Migration Amendment (Repairing Medical Transfers) Bill 2019 [2019] AUPJCHR 102 (5 December 2019)

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Purpose	Amends the Migration Act 1958 to: remove provisions inserted by the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the medical transfer provisions) which created a framework for the transfer of transitory persons (and their family members, and other persons recommended to accompany the transitory person) from regional processing countries to Australia for the purposes of medical or psychiatric assessment or treatment; and provide for the removal from Australia, or return to a regional processing country, of transitory persons who are brought to Australia under the medical transfer provisions, once the temporary purpose for which they were brought to Australia is complete
Portfolio	Home Affairs
Introduced	House of Representatives, 4 July 2019
Rights	Non-refoulement; effective remedy; health
Previous reports	Report 4 of 2019
Status	Concluded examination

2.13 Currently, the medical transfer provisions of the Migration Act 1958 (Migration Act)^[3] allow two treating doctors to recommend that a person, held under regional processing arrangements^[4]be transferred to Australia for medical treatment or assessment.^[5] Within 72 hours, the minister must approve the transfer unless the minister reasonably believes or suspects there are medical,^[6] security or character grounds for refusal.^[7] If the minister's ground for refusing a transfer is medical, the matter is reviewed by the Independent Health Advice Panel. If the panel recommends the transfer be approved, the minister must approve the transfer unless there remain  security or character grounds for refusal.^[8] 

2.14 The bill seeks to repeal these medical transfer provisions.^[9] Additionally, the bill seeks to apply the requirement under section 198(1A) of the Migration Act that persons transferred to Australia under the medical transfer provisions are to be removed from Australia or returned to a regional processing country, as soon as reasonably practicable, unless a specified exemption applies.^[10]

The obligation of non-refoulement and the right to an effective remedy: committee's initial analysis

2.15 As noted in the committee's initial analysis, sending someone back to a regional processing country may engage Australia's 'non-refoulement' obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). These obligations provide that Australia must not return any person to a country where there is a real risk that they would face persecution, torture or other serious forms of harm, such as the death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading treatment or punishment.^[11] Non-refoulement obligations are absolute and may not be subject to any limitations.

2.16 As a matter of international law, the obligation of non-refoulement in this bill does not involve the extraterritorial application of obligations. This is because the persons who may be removed from Australia as a result of these amendments are currently present in Australian territory. Australia therefore owes human rights obligations to them, including an obligation not to send them to a country where there is a real risk of that they would face persecution, arbitrary deprivation of life, torture or cruel, inhuman or degrading treatment or punishment.

2.17 However, the statement of compatibility does not specifically address the issue of whether sending someone back to a regional processing country complies with Australia's non-refoulement obligations in the context of the reported conditions for individuals in regional processing countries.

2.18 The obligation of non-refoulement and the right to an effective remedy also require an opportunity for independent, effective and impartial review of decisions to deport or remove a person.^[12] On a number of previous occasions, the committee has raised serious concerns about the adequacy of protections against the risk of refoulement in the context of the existing legislative regime.^[13] It is unclear from the statement of compatibility whether there is sufficient scope for independent and effective review of such a removal.^[14] More generally, it is unclear whether there are sufficient legislative and procedural mechanisms to guard against the consequence of a person being sent to a regional progressing country even in circumstances where there may be a risk that the conditions could amount to torture or cruel, inhuman or degrading treatment or punishment.

2.19 The committee therefore sought the advice of the minster as to the compatibility of the measure with the obligation of non-refoulement and the right to an effective remedy, in particular:

what are the conditions for such individuals in regional processing countries and is there a risk that such conditions could amount to torture or cruel, inhuman or degrading treatment or punishment;

what safeguards are in place to ensure that a person is not removed from Australia to a regional processing country in contravention of Australia's non-refoulement obligations; and

is there independent, impartial and effective review of any decision to remove the person from Australia.

