This article is more than 1 year old

This article is more than 1 year old

Australia’s previous regime of last-resort medical evacuations of asylum seekers and refugees was “sociopathic”, “health destroying” and potentially a criminal breach of work health and safety laws, according to two lawyers.

High-profile barrister Robert Richter and work health and safety expert Max Costello make the claims in a submission to the review of the Coalition’s bill to repeal the medevac laws, which facilitate evacuations from offshore detention.

The intervention comes after the Coalition angered crossbench senator Jacqui Lambie – who has the casting vote on the repeal – by signalling it will push ahead with a vote on the bill in the next fortnight, without waiting for the review to conclude by 18 October.

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Richter and Costello argue the WHS Act creates a duty to “pro-actively and preventatively ensure the physical and psychological health, and the safety, of both ‘workers’ and ‘other persons’ (such as [regional processing centre] residents)” in offshore detention.

The medevac inquiry, conducted by the legal and constitutional affairs committee, has heard from doctors responsible for health assessments that of 581 people in detention they have audited 97% have significant physical health issues and 91% have serious mental health issues.

Richter and Costello noted the pre-Medevac system was characterised by “systemic refusals or long delays of doctor-requested medical transfers” due to a home affairs department policy that requests for evacuation “will only be considered … where the person faces a life-threatening medical emergency that would otherwise result in their death or permanent, significant disability”.

“Decisions under that sociopathic policy were made by designated senior officers of Australian Border Force,” they said. “Such decisions, by putting the health of RPC residents at serious or even grave risk, were ipso facto criminal offence breaches of WHS Act duty provisions.”

The lawyers took aim at Comcare – which says it has investigated and never found any WHS Act breach – accusing it of failing to bring prosecutions because it is “captured” by the government.

Medevac provisions are “broadly compliant with WHS duty obligations” and their repeal would be “an anti-law and order measure” that would “restore the former regime, which, having no treating doctor primacy and no time limit on transfer decisions, was health-destroyingly and criminally law-breaking”, they said.

The lawyers noted the WHS Act does not cover former regional processing residents located in Nauru or Papua New Guinea but noted a common law duty of care may apply to people in PNG holding facilities.

Richter is a Victorian criminal barrister who told the inquiry he has a long-standing interest in human rights issues, including laws affecting asylum seekers, while Costello is a retired lawyer with two decades of legal experience, including five years as a prosecuting solicitor with WorkSafe Victoria.

Richter and Costello criticised Comcare for failing to properly investigate the preventable death of Hamid Kehazaei, who died after delays and errors caused when the home affairs department refused a medical transfer for his leg infection.

Comcare has told Senate estimates that it “has not observed any breach of the WHS Act” by the home affairs department, including in the Kehazaei case.

But Richter and Costello noted Comcare’s 2014 report made no mention of antibiotics not being kept in stock and disputed the conclusion that the airlift delay did not “contribute” to his death.

In August, Comcare wrote to Costello to advise that no charges had been laid by it over the Kehazaei case.

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“After assessing the coroner’s report into the death of [Mr Kehazaei] and considering the application of section 232 (1) (b) of the Work Health and Safety Act 2011 (WHS Act), it did not appear to Comcare that an offence had been committed against the WHS Act,” it said.

The repeal of medevac provisions has been opposed by the overwhelming majority of stakeholders including the Australian Medical Association, Royal Australian College of General Practitioners, the Australian Human Rights Commission, the architect of the provisions, the former independent MP and GP Kerryn Phelps, and former home affairs departmental official Shaun Hanns.

The home affairs department has urged parliament to pass the bill, claiming medevac provisions undermine regional processing, impinge on the sovereignty of Papua New Guinea and Nauru, and could encourage asylum seekers to self-harm.

It has rejected claims by other submissions that under the previous system it had been “legally compelled to transfer persons from Nauru and Papua New Guinea to Australia to receive necessary healthcare”.