Lift me like an olive branch and be my homeward dove… On the Phelps medical transfer Bill

Public debate about asylum seeker policy is a bin fire of hot trash. It’s emotional, highly complex, and people are encouraged to have a hot take on it regardless of how much they actually know. Political parties are in an insane performance of trying to convince people that their intuitions are somehow based in fact, reason, and logic, regardless of how factual, reasonable, or logical those intuitions are. Thus, it’s a sandpit of bad faith actors who (rightly or wrongly) are committed to the view that their ends justify all means.

And thus we get to Kerryn Phelps’ Migration Amendment (Urgent Medical Treatment) Bill 2018.  It’s a complex Bill but, according to Twitter, the only analysis available is ‘Do you care about sick children? Support the Bill if yes, oppose it if no.’

The Bill was introduced by Kerryn Phelps who, it is not unfair to say, is not any kind of expert on this topic.  She holds openly terrible views about asylum seeker policy, including the view that boat tow backs and turn arounds are an effective policy.  I’ve previously blogged about why this view is entirely dumb:

Turning boats back to Indonesia undermines our attempt to resolve the asylum seeker situation.  Instead of joining regular migration pathways, they’re forced back into irregular migration flows.  This is not a good outcome.

It is perhaps worth noting that turnbacks are still part of the ALP’s policy.

Given that Phelps is so off-base on this point, you would imagine that the megaphones in the public debate would treat her proposal with some suspicion.  Not so.  If it aligns with existing intuitions, it’s good policy.

The Phelps Bill does a few things.  First, ‘legacy minors’. The Bill compels the Department to bring all children currently considered a ‘transitory person’ to Australia for the purpose of medical and psychiatric checks. The Bill also compels the Department to bring to Australia any person known or reasonably suspected to be a member of that child’s family. You have to fish through 193 instruments to work out what counts as a child’s family, but I suspect this is the correct definition: limiting it mostly to parent-child relationship types.  I’m of the view that, if we agree with the policy intent (which I don’t), this might be unnecessarily limited: if there are minors in offshore detention who are accompanied by relatives who are not the parent, they should be able to bring that relative.

Second, medical transfers. Under the Phelps Bill, the mechanism is that any two medical practitioners assess a ‘transitory person’ either in person or remotely and come to the view that the person needs treatment or assessment and is not currently receiving ‘appropriate’ treatment or assessment. They notify the Department who must, as soon as practicable, move the person to Australia for assessment or treatment. People in the same family unit come to Australia as well.

In this version of the Bill, there is no countervailing consideration, such as security risk. If they present a security risk and two doctors think they need to be transferred for further assessment, they need to be brought to Australia. Similarly, if a person is a security risk but has a child, they need to be brought to Australia under this Bill.  The extent to which this matters is a value judgement, and I think reasonable people can disagree on it.  Just because they’re a security risk doesn’t mean they don’t also have medical needs, for example.

It also does not limit the bases upon which a medical practitioner can make the finding. Two medical doctors morally opposed to offshore processing might be of the view, however informed, that living in Nauru causes depression and so every person who demonstrates any kind of depressive symptom, no matter how slight, need to be transferred to Australia for further assessment or treatment. This has been the basis for the Coalition’s comment that Bob Brown and Richard Di Natale could collude to bring every asylum seeker to Australia.

To their credit, the Greens introduced amendments in the Senate which is a more sophisticated version of Phelps’ bill.  As a quick aside, the different set of amendments have made it a bit difficult to follow public debate with journos pointing to different sets of amendments to refute the Coalition’s claims about the amendments.  Some of the Coalition’s claims are more true if we’re discussing Phelps’ Bill or the Greens’ amendments.

The Greens are proposing a multi-step process that follows the contours of Phelps’ proposal.  It uses the same family unit model, and applies to ‘transitory persons’. But the Greens’ amendments recognise that medical opinion needs to be balanced against other considerations. If the Minister reasonably believes that there is a security risk, the Minister can refuse the transfer.  You can enter into the same discussion as earlier: should a security risk mean that a person cannot access medical treatment?  Depending on your views, you might prefer the Phelps Bill here.