Under existing memoranda of understanding with Australia, both Nauru and PNG have committed to treat transferees with respect and dignity and in accordance with relevant human rights standards. Nauru and PNG are parties to various relevant treaties:

The Australian Government works closely with the governments of Nauru and PNG to ensure transferees have access to a range of health, welfare and support services, including extensive physical and mental healthcare, free accommodation and utilities, and allowances. Transferees are accommodated in the Nauruan and PNG communities and are not detained. They are free to move about without restriction. Australia has supported regional processing countries to put various structures in place to support transferees residing in Nauru and PNG:

Prior to transfer to a regional processing country, Australia considers the individual circumstances of each transferee, including whether transfer could put them at risk of torture or cruel, inhuman or degrading treatment or punishment. This is explained further in response to the Committee’s next question.

What safeguards are in place to ensure that a person is not removed from Australia to a regional processing country in contravention of Australia’s non-refoulement obligations?

The Department of Home Affairs undertakes a pre-transfer assessment prior to a person being taken from Australia to a regional processing country. These assessments are undertaken to determine whether it is practical to transfer a person to a regional processing country considering operational and individual circumstances.

The pre-transfer assessment considers whether obstacles exist that could prevent or delay transfer. The pre-transfer assessment is undertaken in consultation with the transferee and allows the individual the opportunity to raise any concerns about the transfer, including claims against regional processing countries. Various factors are considered when making an assessment whether obstacles exist impacting transfer, including the conditions in which people reside, access to health services and welfare supports, child-specific services, and security and safety issues.

Where claims are raised, the Department undertakes an assessment to determine whether transfer would contravene Australia’s non-refoulement obligations. The Migration Act 1958 (Migration Act) provides the Minister with the power to exempt a transferee from being taken to a regional processing country (section 198AE(1)) if it is in the public interest to do so.

Is there independent, impartial and effective review of any decision to remove the person from Australia?

Decisions to take transferees to a regional processing country are done a case by case basis and in accordance with departmental procedure. As discussed, a pre-transfer assessment is undertaken on each person ahead of transfer to explore whether obstacles existing preventing or delaying transfer. While this process does not include an independent review process, it does require officers exercising powers under the Migration Act to ensure all necessary considerations have been taken into account when conducting a transfer.

Consideration of non-refoulement obligations under the Ministerial intervention powers, such as the power in section 198AE mentioned above, takes place in good faith and allows for consideration of a person’s individual circumstances. These powers allow the Minister to consider non-refoulement obligations before the point of removal or transfer.

Persons who wish to challenge their removal from Australia or return to a regional processing country are not precluded from seeking judicial review.

2.21 The committee thanks the minister for this response and welcomes the minister's advice that Nauru and Papua New Guinea (PNG) have committed to treat transferees with respect and dignity and in accordance with relevant human rights standards, and that both countries are parties to a number of relevant human rights treaties. The committee also welcomes the minister's advice that the Australian Government works with the governments of Nauru and PNG to provide health, welfare and support services to transferees.

2.22 However, the committee notes that reported conditions for individuals in regional processing countries raise concerns as to the adequacy of these undertakings and arrangements. As noted in its initial analysis, in 2013 the committee itself raised human rights concerns about such transfers and about the conditions in regional processing countries. This included concerns in relation to the right to humane treatment in detention; the right not to be arbitrarily detained; the right to health and the rights of the child.^[16] The United Nations (UN) Committee Against Torture has also expressed concerns about the transfer of individuals to regional processing centres in PNG and Nauru in view of reports of 'harsh conditions' and 'serious physical and mental pain and suffering'.^[17] Similarly, the UN Special Rapporteur on the human rights of migrants has raised concerns about 'systemic human rights violations' and recommended the closure of regional processing centres.^[18] In relation to the conditions on Nauru and Manus Island, the UN Special Rapporteur has specifically stated that '[t]he forced offshore confinement (although not necessarily detention anymore) in which asylum seekers and refugees are maintained constitutes cruel, inhuman and degrading treatment or punishment according to international human rights law standards.'^[19] The UN High Commissioner for Refugees (UNCHR) has likewise urged immediate action by Australia to address what it describes as a 'collapsing health situation', and called for all refugees and asylum seekers to be immediately moved to Australia.^[20] It has described offshore processing itself as the cause behind severe and negative health impacts, 'which are as acute as they are predictable'.^[21]

2.23 There have been a number of inquiries into allegations of abuse, self-harm and neglect in relation to the regional processing centres over a number of years, with the Senate Legal and Constitutional Affairs Committee finding in 2017 that refugees and asylum seekers living in regional processing centres are 'living in an unsafe environment'.^[22] More recently, Médecins Sans Frontières Australia (MSF) recently reported that 65 per cent of refugee and asylum seeker patients seen by MSF on Nauru had suicidal ideation and/or engaged in self-harm or suicidal acts.^[23] MSF also reported that 'curative treatment for the overwhelming majority of cases was not possible whilst the key stressors of uncertainty, isolation and family separation on Nauru was present.'^[24] UNHCR similarly report that conditions for refugees and asylum-seekers on Nauru and PNG have 'led to the deterioration of the health of the vast majority... [and] to significant risks of irreparable harm and loss of life.'^[25]

2.24 Notwithstanding the human rights concerns which have been raised about the conditions on both Manus and Nauru, the committee notes that many of these concerns were raised at a time when transferees living on Nauru and Manus were confined to detention. This is no longer the case. All transferees are now living in the community: children are attending school and some transferees have even started local businesses. Accordingly, the living conditions of transferees have very much improved. We also welcome the minister’s advice that 'contracted health services providers [to] deliver health care to transferees, including comprehensive mental health and wellbeing programs; All transferees reside in community-based accommodation – no one is in detention; Transferees have access to education and a range of welfare support programs [and] Refugees have access to work rights, subject to visa conditions.'^[26]

2.25 In relation to the existence of sufficient safeguards to ensure that a person is not removed from Australia to a regional processing country in contravention of Australia’s non-refoulement obligations, the committee welcomes the Department's routine practice of considering non-refoulement obligations prior to a person being transferred from Australia to a regional processing country. The committee also notes the advice that the minister has the power under section 198AE(1) of the Migration Act to exempt an individual from being removed from Australia to a regional processing country if it is in the public interest to do so. The committee is satisfied that administrative arrangements and ministerial discretion exercised in accordance with the legislative framework of the Migration Act operate to protect against refoulement, appreciating that the discretion can only be exercised where the minister considers it in the public interest to do so, and not on the basis of a risk to an individual. Further, the committee notes that, for the purposes of exercising removal powers, the Migration Act provides it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen^[27] and there is no statutory protection available to ensure that an unlawful non-citizen to whom Australia owes protection obligations will not be removed from Australia.

2.26 In relation to the availability of independent, impartial and effective review of any decision to remove a person from Australia, the committee notes the minister's advice that 'persons who wish to challenge their removal from Australia or return to a regional processing country are not precluded from seeking judicial review.' The committee notes that judicial review in Australia is governed by the Administrative Decisions (Judicial Review) Act 1977 and the common law, and represents a limited form of review in that it allows a court to consider only whether the decision was lawful (that is, within the power of the relevant decision maker). The court cannot undertake a full review of the facts (that is, the merits), as well as the law and policy aspects of the original decision to determine whether the decision is the correct or preferable decision.

2.27 The jurisprudence of the UN Human Rights Committee and the UN Committee against Torture establish the proposition that there is a strict requirement for 'effective review' of non-refoulement decisions. The purpose of an 'effective' review is to 'avoid irreparable harm to the individual'. In particular, in Singh v Canada, the UN Committee against Torture considered a claim in which the complainant stated that he did not have an effective remedy to challenge the decision of deportation because the judicial review available in Canada was not an appeal on the merits. In this case, the Committee against Torture concluded that judicial review was insufficient for the purposes of ensuring persons have access to an effective remedy.

