Shorten needs to explain switch on border protection

Bill Shorten must explain his U-turn on borders. Picture: AAP.

How does a minority parliament practice to deceive? The answer is easy — when it deploys the subterfuge of medical care and humanitarian concern to achieve the goal of dismantling offshore resettlement and processing.

Last week the Labor Party challenged the Morrison government’s border protection regime by injecting changes into proposals advanced by the Greens and ­independents and then throwing its support behind the final agreed amendments. There is now a major row over the full meaning of the new ALP position.

Bill Shorten says Labor had to act. He says this is about saving people by bringing to Australia somebody “sick and dying” offshore. How can any decent person object? Shorten says he remains fully committed to offshore processing, full stop. The Morrison government says these amendments constitute a serious policy change being presented as a medical issue.

Labor insists the changes it made reflect the core principle that medical transfers can be made to Australia only with ministerial approval. It says the Greens and independents were weak on this point but Labor insisted upon it. Shorten is emphatic — Labor will pursue these amendments when parliament resumes in February.

These amendments are not about children. There are about 1100 people involved, about 600 on Manus and 480 on Nauru. There are only about 10 children left on Nauru and four have been accepted for the US. The number of children probably will be reduced further by next February. About 2000 children have been released from detention in Australia and offshore by the Coalition.

Most of the people left are refugees but about 150 have been found not to be refugees. The amendments apply to both refugees and non-refugees. The latter can be brought to Australia even if they have been found to have no valid grounds for entry. Under the amendments entry is permitted when any two doctors in Australia find there is a medical or psychiatric issue.

The doctors do not have to find a person is ill. They can merely find the person needs to come to Australia for assessment. For example, the doctors might conclude an individual should come to have his or her mental health assessed. Any doctor can make this finding and there is no limit to the number of doctors that could be approached. Taking a theoretical example, you might get knocked back by 10 doctors but get doctors 11 and 12 to make the finding.

There is no limit on the number of findings by any single doctor. There is nothing to stop a humanitarian-inclined doctor from making a dozen or more findings a day. The doctors don’t have to be in Nauru and Manus. The doctors might be in Hobart or Perth and make the finding about somebody on Nauru. They don’t have to see or examine the patient. There is no requirement for a person to have to initially consult a doctor on Nauru.

There are no prizes for guessing how this works. Doctors for Refugees is a lobby with the political goal of eliminating offshore settlement of people who are seeking asylum in Australia. They attack the medical standards on Nauru and Manus and repudiate government claims they are adequate.

The Royal Australian and New Zealand College of Psychiatrists declares people must be held onshore, not offshore. Many doctors believe, as a matter of healthcare principle, that people kept on Nauru and Manus are at risk. Greens leader Richard Di Natale, a doctor, calls the offshore settlements “torture”.

Doctor shopping would be easy. Refugee advocates would rapidly facilitate the process; call centres would be established. It would be simple to find registered doctors willing to act on the statements already made by their professional bodies.

Immigration Minister David Coleman said: “It is obvious from the amendments that every person would be able to get to two doctors to certify. It could all be done within a matter of weeks. This bill is so widely drafted it is easy to see how every person would obtain the approval from two doctors in short order.”

Under the amendments the minister’s powers are curtailed. The minister has — wait for it — 24 hours to dispute findings by the two doctors. If nothing is done in that 24 hours transfer to Australia is automatic. The minister has only two grounds to object. First, saying transfer on medical grounds is unnecessary, in which case the issue goes to a panel of doctors (not obliged to examine the person) and, if they say the transfer must occur, the only ground on which the minister can then object is that a person is prejudicial to security.

No minister would be fool enough to object on medical grounds and face being overruled by the medical panel. In short, the only way the minister and the government could stop entry to Australia would be on security grounds by applying the ASIO Act definition of security.

This definition covers espionage, sabotage, politically motivated violence, acts of foreign interference and “the protection of Australia’s territorial and border integrity from serious threats”. How many people on Nauru and Manus would fail this test? Not many.

The government says this does not include the “character” test used to keep out criminals and sex predators. Labor insists the minister still will have the power to veto serious risks to the community. The bigger point, of course, is that the practical effect of limiting the minister’s power to a security veto means most of the 1100 would be eligible to enter under the medical pathway. Any person entering the country this way is entitled under the amendments to bring family members and others.

The issue is whether the parliament will weaken the power of the executive government to control Australia’s borders. Coleman said: “Effectively the minister has no power unless he can demonstrate the person involved has breached security under the ASIO Act. This is about dismantling offshore processing and resettlement. This is the goal. It is what the bill is structured to do.”

The co-sponsors of the amendments, independent senator Tim Storer and Greens senator Nick McKim, have hardly concealed their intent. Storer quoted Doctors Without Borders saying the offshore situation was “beyond desperate” and said the amendment would remove decisions about the health of asylum-­seekers from politicians and public servants to independent doctors. What could be clearer?

McKim’s views are long known. He said recently that “the warped logic of offshore detention is crumbling around the major parties” and that “there is now no excuse not to end offshore detention”.

Sections of the Left have argued recently that offshore processing is now irrelevant to stopping the boats and the government’s arguments to the contrary are wrong. They sense, correctly, that public opinion is changing and hostile to claims of cruelty. This is the backdrop to the parliamentary push — using genuine concern about health — to create a new regime whose practical impact is to bring down offshore settlement.

Shorten is caught in a catch-22. He says he still believes in offshore processing but supports a legislative regime with the capacity to remove most of the system.

Here’s an idea — why not look the public in the face and tell them the reality about the real consequence of these amendments. It may or may not be time to terminate offshore processing and settlement — but let’s not mislead about what is ­happening.

In summary, what is the likely impact of these amendments? They would have three consequences. They would create a legal structure to effectively dismantle the system of offshore settlement initiated by the Rudd government; they would see the parliament repudiate the Coalition government on one of its defining policies since 2013; and they would ruin the claim of the executive government to determine “who comes to Australia and the circumstances in which they come” by outsourcing such power to doctors.