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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Migration Amendment (Health Care for Asylum Seekers) Bill 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators S Hanson-Young and R Di Natale)
MIGRATION AMENDMENT (HEALTH CARE FOR ASYLUM SEEKERS)
BILL 2012
OUTLINE
The purpose of this bill is to help safeguard the health and wellbeing of asylum seekers under
the care of the Commonwealth.
A growing body of evidence has made it clear that asylum seekers who are detained in
immigration detention facilities, particularly those in remote and offshore locations, suffer
adverse physical and mental health effects as a direct consequence of their detention. Asylum
seekers have by definition suffered considerable mental and physical strain. This makes them
particularly vulnerable to the further stresses caused by indefinite detention. Whilst in
detention, asylum seekers are cut off from the support that can be provided by family and
community networks and are reliant on the Commonwealth for all health and mental health
services. The scope of services provided and ability to access these services is limited due to
the remoteness of the location and other factors that are in the control of the Commonwealth.
This bill creates a panel of medical and psychological experts who are tasked with reporting
on the health of asylum seekers in offshore detention. These experts are to investigate and
report on the health of all persons in offshore detention and would include detailing prevalent
health conditions, deficiencies in access to services, and other conditions that impact on the
health of detainees. The committee is intended to have the expertise and independence to
make a thorough investigation and deliver findings in a way that is not subject to interference
by the Minister, the relevant Department and other organisations responsible for the provision
of health services and the care of detainees.
Reports are to be given to Parliament on at least a twice-annual basis. On the basis of these
independent reports, Government and the Parliament will have information that will inform
further action to improve the health of people in the care of the Commonwealth and
ameliorate the effects of detention overseas. If the panel identifies issues with regard to the
health and wellbeing of detainees they may at any time make recommendations to the
Minister to remedy the deficiencies identified.
NOTES ON CLAUSES
Clause 1 - Short Title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. This clause provides that the Act will commence the day the Act receives Royal Assent.
Clause 3 - Schedules
3. This clause provides that an Act that is specified in a Schedule is amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to its terms.
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Schedule 1 - Amendments of Migration Act 2008
Item 1
Subclause (1) obliges the minister to establish a panel of persons to monitor the health of
offshore entry persons (asylum seekers) who are detained offshore in a designated regional
processing country. This panel must be established at the time a designation is made for a
regional processing country under section 198AB of the Migration Act, or within 30 days of
commencement if such a designation precedes the commencement of this section. It is
intended that the operation of the panel in monitoring the health of people detained offshore
is to commence at the same time as detention begins offshore, or as soon as possible after
such detention commences.
Subclause (2) specifies that the panel is to be appointed by the Minister by written
instrument, and on terms as determined in the instrument. The Minister may therefore
determine the number of people who comprise the panel, their areas of expertise (subject to
subclause 1(3)) and their length of service, such that the panel is adequately constituted to
perform its duties. As the number of people detained, and the number of countries designated
as regional processing countries may vary, the size and composition of the panel may need to
be varied accordingly.
Subclause (3) obliges the Minister to appoint people to the panel who have genuine expertise
in medical or psychological practice. In practice, this means doctors, psychiatrists,
psychologists and other professionals with the relevant clinical and theoretical experience to
objectively evaluate the physical and mental health of people under trying conditions. In
order to ensure that such people appointed have relevant experience in an applicable field, it
requires the persons to be nominated by a professional body such as the medical peak bodies
specified or another body as prescribed in regulation. It is intended that a body so nominated
should be similarly representative of the medical and psychological professions as those
specified.
Subclause (4) specifies that the panel determines how best it is to carry out its functions. The
panel does not take direction from the Minister or the Department on how to monitor the
health of offshore entry persons but is to act independently and thus performs its
investigations under its own motion.
Subclause (5) explicitly specifies some powers that the panel is to have in conducting its
duties. The panel is free to divide up its work as it sees fit amongst its members; travel to the
regional processing countries; and assess and monitor the health of offshore entry people
regardless of their length of time in detention, including on arrival.
Subclause (6)(a) specifies the reporting requirements of the panel. The panel must produce a
written report at least once every six months and present it to the Parliament to be tabled for
the information of the Parliament and the public.
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Subclause (6)(b) makes explicit that the panel is free to make recommendations to the
Minister regarding the health care and treatment of offshore entry persons whenever it sees fit
to do so, regardless of the reporting requirements specified in the previous subclause.
Subclause (7) specifies that the written reports are, in order to safeguard the privacy of
individuals in detention, not to contain personally identifiable information.
Subclause (8) gives to the panel some specific powers in obtaining information that may be
necessary in carrying out its duties. A Department of the Commonwealth, a relevant agency
or a consultant or independent contractor engaged by a relevant agency, may be required by
the panel to produce information relevant to the physical or mental health and treatment of
detained persons by specifying in writing to that agency the information or document
required and the time by which that information is to be supplied. This may include (but is
not limited to) individual records, details of persons employed in the health care and daily
treatment of detained persons, manuals and other documentation that specify procedures
followed in regard to the treatment of detained persons, etc.
Item 2
This item amends section 499(1) of the Act to exclude the panel from the persons or bodies
who may be directed by the Minister, so that the panel may exercise its duties independently
of the Minister.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Health Care for Asylum Seekers) Bill 2012
This Bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill/Legislative Instrument
This Bill establishes an independent panel of medical experts tasked with investigating and reporting
to the Parliament on the health of asylum seekers who are detained in offshore detention and
processing facilities.
Human rights implications
This Bill does not negatively impact on any human rights, as it merely creates a panel to oversee the
treatment and wellbeing of persons in the care of the Commonwealth and does not limit or compel
any individual in ways that could engage the rights in the relevant conventions.
This Bill does positively impact several rights. The panel established by the bill may, through its
efforts, help ensure that asylum seekers receive better medical care and mental health support.
Collectively, the relevant conventions contain a number of references to the right to enjoyment of
physical and mental health. For instance:
· Article 12 of the International Covenant on Social, Economic and Cultural rights which
recognises the right "of everyone to the enjoyment of the highest attainable standard of
physical and mental health" and "the creation of conditions which would assure to all medical
service and medical attention in the event of sickness";
· Article 24 of the Convention on the Rights of the Child which recognises "the right of the
child to the enjoyment of the highest attainable standard of health and to facilities for the
treatment of illness and rehabilitation of health" and states that "arties shall strive to ensure
that no child is deprived of his or her right of access to such health care services";
· The Convention on the Elimination of All Forms of Discrimination against Women which
contains several articles that oblige parties to the treaty to safeguard health of women and
their access to health services.
Conclusion
The Bill is compatible with human rights as it does not infringe or limit existing rights, but will help
Australia uphold rights related to health and access to health care.
Senators R Di Natale and S Hanson-Young
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