2.28 The committee thanks the minister for this response. The committee appreciates concerns that the bill, in providing for the return to a regional processing country of all persons brought to Australia under the medical transfer provisions, may engage Australia's 'non-refoulement' obligation not to return any person to a country where there is a real risk they would face persecution or other serious forms of harm, including cruel, inhuman or degrading treatment. The committee, however, notes the minister’s advice that 'Where claims are raised, the Department undertakes an assessment to determine whether transfer would contravene Australia’s non-refoulement obligations. The Migration Act 1958 (Migration Act) provides the Minister with the power to exempt a transferee from being taken to a regional processing country (section 198AE(1)) if it is in the public interest to do so.' Accordingly, the committee is of the view that the return of such persons to a regional processing country in the manner envisaged by the bill does not engage Australia’s non-refoulement obligations.

2.29 The committee welcomes the minister's advice that Nauru and Papua New Guinea have committed to treat refugees and asylum seekers in accordance with relevant human rights standards, and that health, welfare and support services are provided to transferees.

2.30 The committee notes the minister's advice that an individual assessment is made prior to a person being taken from Australia to a regional processing country, including consideration of whether the transfer would contravene Australia’s non-refoulement obligations. However, the committee notes there is no statutory requirement^[28] to consider these obligations, and discretionary or administrative safeguards alone are less stringent than the protection of statutory processes.

2.31 In addition, the committee notes the minister's advice that judicial review is available to individuals who wish to challenge their removal from Australia to a regional processing country. However, the obligation of non-refoulement and the right to an effective remedy requires an opportunity for independent, effective and impartial review of decisions to remove a person. Judicial review, without the availability of merits review, is not likely to be sufficient to fulfil the international standard required of 'effective review' as it is only available on a number of restricted grounds of review.

2.32 As such, the committee does not consider there is a risk that repealing the current medical transfer provisions could lead to the return of persons to regional processing countries in circumstances that may not be consistent with Australia's non-refoulement obligations and the right to an effective remedy.

2.33 By repealing the medical transfer provisions, the measure engages and may limit the right to health. This is because restricting access to a type of medical transfer to Australia may in turn restrict access to appropriate health care for those held under regional processing arrangements (in circumstances where Australia may owe human rights protection obligations).^[29] The right to health is understood as the right to enjoy the highest attainable standard of physical and mental health, and requires available, accessible, acceptable and quality health care.

2.34 The committee raised concerns that the repeal of the medical transfer provisions may constitute a backward step, that is, a retrogressive measure with respect to the level of attainment of right to health including access to health care. While the statement of compatibility points to the ongoing availability of section 198B of the Migration Act to allow for medical transfers, there is a serious concern that section 198B is likely to provide a lower level of attainment of the right to health and access to health care than the medical transfer provisions which are proposed to be repealed.^[30] This is because the use of section 198B to bring a person requiring treatment to a third country including Australia is discretionary and may or may not be exercised. Further, it could potentially be used to transfer a person requiring medical attention to a third country that has a lower standard of health care than Australia.^[31] Retrogressive measures, as a type of limitation, may be permissible under international human rights law provided that they address a legitimate objective and are rationally connected and proportionate to achieve that objective.

2.35 As such, the committee sought further information from the minister to assist it in completing its assessment of the compatibility of the measure with the right to health, including:

to what extent the repeal of the medical transfer provisions will restrict access to health care for those held on Nauru and Manus Island; and

the adequacy and effectiveness of the remaining discretionary transfer provisions under section 198B of the Migration Act 1958 in protecting the right to health.

To what extent the repeal of the medical transfer provisions will restrict access to health care for persons in Nauru and Papua New Guinea under regional processing arrangements

Repeal of the medevac legislation does not prevent or restrict transferees from accessing health care or medical treatment, including treatment in a third country.

Consistent with Australia’s commitment under respective memoranda of understanding with PNG and Nauru, Australia has contracted health services to support the delivery of health care to transferees in regional processing countries. Health services are provided by the Pacific International Hospital in PNG and the International Health and Medical Services in Nauru. Health services are provided by a range of registered healthcare professionals including general practitioners, psychiatrists, psychologists, counsellors, dentists, radiographers, pharmacists, mental health nurses and specialists who provide clinical assessment and treatment.

