Asylum seekers diagnosed by doctors as needing medical attention in Australia haven’t yet been placed on planes.
- The lower house of Parliament approved a law expanding medical access for asylum seekers
- The Government did not support the law, triggering a historic defeat
- The amended bill still needs to pass the Senate then come into law for new medical transfers to happen
That’s despite a bill passing the House of Representatives, against the Government’s will, on Tuesday expanding medical transfers for people on Manus Island and Nauru.
This is why and what happens next.
What happened today?
Despite last-minute confusion over whether the laws were constitutional, the House of Representatives voted in support of doctor-initiated medical transfers.
Similar laws were passed by the Senate last year after the crossbench hijacked an otherwise uncontroversial Government bill.
The details of the bill that passed the Senate were later changed after negotiations between Labor and the crossbench throughout Tuesday afternoon.
The final vote that evening was 75-74, with Labor and every crossbencher excluding Bob Katter supporting the laws.
The new bill allows asylum seekers to be transferred to Australia for medical attention if two doctors say they need it, unless the Home Affairs Minister rejects it on security concerns.
But the Senate still needs to approve the last round of amendments before it can become law.
When will it go back to the Senate?
The bill was passed by the House a little after 6:00pm, leaving too little time for the bill to return to the Senate on Tuesday.
It would ordinarily return to the Senate the following day, but Senator Mathias Cormann has previously indicated the Government would do what it could to prevent the bill becoming law.
Given the 11th-hour surprise of the constitutional argument run by the Government, there were fears the Coalition might seek further delays.
Addressing these concerns, Prime Minister Scott Morrison said on Tuesday evening the legislation would “follow the normal process”.
Independent senator Tim Storer, whose amendments were initially agreed to by the Senate last year, called on the Government on Tuesday evening to “allow the amendments through the Upper House as quickly as possible”.
Who are the people affected?
The law, if ultimately passed, applies only to those currently in Nauru or on Manus Island.
The Government has recently been using an estimate of 1,000 people across both locations.
According to figures from October, this group included 520 people from Iran, 113 from Afghanistan, 142 from Pakistan, 109 from Sri Lanka and 122 deemed stateless.
Those on Manus Island are adult men, but in October there were 94 family units in Nauru, of which 41 included children.
The Government claimed on Tuesday the final group of children in Nauru had recently been transferred to the US.
What is the role of doctors?
If passed by the Senate, the new law would mean doctors must make assessments of asylum seekers on Nauru and Manus Island based on the following:
- they need medical or psychiatric assessment or treatment,
- they are not receiving appropriate medical or psychiatric assessment or treatment,
- and it is necessary to transfer the person for appropriate medical or psychiatric assessment or treatment.
If two doctors assess a person as meeting these three criteria, unless the person poses a security threat, they will be transferred to Australia.
The doctors can be registered in Australia, Papua New Guinea or Nauru and must have “assessed” the person, but the assessment can be done remotely.
How big a difference would this new law be?
Medical transfers were already available under existing laws.
A group of senior public servants in the Transitory Persons Committee within the Home Affairs have met approximately once per month to assess the needs of asylum seekers seeking urgent medical care.
But critics have argued some asylum seekers were not getting the care they needed.
In total, 135 medical transfers from either Papua New Guinea or Nauru have been granted since July, 2016 (up to October, 2018), according to information released in Senate estimates.
Some of these were to another country, such as Taiwan, but the new law explicitly provides for treatment in Australia.
The big change from the new law is that it will be doctors’ diagnoses — not the decisions of these public servants — that trigger medical transfers.
How long before new medical transfers occur?
It usually takes between seven and 10 working days after Parliament makes a new law for it to commence — known as receiving “royal assent” — according to the Office of Parliamentary Counsel, which is responsible for drafting new laws.
But there are cases where royal assent is secured much more quickly, such as for the same-sex marriage bill, depending on how quickly the Office of Parliamentary Counsel, Attorney-General and Governor-General are prepared to pursue it.
Manager of Opposition Business Tony Burke expected royal assent to occur as normal, saying it would be “extraordinary” if the Government did otherwise.
Will the new laws encourage more asylum seekers?
The Government has received advice from the Department of Home Affairs suggesting the laws would lead to transfers to Australia for people with security risks and a possible revival of the people smuggling trade.
Labor argues amendments to the bill addresses these concerns.
Although doctors can trigger a potential transfer under the new laws, the Home Affairs Minister can still refuse it on security or character grounds.
The bill that passed the Lower House would only apply to the 1,000 or so people still on Manus Island or in Nauru and not new arrivals.
Who pays for it all?
The taxpayer will pay for all transfers, but the public has also paid approximately $1 million in the past four years on legal fees spent on matters related to medical transfers.
Overall, the Government spends about $4 billion per year on border protection.