Dutton steps up case for medevac axing


The government is considering an appeal of a court decision which found doctors can remotely assess offshore asylum seekers applying for medical evacuation.

Home Affairs Minister Peter Dutton says "advocate" doctors could be putting asylum seekers' names forward to be considered for medical transfer even if they haven't consented to it.

Mr Dutton says it is another flaw in the medevac legislation which came into force in March with the support of Labor and the crossbench and against the will of the government.


The minister has sought advice on a court challenge to another aspect of the laws - whether doctors determining medical transfer need to see a patient face-to-face or can merely review records.

7 March: Scott Morrison says Australians could lose their homes under Medevac deal
7 March: Scott Morrison says Australians could lose their homes under Medevac deal

A 29-year-old man from Iraq, who has been on Nauru for six years, sought approval for transfer to Australia under the medevac laws.

Two doctors formed their opinions and prepared reports for the Home Affairs secretary on the basis of the applicant's medical records and other material but did not personally interview or physically examine him.

The Home Affairs department argued the two doctors should have been required to personally assess the man but the Federal Court found this week a remote assessment of records was enough to meet the requirements of the medevac law.

Mr Dutton said the medevac legislation was a "deeply flawed process" and Labor needed to back the government to repeal it.

"As I'm advised not only do they not have to see the patient themselves the patient doesn't even need to provide consent," Mr Dutton told reporters in Sydney on Thursday.

"I'm not even aware that some of these people on Manus and Nauru know these advocate doctors are putting forward their cases for consideration."

Human Rights Law Centre senior lawyer David Burke rejected the minister's claim.

"Before doctors are able to make assessments, every patient provides their consent," he told AAP.

"This consent is needed for the doctors to obtain the patient's medical records."

Mr Dutton said if the bill wasn't repealed he would consider an appeal to either the full Federal Court or the High Court, on which he's sought advice.

"It's inconceivable that a sovereign government doesn't have the right to say who is going to come to our country and don't have the right for those people to return back once that medical advice has been provided."

Labor frontbencher Penny Wong said the minister did not understand the court decision.

"Nothing in this (court) decision changes or lessens the minister's power to reject someone coming to this country on health grounds, on character grounds or on national security grounds," Senator Wong told reporters in Adelaide on Thursday.

"On his watch, more people have actually been transferred to Australia from Manus and Nauru outside of the medevac process than through the medevac process."

Claims rejected

Labor has rejected claims by Home Affairs Minister Dutton that a Federal Court ruling on the medevac law would open the "floodgates".

"The Australian people voted for the Coalition because we keep the borders secure and we will be abolishing this bill or the boats will restart," he told the Australian newspaper.

Home Affairs Minister Peter Dutton said the Federal Court ruling means at least 10 transfer requests that have been ruled invalid would be immediately challenged.

He said more broadly he was concerned it would restart the people smuggling trade.

"It may have applicability to many hundreds of people, which certainly has the potential to restart boats and that would be a travesty," he told the ABC.

Keneally dismisses claims

Labor's home affairs spokeswoman Kristina Keneally dismissed claims of a resurgent people smuggling trade because of the court ruling.

"The government's claims about medevac have always been without foundation," she told the ABC. "And this is no exception. Medevac only applies to the current cohort on Manus and Nauru. It does not apply to any new arrivals."

28 May: Repealing Medevac would be a 'death warrant' for refugees: advocacy groups
28 May: Repealing Medevac would be a 'death warrant' for refugees: advocacy groups

The federal government had previously warned that there would be "a flood" of immediate transfers from about 300 asylum seekers detained on Manus and Nauru.

But on Sunday, Minister Dutton revealed only about 30 people in Australia's offshore processing centres had sought a medical transfer.

Government moves for swift repeal of law

Mr Dutton repeated his plea for Labor to support the Coalition to repeal the medevac legislation.

The government is pushing to have the laws repealed when parliament resumes.

Ms Keneally said Labor will continue to support the bill.

"While it's sad they will use this finding to attempt to undermine Medevac, Labor supports Medevac because it provides urgent medical care for people who need it, and still keeps our country safe," she said in a statement.

Home Affairs Minister Peter Dutton.
Home Affairs Minister Peter Dutton.

"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."

Without Labor's support, the Coalition will need to seek the backing of four of the six crossbench senators for the legislation to be repealed.

'Court ruling significant'

On Tuesday, Justice Mordecai Bromberg found in favour of a critically ill 29-year-old Iraqi man, ruling that a doctor's assessment for the medical transfer application did not need to be done in-person.

In this particular case, two independent doctors reviewed all available medical records, including those from the Australian Government's doctors on Nauru.

The statutory interpretation of section 198E (7)(b) of the Act was found to allow for remote examinations, dismissing the government's argument for the need for "personal engagement".

Kristina Keneally has accused Peter Dutton of scaremongering.
Kristina Keneally has accused Peter Dutton of scaremongering.

Justice Mordy Bromberg said such a requirement would be counter to the purpose of the medevac laws, which were put in place for "transitory people for whom personal engagement with a treating doctor is not possible or not practicable".

Under the medevac legislation, two registered doctors are required to make valid recommendations for medical transfer. The Home Affairs Secretary then notifies the Home Affairs Minister of the two valid recommendations. The Minister can then choose to accept or reject the transfer application -- and also retains the discretion to ultimately reject applications on national security or character grounds.

If the case is rejected then the case is referred to the government's Independent Health Advice Panel, which conducts a clinical assessment of the person and makes a medical recommendation to the Minister.

A senior lawyer with the Human Rights Law Centre, David Burke, said the court ruling is significant.

"The Australian Government has repeatedly tried to make it hard for sick people to access life-saving medical care.

"The fact that we were forced to file in court yet again to allow a sick refugee medical treatment shows how important the Medevac Laws are. We need medical decisions to be made by doctors, not politicians and bureaucrats."

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