Where a transferee requires medical treatment not available in a regional processing country, they may be transferred to a third country (including Australia) for assessment or treatment, in line with existing transfer mechanisms under section 198B of the Migration Act.

Since September 2017, transitory persons in Nauru who require medical treatment not available in Nauru, can access medical services in Taiwan. Taiwan has a global reputation for high-quality medical care and this arrangement is in line with Taiwan’s existing health cooperation with Nauru, under which Taiwan provides technical assistance to the Republic of Nauru Hospital.

The adequacy and effectiveness of the remaining discretionary transfer provisions under section 198B of the Migration Act 1958 in protecting the right to health

Repeal of the medevac provisions does not compromise the integrity of existing medical transfer processes under section 198B of the Migration Act. All transfers under section 198B are based on clinical assessment and recommendation from treating medical practitioners. A medical officer of the Commonwealth also provides assessment.

Section 198B provides for the transfer of transitory persons to Australia for a temporary purpose including for medical treatment. This is supported by the fact that during the period November 2012 to 31 July 2019, 1,343 individuals (717 medical and 626 accompanying family transfers) were transferred to Australia for medical treatment utilising existing powers under section 198B of the Migration Act. Of the 1,343 individuals transferred, 39 cases, involving 96 individuals, were court ordered. The remaining 1,247 transfers were facilitated utilising the existing power in the Migration Act.

As noted earlier, in addition to this transfer provision, the Australian Government maintains third country medical transfer arrangements with PNG and Taiwan. These arrangements provide alternative medical transfer options outside Australia.

2.37 The committee thanks the minister for this response and notes the minister's advice that Australia has contracted health services to support the delivery of health care to transferees in regional processing countries. The committee notes the reported conditions and that there are ongoing concerns around whether the quality of healthcare available to refugees and asylum seekers in regional processing countries is sufficient to meet their complex health needs. As noted in the committee's initial analysis in 2013 the committee raised concerns about the adequacy of access to health care and the right to health for those held under regional processing arrangements.^[32] The UN Committee on Economic, Social and Cultural Rights has expressed serious concerns about 'harsh conditions' in regional processing centres and 'limited access to basic services, including health care.'^[33] It has called on Australia to halt its policy of offshore processing of asylum claims.^[34] The UN Special Rapporteur on the human rights of migrants has also raised concerns about the health and health care of those held in regional processing countries including that 'protracted periods of closed detention and the uncertainty about the future reportedly creates serious physical and mental anguish and suffering'.^[35]

2.38 More recently, the Office of the United Nations High Commissioner for Refugees reports that despite efforts in PNG and Nauru that have led to isolated improvements in the provision of care in some circumstances, 'locally-available services continue to be inadequate' and the 'deteriorating health situation in both countries has led to significant risks of irreparable harm and loss of life'.^[36] Médecins Sans Frontières Australia have also raised concerns around the adequacy of available health care services to meet the needs of refugees and asylum seekers on Nauru, especially in relation to the 'dangerous mental health crisis developing on Nauru', and the lack of 'therapeutic solutions' under existing conditions.^[37]

2.39 The committee also notes the minister's advice that where a transferee requires medical treatment not available in a regional processing country, they may be transferred to a third country (including Australia) for assessment or treatment, in line with the transfer mechanisms set out in section 198B of the Migration Act, which allows a person to be brought to Australia for a temporary purpose (including for medical or psychiatric assessment or treatment). The committee notes the minister's advice that the repeal of the medical transfer provisions would not compromise the integrity of these existing medical transfer processes and that all section 198B transfers are based on clinical assessment and recommendation from treating medical practitioners.

