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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. #auspolStuart 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
Tony Smith told us this advice was dated February 7.
Remember a couple of days ago when the prime minister tried to shrug off losing this vote? #auspol
Basically, money bills need to originate in the House, not the Senate. That’s because of the “burden” on the taxpayer.
Let’s remember this is the advice from the solicitor general, who also advised the government that the section 44 MPs were fine. It’s legal advice and can be wrong.
Ultimately, it is only the high court which can decide what is unconstitutional.
The gist of the advice the Speaker was talking about is the bill is a “money bill” which can not have been introduced in the Senate without offending section 53. But there are caveats. It’s quite a few pages. We’ll get through it and then let you know
The Speaker has just tabled advice from the Solicitor-General about the medical transfer bill. The advice suggests the amendments passed by the Senate last year are unconstitutional, because they involve the spending of money. Money bills must come from House, not Senate #auspol
Speaker Tony Smith has received a letter from the attorney general, Christian Porter, on the medevac bill, which includes advice from the solicitor general. Porter asked Smith to keep the advice confidential. Smith says, as Speaker, he needs to table it. And so he is.
Plot twist (but what, we don’t yet know):
I have received correspondence from the attorney general dated 10 February and attached opinion from the solicitor general dated 7 February relating to the Senate’s amendments to the Home Affairs’ legislation amendment miscellaneous measures bill 2018.
The Senate message relating to this bill is to be reported after the matter of public importance.
Which is why I am giving this initial statement now, for reasons that will become obvious. I have determined that I will table the correspondence from the attorney for the information of honourable members.
When I table that correspondence at the conclusion of my statement, members will see that the attorney general, in his letter to me, states that the opinion he attaches to his correspondence from the solicitor general is provided to me on a confidential basis, and to quote the attorney general, quote, ‘I would appreciate you not circulating it further.’
I have advised the attorney general that as Speaker, it is important that I ensure in this instance material available to me is also available to all members of the house.
As a consequence, I have also decided to table the solicitor general’s opinion.
Copies of the tabled documents will now be available at the end of the table.
And yes, we are running to the tables office.
Greg Hunt finishes a dixer, and despite only 50 minutes of questions, Scott Morrison stops question time (also, I imagine, stopping Labor from asking Stuart Robert another question which would be allowable).
But David Littleproud and Joel Fitzbibbon both managed to agree with each other on the need to work together when it came to the flood response in Queensland, with Littleproud thanking Queensland Labor premier Annastacia Palaszczuk and Scott Morrison for working together to make sure immediate financial relief reaches the farming communities.
Sometimes, this place can work how it is supposed to.
Another question to Stuart Robert is ruled as being out of order, because of a preamble.
Scott Morrison mouths something like “too bad” to Bill Shorten across the table.
Is this a sign?
Strong enough to blow 🐕 🐕 off chains out there... lots of dust. 🌬 (hope the crane driver doesn’t have to work in this.) pic.twitter.com/v4g7xtcdai
Just sharing more of the language in the current draft of the medical evacuation bill, with the caveat that talks aren’t yet concluded, so details could change.
From the draft amendments circulated this morning, which I shared with you earlier, a note has been added.
It reads:
“Any transitory person who is brought to Australia for a temporary purpose must be kept in immigration detention whilst in Australia. That immigration detention must continue until the time of removal from Australia or until the minister determines that immigration detention is no longer required.”
The current draft amendments make it clear that the minister can override a decision to transfer a person from Nauru or Manus by the expert medical panel on security grounds, AND also if the minister “knows that the person has a serious criminal record” and “the minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct”.
The current draft says the minister must make a decision “as soon as practicable after being informed by the panel of its findings and recommendations”.
There’s a caveat though: “if the minister was informed by the panel that the person’s transfer is necessary to prevent an imminent risk to the person of death, serious illness or serious injury, no later than 24 hours after being informed by the panel of its findings.”
Mike Bowers spent some time in the Senate: