The Morrison government has suffered a historic loss in the House of Representatives after Labor, the Greens and the crossbench combined to pass laws for the medical transfer of asylum seekers to Australia for treatment.
Facing certain defeat, the Coalition went to the barricades at the very last minute and furnished legal advice claiming the legislation was unconstitutional.
But Labor and the minor parties were unperturbed, pointing to ambiguities in the advice from Solicitor-General Stephen Donaghue, QC, and pushed ahead with the vote, which passed by 75 votes to 74.
"What happened tonight was proof positive that Bill Shorten and Labor do not have the mettle…to do what's necessary to ensure Australia's border protection framework can be managed," Prime Minister Scott Morrison said as he sought to deflect the loss.
"There is no bipartisanship on this issue. Every arrival is on Bill Shorten and Labor's head."
Six of the seven crossbenchers voted with the 69 Labor MPs while Bob Katter sided with the minority Coalition government, as, some say, it was the first such loss on legislation on the floor of the House of Representatives since that of Stanley Bruce in 1929. Others contend it was the first loss since a budget bill was amended in 1941, triggering an election.
The defeat will not trigger an early election because it was not deemed a confidence vote.
To become law, the changes must first be rubber stamped by the Senate where they originated, which should happen this week. Mr Morrison said he would not stop them going to the Governor General for royal assent.
Mr Morrison said Labor had failed to learn from the past that border laws could not be weakened.
"The same wreckers who destroyed it last time have come into this place and whispered in the ear of the crossbench and convinced them to undermine it again."
"This is a day when the Labor Party has failed the test," he said.
"They make the repeated mistake where they think they can fiddle and change (border laws) without consequences."
Labor leader Bill Shorten rejected this, saying strength did not have to be sacrificed for compassion.
"The current government confuses stubbornness with strength. They think they're being strong but they are just being stubborn," he said.
He said there was nothing more Australian than to look after sick people in the nation's care.
"The Prime Minister said that this bill was superfluous and he would just simply ignore it. Today the government tells us that this bill is a constitutional crisis. The fact of the matter is this bill is about providing treatment to sick people.
"The Australian people do not send us to Parliament to run and hide from debates we don't like, to manipulate procedure and the law to avoid democracy.
"I believe that we can keep our borders secure, we can uphold national security but still treat people humanely."
Day of drama
The defeat came after a tumultuous day which almost saw the deal between Labor and the crossbench collapse.
In December last year, Labor and a requisite six lower house crossbenchers – Cathy McGowan, Rebekha Sharkie, Keryn Phelps, Adam Bandt, Andrew Wilkie and Liberal defector Julia Banks – were in lock-step on amending a relatively innocuous government bill to give doctors the authority to approve a transfer to Australia of an asylum seeker for medical treatment.
Labor, the Greens and others had already voted to change the bill in the Senate and the government staved off being rolled in the lower house by filibustering until Parliament rose for the year.
Under the amendments passed by the Senate and backed last year by Labor, the Home Affairs Minister would be able to veto a recommended transfer on national security grounds but not on character grounds.
The government, which released ASIO advice to back its claim, said this dilution of ministerial discretion would weaken border protection and allow people of bad character to come to Australia.
Under pressure this week, Labor sought three key changes ahead of the lower house vote this week.
First, the minister would have the final discretion on character grounds as well as national security but character would be codified to include such categories as the rapists, murderers and paedophiles, which the government claimed would surge into the country.
The changes also proposed giving the minister longer than 24 hours to reject a recommended transfer and the third change was to apply the rules only to those already on Manus Island and Nauru.
But the Greens said the amendments effectively restored the status quo. They were especially hostile to the relaxation of the 24 hour deadline and insisted there be a solid deadline rather than "as soon as practicable". This was the "deal breaker".
So Labor agreed to 72 hours except for life and death cases where the deadline for the minster would stay at 24 hours.
With the deal locked in with the Greens and five other independents, the government faced certain defeat.
At the very last minute, Attorney-General Christian Porter presented legal advice which warned the amendments could contravene sections 53 and 56 of the Constitution.
The amendments establish an Independent Health Advice Panel, staffed by doctors nominated by the Australian Medical Association or other medical professional bodies and this will require the panel to be paid, effectively increasing government expenditure.
Section 53 requires money Bills to originate in the House of Representatives whereas these amendments originated in the Senate.
The advice also flags a potential breach of section 56 which requires such appropriation of money to be recommended by the Governor-General.
However, the legal advice ultimately leaves it up to the Parliament to decide.
"It is ultimately for the House of Representatives to decide whether it considers the Senate amendments to be consistent with s53 and, if not, how it wishes to respond that contravention if that provision".
It also stipulates that if the amendments were passed, the High Court would not interfere.
"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," it says.
Labor said these caveats were why Mr Porter,upon releasing his advice to the Speaker, Tony Smith, asked it not be made public. But it was.
In January, Mr Morrison partially backed down by offering to establish an independent medical review panel to consider transfers but leaving the final say in all cases to the minister. The attempt to head off the defeat was deemed insufficient by Labor and the others.
This article was first published on the Australian Financial Review. Read the original here, or follow the AFR on Facebook.
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