2.40 The committee also notes that section 198B transfers are discretionary as there is no requirement that a person be transferred for medical treatment if it cannot be provided in the regional processing country. As such there is no timeframe for making a decision on whether to transfer a person. In contrast, the medical transfer provisions sought to be repealed require the minister to approve or refuse to approve a person's transfer to Australia within 72 hours after being notified by two or more treating doctors that they are of the opinion the person requires medical or psychiatric assessment that is not being received in the regional processing country and it is necessary to remove them to do so.^[38] If the minister refuses to approve a person's transfer to Australia, the Independent Health Advice Panel^[39] must conduct a further clinical assessment of the person, and if their advice is that the transfer be approved, the minister must approve the transfer (except where the transfer would be prejudicial to Australia's security or the person has a substantial criminal record).^[40]

2.41 The committee notes that a number of organisations have recently raised concerns about the frequency of delays in the administration of urgent medical transfers under the discretionary transfer system available under section 198B of the Migration Act and the negative health implications of these delays.^{[41 ]}

2.42 The committee thanks the minister for this response and notes the minister's advice that Australia has contracted health services to support the delivery of health care to refugees and asylum seekers in regional processing countries, and that where an individual requires medical treatment not available in a regional processing country, they may be transferred to a third country (including Australia) for assessment or treatment under section 198B of the Migration Act 1958 (Migration Act).

2.43 The committee also notes there are concerns as to whether the healthcare available to refugees and asylum seekers in regional processing countries is sufficient to meet their complex health needs, particularly in relation to the treatment of serious mental health issues. There are also concerns as to whether the discretionary transfer system available under section 198B of the Migration Act adequately protects the right to health for those needing urgent medical care.

2.44 The committee does not consider that the medical transfer provisions sought to be repealed by this bill provide a higher degree of access to healthcare. We note recent public statements by the minister that of the 179 people transferred to Australia under the medical transfer provisions, only a small number have been hospitalised and, once here, 55 people have refused tests or medical treatment.^[42] The committee remains concerned that the implementation of the medical transfer provisions were motivated by an intention to undermine the government's border protection policies and provide a 'backdoor' entry to Australia under circumstances where such entry would otherwise not be permitted.

2.45 As the minister has reiterated publicly on numerous occasions, the committee also expresses it concern that the medical transfer provisions do not expressly provide for the removal of persons, transferred to Australia under the medical transfer provisions, from detention. The committee also considers there is a risk that the medical transfer provisions, if not repealed, may give rise to incentives whereby asylum seekers or other persons once again seek to travel to Australia in a manner which may put their own lives and the lives of others at risk.

2.46 Accordingly, and given the safeguards which are in place as detailed by the minister in his response, the committee does not consider that repealing this bill represents an unjustified or retrogressive step in relation to the realisation of the right to health for refugees and asylum seekers in regional processing countries.

[2] Parliamentary Joint Committee on Human Rights, Report 4 of 2019 (10 September 2019)

[4] Nauru and Papua New Guinea are 'regional processing countries' for the purpose of the Migration Act 1958.

[6] Except in cases of children under 18 years of age: Migration Act 1958, sections 198D.

[10] Schedule 1, items 3-8. The explanatory memorandum also notes, at page 6, that section 198AD of the Migration Act 1958 (the power to take an unauthorised maritime arrival to a regional processing country) would apply in relation to persons covered by subsections 198AH(1A) and (1B). Subsection 198AH(1B) provides that a child, who has been born in Australia to an unauthorised maritime arrival who was brought to Australia for a temporary purpose, is subject to removal pursuant to section 198AD.

[11] UN Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (2018).

[12] International Covenant on Civil and Political Rights, article 2 (the right to an effective remedy).

[13] See, for example, the committee's analysis of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 in Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (October 2014) pp. 77-78. The UN Human Rights Committee in its Concluding observations on Australia recommended '[r]epealing section 197(c) of the Migration Act 1958 and introducing a legal obligation to ensure that the removal of an individual must always be consistent with the State party's non-refoulement obligations': CCPR/C/AUS/CO/6 (2017), [34]. See, also, Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019)

pp. 14-17; Report 12 of 2018 (27 November 2018) pp. 2-22; Report 11 of 2018 (16 October 2018) pp. 84-90; Thirty-sixth report of the 44th Parliament (16 March 2016)

pp. 196-202; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28.

