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2022-2025
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Migration Amendment (Restoring Medevac) Bill 2024
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Shoebridge)
Migration Amendment (Restoring Medevac) Bill 2025
OUTLINE
This bill seeks to amend the Migration Act 1958 to allow for the transfer to Australia of
people who sought asylum by sea currently held in Papua New Guinea and Nauru, transitory
persons, and their families, if they are assessed by two or more treating doctors as requiring
medical treatment.
This bill replicates the intent of the Migration Amendment (Urgent Medical Treatment) Bill
2018 introduced by MPs Kerryn Phelps, Andrew Wilkie, Adam Bandt, Julia Banks and
Rebekha Sharkie as well as Senators Nick McKim and Tim Storer's amendment to the Home
Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018.
This 2018 legislation was known as 'Medevac' and was supported by members of the
crossbench, the ALP and Greens. Unfortunately the 2018 legislation was repealed by the
Coalition in December 2019 under the Migration Amendment (Repairing Medical Transfers)
Bill 2019.
When 'Medevac' was in place 192 people were transferred to Australia and received urgent,
often lifesaving, medical treatment.
Since the repeal in 2019 people seeking asylum held in PNG and Nauru have been unable to
access adequate medical treatment. There are currently nearly 100 people seeking asylum
held on Nauru and around 40 in PNG who have been denied permanent resettlement for over
a decade.
The Government has an active arrangement with Nauru as a designated 'regional processing
country' under Migration (Regional Processing Country--Republic of Nauru) Designation
(LIN 23/017) 2023. The Government's 'regional processing country' designated of PNG
under the Migration Act 1958 - Instrument of Designation of the Independent State of Papua
New Guinea as a Regional Processing Country under subsection 198AB(1) of the Migration
Act 1958 - October 2012 lapsed in March 2023. However, people seeking asylum who were
taken to PNG by the Australian Government under this arrangement are still in PNG.
This bill will impact all 'transitory persons', that is people who sought asylum by sea and
were taken to a 'regional processing country' and are still in that country, even if that
designation has lapsed. As occurred under the previous 'Medevac' legislation, a 'transitory
person' who meets the requirements of the Bill will be given an offer by the Australian
Government to come to Australia for medical treatment.
In January 2025 the UN Human Rights Committee, in two cases brought by people held on
Nauru, ruled that Australia remained responsible for the arbitrary detention of people seeking
asylum who are redirected or transferred to offshore detention facilities. People who sought
asylum by sea in Australia are owed protection and are Australia's legal and moral
responsibility.
NOTES ON CLAUSES
Clause 1: Short Title
Clause 1 is a formal provision specifying the short title of the Act as the Migration
Amendment (Restoring Medevac) Bill 2025.
Clause 2: Commencement
This clause provides for the commencement of the Act on the day after it receives Royal
Assent.
Clause 3 - Schedules
This clause provides that each Act specified in a Schedule to the Bill is amended or repealed
as is set out in the applicable items in the Schedule. Any other item in a Schedule to the Bill
has effect according to its terms.
Schedule 1-- Amendments
Migration Act 1958
Item 1 - Subsection 5(1)
Item 1 inserts definitions of Independent Health Advice Panel, legacy minor, transitory
person requiring treatment and treating doctor into the Act.
Item 2 - Paragraph 42(2A)(ca))
Item 2 inserts a reference to new section 198C into section 42 of the Act (relating to visa
requirements for travel).
Item 4 - Before section 198B
This item clarifies that for the purposes of this Bill regional processing country as otherwise
defined in section 198AB includes any country that has been designated as a regional
processing country, including countries that where, but are no longer, designated, such as
Papua New Guinea.
This section also clarifies that a transitory person is a person who was taken from Australia
to a regional processing country if, at the time the person was taken, the country was a
regional processing country.
To avoid doubt a transitory person currently held in Papua New Guinea who was transferred
between October 2012 and March 2023 would also be eligible for medical evacuation as they
were taken to Papua New Guinea when it was a regional processing country.
Item 4 - At the end of section 198B
Item 4 inserts subsection (4) into section 198B of the Act, which specifies that a "temporary
purpose" as referred to in sections 198B and 198C of the Act may, without limiting generality
of subsection 198B(1), include medical or psychiatric assessment or treatment, or
accompanying another transitory person in respect of whom the power in subsection (1) or
section 198C has or will be exercised.
