Kerryn Phelps
A bill of human rights
This article was first published in the print edition of The Saturday Paper on Feb 16, 2019 as "A bill of human rights".
The Australian parliament has taken decisive action to
ensure sick refugees held in indefinite detention on Manus Island and Nauru
receive prompt and proper medical treatment.
Prime Minister Scott Morrison lost the first
government vote in the house of representatives in decades, and despite some
hysterical rhetoric and chest-beating, he has no one to blame but himself after
neglecting and obstructing access to appropriate medical care of these refugees
for years.
Months of campaigning, weeks of planning and several
days spent huddled inside Parliament House offices alongside refugee advocates,
doctors and fellow crossbenchers culminated in a series of amendments, passed
through each house of parliament by a single vote.
I felt enormous relief for the sick refugees on Manus
Island and Nauru when the final senate numbers were read out and it was moving
to share this experience with doctors and advocates, many of whom have spent
the past two decades fighting for the rights of asylum seekers and refugees
But the battle is not over. The government is still
obfuscating, blocking and deliberately misleading the parliament and the
public.
The prime minister, aided by Peter Dutton and Tony
Abbott, is now mounting a massive scare campaign ahead of the coming federal
election. To them, the facts no longer matter.
The facts are that the legislation applies only to
those people who are already on Manus Island and Nauru; the minister for home
affairs still has discretion to refuse to allow their transfer to Australia for
treatment on the grounds of national security or where an applicant has
committed a serious criminal offence; and refugees transferred remain in
custody, so the minister still has complete control over them while here.
Nothing in this legislation erodes the minister’s
power or discretion. All that has really changed is that there is now a clear
statutory time frame in which the minister must make a decision, and if there
is any question of the validity of the opinion of the first two doctors, the
minister’s decision will be assisted by an independent health advice panel.
There is absolutely no risk to the community as a
result of this bill.
The panel will review any transfers refused by the
minister and will consist of representatives from the Australian Medical
Association (AMA) and Australian medical colleges. It also includes the
Commonwealth chief medical officer and the surgeon-general of the Australian
Border Force.
The panel may also travel to regional processing
countries to conduct monitoring and assessment activities and assess the
adequacy of health services and support provided to people on Nauru and Manus.
It is not entirely true to say the boats have been
stopped. The boats have never stopped attempting to come to Australia, but
Operation Sovereign Borders has successfully turned them back or towed them
back, which has been a strong deterrent to the people smuggling trade – and
that’s a good thing and should continue to prevent unnecessary deaths and unscrupulous
profiteering from refugees’ desperation and misery. But as a nation we can no
longer continue to allow unfair processes that prevent sick and injured people
from receiving the medical treatment they need while under Australia’s care.
The only thing encouraging people smugglers as a
result of the so-called medivac legislation is the Morrison government
cynically talking up an “opportunity” that the legislation does not actually
provide.
Just last week Tony Abbott said the medical profession
“tends to err on the side of compassion” – well, compassion is not a mistake.
Whatever way you look at it, there is an urgent
medical crisis in Australia’s offshore detention centres and Australia’s
doctors have spoken up in the thousands to support the passage of the bill.
A dossier of leaked materials in August last year from
Médecins Sans Frontières (MSF) uncovered shocking signs of medical neglect in
Australia’s offshore processing facilities, precipitated and exacerbated by
incidences of violence, sexual assault, degrading treatment and self-harm.
Three former medical staff employed on Nauru blew the whistle on this crisis,
warning that medical conditions are so critical that a child may die.
While many seriously ill people have been transferred
to Australia for urgent medical treatment, with delays of two to five years, it
was mostly following protracted court processes or legal intervention, and the
government has been fighting these cases every step of the way.
There are currently just over 1000 people remaining in
detention on Manus Island and Nauru. Some have been held in offshore detention
for five years or longer. It cannot seriously be suggested that the prospect of
being held offshore for several years in appalling conditions and only being
allowed onshore temporarily in cases of genuine medical emergency will create
any incentive for boat trafficking to resume.
Since the #KidsOffNauru campaign began on August 20
last year, most of the children and their families have been transferred to
Australia for medical treatment. That is undeniably a good thing. However,
there are still acutely unwell women and men on Nauru and Manus and this
legislation will provide for their prompt transfer.
We know the medical care available on Manus and Nauru
is inadequate, particularly with respect to specialised diagnostic equipment
and specialist medical treatment.
MSF was abruptly ordered to leave Nauru last year,
depriving its patients on the island of specialist health services. The
organisation’s report into conditions on Nauru stated that the mental health
suffering there is among the worst MSF has seen, including in projects
providing care for victims of torture. These people are suffering not just from
trauma they have experienced as asylum seekers and refugees, but also from the
deep sense of hopelessness caused by them and their families being locked up
indefinitely.
On Manus Island, as well, the situation is critical.
A report released by the United Nations High
Commissioner for Refugees in November 2016 found that the men in the Manus
Island detention centre are suffering from some of the highest rates of
depression, post-traumatic stress and anxiety disorders in the world.
We have seen 12 people die in offshore detention over
the past five years. Hamid Khazaei died from a leg infection that could have
been treated with a course of antibiotics.
We have a moral and legal responsibility to act.
As a doctor, and as a humanitarian, I was supportive
of the bill because I could not stand idly by in the face of credible reports
about the shocking mental and physical state of children, men and women held on
Nauru and Manus Island. Australia’s treatment of asylum seekers is a source of
sorrow for me and for many of my medical colleagues and other Australians.
While I have only been in the parliament for a short time, the passing of this
bill represents the tireless efforts of refugee advocates, doctors,
parliamentarians and the Australian community. It follows the advice of the
AMA, medical colleges and thousands of doctors across Australia, and is in line
with the views of refugee advocates and fair-minded people everywhere,
including to many people in the parliament from across party lines.
I said in the Wentworth by election campaign that
people wanted politics done differently and this week we showed that a
collaborative approach can work.
By ensuring fair and prompt transfers for medical
treatment but maintaining appropriate protections of Australia’s national
security interests, we can show that when people are in genuine need of care,
Australia will do the right thing.
The bill clearly outlines a robust medical pathway,
with ministerial oversight, for the urgent medical transfer of unwell people
from Manus and Nauru.
The idea pushed by some government ministers and
commentators that someone could ring two doctors on Skype and gain entry to
Australia is simply wrong; it is deliberate misinformation.
Those who would say that by introducing this bill we
are letting the people smugglers win, or inviting a flood of boats, should
consider that the bill does not provide for permanent resettlement of refugees,
or even their permanent transfer to Australia. It does not end offshore
detention. It does not contradict either of the major parties’ stated policy on
offshore detention.
It simply ensures sick people in offshore detention receive
necessary, appropriate and timely medical treatment.
The evidence to date does not establish that moving
people to Australia temporarily for medical treatment results in a flood of
boats. According to Minister Dutton, 810 people from offshore detention are
already in Australia for medical treatment with the government’s approval, and
they have not been returned to Nauru and Manus – yet the boats have not
restarted.
Similarly, the headlines last year that the government
was going to move all children to Australia by Christmas also have not resulted
in an influx of boats.
The government has not been able to explain how
Minister Dutton can transfer people to Australia without boats restarting, yet
if a panel of doctors makes the same recommendation, boats will restart.
We need to accelerate the processing of refugee and
asylum seeker claims and have a regional resettlement option that recognises
them as people and respects their human rights. That should not be too much to
ask.
This article was first published in the print edition
of The Saturday Paper on Feb 16, 2019 as "A bill of human rights". Subscribe here.
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