[14] In relation to the requirement for independent, effective and impartial review, see Agiza v Sweden, UN Committee against Torture Communication No.233/2003 (2005) [13.7]; Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]-[8.9]; Josu Arkauz Arana v France, UN Committee against Torture Communication No.63/1997 (2000); Alzery v Sweden, UN Human Rights Committee Communication No.1416/2005 (2006) [11.8]. For an analysis of this jurisprudence, see Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 182-183.

[15] The minister's response to the committee's inquiries was received on 1 October 2019. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[17] UN Committee Against Torture, Concluding observations on the combined fourth and fifth periodic reports of Australia, CAT/C/AUS/CO/4-5 (2014) [17]. See, also, UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO (2017) [17].

[18] UN Human Rights Council, François Crépeau, Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, A/HRC/35/25/Add.3 (2017) [77]–[79],[82] and [118].

[19] UN Human Rights Council, François Crépeau, Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, A/HRC/35/25/Add.3 (2017) [80].

[21] See also a joint communication from the Mandates of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination; the Special Rapporteur on the human rights of migrants; and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, to Australia in April 2019 seeking a response to a range of human rights concerns associated with the regional processing centres at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24482.

[22] See Senate Standing Committee on Legal and Constitutional Affairs, Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, 21 April 2017, paragraph [7.14].

[26] See minister's advice to the committee received on 1 October 2019. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports

[28] In fact, section 197C of the Migration Act 1958 specifically states that for the purposes of exercising removal powers, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

[29] See the committee's initial analysis, Parliamentary Joint Committee on Human Rights, Report 4 of 2019 (10 September 2019) pp. 7-8. Note that the minister's response did not address the committee's conclusion that Australia exercises effective control over the regional processing centres and that Australia owes human rights obligations to those transferred to, and held in, regional processing countries, including in relation to the right to health.

[30] Section 198B of the Migration Act 1958 provides that 'an officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia'.

[31] For a discussion of the Commonwealth's duty of care relating to offshore medical transfers under section 198B, see Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483. By contrast, for a discussion of the new medical transfer provisions that this bill proposes to repeal, see CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050.

[33] UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO (2017) [17].

[34] UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO (2017) [17].

[35] UN Human Rights Council, François Crépeau, Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, A/HRC/35/25/Add.3 (2017) [73] and [77].

[37] Médecins Sans Frontières (MSF), Submission 44, Legal and Constitutional Affairs Legislation Committee Inquiry into Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions], August 2019; Médecins Sans Frontières (MSF), Indefinite Despair: The tragic mental health consequences of offshore processing on Nauru (December 2018) p. 7.

[39] The panel consists of a person occupying the positions of Chief Medical Officer of the Department and the Surgeon‑General of the Australian Border Force; the person occupying the position of Commonwealth Chief Medical Officer; and not less than 6 other members, including: at least one person nominated by the President of the Australian Medical Association; one by the Royal Australian and New Zealand College of Psychiatrists; one by the Royal Australasian College of Physicians; and one who has expertise in paediatric health. See section 199B of the Migration Act 1958.

[41 ] The Office of the United Nations High Commissioner for Refugees (UNHCR), Submission 7, Legal and Constitutional Affairs Legislation Committee Inquiry into Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions], August 2019, citing Coroners Court of Queensland, Inquest into the death of Hamid Khazaei, Findings of Inquest, 30 July 2018; Médecins Sans Frontières Australia (MSF), Submission 44, Legal and Constitutional Affairs Legislation Committee Inquiry into Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions], August 2019.

[42] Interview with the Hon Peter Dutton MP, Minister for Home Affairs, Sky News, 26 November 2019.

Australian Parliamentary Joint Committee on Human Rights

Migration Amendment (Repairing Medical Transfers) Bill 2019 [2019] AUPJCHR 102 (5 December 2019)