Morrison Government defeated over asylum seeker medical transfer bill | analysis

It was a stunning example of how a basic humanitarian exercise became so infused with election-year politics, it no longer resembled its original character.

The issue was how to ensure refugees under Australia’s management on Manus and Nauru receive appropriate medical attention on our mainland if necessary.

But rather than a humanitarian concern, it has become a certain election battleground, plus the centre of a constitutional debate.

Labor and allies won the day on the floor of the House of Representatives against the minority government this evening but there is a longer struggle ahead, which won’t be resolved until the May election.

The opposition had its way this evening on amendments to government legislation for medical evacuations of refugees, but with conditions such as time limits for ministerial vetoes, the victory won’t change much.

The government was always set to confront Labor on border protection at the election and Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton have well-rehearsed lines of attack.

And Opposition Leader Bill Shorten knows this.

That in part is why Mr Shorten changed his position from the hairy-chested stance he took with the Greens in the Senate late last year.

The stark political fact is that the government has been consistent on border protection — suggesting Mr Shorten would restart the people smuggler flotillas — while Labor had to adjust its position.

Finance Minister Mathias Cormann, one of the less feverish government critics of the Opposition’s position, summed it up.

“Late last year Bill Shorten tried to ram a bill through parliament which he now effectively says would have stopped us turning away criminals and put people smugglers back into business,” Mr Cormann tweeted.

“It would be law by now if Shorten got his way. He cannot be trusted with our borders.””/>
media_cameraOpposition Leader Bill Shorten knows there’s a long struggle ahead. Picture: Gary Ramage”/>
media_cameraPrime Minister Scott Morrison speaks at Parliament House after the vote. Picture: Kym Smith

There was a late development in the debate which is being seen as a sign the government was ready to take extraordinary steps to ruin Labor’s victory.

The 1000 people on Nauru and Manus, many of whom have been on wretched island isolation for six years, suddenly were players in high-level constitutional joust.

Stuck in a back pocket for five days, hidden from the public and parliament, was an explosive legal opinion the government knew might shield it from political damage in the clash over medical transfers.

It was advice from Solicitor-General Stephen Donaghue that the contentious legislation, which lobbed in the House of Representatives today, might be unconstitutional.

This was because amendments in the Senate, which Labor and the Greens backed late last year, required extra spending, and the Senate has no authority to add to Commonwealth outlays.

The explosive advice might have stayed in the back pocket until today’s debate started were it not for Speaker Tony Smith who decided that when he found out about it he was obliged to share it with all other members of the House of Representatives.

Otherwise it might have been tossed in late, before the Opposition and cross bench were prepared.

Attorney-General Christian Porter had asked the Speaker to keep the Solicitor-General’s words confidential.

Greens leader Senator Richard Di Natale called the Government’s withholding of the advice for five days until today a “very desperate political ploy”.”/>
media_cameraAttorney-General Christian Porter after Question Time in the House of Representatives Chamber at Parliament House in Canberra. Picture: Kym Smith

The constitutional issue has further complicated the matter. The amended legislation might not get royal assent should the Governor-General have legal doubts.

But Attorney-General Christian Porter said the House of Representatives would have to decide on constitutionality. It would not be a matter for the High Court, he told parliament.

The Solicitor-General advice said: “The (High Court) has also held that failure to comply… does not give rise to invalidity of the resulting Act when it has been passed by two Houses of Parliament and has received Royal Assent.”

Section 53 of the Constitution says “laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate”.

It says: “The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the government.”

The speculation is that the government might have tossed this constitutional hand grenade into the debate when it was likely it faced defeat.

As it was the non-government members were only aware of it about half an hour before that debate.

Were the government defeated on the floor, the amended legislation might not get the signature of the Governor-General because of the legal doubts.

Originally published as Morrison’s dramatic loss not all it seems

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