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As the last children are transferred off Nauru, the government is claiming compassion. But its attempts to kill off Kerryn Phelps’ medical transfer bill set the scene for an ugly fight in parliament next week. By Mike Seccombe.

Phelps fight reveals govt’s Nauru deceit

Last Sunday’s joint media release by Prime Minister Scott Morrison and Immigration Minister David Coleman underlined a dramatic tactical shift in the government’s position on asylum seekers and offshore detention. After years of unyielding harshness, they had decided to present themselves as “compassionate”.

The last children were coming off Nauru.

It’s a huge change. Only last June, Peter Dutton, then minister for immigration and border protection, gave an interview to The Australian, in which he opposed medical transfers of physically or mentally broken refugees.

“It’s essential that people realise that the hard-won success of the last few years could be undone overnight by a single act of compassion,” he said.

But that was hundreds of transfers ago. Now the government has found room for a little compassion, although it is based not on medical need, but age. According to refugee advocates, this will affect at least 10 unfortunates who were sent into offshore detention as unaccompanied children but have since come of age and remain stuck there.

And, as the new political year begins this coming week, debate will resume on the limits of compassion. Before the parliament will be a proposal, initiated by the new member for Wentworth, Kerryn Phelps, that would expedite the process of getting vital medical treatment for asylum seekers whose mental and physical health has suffered in offshore detention by placing greater decision-making power over medical evacuations in the hands of doctors.

The current system, she says, is too cumbersome in that it puts the initial decision on medical transfers in the hands of bureaucrats. And when the bureaucracy overrides the advice of doctors, or delays its decision, “then the only recourse refugee advocates had was to run the case through the Federal Court, which caused delay.

“And we know of at least one case that resulted in the patient’s death.”

That was the case of a 24-year-old Iranian detainee, Hamid Khazaei, who died in hospital in Brisbane in September 2014. Queensland coroner Terry Ryan subsequently found he would have survived an infection of a leg wound with timely and proper treatment. He recommended a change in policy, to allow doctors on the ground, rather than Canberra officials, to approve medical transfers.

Khazaei is the most extreme example to date of the dysfunction, but there are many others. This week, the Asylum Seeker Resource Centre (ASRC) produced further evidence, pulled from the records held by government contractor International Health and Medical Services, which were provided to the ASRC in the course of their casework with asylum seekers on Manus and Nauru. Of 49 de-identified detainees with serious health problems, the ASRC found more than half – 25 – had been recommended for medical transfers by the government’s own contracted doctors, yet still were awaiting transfer.

Most had been waiting for two to three years, “with some Overseas Medical Requests made by clinicians more than 5 years ago. Patients’ conditions have escalated in severity and complexity in the meantime.”

The Phelps bill, somewhat amended, passed the senate on December 6, the final sitting day of last year. But the government shut down parliament before it could be considered by the house of representatives.

The government remains terrified it could lose when the proposal begins again in the lower house, probably on Tuesday. All the signs suggest it will be a nasty, dirty fight. Indeed, it already is. The government spent this week firing up what promises to be the mother of all border security scare campaigns.

In a media release on Monday, Coleman claimed Phelps’ bill would “outsource Australia’s strong border protection to activists”, by which he meant “any two doctors anywhere in Australia”.

It was a risible claim, as was Peter Dutton’s on Thursday that Greens founder Bob Brown and leader Richard Di Natale – both doctors – would have a free hand to order asylum seeker transfers to Australia.

Speaking to reporters in Melbourne on Wednesday, Morrison ratcheted up the fear campaign to Trumpian levels, claiming the proposed legislation would bring rapists, paedophiles and murderers into the country, and “we would just have to take them”.

As Shorten and Phelps both point out, the process of determining refugee status should identify such major criminals.

It was a world away from the rhetoric of Morrison’s Sunday announcement with Coleman in which the pair congratulated themselves for working “quietly and methodically” through the process of getting kids out of detention. “Supporting children compassionately” while maintaining strong border protection.

 “There were 109 asylum-seeker children on Nauru at the end of August 2018 at the time we took on our respective roles as prime minister and minister for immigration,” Morrison and Coleman said in their Sunday announcement.

And now the last four children had been approved for relocation to the United States, along with their families.

That is not where most of them have gone, though. Most have come to Australia, broken.

Unsurprisingly, the government’s belated annexure of the high moral ground did not go down well with refugee advocates who have spent years trying to get children and others out of offshore detention.

A coalition of organisations – the Human Rights Law Centre, the National Justice Project and the Asylum Seeker Resource Centre – issued a reply to the government’s announcement, pointing out some inconvenient truths.

In at least 92 past cases, they noted, it had required their legal intervention to get sick and traumatised children evacuated here for vital medical care.

“In public, the government will call this a win and boast about evacuating this last child,” said David Burke, a senior lawyer with the Human Rights Law Centre, “but behind the scenes we have had to fight in the courts or threaten legal action to evacuate most of the sick children and their families.”

