Peter Dutton continues his mission to overturn the Medevac legislation, writes Dr Binoy Kampark.
THE RE-ELECTED Coalition Government continues to have at the helm of the all too powerful Home Affairs Department, Peter Dutton, a person whose ignorance it regards as form and forte.
Dutton professes sympathy for those poor souls who fall for the wiles of the people smugglers – the “unscrupulous ones”, as he calls them – “innocent people” who make their way to Australia because of a ruse. He never stops to read the Refugee Convention, of course.
Having hidden himself during last month’s election campaign fearing he might lose his seat, Dutton is all confidence and thrill in the returned Morrison Government. He is hoping for broader powers of surveillance in the future. He is peering into the dark globe of promise, hoping to find signs of fear to trigger in the Australian public.
An important current project is attempting to overturn the "Medevac" legislation — in place to permit refugees on Manus and Nauru the means to seek treatment on the Australian mainland in medical emergency cases. In of itself, the legislation is restricted and restrictive, confined and limited to the current crop of refugees, and focused on the opinion of two doctors. It is a constipated bureaucrat’s dream and hardly an encouragement for anyone to ever come to Australia to flee barrel bombs or rampant Ebola outbreaks. So far, the legislation facilitated the bare minimum of 30 individuals from Manus Island itself.
The Australian Federal Court decision, handed down by Justice Mordecai Bromberg dealing with a 29-year-old Iraqi refugee, known as CCA19, who has spent the last six years on Nauru, was a cue for Dutton to vent his spleen. The Home Affairs Department had blocked the application for a medical transfer to Australia for CCA19, while the Department Secretary, Mike Pezzullo, had deemed it unnecessary to inform Dutton of the decision.
The question at hand was whether doctors needed to speak to or engage with a patient in a direct fashion, be it in person or through teleconference, as suggested by the legislation, or whether it would be sufficient for doctors to come to a conclusion on the record outlined in medical files.
The Judge opted for the latter, more inflexible interpretation, notably given the interim emergency nature of the application:
'I do not consider on the basis of the observations made in that email by the relevant IHMS [International Health and Medical Services] registered nurse, that the approval of IHMS for an urgent transfer of the applicant should be regarded as any real impediment to such a transfer occurring.'
But the case, when read in full, reveals a judge alarmed at the desperation of the situation. Justice Bromberg notes, for instance, the refugee’s state of mind regarding medicine referred to as 'Ajax fluid', a patient proving 'unable to elaborate on how he believed that helped him and was ambivalent as to the impact of it on his health'. Justice Bromberg referred to the relevant report noting a floor 'littered with empty water bottles, medication packaging, several Ajax bottles'.
The Justice, carefully navigating the judicial terrain, did not feel that his orders to effectuate the transfer of the refugee “have been shown to be inconsistent with the applicable processes in Nauru". Nor was he entirely convinced that orders to initiate a transfer were a scoffing gesture to the nature of Nauru’s sovereignty.
The Australian Commonwealth had, after all,
"created the situation in which it now finds itself in and has to bear the inevitable risk that the situation created by it may run up against decisions made by another sovereign State."
But the Federal Court decision to state the necessarily obvious – that a person’s health might be well gauged by looking at medical forms and records – was too much for Dutton.
In a description that goes against much of Australian medical practice, as desirable as it might be for a doctor to personally assess a case:
“The fact that two doctors who haven’t had any interaction with the patient could make a decision that that person should come to Australia is a completely outrageous arrangement.”
Dutton sees the decision as having “applicability to many hundreds of people, which has certainly the potential to restart boats and that would be a travesty.”
David Burke of the Human Rights Law Centre described the medical assessment as routine:
“This is something that is done every day in Australian hospitals, where surgeons and specialists are recommending treatment for patients on the basis of detailed medical records and x-rays and lab tests.”
The point is reiterated by Dr Kerryn Phelps, the former Member for Wentworth who was the main proponent for the Medevac legislation:
“Doctors reviewing case files of a patient is a model that works very well in Australia — for example, somebody could be getting treatment for cancer, and that treatment might not work as expected, and a multi-disciplinary team will assess the patient’s case based on their medical records and their investigations and they don’t see the patient for that process.”
Any incentive to find a means to get to Australia, however thin and circumscribed, was too much for the man of Home Affairs. People smugglers evidently spend time looking at Australian Federal Court decisions, scrolling through the latest outcomes and sensing the mood with an opportunist’s foresight. This enduring fantasy has been the bread and butter of Australian policymakers since the late 1990s and continues to exert a hold over the current crop of Home Affairs officials.
The point is interesting in arrogating a degree of education and bookishness to those involved in people smuggling virtually no Australian politicians have. Are these exploitative agents educated beyond compare? The answer is evident — and not ever considered in Dutton’s cosseted world of self-reassuring paranoia.
Dr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. You can follow Dr Kampmark on Twitter @BKampmark.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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