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You can find the current article at its original source at https://www.theguardian.com/australia-news/live/2019/feb/12/morrison-shorten-coalition-labor-medical-evacuation-bill-kerryn-phelps-politics-live
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Government legal advice says medevac bill 'unconstitutional' – politics live | Government legal advice says medevac bill 'unconstitutional' – politics live |
(35 minutes later) | |
And then | |
If the house votes on a money bill against the government's wishes, Anne Twomey says - that could constitute a vote of no confidence, @SkyNewsAust https://t.co/mLRJwyUHhM | |
I've spoken to constitutional law expert Anne Twomey, who agrees with SG advice that bill is unconstitutional - but says the house can decide to vote on it if it wants @SkyNewsAust | |
Turns out it is not too late to say you are sorry | |
Barnaby Joyce “when I voted against a (banking) royal commission I got it wrong” @AmyRemeikis @murpharoo @GuardianAus #PoliticsLive pic.twitter.com/hTEzj7R14X | |
Solicitor general Stephen Donaghue’s advice is that the medevac bill breaches section 53 of the constitution but he ultimately says it is up to the House of Representatives what to do about that, so the advice is unlikely to stop the bill in its tracks. | |
Section 53 provides that the Senate “may not amend any proposed law so as to increase any proposed charge or burden on the people” – that is, cause more money to be spent. | |
Donaghue notes the bill would create an independent health advice panel, whose members the remuneration tribunal would be required to pay out of consolidated revenue. | |
He concludes that the “better view is that the Senate amendments did contravene section 53 of the constitution”. | |
But Donaghue adds a significant caveat – that the high court has ruled that section 53 is a procedural provision in which the court does not interfere. | |
He says: | |
“In circumstances where the question of compliance with s53 of the constitution is non-justiciable, the ultimate arbiter as to the operation of that provision is the parliament ... | |
In light of the above ... 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 to the contravention of that provision.” | |
From a quick check of Donaghue’s reference to page 449 of the House of Representatives Practice (7th edition) it seems the lower house has lots of options, including remaking amendments on the same terms, refraining from judging whether the bill is unconstitutional and agreeing to the amendment, or “making no objection in view of uncertainties of interpretation”. | |
So this is not a insurmountable barrier if the lower house is still up for passing it. | |
In processing the plot twist, let’s start with the attorney general Christian Porter’s advice to the Speaker, which is dated February 10. | |
“The government considers that as the Senate amendments do not observe the requirement of the constitution, they must be properly set aside,” he says. | |
Porter says the direct legal effect of the Senate amendments passed last December is “to dictate an increase in expenditure under an existing appropriation. As such, the Senate amendments contravene the third paragraph of section 53 of the constitution”. | |
(In simple language, this means money bills are supposed to originate in the House, not the Senate. Remember too the medical evacuation bill is an amendment to government legislation, it is not a private member’s bill introduced by Kerryn Phelps, even though it is referred to routinely as the Phelps bill). | |
Porter says if the House passes the bill this afternoon, it would “contravene both sections 53 and 56 of the constitution, and subvert centuries of Westminster tradition by which financial initiative lies with the government, and money bills must originate in the lower house.” | |
On that basis, the only course of action is “to refuse to entertain the Senate amendments to the omnibus bill”. | |
Porter then asks the Speaker, Tony Smith, not to circulate the advice. Porter says it is provided “on a confidential basis for the limited purpose of assisting you in your consideration of the Senate amendments”. | |
Smith declined that kind offer and circulated the advice. | |
Assistant treasurer Stuart Robert breaks down while talking about the banking royal commission and his own experiences with the banks after #qt @AmyRemeikis @GuardianAus @murpharoo #PoliticsLive pic.twitter.com/HYdye3rSrx | |
It was only February 5 that Scott Morrison said he didn’t care if the government lost this vote: | |
If we lose that vote next week, so be it. We won’t be going off to the polls,” he said on Tuesday night. | |
The election is in May. I will simply ignore it and we’ll get on with the business. | |
But I’m not going to be howled down by the Labor party, who want to dismantle a border protection system I had a key hand in building. | |
The solicitor general’s advice is dated February 7. | |
Christian Porter wrote to the Speaker on February 10, asking him to keep that advice secret. | |
Tony Smith wouldn’t do it, which is why we know about it. | |
So I guess it wasn’t “so be it” after all. | |
Speaking to the ABC, Richard Di Natale said the House should get on with the job and pass the legislation – “just get on with it” and let it be challenged in the high court, if the government believes it to be unconstitutional. | |
“The solicitor general has got it very badly wrong in the past; our job is to get on with it and legislate and help those people,” he says. | |
In short... it’s complicated. | |
...but it also says parliament is ultimately the judge of that. So questionable whether this actually creates a major roadblock #auspol #auslaw pic.twitter.com/IbLLnFxYyz | |
Mike Bowers tells me Stuart Robert “is crying” in the House. | Mike Bowers tells me Stuart Robert “is crying” in the House. |
He’s talking on Labor’s matter of public importance, which is on the misconduct of the banks. | He’s talking on Labor’s matter of public importance, which is on the misconduct of the banks. |
Stuart Robert is supposed to have ministerial responsibility for the tax office, and for stopping dodgy phoenix activity. Yet his fundraising forum has directly benefited from a firm that went bust without paying its tax debts. #auspol | Stuart Robert is supposed to have ministerial responsibility for the tax office, and for stopping dodgy phoenix activity. Yet his fundraising forum has directly benefited from a firm that went bust without paying its tax debts. #auspol |