Shorten cannot please everyone

Labor will regret medicalising the transit from Nauru and Manus Island.

Peter Dutton and Scott Morrison in the chamber on Thursday. Picture: Gary Ramage

The Labor Party has voted itself into a political contradiction — it has passed a law making it far easier for large numbers of people to arrive from Nauru and Manus but declares it is a tough and reliable champion of offshore processing, turning back boats and strong ­borders.

This is the new Labor Party — compassionate tough. It offers to please all sides, from progressives who demand an end to the “torture” of these people to the mainstream sentiment that expects the government to secure the borders.

Sadly, pleasing everybody is not how the real world works. The bill Labor passed in the Senate last December was reckless; the bill it passed into law this week is merely irresponsible. Bill Shorten said it was about “providing treatment to sick people”, yet in terms of border protection the law is a risk to Australia now and, for the precedent it sets, into the future.

It is uncertain how the domestic politics will play out except to say bipartisanship on borders has been broken and the issue will run until election day. It is uncertain whether Labor’s law will see a ­return of boats, though this seems unlikely at the moment. But what is not uncertain is that this law constitutes a major policy change for Australia in relation to people movement to this country.

The Labor pretence that nothing much has happened since this merely “codifies” what is happening under the Morrison government is devised to deceive. It is sustained neither by facts nor evidence. Trapped by its contradictions, Labor is guilty of heroism that dare not spell its name.

The week has been engulfed in emotion, exaggerated rhetoric and bizarre claims that Scott Morrison should call an election.

Australia has been saddled with a flawed law caused by unique events that may have no precedent — the opposition parties have imposed in haste a law upon the government that it ­deplores but must implement in the critical and complex arena of border entry and security. It is ­designed to achieve a political outcome the parliament wants and the executive opposes.

The longer the law is operative the more its flaws will be apparent. It will lead to a trail of woe. This week in parliament the government, with access to all the information from its own admin­istration about what the law actually means, turned its attack on Labor’s law into a shooting gallery. This is just the start.

There are six potentially dangerous policy changes embedded in the law. First, it has medicalised the journey from Nauru and Manus to Australia. In relation to medical issues, it has ­empowered doctors as decision-making agents and removed from the minister and Australian government the power to determine who comes to this country.

This is wrong in principle and can never be justified. It doesn’t matter how many Labor figures protest to the contrary. The law is the law is the law — in this case Labor’s law.

Second, the power and discretion of the minister and Australian government to fully vet individuals on grounds of security and character is significantly curtailed. The only grounds on which the minister can veto entry relate to security concerns as defined in the ASIO Act and also criminal conduct falling under the narrow definition of being sentenced to prison for 12 months or more.

Illustration: Eric Lobbecke

Virtually every other ground in section 501 of the Migration Act that gives the minister wide discretion to deny entry to a non-­citizen on character grounds is excluded. Labor’s law denies the minister a litany of his usual powers to protect the nation, as Home Affairs Minister Peter Dutton told parliament on Thursday.

Attorney-General Christian Porter spelt out the areas where the minister cannot act: where he feels an individual exposes the public to risk; where previous criminal conduct was involved; where an individual was charged or convicted but not sentenced. Dutton gave the example of where an individual was suspected or ­accused of sexual assault. All such ministerial discretion — the law that applies to people coming to this country — is denied by Labor’s law. Why did Labor do this? It is unjustified and surely unacceptable to the public.

Third, this means people from Nauru and Manus are being ­accorded a special legal status, not available to others, that facilitates their entry into Australia. “This is as special as deals can get,” Porter told Inquirer of Labor’s law. Immigration Minister David Coleman told parliament that Labor’s law applied “a lower standard for people who transfer to Australia from Manus Island and Nauru than for every other person who comes to Australia with a visa under section 501 of the ­Migration Act 1958”.