Item 5 - After section 198B (section 198C)
Item 5 inserts a new section 198C into the Act, which specifies when legacy minors, relevant
transitory persons and accompanying persons (including family members) must be brought to
Australia for a temporary purpose.
Subsection 198C(1) provides that an officer must, as soon as practicable, transfer a legacy
minor (as defined in subsection 198D(1)) to Australia if the Minister approves the transfer.
Subsection 198C(2) provides that an officer must, as soon as practicable, bring a transitory
person requiring treatment to Australia if the Minister approves the transfer. Subsection
198C(3) specifies that if the Minister approves the transfer of a transitory person to Australia
under section 198G, an officer must, as soon as practicable, bring the person to Australia for
a temporary purpose. Subsection 198C(4) clarifies that nothing in this section affects the
operation of section 198B. Subsection 198C(5) clarifies that an officer must not bring a
person to Australia from a regional processing country if the person does not consent to being
brought to Australia.
Item 5 - After section 198B (section 198D)
Item 5 also inserts a new section 198D which defines legacy minor and specifies when a
transfer is approved.
Subsection 198D(1) defines a legacy minor as a transitory person aged under 18 who is in a
regional processing country. As soon as is practicable after this section commences, the
Secretary must notify the Minister of all such persons in any regional processing country.
The Minister must approve, or refuse to approve, the person's transfer to Australia within 24
hours after being notified, if a transitory person is found to be legacy minor (subsection
198D(2)). If the Minister does not make a decision concerning the transfer of a legacy minor
by the end of the period the Minister is taken to have approved the person's transfer
(subsection 198D(4)). The Minister can only refuse a transfer of a legacy minor if the
Minister reasonably believes it would be prejudicial to security (subsection 198D(3)).
Subsection 198D(5) specifies the Minister's powers under this section must be exercised by
the Minister personally.
Subsection 198D(6) allows for the prescription of processes to be complied with in relation to
the exercise of the Minister's powers under this section.
Item 5 - After section 198B (section 198E)
Item 5 also inserts a section 198E concerning the approval of transfer of transitory persons
requiring treatment.
A transitory person requiring treatment is a person who, in the opinion of a treating doctor,
requires medical or psychiatric assessment or treatment; is not receiving the appropriate
medical or psychiatric assessment or treatment in the regional processing country; in
circumstances where it is necessary to remove the person from a regional processing country
for the appropriate medical or psychiatric assessment or treatment (subsection 198E(2)).
The Secretary must notify the Minister when a transitory person is in a regional processing
country and 2 or more doctors for that person have notified the Secretary that the person is a
transitory person requiring treatment (subsection 198E(1)).
A treating doctor is a person registered or licensed to provide medical or psychiatric services
in a regional processing country or in Australia; and has assessed the transitory person either
remotely or in person (subsection 198E(7)).
If there is a transitory person requiring treatment, the Minister must approve, or refuse to
approve, the person's transfer to Australia. This must be done by the end of the period of 24
hours beginning at the time the Minister is notified by the Secretary (subsection 198E(3)). If
the Minister does not make a decision concerning the transfer of a transitory person requiring
treatment in subsection 198E(3) within 24 hours, the Minister is taken to have approved the
person's transfer (subsection 198E(5)).
The Minister must approve the person's transfer to Australia unless the Minister reasonably
believes that appropriate medical or psychiatric assessment or treatment can be achieved in
the regional processing country or the Minister reasonably believes that the transfer of the
person to Australia would be prejudicial to security (subsection 198E(4)). Subsection 198E(6)
specifies the Minister's powers under this section must be exercised by the Minister
personally.
Subsection 198E(8) allows for the prescription of processes to be complied with in relation to
the exercise of the Minister's powers under this section.
Item 5 - After section 198B (section 198F)
Item 5 also inserts section 198F, which provides that the Independent Health Advice Panel
must review a refusal to transfer on medical grounds. If the Minister refused to provide a
transfer of a transitory person requiring treatment because the Minister reasonably believes
that it is not necessary to remove the person from a regional processing country for
appropriate medical or psychiatric assessment or treatment under paragraph 198E(4)(a)), the
Minister must notify the Independent Health Advice Panel (subsection 198F(1)).
