Medivac loophole could lead to automatic transfers

Refugees could be automatically approved for a medical transfer under a problem with the contentious bill passed this week.

Prime Minister Scott Morrison. Picture: AAP

Asylum seekers and refugees could be automatically approved for a medical transfer to Australia under a problem with a contentious medivac bill passed by the parliament this week despite government opposition.

Advice from the Department of Home Affairs provided to Scott Morrison sounds the alarm on the creation of a new Independent Health Advice Panel which is to be constituted by medical professionals who are not remunerated for their time.

The advice warns that — if the panel cannot be constituted — the government must assume the panel has ruled in favour of a medical transfer even if the minister had initially opposed the advice received from treating doctors.

In this instance, the minister can only prevail in opposing a medical evacuation if a transferee poses a threat to the community or presents a national security risk.

The Australian understands that formal advice from Home Affairs states that, in the absence of a panel, all decisions by government to refuse a transfer (unless on security grounds) “will be deemed to be recommending that transfer”.

Up to 300 refugees and asylum seekers on Manus Island and Nauru have already obtained recommendations from treating doctors to enable them to be transferred to Australia under the new medivac legislation.

To remove constitutional doubts over the medivac bill, Labor and the crossbench amended it to ensure that members appointed to the new Independent Health Advice Panel will not be paid for their time.

But the government is concerned this amendment will make it harder to staff the panel when the new medivac bill becomes law.

This could lead to an outcome where some of the 300 refugees and asylum seekers being held on Manus and Nauru — and who have already finalised their medivac paperwork — receive an automatic approval for transfer to Australia.

Before the panel comes into play, two doctors would be able to make a recommendation on whether an individual is transferred to Australia for treatment. The minister could overrule this finding with the Independent Health Advice Panel given scope to reassess the case.

Under the medivac legislation that passed the parliament yesterday, the Independent Health Advice Panel is given 72 hours to conduct a “further clinical assessment” of a potential transferee if the minister disagrees — on health grounds — with an initial recommendation for a medical transfer.

The panel is required to inform the minister whether it supports or opposes a medical transfer. If the panel does not inform the minister of its recommendation within the 72 hour period, it is taken to have recommended in favour of a transfer.

At this point, the minister is given a 24 hour window to respond to the advice from the independent panel. The minister can only refuse the transfer on security grounds or if the individual represents a threat to the community.