What will happen to baby Asha?

Doctors at Brisbane’s Lady Cilento Children’s Hospital are refusing to discharge a 12-month-old asylum seeker baby from their care, fearing her return to Nauru.

The hospital has stated that the child will be discharged only once “a suitable home has been identified”.

The child, known as Asha, was born in Australia to parents who arrived by boat. She was previously removed to Nauru in June 2015, and has been allowed returned to Australia for medical treatment after she was accidentally burnt by boiling water.

Refugee advocates are asking the government to allow the baby to stay. The government has agreed to give the baby a 72-hour notice period prior to removal, after the Human Rights Law Centre filed emergency proceedings in the High Court.

Prime Minister Malcolm Turnbull has stated that the government would not “imperil the health or security of any individual”, but remains steadfast that “ruthless” people smugglers not be “given an inch of encouragement”. Meanwhile, former immigration minister Scott Morrison has ruled out making exceptions to allow the baby to stay.

The standoff between the doctors and the government raises a number of ethical and legal questions.

So, how might this play out?

The law on removals

Under the Migration Act, a person who arrives in Australia by boat is deemed to be an “unauthorised maritime arrival” (UMA) and must be transferred to an offshore processing centre.

In 2014, the Migration Act was amended, with retrospective effect, to provide that any child born in Australia to UMAs is deemed also to be a UMA. Unless the government intervenes, baby Asha must be removed from Australia once she no longer requires medical treatment.

The amendment had the support of both major political parties. The government’s rationale for these laws was that if children born in Australia to boat arrivals were not subject to offshore processing:

… then this may undermine the government‘s offshore processing policies, both in respect of the children and the children‘s family members … it is important to maintain consistency within the family unit and ensure families are not separated by the operation of the Migration Act.

The act offers no exceptions to this rule on compassionate grounds. If the parents are subject to offshore processing, so too is the child.

As this case demonstrates, removal provisions do not sit well with doctors' duty of care to their patients under common law or their ethical obligations under the Hippocratic oath. Nonetheless, it remains the case that statute law trumps common law to the extent of any inconsistency.

Further, to the extent that the Commonwealth legislation conflicts with any other state legislation that may govern the administration of hospital services, the Australian Constitution requires that the Commonwealth legislation prevails to the extent of any inconsistency.

So it appears that government can forcibly remove baby Asha to Nauru. But whether it should is another matter.

The politics are complex but the ethics are clear

Turnbull and Morrison’s seemingly contradictory messages suggest the issue may be causing some unrest within the government. This is an important decision in the context of what is likely to be an election year.

Allowing baby Asha to stay would represent a precedent for others and, seemingly, a softening of the government’s hard-line approach to offshore processing. On the other hand, sending her back would repudiate growing public sentiment as well as the offers of help from state premiers and churches.

While the politics and legalities may not be straightforward, the ethics and morality are clear: detention is no place for children. It is not possible to send baby Asha back to Nauru in a “compassionate” manner.

We have known for a long time now that prolonged detention causes severe mental and psychological harm. We know that the medical facilities on Nauru are inadequate. As far back as August 2012, the report of the Expert Panel on Asylum Seekers – which recommended the re-establishment of offshore processing – was cognisant that:

There should be provision for IMAs [illegal maritime arrivals] in Nauru who are determined to have special needs, or to be highly vulnerable, or who need to be moved for other particular reasons, to be transferred to Australia. The panel recommends that such IMAs come to Australia on a temporary visa.

If the government wishes to ensure family unity, the panel’s recommendation should be given effect. Children and their parents should be able to remain in Australia with access to appropriate services until their applications for asylum are determined.

The bigger battleground

Irrespective of whether baby Asha will be allowed to stay as a one-off exception, offshore processing will remain a political and policy battleground after the High Court’s ruling that it is constitutionally valid.

The fight still needs to be had on the transparency of Australia’s offshore processing arrangements, the secrecy provisions of the Border Force Act, and the lack of medical and other facilities on Nauru.

Until these issues are resolved and the necessary reforms achieved, the Human Rights Commission’s recommendation that “no child be sent offshore for processing unless it is clear that their human rights are respected” should be given effect.