Do Dutton’s medevac law claims stack up against court ruling? – explainer | Australia news


Peter Dutton has indicated he will appeal a federal court’s decision to allow doctors to assess a patient’s need for a medical transfer from Nauru based on their medical file.

The home affairs minister, who hopes to have the medevac legislation repealed by the parliament, has warned the ruling sets a precedent which could encourage people smugglers to restart the boats.

But what does the medevac legislation actually say, what will Bromberg’s ruling mean, and what has happened since the legislation passed.

What was the court case about?

Justice Mordecai Bromberg was examining the case of a 29-year-old Iraqi refugee who had spent six years on Nauru, and had his application for a medical transfer to Australia blocked by Dutton’s department.

It centred on whether doctors needed to speak to, or engage, with a patient directly, either through teleconference or in person, as set down in the legislation, or whether it would be enough for doctors to make an assessment based on medical files.

Bromberg found that doctors could make do with a patient’s medical history – much like they do if a patient is unconscious or based remotely.

Dutton claims the ruling will make it easier for doctors to make recommendations for transfers, creating “a situation where Australia has been compelled to take people, even of bad character”. But that ignores the department’s ability to veto cases, which can be overturned only by an independent panel picked by the government, if the minister has rejected the transfer on medical grounds.

It is understood that about seven cases have been rejected by the immigration minister, David Coleman, of which just two are thought to have been overturned by the government’s panel.

The federal court decision does nothing to change the minister’s ability to reject any applications on medical, security or character grounds and does not change the role of the independent health advice panel which reviews those rejections.

Why can’t doctors see them in person?

Shortly after the 45th parliament passed the medevac legislation, Nauru banned teleconferences for residents, making it impossible to meet that part of the legislation. As the Guardian reported at the time that was most likely a response to Médecins Sans Frontières launching a telehealth service after it was kicked off the island by the government.

The only exceptions are those who have had their application for a telehealth conference approved by the Nauruan cabinet. While aimed at MSF, the Nauru legislation affected the medevac laws as refugees and asylum seekers held on the island are also banned from teleconferencing with doctors when seeking medical transfer to the Australian mainland.

What is the medevac bill?

For a refresher, take a look at this piece from Katharine Murphy.

Can criminals be brought to Australia?

The Coalition-threatened influx of rapists, murderers and paedophiles seeking medical treatment if the medevac bill passed has not materialised. The only alleged criminals we have heard of entering Australia were two Rwandans accused of murder who were accepted as part of the US refugee swap deal struck by the Coalition.

Under the legislation, a substantial criminal record, as applicable to the character test, is based on section 501(7) of the Migration Act. It is defined as a death or life imprisonment sentence, someone who has been sentenced to more than a year in jail, or has spent a cumulative period in prison of 12 months or more. You’ll find more on that here.

Leaving aside the fact that anyone found guilty of a crime, even a particularly heinous one, is still entitled to medical treatment, and someone charged with a crime is not considered automatically guilty, the medevac bill includes a final veto for the minister on security grounds. That includes cases in which the person has a substantial criminal record.

Anyone brought to Australia for medical treatment is not released into the community. They remain in detention and are escorted to medical appointments, remaining under guard while receiving treatment.

Why is Dutton saying it will lead to boats starting up again?

Because he never stopped saying the boats would start up again. Despite claims that passage of the bill would lead to boat arrivals, and the reopening of Christmas Island in anticipation of the hordes, there have been no successful arrivals, and Australia’s policy of boat turnbacks remains in place. The government has responded to criticism that it exaggerated the risks by saying that reopening Christmas Island deterred the smugglers.

Labor’s home affairs spokeswoman, Kristina Keneally, has called Dutton’s warnings about the boats “scaremongering”, because nothing has changed and the medevac legislation still applies only to people already on Nauru and Manus Island.

“The government has cried wolf on medevac before, and they’ll cry wolf again,” she said. “This legal action was always about a clarification of the law, and provides certainty that people on Nauru can submit an application to trigger the medevac legislation and process … Applicants will still be assessed by doctors, both in Nauru and Australia.”

Dutton, however, repeated his warnings on Thursday, telling the ABC that smugglers would “spin and twist” the ruling to entice people into paying for illegal passages to Australia.

But Dutton appears to have jumped on the federal court ruling mainly as a way of aiding the government’s chances of winning the crossbench Senate votes it needs to repeal the legislation when parliament resumes next month.

Will it be repealed?

Probably. The government needs just four votes in the Senate to pass legislation, and one of those – Cory Bernardi – is onside. That means it needs either Centre Alliance and Jacqui Lambie, or One Nation and Jacqui Lambie to get its way. Centre Alliance helped pass medevac originally, and One Nation was opposed. That leaves Lambie as the balance and so far she hasn’t said which way she intends to go, but supporters of the legislation are not hopeful.



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