Where things get really wild is the Greens’ proposal about how to review the request from two treating doctors. Again, we have two doctors undertake an assessment either in person or remotely. But, this time, the ‘transitory person’ must satisfy three requirements (instead of Phelps’ two): the doctor must form the view that the person requires assessment or treatment, that the person is not receiving the assessment or treatment, and that transfer to Australia is necessary for assessment or treatment. The third ground is different and raises the bar to make my earlier objection irrelevant. But it causes a conceptual issue: how do doctors know if a transfer to Australia is necessary? A person could reasonably form the view that if a person requires assessment or treatment and has not received assessment or treatment, then the third element of necessity should be taken to be met. I disagree with this view, but it’s not a stupid or unreasonable view.

What’s puzzling about the drafting is that this third element becomes the grounds upon which the Minister can also refuse the transfer (along with the security risk discussed above). If the Minister believes that a transfer is not necessary, the Minister can refuse the transfer. The Minister can’t make a finding that the person does not require assessment or treatment, or a finding that the person is not receiving assessment or treatment.

If the Minister forms the view that the transfer is not necessary, the Minister must refer the issue to an Independent Health Advisory Panel (IHAP).  IHAP is composed of eight doctors who, within 24 hours, must undertake another assessment. We could be talking about hundreds of people who, soon after the passing of the amendments, must be assessed within 24 hours. It is entirely and utterly unworkable.

I’ve been referring a few times to ‘transitory persons’. The public debate has been discussing asylum seekers who are detained in Manus and Nauru. There’s a difficult lack of precision here which makes discussion hard.

‘Transitory person’ is a defined term, and it means:

1. a person who was taken to another country under repealed section 198A; or 

2. a person who was taken to a regional processing country under section 198AD; or

3. a person who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or

4. a person who, while a non‑citizen and during the period from 27 August 2001 to 6 October 2001:

(i)  was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and

(ii)  was then taken by HMAS Manoora to another country; and

(iii)  disembarked in that other country; or

5. the child of a transitory person mentioned in paragraph (2) or (3), if:

(i)  the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and

(ii)  the child was not an Australian citizen at the time of birth; or

6. the child of a transitory person mentioned in paragraph (2) or (3), if:

(i)  the child was born in the migration zone; and

(ii)  the child was not an Australian citizen at the time of birth.

Holy Christ. Yes, I know for certain that I’m 110% certain that all the people on Twitter who have strong opinions about this proposal are completely across the details.

I’m of the view that ‘transitory person’ is too broad for the purposes of medical transfers.  I can’t quite work out when the status of ‘transitory person’ ends, and it is possible that it also applies to people whose asylum application has been refused and they’ve been returned. It is also possible that it applies to people who have already been resettled in the region (such as under the Cambodia agreement).

Let’s start back at the beginning. Healthcare for asylum seekers in the region has been a disaster. By any measure, something has gone catastrophically wrong. Are either proposals better than the current situation? An honest assessment has to come to the conclusion that it is.  On the other hand, could a person reasonably disagree with the proposals without simply being heartless, racist, or otherwise morally defective? Again, yes, but to do so means that you have to have an alternative up your sleeve to propose.

Next, it is deeply worrying that this is again Australia acting unilaterally in the region. Why does an asylum seeker in Manus or Nauru get a different quality of treatment from an asylum seeker in Indonesia? The policy purpose of regional processing is that a person should be able to regularise their migration status as early as possible and get the same treatment regardless of where they choose that regularisation.

Finally, it is not a durable solution to healthcare needs of asylum seekers in the region. The healthcare needs of asylum seekers in the region are not distinct from the healthcare needs of other people in the region, yet Australia has consistently failed to invest in regional approaches to improving health.  The fact that this situation has arisen demonstrates that failure. There should be options already available that do not require transfer to Australia.

Should the ALP oppose the proposals?  In my view, yes.  Will they?  It depends on whether or not they think there is more votes in appeasing progressives or in looking ‘tough’ on asylum seeker policy.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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