Migration Amendment (Repairing Medical Transfers) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 86 (11 September 2019)

• Migration Amendment (Repairing Medical Transfers) Bill 2019
• Trespass on rights and liberties 35

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Migration Amendment (Repairing Medical Transfers) Bill 2019

Purpose	This bill seeks to amend the Migration Act 1958 to repeal the medical transfer provisions inserted by Schedule 6 of the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019
Portfolio	Home Affairs
Introduced	House of Representatives on 4 July 2019
Bill status	Before the Senate

Trespass on rights and liberties ^[35]

2.71 In Scrutiny Digest 3 of 2019 the committee requested the minister's advice as to why it is necessary and appropriate to include sub-item 15(1) of Schedule 1 to the bill (which provides that subsection 7(2) of the Acts Interpretation Act 1901 does not apply to the repeal of the medical transfer provisions) and whether its inclusion will trespass on the rights and liberties of any person.^[36]

Acting Minister's response^[37]

2.72 The acting minister advised:

The Committee has requested I provide more detailed information as to why it is necessary and appropriate to include sub-item 15(1) of Schedule 1 to the Bill and whether its inclusion will trespass on the rights and liberties of any person (Senate Scrutiny of Bills Committee Digest No. 3 of 2019, dated 24 July 2019 refers).
Sub-item 15(1) of the Bill provides that subsection 7(2) of the Acts Interpretation Act 1901 (the Acts Interpretation Act) does not apply in relation to the repeal of the medical transfer provisions inserted into the Migration Act by Schedule 6 of the Miscellaneous Measures Act. Subsection 7(2) of the Acts Interpretation Act would, if applicable, preserve, amongst other things, any right, privilege, obligation or liability acquired, accrued or incurred under the medical transfer provisions.
By expressly excluding the applicability of subsection 7(2) of the Acts Interpretation Act, any right, privilege, obligation or liability acquired, accrued or incurred under the medical transfer provisions, including those acquired, accrued or incurred by a relevant transitory person, will be extinguished on commencement of the Bill other than those rights preserved by sub-item 15(2), which is addressed below.
This position was taken because the existing power in section 198B of the Migration Act can still be exercised to effect the temporary transfer of a transitory person to Australia, including for the delivery of medical care to that person. This power continues to operate in parallel to the medical transfer provisions introduced in March 2019. These existing transfer mechanisms mean that those persons in need of medical attention in Australia or a third country will receive that attention. As such, it is an unnecessary duplication to preserve any rights accrued under the medical transfer provisions, other than those preserved in sub-item 15(2).
Significant medical support and services are available in Nauru and Papua New Guinea, delivered by experienced and professional health contractors. This support is supplemented by tele-medicine and visiting health specialists. Medical transfer options outside Australia are in place with Papua New Guinea and Taiwan for transitory persons in Nauru. These options cannot be explored and used under the medical transfer provisions introduced by Schedule 6 of the Miscellaneous Measures Act.
It is also important to note the operation of sub-item 15(2). This provides that, despite sub-item 15(1), the repeal of the medical transfer provisions does not affect rights or liabilities arising between parties to proceedings in which judgment is reserved by a court or has been delivered by a court as at the commencement of this item, and the judgment sets aside, or declares invalid, a decision made under a medical transfer provision. The purpose of this sub-item is to confirm that the repeal of a medical transfer provision will not affect cases where judgment has been reserved or delivered by a court before the commencement of this item. The effect of this is to preserve any such decision (or pending decision) of a court prior to the commencement of this item where that decision sets aside, or declares invalid, a decision made under the medical transfer provisions.
Noting the above, I do not consider that sub-item 15(1) does trespass on the rights of any person.
I thank the Committee for its consideration of the Bill, and trust that this information is of assistance. I note the Legal and Constitutional Affairs Legislation Committee is also inquiring into this Bill.

Committee comment

2.73 The committee thanks the acting minister for this response, and notes the acting minister's view that sub-item 15(1) of the bill does not trespass on the rights of any person.

2.74 The committee notes the acting minister's advice that, despite the repeal of the medical transfer provisions inserted by the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Miscellaneous Measures Act), the power in section 198B of the Migration Act 1958 (Migration Act) can still be exercised to effect the temporary transfer of a person to Australia, including for the delivery of medical care. The committee notes the advice that it is therefore an 'unnecessary duplication' to preserve rights accrued under the medical transfer provisions, other than those preserved by sub-item 15(2).

2.75 The committee also notes the acting minister's advice that significant medical support and services are available in Nauru and Papua New Guinea, supplemented by telemedicine and visiting health specialists. The committee further notes the advice that medical transfer options outside Australia are in place with Papua New Guinea and Taiwan, and that these options cannot be used under the existing medical transfer provisions.

2.76 The committee acknowledges that, despite the repeal of the medical transfer provisions, the minister may still approve the temporary transfer of a person to Australia for medical treatment. The committee also acknowledges that medical services remain available to persons in regional processing centres. However, it is unclear from the acting minister's response why this justifies extinguishing any right, privilege, obligation or liability accrued under the medical transfer provisions. The committee also finds it difficult to reconcile the fact that sub-item 15(1) of the bill will extinguish 'any right....accrued or incurred under the medical transfer provisions' with the assertion that the sub-item does not trespass on the rights of any person. The acting minister's response does not provide sufficient information in this regard. In particular, the response does not identify the rights that may have accrued under the medical transfer provisions, or how a transitory person may be affected if those rights are extinguished.

2.77 The committee therefore remains concerned that, by dis-applying subsection 7(2) of the Acts Interpretation Act 1901, the bill would extinguish certain rights and expectations accrued under or as a result of the medical transfer provisions.^[38] The committee is also concerned that these rights and expectations may be extinguished retrospectively, noting that they have accrued prior to enactment of the present bill.

2.78 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of extinguishing any right, privilege, obligation or interest accrued under the medical transfer provisions inserted by the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019.

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[35] Schedule 1, item 15. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[36] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2019, pp. 23-24.

[37] The acting minister responded to the committee's comments in a letter received 26 August 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[38] In particular, a person's right to be transferred to Australia following a ministerial decision under the medical transfer provisions.