The government, said George Newhouse, managing director of the National Justice Project, had fought them “every step of the way” on the children’s transfers.

In October – as Morrison and Coleman were “quietly and methodically” working to get the kids out of detention – government lawyers were opposing the medical transfer of an 11-year-old Iranian girl held on Nauru who had not eaten in more than two weeks. Doctors said she was facing “imminent death”. In response, the government claimed such cases must instead go to the High Court.

The government lost that case, and many others. Coincidentally, the decision was handed down on the day the government changed tack and promised to have the last few dozen children in offshore detention out by Christmas.

“In just six months,” the refugee advocates noted in their statement, “the group has secured urgent transfers to Australia for over 260 people, including children needing life-saving medical treatment. The group have won every case filed in the Federal Court with doctors’ recommendations for medical transfers being carried out.”

It wasn’t only in courts of law the government was losing on the issue of holding children in offshore detention. It was also in the court of public opinion. October saw the government lose the blue-ribbon seat of Wentworth to Kerryn Phelps, a doctor herself, who ran hard on getting the kids off Nauru. It had even lost the Murdoch tabloids.

The announcement by Morrison and Coleman also signalled the government had decided to cut its losses on kids in detention and try to get back out in front on an issue that has worked so well for the conservative side of politics since 2001 – border security.

At the bottom of Sunday’s media release, they warned of an impending threat to “the integrity of Operation Sovereign Borders”.

“Labor’s laws currently before the parliament would end offshore processing as we know it, tearing apart our strong border policies,” they said.

This claim was untrue in a number of ways. First, the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 – the medical evacuation bill, for short – is not yet law. Second, it is Phelps’ bill, not Labor’s – although Labor supported it in the senate.

It comes before the house not as a standalone bill, but as an amendment to government legislation, which is a procedurally important distinction because it lowers from 76 to 75 the number of votes needed to pass. Even without the vote of conservative crossbencher Bob Katter, it could get up with the support of Labor and the other non-government members.

Phelps tells The Saturday Paper her bill is based on long-established procedure in remote medicine, as practised, for example, by the Royal Flying Doctor Service.

“A doctor in a remote location is doing their best to look after patients with their available resources,” she says.” If there comes a point where they can’t, they contact someone else, usually a specialist.”

Depending on the advice that comes back, they might either continue to treat the patient in situ or, if recommended, medically evacuate the patient for more intensive care.

But, given the unique sensitivities of the asylum seeker situation, there would be safeguards in the new process. The proposed legislation includes a specific power for the minister to refuse a transfer on national security grounds. It also includes a provision allowing the minister to override a transfer recommendation by those initial treating doctors.

Says Phelps: “If the minister thinks it’s just a couple of activist doctors trying to game the system, then it goes to a separate, expert medical panel comprising the Commonwealth chief medical officer and nominees of the AMA and the [relevant medical] colleges, and then within 24 hours, they would give advice to the minister on whether or not the transfer should proceed.”

Importantly, the proposed changes would not compel the permanent resettlement of any transferee in Australia or end the offshore detention regime.

“It is a medical solution to a medical problem,” she says.

Still, the scare campaign continues. Wednesday’s Australian claimed knowledge of a classified briefing by intelligence agencies that warned the Phelps proposal would see the entire offshore processing regime “dismantled”. Up to 1000 asylum seekers from Manus and Nauru would begin flooding into Australia within weeks, it warned. By best estimates – the government is not helpful in providing accurate data – only about 1040 detainees remain offshore. So, essentially, that means every one of them.

Meanwhile, the government is having a bet each way. While it opposes the Phelps/Storer proposal, it has put up its own plan for a new medical oversight body, which could be put in place without legislation.

As explained by Coleman’s office, there would be a medical panel, appointed by the minister, with cabinet approval.

“A doctor on Manus or Nauru will refer someone to be transferred, the committee will consider it in consultation with a Commonwealth medical officer, and either approve a transfer to Australia or question whether the treatment can be provided offshore,” said a spokesperson.

“It can consider any decision and then give advice to the minister as to whether they agree with the decision. It’s an additional level of oversight of what currently occurs.”

Which is to say, another level of bureaucracy without any real power to force the issue on a transfer.

The bottom line, though, is that the government’s old argument – that bringing any needy asylum seekers into the country will inevitably restart the boats – is falling apart. Figures prepared by the Parliamentary Library at Labor’s request show more than 500 medical transfers to Australia from 2013 to October last year. Other informed estimates, incorporating the arrivals in recent months, place the number around 800.

No doubt if the Phelps proposal gets up this week, many more broken detainees will be brought here.

But, as she says: “If there is a backlog of critically ill patients on Manus and Nauru, it is because the government has created that situation.”

This article was first published in the print edition of The Saturday Paper on Feb 9, 2019 as "Phelps fight reveals govt’s Nauru deceit ". Subscribe here.

Mike Seccombe
is The Saturday Paper's national correspondent.