Migration Amendment (Repairing Medical Transfers) Bill 2019 [2019] AUPJCHR 65 (10 September 2019)

1.2 The committee seeks a response from the relevant minister with respect to the following bill.

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Migration Amendment (Repairing Medical Transfers) Bill 2019^[2]

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
Status	Seeking additional information

Repeal of the medical transfer provisions

1.3 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 security,  character  or  medical grounds^[6] 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] 

1.4 The Migration Amendment (Repairing Medical Transfers) Bill 2019 (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 so 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

1.5 Australia has '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). This means 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. The obligation of non-refoulement and the right to an effective remedy require an opportunity for independent, effective and impartial review of decisions to deport or remove a person.^[12]

1.6 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.

1.7 In relation to the potential risk of harm of sending or returning someone to a regional processing country, in 2013 the committee raised human rights concerns about such transfers and about the conditions in regional processing countries including in offshore immigration detention. 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.^[13] The United Nations (UN) Committee Against Torture has also expressed concerns about the transfer of individuals to regional processing centres in Papua New Guinea (Manus Island) and Nauru in view of reports of 'harsh conditions' and 'serious physical and mental pain and suffering'.^[14] Similarly, the UN Special Rapporteur on the human rights of migrants has also raised concerns about 'systemic human rights violations' and recommended the closure of regional processing centres.^[15] 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.'^[16]

1.8 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. More generally, in relation to the obligation of non-refoulement, the statement of compatibility states:

1.9 While it is welcome that the Australian government takes non-refoulement obligations seriously, it is unclear from the information provided what safeguards exist to ensure a person is not removed from Australia in violation of Australia's non-refoulement obligations. 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.^[18] In the context of the proposed application of the requirement under section 198AD of the Migration Act to remove a person as soon as reasonably practicable, it is unclear there is sufficient scope for independent and effective review of such a removal.^[19] More generally, there do not appear to be 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 of harm to the person in that country including in the context of immigration detention. Further, as noted above, the statement of compatibility does not specifically address the issue of whether sending someone 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.

1.10 The committee notes that the bill would provide for the removal from Australia, or return to a regional processing country, of all persons brought to Australia under the medical transfer provisions once the purpose for which they were brought to Australia is complete. The committee has previously raised human rights concerns about the conditions for individuals transferred to regional processing countries.

1.11 The committee seeks the minister's advice as to the compatibility of these measures with the obligation of non-refoulement and the right to an effective remedy, in particular:

Right to health

1.12 By repealing the medical transfer provisions, the measure engages and may limit the right to health.^[20] 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, see paragraphs [1.14] to [1.15] below). 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. It is a right to have access to adequate health care (including reproductive and sexual healthcare) as well as to live in conditions that promote a healthy life (such as access to safe drinking water, housing, food and a healthy environment). The right to health requires States parties to ensure the right of access to health facilities, goods and services on a non[21]iscriminatory basis.²¹

1.13 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.^[22] More recently, 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.'^[23] It has called on Australia to halt its policy of offshore processing of asylum claims.^[24] 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'.^[25]

1.14 In relation to the scope of Australia's human rights obligations, under international law Australia owes obligations to everyone within its territory but also to anyone located outside Australia over whom Australia is exercising power, effective control or who is otherwise subject to Australia's jurisdiction. In this respect, the statement of compatibility notes that persons in regional processing countries are outside Australia's territory. While the statement of compatibility acknowledges that there may be some exceptional circumstances where Australia has obligations for persons outside its territory, it states that 'the Government's position is that Australia does not exercise the degree of control necessary in regional processing countries to enliven Australia's international obligations',^[26] which would include the right to health.

1.15 However, the 'power' or 'effective control' test in international law is essentially one of sufficient control. Therefore, whether Australia is exercising sufficient control and authority to amount to 'effective control' is a question of fact and degree in the particular circumstances. The committee has previously noted that Australia's involvement in the arrangements, upkeep and provision of services to persons transferred from Australia to regional processing countries is significant. In 2013 the committee concluded that this evidence demonstrated that Australia could be viewed as exercising 'effective control' of the arrangements relating to the treatment of persons transferred to Manus Island or Nauru.^[27] The UN Committee Against Torture has also found that those held in regional processing countries are under the 'effective control' of Australia as 'they were transferred by the State party to centres run with its financial aid and with the involvement of private contractors of its choice'.^[28] The UN Human Rights Committee has also considered that 'the significant levels of control and influence exercised by [Australia] over the operation of the offshore regional processing centres, including over their establishment, funding and service provided therein, amount to such effective control.'^[29] The UN Special Rapporteur on the human rights of migrants has further stated that '[t]he Government of Australia is ultimately accountable for any human rights violations that occur in the regional processing centres based in Nauru and Papua New Guinea.'^[30] Noting that Australia has been held to be exercising effective control, it follows that as a matter of international law Australia also owes human rights obligations to those transferred to, and held in, regional processing countries, including in relation to the right to health.

1.16 In relation to the proposed repeal of the medical transfer provisions, the statement of compatibility addresses the right to health in relation to those persons currently present in Australia. It states that persons already transferred to Australia for a temporary purpose will continue to receive medical care in Australian medical facilities.^[31] In relation to the right to health of those present in a regional processing country, the statement of compatibility explains:

1.17 However, the committee is concerned 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.^[33] 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.^[34] 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. The statement of compatibility did not address this issue and provided no justification as to whether any retrogressive measure is permissible. It also does not provide any evidence or reasoning as to the adequacy of any remaining arrangements under section 198B. As such, further information is required in order for the committee to complete its assessment of the human rights compatibility of the measure.

1.18 The committee has previously raised concerns about the adequacy of access to health care and the right to health for those held under regional processing arrangements.

1.19 The committee seeks the minister's advice as to the compatibility of the measure with the right to health,^[35] including:

[1] This section can be cited as: Parliamentary Joint Committee on Human Rights, Response required, Report 4 of 2019; [2019] AUPJCHR 65.

[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.

[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).

[14] 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].

[15] 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].

[16] 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].

[18] 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.

[19] 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.

[20] The measure may also engage and may limit the right to humane treatment in detention, the rights of children and the rights to protection of family. It is noted that this analysis does not address the rights of children noting that the Prime Minister announced that '[e]very asylum seeker child has now been removed from Nauru or has had their claim processed and has a clear path off the island': Prime Minister, Media Release (3 February 2019). https://www.pm.gov.au/media/asylum-seeker-children-nauru. Further the SOC p. 12 notes that '[n]o children have been transferred to Australia under section 198C of the Migration Act.'

[21] International Covenant on Economic, Social and Cultural Rights, article 12(1).

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

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

[25] 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].

[27] See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (19 June 2013) p. 43. See, also, Legal and Constitutional Affairs References Committee, Incident at the Manus Island Detention Centre from 16 February to 18 February 2014 (11 December 2014) pp. 131–142.

[28] 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].

[29] UN Human Rights Committee, Concluding observations on the sixth periodic report of Australia, CCPR/C/AUS/CO/6 (2017) [35].

[30] 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].

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

[34] 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.

[35] The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

Australian Parliamentary Joint Committee on Human Rights