The re-opening of Christmas Island: Two steps back

28th Mar 2019

Following last month’s celebrated (and much delayed) announcement that all children will be urgently removed from Nauru’s offshore detention centre, the Australian government has revealed its intentions to re-open the infamous Christmas Island Immigration Detention Centre. The announcement follows the Senate’s passing of the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (Medevac Bill), which will provide clinical pathways for detainees requiring medical care and ensure that authorities are compelled to determine whether a patient may be transferred to Australia for treatment within 72 hours. The Medevac Bill, which enjoyed widespread backing from community organisations and industry bodies such as the Australian Medical Association, was characterised by Prime Minister Scott Morrison as part of the Opposition’s efforts to ‘weaken Australia’s borders’. As it goes – one step forward, two steps back.

What is the point of redirecting patients to another offshore facility?

Under the government’s plans, detainees perceived to be a risk to Australia will be directed to Christmas Island’s North Point Immigration Detention Centre if they seek medical transfer to Australia. Redirecting patients who are found by medical practitioners to be in need of urgent medical care to another remote offshore detention facility, one which has been the subject of international condemnation, undermines the purpose of the Medevac Bill. As articulated by Dr Kerryn Phelps, sponsor of the Bill:

‘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.’

In effect, this plan to send detainees to Christmas Island for treatment will arguably render the newly passed Medevac Bill obsolete. Notably, the Bill already includes special provisions for the management of high-risk persons, and enshrines ministerial discretion in cases relating to persons with extensive criminal records or who are perceived to pose a significant threat to the safety or security of Australia ‘that cannot be mitigated’. Minister Peter Dutton is already empowered under the Bill to refuse transfers to Australia; it is difficult to understand why further powers enforcing the redirection of transfers to Christmas Island are necessary.

The border protection argument: Subverting human rights

Contradicting the Prime Minister’s fearmongering comment ‘…they may be a paedophile, they may be a rapist, they may be a murderer… and this Bill would mean that we would just have to take them’, those who are granted medical transfers to Australia will require the endorsement of two medical practitioners and will remain in detention throughout the course of the transfer and treatment period. The assertion that the Medevac Bill will open the floodgates for disingenuous medical transfers and pose increased security threats to Australia is in stark contrast with the objectives and safeguards implemented in the legislation.

The United Nations Working Group on Arbitrary Detention has previously voiced concerns with respect to Australia’s use of detention as a means of addressing unlawful immigration. Open-ended, indefinite detention, which was routinely the modus operandi on Christmas Island, has been described by human rights advocacy groups such as Amnesty International and the Refugee Council of Australia as cruel, inhumane and irresponsible. The UN High Commissioner for Human Rights, Michelle Bachelet, last year condemned Australia’s practices as ‘an affront to human rights’.

As xenophobia swells in Australia, it is critically important that immigration policy be designed to protect not only our country, but the fundamental human rights of those seeking safety within its borders.

The International Covenant on Economic, Social and Cultural Rights provides for ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ Australia has an important obligation to uphold this human right, and ensure that all persons, irrespective of their refugee status, have access to medical treatment in a timely manner. The Medevac Bill, ensuring the prompt assessment and appropriate transfer of detainees, is a step in the right direction. Adding an additional offshore detention facility to Australia’s refugee treatment record would be taking two steps backwards.


Kathryn Schmidt is a lawyer in the commercial department at Adamson Bernays Kyle & Jones Lawyers. She holds a Bachelor of Laws and a Bachelor of Arts (Communications and Philosophy). She is an Executive Committee member of Queensland Youth Parliament and a community advocate for equality and inclusivity. 
The views in this article are the writer's own and do not necessarily reflect the views of Adamson Bernays Kyle & Jones Lawyers.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights Asylum seekers and refugees Detention Immigration Medical treatment international law Kathryn Schmidt Christmas Island Detention centre Medevac Bill United Nations