Within 24 of being notified of the Minister's decision, the Panel must conduct further clinical
assessments of the person (this can be done in person or remotely) and inform the Minister of
this assessment. The Panel must confirm the Minister's decision or recommend that the
person needs to be removed (subsection 198F(2)). The majority of the Panel must agree
before making a recommendation (subsection 198F(8)). If the Panel does not inform the
Minister of its recommendation under subsection (2) by the end of the period required by that
subsection, then at the end of that period, the Panel is taken to have recommended that the
person's transfer be approved; and informed the Minister of that recommendation (subsection
198F (3)).
If the Panel decides that the person is to be transferred despite the Minister's decision, the
Minister must approve the person's transfer to Australia unless the Minister reasonably
believes that the transfer of the person to Australia would be prejudicial to security
(subsection 198F(5)). After the Panel's recommend to transfer the Minster must within 24
hours confirm the decision to refuse the transfer or approve the person's transfer (subsection
198F(4)). If the Minister does not make a decision by the end of the period required, it will be
taken that the person's transfer is approved (subsection 198F(6)). The Minister's powers
under this section must be exercised by the Minister personally (subsection 198F (7)).
The regulations may prescribe processes in relation to the exercise of the Minister's powers
under section 198F (subsection 198F(9)).
Item 5 - After section 198B (section 198G)
Item 5 also inserts a new section 198G providing information on when an officer must
consider the transfer of a family member. If an officer suspects a that a transitory person is
part of a family unit of another transitory person in a regional processing country or is a
member of the same family unit as a minor in Australia, then they must inform the Minister
(subsection 198G(1)). The Minister must approve the transfer within a 24 hour period
(subsection 198G(2)). The Minister must approve the transfer unless the Minister reasonably
believes that the transfer of the person to Australia would be prejudicial to national security
(subsection 198G(3)). If the Minister does not make a decision within a 24 hour period it is
taken as approved (subsection 198G(4)). The regulations may prescribe processes to be
complied with in relation to the exercise of the Minister's powers under this section
(subsection 198G(5)).
Item 5 - After section 198B (section 198H)
Item 5 also inserts a new section 198H that specifies that applications may be made to the
Administrative Review Tribunal to review a decision by the Minister to refuse an application
under subsection 198E(3) and paragraph 198E(4)(b)).
Item 5 - After section 198B (section 198J)
Item 5 also inserts a new section 198J that specifies the Minister when refusing to approve a
transfer must provide a clear statement of reasons as to why they refused a visa, a refusal
statement, to be tabled in Parliament within 3 sitting days of the decision (subsection 198G(2)
and subsection 198G(3)). A refusal statement must not include the name of the person,
identifiable information, connected persons (subsection 198G(3)). The intent of this section is
to inform the public of a Minister's decision to deny a transfer for medical care, while not
identifying the person in question.
Item 6 - At the end of Division 8 of Part 2 add Subdivision E (section 199H)
Item 6 inserts section 199H, which establishes the Independent Health Advice Panel, making
clear the functions of the Panel are to monitor and report on the health of transitory people in
regional processing countries.
Item 6- At the end of Division 8 of Part 2 add Subdivision E (section 199J)
Item 6 also inserts section 199J that specifies the membership and appointment process of the
Panel. The membership must consist of a Chief Medical Officer of the Department and the
Surgeon General of the Australian Border Force, the Commonwealth Chief Medical Officer,
and at least 6 others (subsection 199J(1)). The balance of the positions must have at least one
person nominated by trusted entities including: by the President of the Australian Medical
Association; the Royal Australian and New Zealand College of Psychiatrists; the Royal
Australasian College of Physicians; and one person who is an expert in pediatric health
(subsection 199J(2)). The Minster may also appoint a member of the Panel and must not
appoint a person in unless satisfied the person has the relevant expertise (subsection 199J(3)
and subsection 199J(5)). The appointment to the Panel lasts 3 years (subsection 199J(4)).
