Home affairs revelation comes as Nauru bans medical transfers based on telehealth assessments, threatening to derail new medevac laws

This article is more than 1 year old

This article is more than 1 year old

Sick people on Manus Island and Nauru will be sent to Christmas Island, not the mainland, under new medevac laws, the head of the home affairs department has revealed.

The Nauruan government has also passed laws banning medical transfers based on telehealth assessments, threatening to derail the system and potentially breaking international law, according to human rights lawyers.

The home affairs secretary, Michael Pezzullo, told Senate estimates late on Monday night it was “the policy of the government” that under the new legislation refugees and asylum seekers who are found to need a medical transfer will not be sent to mainland Australia, but will first go to Christmas Island.

Nine facts about the medical evacuation bill Read more

“Clearly … it goes without saying that if specialised treatment is only available on the mainland then the mainland will be utilised,” said Pezzullo, under questions from the Greens senator Nick McKim.

McKim said the “outrageous” revelation raised numerous questions and was “a clear denial of the clear intent of the parliament, which is that people get access to better medical treatment, which is not available on Christmas Island”.

Nick McKim (@NickMcKim) The government plans to send sick refugees and people seeking asylum to Christmas Island. This is utter bastardry and a denial of the Parliament's intentions. pic.twitter.com/oFgfQvWpRQ

The opposition leader, Bill Shorten, said he had no problem with people being sent to Christmas Island first.

“If the medical treatment is delivered and delivered on Christmas Island and it makes people well, that’s fine,” he said.

The medical evacuations bill has been at the centre of savage bipartisan fighting. Under the legislation, which is yet to be given royal assent, any person on Manus Island or Nauru who was sent there under Australia’s offshore processing regime and who needs medical attention in Australia can be transferred on the recommendation of two doctors, who could be based on-site or in Australia.

Previously people have waited as long as five years without being transferred, despite recommendations by the Australian government’s contracted doctors.

Under the new law, if the minister seeks to refuse the transfer on medical grounds, the recommendation must be assessed by an independent panel within 72 hours. The minister can still refuse a transfer on security grounds.

In response to the bill passing, the prime minister, Scott Morrison, immediately announced the reopening of the Christmas Island detention centre “both to deal with the prospect of arrivals as well as dealing with the prospect of transfers”.

There are 431 people on Nauru and 584 men on Manus Island.

The Christmas Island local council has said the island does not have sufficient medical facilities.

“Some of these people would have serious mental problems that need to be dealt with by specialists. We haven’t got the specialists here to do that,” the council chief executive, David Price, told ABC radio.

“We just wouldn’t have the capacity to deal with people coming here for medical reasons, both physically and mentally.”

Kerryn Phelps, the independent MP for Wentworth who was a vocal proponent of the bill, said Pezzullo’s claim was a “subversion of our entire model of representative democracy”.

“The parliament through its proper processes clearly determined that people too sick to receive treatment in offshore detention should come to Australia, not Christmas Island, for specialised treatment,” she said.

On Tuesday the Greens MP Adam Bandt accused the government of “directly defying the will of the parliament” and threatening democracy.

“I will support a no-confidence motion,” Bandt said. “I’ll vote for it any time this week. This mob needs to be turfed out as quickly as possible.”

The medical evacuation procedure faces another hurdle in Nauru, where the government has passed laws banning overseas medical transfers based on telehealth referrals.

Under the regulations, all transfer referrals must come through the Nauru hospital. The referral is then assessed by the controversial overseas medical review panel and signed off by the minister.

The law was likely to mean both Nauru and Australia were in breach of international law preventing torture and guaranteeing the right to health, said George Newhouse, principal lawyer at the National Justice Project.

“We are now looking at making complaints to the United Nations, to have these breaches investigated,” he said.

Paladin controversy prompts renewed scrutiny of $591m Nauru deal Read more

“There are also international laws preventing discrimination on the basis of race, gender and disability status. Both Australia and Nauru could be breaking these laws, by Nauru stopping sick people from accessing medical treatment.”

Morrison told 3AW on Tuesday that the Australian government would assess Nauru’s new laws because it wasn’t clear how they would play out, but said: “It’s their country.”

Shorten also said Nauru should be respected as a sovereign government if it passed laws it felt were necessary.

“The issue here is the safe treatment of people within the context of strong borders,” he said, adding that he hadn’t seen the Nauruan legislation.

Nauruan officials have previously been accused of blocking the transfer of sick refugees, even those under order from Australia’s federal court.

The move affects not only Australia’s medevac system but also the newly launched telehealth service by Médecins Sans Frontières.

MSF had been providing mental healthcare to asylum seekers, refugees and Nauruans on site for almost a year when it was abruptly kicked off the island by the Nauruan government, which accused it of conspiring with activists to oppose the government. MSF said it had been treating extraordinarily high rates of extreme mental illness among its entire patient cohort and feared for their welfare after the organisation left.

This month it launched the telehealth service so it could continue to treat its patients on the island. Guardian Australia understands the Nauruan government was informed of its launch but had not made any comment or responded to it.

“This telehealth service is MSF’s only remaining option to continue to act on our medical and ethical commitment to former patients,” said Christine Rufener, a clinical psychologist and MSF mental health activity manager.

While the new law does not outlaw the service, it prevents the MSF staff from referring patients to the review panel for an international transfer unless they send the patient through the Nauruan hospital.