As Coleman said, the standard that applies to someone coming on a tourist or work visa — or your cousin coming from Canada — will not apply to people from Nauru and Manus. Labor, he said, had applied a “very, very narrow test on who can be excluded” by the minister. The result is that “a backpacker from Norway has to pass the substantive character test under Australian law but people coming from Manus Island or Nauru don’t.” Is this Labor’s idea of fairness?

Fourth, it is impossible for the Australian government to conduct proper security screening of all the people coming to Australia within the 72-hour timeline ­imposed by Labor’s law. This goes to the danger of having the opposition instigate law the government must implement. Security vetting takes time, and as an official familiar with the situation said: “Not all these people are angelic.”

Under the previous process, the government controlled the time ASIO might need for a security clearance. It might take six weeks; it might take three months. “The notion we could do this in 72 hours is sheer fantasy,” Porter said. He told parliament: “Trying to find whether someone has behaved in a previously unlawful way or whether or not they may be a security risk, that is a resource-intensive process that takes an enormous amount of time.”

The situation is compounded by the sheer numbers about to ­arrive, estimated at about 300 by independent Kerryn Phelps, an estimate also being used by the government. Confronting the dilemma of necessary security vetting, Porter said: “The idea that we could do this for hundreds of people in the first week is madness.”

The Attorney-General has put parliament on notice of this grave situation: “We are staring down the potential to have up to 300 ­requirements to assess 300 individuals for their potential security risk, at once, in a 72-hour period.” Many of these people will come without proper security assessment. That is how Labor’s law will work.

Some media raise the bogus point that these people would have clearance already. Indeed, Labor claims they have already been investigated. Porter rejects this, saying: “They have not been assessed in terms of coming to Australia. That is because we never intended in the first place they would come here.”

Describing the potential difficulty facing the government, Porter referred to the case of M47 in the High Court this week: “It was about an individual who arrived in Australia in 2010. They have been an unlawful non-citizen since then. They variously claim to be a citizen of West Sahara, Algeria, Spanish Canary Islands and to be stateless. That person used various false passports indicating citizenship of Gaza, Israel, Iraq. Nine years later we still do not know the country of origin of that person.”

Fifth, the law is a set-up written at every point in disregard of ­proper process and oversight with one goal — to bring people to Australia as fast as possible. At present people are brought to Australia for medical reasons under an established, flexible and non-transparent system. Recom­men­dat­ions are made by doctors on location. The working principle is that people come when they need medical treatment not available on Nauru and Manus.

There are 418 people and 64 health professionals on Nauru, about half being doctors. On Manus there is access to the local hospital and to the Pacific International Hospital at Port Mor­esby. After a recommendation is made, it goes to a Home Affairs Department committee. An official acting as delegate of the minister authorises the transfer. It is an executive government decision, not a doctors’ decision.

The ability exists for the minister to override a transfer on security or character grounds, and this has been done. About 880 people have come to Australia over five years. They have come for medical care, not settlement. They are supposed to be here on a temporary basis and return after medical treatment. A small number left some time ago but the activist lawyers have tied the issue up in the courts. The result is that “temporary” has become long-term.

The model created by the Labor law is different. It is founded in a medical framework where any two doctors can make the recommendation. They don’t need to be on location, don’t need to see the patient, don’t need to ­decide an individual can only be treated in Australia and don’t need to decide an individual is sick, only that the person needs to be assessed.

The government, unsurprisingly, concludes that most of the 1000 people on Nauru and Manus will soon be referred. The political commitment of the medical profession largely guarantees this.

The minister has 72 hours to ­respond to the recommendation from the doctors. If the minister makes no decision transfer ­becomes automatic. If the minister denies the transfer on medical grounds the issue goes to a doctors’ panel for determination.

That panel involves the chief medical officer of the department, the surgeon-general of the border force, the commonwealth chief medical officer and not less than six other members including one person each from the AMA, the Royal Australasian College of Physicians and the Royal Australian and New Zealand College of Psychiatrists. Some of these ­organisations have declared their support for Labor’s medivac law and are politically committed.

