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Government legal advice says medevac bill 'unconstitutional' – politics live
Refugee medical transfer bill could act as 'no confidence' motion, expert says – politics live
(35 minutes later)
Tony Burke is now telling parliament the medical panel will NOT get remuneration to avoid the constitutional problem #auspol
Tony Burke is now arguing Labor’s case.
He says if the government had confidence in its arguments, he would not have asked the Speaker to keep the advice confidential.
Porter says: "Voting against this motion is to ignore the constitution". This doesn't get to the high court, he says, this is down to us #auspol
Here is what Anne Twomey told Sky a little earlier:
Constitutional expert Anne Twomey: If the government asserts this is a money bill and the House votes for that bill, that could be an indication that the government has lost control of Parliament. MORE: https://t.co/qCXdYiVj4C #speers pic.twitter.com/BfzrLYfZMm
AG Christian Porter is trying to peel off crossbench votes by saying they MUST make a ruling on s53 of the constitution, but House of Representatives Practice suggests they can decline to form a view on that and just pass the bill #auspol #auslaw pic.twitter.com/IDlz2Oy0Xn
Christian Porter says it is not a “technical” question, but one that is clearly laid out in the constitution.
He says if the House passes the bill, it will give the power to control finances to the Senate.
“Everything that we do here has a consequence,” he says.
Porter is telling the House it is "inarguable" that the legislation would impose an increase in a standing appropriation, and trigger an obligation on the part of the minister and the Rem Tribunal. This is not "speculative", he says #auspol
Christian Porter is attempting to convince the House to vote the bill down.
He has warned against the “haste” in which the amendments were created.
Statement by the Speaker on the Senate amendments to the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. "It is a matter for the House as to how it wishes to proceed with the Senate’s amendments." #auspol pic.twitter.com/BhoQUZdaxq
“I will leave it in the hands of the House over how to proceed,” Tony Smith says.
The bill is up for debate in the House.
Tony Smith is making a statement on the constitutional circumstances of the bill.
Right. Stakes are RAISED.
In the last 10 minutes, we have reached de-facto vote of no confidence territory.
Why?
As Anne Twomey, one of the nation’s best constitutional experts, told Sky:
“... If the bill actually gets passed against the wishes of the government, that would be an indication that the government has lost control over the finances of the country.
“Now that is critical, in terms of confidence in loss of government.
“... Back in 1941, the Fadden government fell when its budget was reduced by one count. It just needs to be a nominal showing of the fact that the government has lost control of the finances.
“So on the one hand, raising this may cause the House to decide, well, in the circumstances, we won’t pass it in this form and so [doesn’t] proceed, on the other hand, if it fails on this point, it is actually putting itself in a more vulnerable position in regards to the issue of confidence.”
To address one potential query – if the problem is that medical panel members would be paid, does the constitutional problem go away if they work for free?
Solicitor general Stephen Donaghue’s advice addresses the point by noting that the Remuneration Tribunal Act creates an obligation on the tribunal to determine the pay of people holding public office. Although the medevac bill itself doesn’t contain provisions about pay, it will cause an expense to be incurred.
The government could exclude panel members so that they aren’t paid, but Donaghue said he is “instructed that the government has no intention of making such regulations”.
It seems to make good the section 53 constitutional point, the government has said – yes, panel members will be paid.
And then
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
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.
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
