Medivac bill ‘to gives doctors control over refugees’

The federal government has been advised a refugee medivac bill would limit ministerial discretion over who enters Australia.

Attorney-General Christian Porter. Picture: AAP

The Australian Government Solicitor has advised the Morrison government a Labor-backed refuge­e medivac bill would “drastically limit ministerial discretion” over who could enter Australia, by transferring that responsibility to doctors.

Attorney-General Christian Porter said the solicitor’s advice suggested that, even if people had been convicted of rape or murder, they could still be transferred to Australia from Papua New Guinea or Nauru under the medivac legislation.

The advice directly contradicts arguments by Labor that the home affairs minister would ­retain ultim­ate discretion to reject anyone convicted of violent ­offences under the definition of “national security” in the ASIO Act.

“The government’s position, based on legal advice from the AGS, is that this is clearly not the case. The Labor advice is wrong,” Mr Porter said.

He also warned that the medivac bill — which could pass the House of Representatives next week with support from Labor, independe­nt and Greens MPs — would allow doctors to transfer healthy people to Australia.

“The amendments would leave that decision essentially in the hands of two doctors who do not even need to determine that someone is actually ill, merely that someone should come to Australia for further assessment,” Mr Porter said.

“Two doctors would have the broad and effective power to ­determine which person in offshore facilities should come to Australia, without the minister having any ultimate say in that decision”.

Key crossbencher Rebekha Sharkie said she remained commit­ted to supporting the legislation to medically evacuate refugees, despite security warnings from intelligence agencies.

“I am concerned that this governmen­t continues to peddle the politics of fear in regards to this issue,” she said. “This bill seeks to achieve a way forward to address the medical needs of those people left on Manus and Nauru without going through lengthy legal proceedings”.

A political row erupted yesterday over the legal advice provided to Labor in December by ­Matthew Albert, an Oxford-­educated expert in international refugee law with ALP links.

Mr Albert was named on a Victoria­n Labor Party policy committee in the 2015 state conference. He is also identified as a founding member of Open Labor, a group dedicated to more demo­cratisation within the party.

Home Affairs Minister Peter Dutton attacked Mr ­Albert yesterday as an “activist” and a “suburban lawyer” for arguing that the medivac transfer bill would ­expand the minister’s ability to reject an unwanted medical transfer.

In his legal advice, dated ­December 11, Mr Albert said: “The minister’s power to exclude a ­person from transfer to Australia is expanded beyond the security protections of the existing law. This expansion empowers the minister to have regard to question­s of both public safety and ‘border integrity’ before a person is transferred”.

Opposition Treasury spokesman Chris Bowen used Mr Albert’s advice yesterday to reject the latest warning from intelligence agencies — revealed yesterday in The Australian — who briefed the government on the consequences of the medivac bill, warning that it would dismantle offshore processing.

Mr Bowen accused the govern­ment of politicising security agencies. “Now the government has very serious questions to answer as to how classified advice — we’ve not seen, you’ve not seen — has made it on the front pages of one of the ­nation’s newspapers,” he said.

“In relation to the bill, we have legal advice which very clearly states that ministerial discretion remains in relation to ­national ­security.

“The crossbench have agreed so that national security ­discretion remains with the ­minister, as it should be.’’

Mr Porter used the solicitor’s advice to suggest that Labor and the independents were mistaken and had been misled by Mr ­Albert’s legal advice.

He warned that the ASIO Act did “not encompass the protection of the community from criminal behaviour generally”. “The term ‘security’ is defined in specific and limited terms in section 4 of the ASIO Act,’’ he said. “It is limited to protection from espionage; sabotage; politic­ally motivated violence; promotion of communal violence; attacks on Australia’s defence system­; or acts of foreign interference.’’