The panel is appointed by the minister. If the panel does not function or makes no recommendation, the transfer is approved. If the panel supports the initial recommendation of the doctors the transfer becomes automatic unless the minister exercises a veto on security or character grounds. These limited grounds are the only grounds on which the minister has discretion.

In practice it is most unlikely the minister would override the initial recommendation of the two doctors. This is because the law specifies the minister must exercise this power “personally” and it becomes public. Can you imagine the hostile political campaign and sheer outrage the minister would bring down upon his head if he overruled on medical grounds?

In short, the law is written to put the minister in a precarious position and make any override either untenable or come at high political cost. If the minister did override he would face the further humiliation of being repudiated by the medical panel whose composition would make endorsement of the decision of the original doctors all but certain.

Once the medical panel overrules the minister, that is the end of the process as far as medical criteria are concerned. The minister — meaning the Australian government — has no further say. The doctors have the power. The law is a set-up, written to achieve an outcome — removing people with medical provisions so lax they verge on farcical. The intent is obvious: to get as many people to Australia as quickly as practicable.

Sixth, the law, by seeking to empty the offshore centres, is a ­calculated strike against regional processing arrangements described in the Department of Home Affairs advice as the “third pillar” of Australia’s border protection.

It is true that the most significant amendment Labor made this week was to specify the law ­applied only to people now on Nauru and Manus. That is an important change and removed the prospective nature of the law. It should be a discouragement for the boats to restart although Scott Morrison argues that the people-smugglers “don’t deal with the ­nuance of the Canberra bubble”.

The idea, suggested by some media, that Morrison become an advocate for Labor’s laws and begin explaining them to people-smugglers to discourage any more boats is fanciful in the extreme. Morrison has no such obligation.

There is, of course, no question the Morrison government has been placed in an extraordinary dilemma — it must live with a policy it opposes and try to stop any boat arrivals it warns will be the upshot. The more the government attacks the policy the more such publicity may tempt the people-smugglers. The responsibility for this situation is obvious: it rests with the people who voted for the law and Morrison is correct in holding Labor to account for the consequences.

Beyond that point, this is a precedent-making policy change. Labor’s decision to medicalise the transit from Nauru and Manus to Australia will become a globally published event. It will define Labor. It is fatuous to see this in isolation.

Is anybody fool enough to think this policy change has no relevance for any future arrivals in the offshore centres? Does Labor in government refuse to give these people the same treatment that Labor offered in opposition? The principle is established.

The Labor Left, the Greens, the independents, the refugee lobby and the politicised doctors have won this victory and made it the law of the land. What happens under a Labor government if new arrivals on Nauru hoist the flag on mental illness? A Labor government would have no option but to extend the same principle to the next cohort of arrivals.

This legislation is a historic win for the Left and progressive politics. Over the past year they have targeted Nauru and Manus as morally unacceptable with a secondary argument that the offshore centres were no longer relevant to stopping the boats. It has been a brilliant campaign, though success was only possible because of events set in train by Malcolm Turnbull’s removal.

The challenge for Labor will be to manage the contradiction it created this week. Having secured this parliamentary win, triggering cheers, embraces and champagne, senior Labor figures then began suggesting nothing much had happened. This became the Labor propaganda line. Why?

The answer is that Labor plays to two constituents: it plays the hero to the middle-class progressives who demand people be ­removed from Nauru and Manus and it wants to tell the masses of the electorate that their borders are as secure as ever.

While Labor has undermined the current offshore processing regime that has run for six years, it insists that, in the words of opposition immigration spokesman Shayne Neumann, the Australian people “can trust us in government” with the toughness to ­secure the borders and uphold the Coalition’s policy of Operation Sovereign Borders.

Shorten’s problem is trust — this now requires a big act of trust. Labor has passed a bad law ­enforced by a gag. It will have consequences that will unfold until election day. Morrison’s problem is exaggerating the risk the boats will start again and, if that does not happen, living with an unjustified fear scare. As for a snap election, it would be madness. Morrison needs to bring down a budget and hope his judgment is vindicated — that the border issue will get worse for Labor.