By political reporter Matthew Doran
- The Home Affairs department argued there had to be "personal engagement" with a patient for a transfer to be considered
- The Federal Court disagreed, allowing doctors to recommend medical transfers based on records alone
- The Government has promised to repeal the medevac laws and needs just four crossbench votes in the Senate to do so
A Federal Court ruling on the consultation process for asylum seekers seeking medical treatment in Australia will reignite the debate on the so-called "medevac legislation", less than a fortnight before Federal Parliament returns after the election.
The judgment handed down on Monday by Justice Mordecai Bromberg dealt with the case of a 29-year-old man from Iraq, currently in Australia's offshore processing facility on Nauru.
Two doctors had recommended the man, who is understood to be needing critical care, be transferred to Australia for treatment.
Those doctors formed their opinion based on the man's medical records, and not from any consultation with him either in person or via teleconference.
The Home Affairs department had sought to block the transfer, claiming that recommendation fell outside the confines of the medevac legislation, insisting there had to be "personal engagement" with the man.
Lawyers for the Department cited the wording of the legislation, passed earlier this year when the Morrison Government was in minority, stating a medical practitioner must assess "the transitory person either remotely or in person".
They argued allowing doctors to form their opinion solely based on medical records went beyond what Parliament had intended.
Justice Bromberg disagreed.
"[The Home Affairs Secretary] substantially overstates the inherent importance of personal engagement in the conduct of a medical assessment," he stated in his judgment.
"There is nothing to support [the Home Affairs Secretary's] underlying proposition that an assessment without personal engagement would have been regarded by Parliament as not warranting consideration for approval."
Justice Bromberg argued that to take the narrow interpretation of the legislation, put forward by the Department, would result in people seeking medical treatment being "excluded at the starting gate" if it was "not possible or not practicable" to have an in-person consultation.
"On [the Home Affairs Secretary's] construction, and if appropriate personal engagement required a personal consultation with the "treating doctor", transitory persons who were unconscious or otherwise incapable of attending or participating in any consultation including, for example, by reason of the unavailability of an appropriate interpreter or the unavailability of telecommunications services, would be excluded from access to the Medevac scheme," the judge said.
"That would be so even where a consultation would not reveal anything of any use for the particular assessment which had not already been revealed by say an x-ray, a pathology report or the transitory person's medical records."
Parliament is due to return in less than a fortnight, with the Coalition emboldened by its election win in May.
The medevac legislation passed in February, when the Opposition and crossbenchers approved the bill in an historic defeat for the Government.
So far it has only been used in the cases of some asylum seekers held in Papua New Guinea. The government of Nauru, where the other offshore detention facility is located, has banned consultations from being held via teleconference.
Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton have already promised to repeal the legislation given the Government now has a majority in the House of Representatives.
Final election results show the Government picked up four additional Senate seats, meaning it will need to secure just four crossbench votes to pass legislation through the Upper House.
There are six Senate crossbenchers - two from One Nation, two from the Centre Alliance, the Australian Conservatives' Cory Bernardi and Tasmanian Jacqui Lambie.
Centre Alliance voted in favour of the legislation in February.
Labor and the Greens also voted in favour of the medevac bill and are unlikely to shift their positions.