Item 6- At the end of Division 8 of Part 2 add Subdivision E (section 199K)
Item 6 also inserts a new section 199K that specifies the functions of the Panel. These include
allowing members of the Panel to monitor the health of transitory people, travel to regional
processing countries, assess the health services in these countries, carry out health
assessments, monitor a person's health and adjudicate clinical assessments (subsection
199K(2)). The Panel may, at any time, make recommendations to the Minister in respect of
the health of a transitory person (subsection 199K(3)).
Item 6- At the end of Division 8 of Part 2 add Subdivision E (section 199L)
Item 6 also inserts section 199L which empowers the Independent Health Advice Panel to
obtain information and documents from the Department or a consultant or contractor with the
Department. The Secretary must assist with this request.
Item 6- At the end of Division 8 of Part 2 add Subdivision E (section 199M)
Item 6 also inserts section 199M which specifies the reporting of the Panel, which must be
done quarterly, starting as soon as practicable, summarising the number of transitory people
transferred without identifying those transferred.
The Minister must summarise each Panel report and table this in Parliament within 3 sitting
days of the Panel report being given to the Minister (subsection 199M(2); and the Minister
must prepare a response which will also be laid before Parliament with a statement
concerning the timeliness of providing information under section 199L (subsection 199M(5),
subsection 199M(6); and subsection 199M(7)).
The first report the Panel does must assess the conditions of transitory people and the quality
of health services in regional processing countries (subsection 199M(8)).
Item 7 - Subsection 474(4) (before table item 1)
This item provides that certain decisions to approve, or refuse to approve, the transfer of a
transitory person to Australia are not privative clause decisions for the purposes of the Act.
Item 8 - Subsection 499(1)
This item provides that the Minister is not able to give directions to the Independent Health
Advice Panel about the performance of its functions or the exercise of its powers.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Restoring Medevac) Bill 2025
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
This bill seeks to amend the Migration Act 1958 to all for the transfer to Australia of people
who sought asylum by sea currently held in Papua New Guinea and Nauru, transitory
persons, and their families, if they are assessed by two or more treating doctors as requiring
medical treatment.
Human rights implications
This Bill strengthens humans rights and brings Australia's practises and treatment of people
seeking asylum closer to compliance with international law.
This Bill will positively engage the Convention Relating to the Status of Refugees, the
Universal Declaration of Human Rights (including, but not limited to Article 5 - freedom
from cruel, inhuman or degrading treatment or punishment and Article 14 - the right to seek
asylum), and the United Nations Convention on the Rights of the Child (including, but not
limited to Article 9 - stating that children should not be separated from their parents unless it
is in their interests).
In 2019 the Australian Human Rights Commission made clear in its submission to the
Migration Amendment (Repairing Medical Transfers) Bill 2019 that:
Transferring asylum seekers to third countries does not release Australia from its
obligations under international human rights law. The Commission considers that the
removal of the medical transfer provisions by this Bill would be inconsistent with
Australia's international human rights obligations, specifically the right to the highest
attainable standard of physical and mental health.[1]
Furthermore, the UNCHR also called one Australia to introduce 'Medevac' legislation,
writing in 2018:
Care of the sick and wounded without distinction is a key tenet of medical ethics and
practice around the world, and a fundamental principle of International Law.
Australia's so-called "offshore processing" policy continues to exacerbate the dire
health condition of vulnerable men, women and children alike. Too many, from
children not yet of school age to their elderly grandparents, are now critically unwell.
This deterioration has been reflected in a growing sense of despair, resulting in
increasing self-harm and suicide attempts in both Papua New Guinea and Nauru in
recent months. Following years in held detention, and continuing uncertainty and
hopelessness after more than five years, the acute needs of refugees and asylum-
seekers are in no way comparable to those of the respective local populations.[2]
Conclusion
This Bill is compatible with human rights and enhances and advances human rights.
Senator David Shoebridge
[1]Australian Human Rights Commission, Submission to the Migration Amendment
(Repairing Medical Transfers) Bill 2019, the Senate Legal and Constitutional Affairs
Legislation Committee, 21 August 2019
UNHCR, UNHCR Appeals for Urgent Medical Intervention by Australia, UNHCR
[2]
Regional Representation in Canberra, 29 November 2018