Gaming of medivac laws weakens border security

The problematic medivac legislation, passed in February by Labor, the Greens and four Senate independents at the urging of former MP Kerryn Phelps, has had a fair trial. And it has been found to be wide open to gaming, creating a potential weakness in Australia’s effective border protection regime. The number of asylum-­seekers and refugees detained on Nauru and Manus Island seeking transfers to the mainland under the laws has steadily increased. It spiked last month when 120 people applied for transfers. They were among 562 detainees remaining on the two islands combined.

As Joe Kelly reported on Wednesday, 136 people have been brought from Papua New Guinea and Nauru to Australia to receive medical assistance since the legislation came into effect in March. Of those, five refused to accept medical treatment after arriving in Australia and about 40 turned down the relevant pathology tests and X-rays offered to them. Fewer than one in 10 of those transferred under the laws has needed hospital treatment. The Australian understands the number of refugees and ­asylum-seekers in hospital — after being transferred — has fluctuated from zero to one a day.

The legislation has several major flaws. First, it abrogates the final say on who can be transferred to Australia on medical grounds from elected representatives to an independent panel of doctors, including psychiatrists and physicians. Ministers cannot even prevent some individuals considered suspect on security grounds from entering the country. The bill imposed “strictly limited grounds for refusal in relation to security and character concerns”, the Senate’s Legal and Constitutional Affairs Legislation Committee noted last month.

Second, as the committee pointed out, the laws lack any process to return medically evacuated detainees to offshore locations after treatment is completed. Home Affairs Department secretary Mike Pezzullo told the committee this was a “grievous flaw”. The Australian understands that the asylum-seekers transferred to Australia so far are being detained here. The committee also noted an alleged increase in self-harm by detainees in PNG since the laws were introduced.

The main report of the Coalition-dominated committee said the laws restricted the government’s ability to “make decisions in Australia’s national interest”. Given the problems that arose after Labor relaxed border security in 2008, including 50,000 people arriving by boat and 1200 known deaths at sea, that is a serious concern. In light of mass migration across the world, retaining control of borders is an essential tenet of effective government. Anything else amounts to counterfeit compassion, encouraging people-smugglers to entice desperate people to chance their lives at sea when the best that awaits them is years in detention.

The Morrison government will need the support of Senate crossbencher Jacqui Lambie to repeal the legislation after Labor, the Greens and Centre Alliance have flagged their intention to support the status quo. The opposition, in particular, should review its position. Supporting repeal of the legislation would be a sign it has learned from its earlier mistakes on border protection.