What does it mean now that Medivac is gone?

Medivac is gone, less than a year after its arrival. It came down to the vote of Jacqui Lambie in the Senate, which she delivered to the government in return for a secret deal she tearfully claimed was a matter of national security.

Politics aside, what does this mean? For that, we need a short history.

The starting point is the Australian government’s policy of indefinite offshore detention for asylum seekers who try to come to Australia by boat, in place since 2013 with the support of both major parties.

Of the few thousand people who found themselves on Nauru or Manus Island as a result, about 500 still remain. The rest met various fates; several hundred have been medically transferred to Australia.

Prior to the passing of the medivac amendments in January this year, the path for sick refugees and asylum seekers (most of the offshore detainees have been granted refugee status) lay through the Federal Court of Australia. Border Force, and its medical contractor International Health and Medical Services (IHMS), was not an enthusiastic provider of medical evacuation, to say the least.

The on-the-ground reality on Nauru and Manus was (and is) a constant and progressive deterioration of the physical and mental health of the individuals being held there in awful conditions without hope, aggravated by their exposure to physical and sexual violence and generally degrading treatment by a system that is inhuman by design.

Add to that the self-evidently substandard medical facilities on these islands, and a crisis of medical trauma was inevitable. (Don’t take my word for it, read any of the multiple reports by international aid agencies, the Human Rights Commission or the UNHCR.)

Refugee advocates and lawyers (including my firm) took many cases leading up to the end of 2018 to the Federal Court, seeking mandatory injunctive orders forcing the Australian government to bring sick refugees and their families to Australia for assessment and/or treatment.  The legal basis for this is negligence: the government owes a legal duty of care to these people to not cause them harm, and its system of detention is demonstrably doing exactly that.

As it played out, the government’s attitude to these cases was mostly obstructive in the early phases and then ultimately acquiescent. It was, at a practical level, like pulling teeth. Also worth noting that, when the government did fight, it kept losing in court.

This resulted in a large number of sick people making it to Australia for treatment. They’re still here, almost all in the community, subsisting with no visa, no work or study rights, and little hope for the future.

Medivac was an attempt to put the decisions about medical care in the hands of doctors (really, it was that simple). It was passed while the government was in minority, pushed by Kerryn Phelps and other cross-benchers with the support of Labor and the Greens.

The practical effect of the medivac bill was to reduce the delays from years to weeks in getting sick people here for appropriate care. It created a process where the trigger for medical transfer was a recommendation from two independent doctors. That then went to Home Affairs for review.

If the request was refused, an independent Health Advice Panel including the most senior doctors in the public service and nominees from the peak medical bodies would consider the case and could force the minister to reconsider on medical grounds. The minister retained an overriding discretion to refuse transfers on the basis of national security or serious risk to the community, in all cases. The final say still rested with the government, contrary to its rhetorical insistence.

Now that’s all gone, repealed in its entirety. In legal terms, the position will revert to how it was pre-medivac, with these critical medical care decisions back in the hands of bureaucrats and their contracted medical service providers. No element of independence is preserved.

In practice? We’ll all be heading back to the Federal Court.

I’ll make two final observations. One is that, during the year that the medivac system has operated, the boats did not restart.

The other is that it is now over six years since we started punishing people who have broken no laws by incarcerating them indefinitely in sub-human conditions far away from the reach of our national conscience. To them, the repeal of medivac will hardly come as a surprise.

Yet for our diminished society, even that tiny offering of charity was apparently too much to give.