Earlier today I stepped you through what the medical transfers legislation says rather than relying on the high velocity political bollocks of the past week or so. Now, here is my account of a brief from the home affairs department that was leaked selectively to some news outlets last week. That leak is now the subject of a police investigation.
The government has now released a redacted version of the home affairs brief. The first thing to note is it is not a classified brief (as at least one outlet suggested). It’s status is “protected, sensitive, legal”.
News reports of this brief suggested that security agencies had warned the floodgates would be opened on border protection if the parliament ultimately passes the medical transfer legislation. Well, sort of. There are a lot of contentions in the advice, and some of them are hedged.
Officials argue the current ministerial discretion in the bill to reject people cleared for medical transfer on security grounds isn’t wide enough.
Consistent with the culture of the home affairs department, the briefers also clearly object to doctors being decision-makers. The officials say a lot of doctors don’t like offshore detention, ipso facto: “Many doctors in Australia and their professional associations have called for an end to regional processing and it is expected that their recommendations under these amendments would be forthcoming in a short period.”
“It is expected that within four weeks of Royal Assent, should the bill pass the House of Representatives, that most of the 1,000 individuals would be in contact with ‘treating doctors’ willing to recommend their transfer to Australia for at least medical assessment if not treatment. The fact that treatment is available in PNG, Taiwan or Nauru would not restrict the recommendations by treating doctors to transfer. The individual would not be required to accept treatment in their regional processing country or another location that is not Australia”.
“Some doctors have publically [sic] asserted that all transferees should be removed from Nauru and PNG for mental health reasons. Provided those doctors are appropriately registered or licensed and have ‘assessed’ transferees either remotely or in person, it will be open to him or her to form the opinion that any or all of the transferees are ‘relevant transitory persons’ and give the secretary notice of this, triggering the provisions in the amendments.”
A contention, unless I’m not mistaken. Doctors. Gotta watch them. Always up to something.
Moving on, the briefers note something the government hasn’t exactly highlighted. “On transfer to Australia, the individuals would be detained under the Migration Act 1958 (Migration Act) and placed in held detention or in community detention by way of a residence determination”.
So this isn’t quite “two doctors say you can come to Australia, and freedom beckons”, as a number of government frontbenchers have suggested during the past few hyperbolic days. It’s come to Australia (maybe, if you meet the criteria) and get detained again.
Despite the brief confirming medical transferees would continue to be detained, this is framed by the authors as a problem.
“Placing up to 1,000 people in held detention will put pressure on the detention network and with risk assessments, some, but not all, may be suitable for community detention. Those not suitable for community detention would be placed in held detention, likely necessitating the stand-up of the Christmas Island facility and removing our hot contingency fall back for Operation Sovereign Borders.”
The briefers worry word will get back to the people smugglers. “This path to Australia will likely reach people smugglers in a short period and they could rightly advise their clients that if they were sent at a future time to a regional processing location, they would only need to stay long enough to seek the recommendations of ‘treating doctors’ for transfer to Australia.”
“We expect that this may encourage those prospective clients of people smugglers who, to date, have not decided to travel due to the dissuasion of returns, turnbacks and regional processing. This bill removes the third pillar – regional processing.”
Sounds bad, but several paragraphs later, the advice becomes more hedged. After noting the softening in Australia will feed in to marketing by people smugglers, the story becomes more complicated. “Although people smugglers may claim there has been a shift in Australian policy and entry to Australia is now possible with just the opinion of two doctors, the resumption of large-scale people smuggling to Australia will remain dependent on a shift in Potential Illegal Immigrant (PII) intent — not smuggler marketing.”
“PIIs will probably be interested in any perceived or actual pathway where resettlement in a Western country is guaranteed, even if such a pathway includes a period spent in detention.
“However, PIIs will probably remain sceptical of smuggler marketing and await proof that such a pathway is viable, or that an actual change of policy has occurred, before committing to ventures”.