to vote for this legislation; if she got sick, would she go to see a doctor or would she go to see the immigration minister or someone inside Home Affairs? If the Prime Minister got sick, would he go to see a doctor or would he go to see the immigration minister? We all know the answer to those questions. Whether it be Senator Cormann, Senator Cash or the Prime Minister, if they fell ill they'd go to see a doctor. They wouldn't go to see the immigration minister, because they know that the immigration minister is not competent to make medical decisions. No, they'd go to a doctor. But can you imagine the hue and cry if, having been to see a doctor, Senator Cormann, or Senator Cash or the Prime Minister were then prevented from complying with their doctor's directions by the immigration minister? You wouldn't hear the end of it in this place. But that's exactly the regime they want to go back to now.

          I've witnessed personally the humanitarian calamity of offshore detention. I've held crying men, sick men, on Manus Island, who were begging for the treatment and the help that they needed but were prevented from receiving because of the acts of this Liberal-National Party government—this mendacious government that wants to wind back the medevac provisions that put the clinical treatment of people in offshore detention into the hands of the people which it should be in: the hands of doctors and medical professionals. This is the medevac legislation which took those decisions out of the hands which they should never have been in: the hands of Minister Dutton and the mendacious bureaucrats who crafted this appalling, terrible offshore detention and medical transfer regime.

          We will not support the repeal of the medevac provisions. Anybody who does support the repeal of medevac can expect to have blood on their hands—more blood than they've already got on their bloody, bloody hands—because doctors should make these decisions, not politicians and bureaucrats.

          Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

          Order, Senator McKim. You will be in continuation upon the resumption of the debate. It being 2 pm, I call Senator Gallagher.