Grattan on Friday: What does “reopening” Christmas Island actually mean and why do it?


Michelle Grattan, University of Canberra

The Morrison government, politically-speaking, is trying to do a
loaves-and-fishes exercise with the medevac legislation, over which the parliament defied the executive this week.

It is attempting to inflate Labor’s support for a modest measure to facilitate medical transfers from Manus and Nauru into a mini “Tampa” crisis.

Will this succeed? The short answer is surely “no”; the longer one is that this issue could take a deal of skin off Labor. The point is no one is yet sure how it will play out – both sides are operating on gut feelings until the polls and focus groups speak.

The Liberals think anything to do with “boats” is lethal for Labor; the ALP believes community attitudes have changed but is very apprehensive about how the debate would go if boats showed up.

No question, this is rocky for Bill Shorten. The government attack is ferocious, full of exaggeration and scaremongering.

But the Coalition’s tactics are also risky in a policy sense. Scott Morrison is running two lines. He claims that by supporting the medevac legislation Shorten has undermined offshore processing – sending a signal the borders are porous.

He goes on to say that the government, and he in particular, are ready to protect Australia against the danger of a new wave. Whatever the intelligence advisers want done will be done. The borders will stay strong.

Morrison rejects the argument that the detail of the legislation
limits the incentive to people smugglers, insisting they don’t bother with “nuance”.

Indeed. So which un-nuanced Morrison message will the smugglers hear? That the policy has been trashed – or that the borders are being fortified?

There is also the danger, which some critics have highlighted, that in its rhetoric about numerous alleged criminals on Nauru and Manus, the government could make the US more reluctant to take people (it has only accepted 456 so far – the deal was up to 1,250).




Read more:
Explainer: how will the ‘medevac’ bill actually affect ill asylum seekers?


What the government is actually doing is hard to pin down. Take the reopening of the Christmas Island detention facility – or to be more precise “a series of compounds” there – which attracted big headlines, and attention overseas.

What does “reopening” mean? Going in with the vacuum cleaners and the mops so that the centre could function if required? Or setting up some of it immediately on a serious day-to-day operating basis?

And how convincing is the rationale for this reopening, which Morrison described as for dealing “with the prospect of transfers”?

The government says that with the closing of many detention centres, space is somewhat tight. But if people are transferred because they are sick, Christmas Island is hardly the best place for access to medical practitioners.

Maybe some people currently in detention elsewhere would be moved to Christmas Island to make room for newcomers. But wouldn’t it be a lot cheaper and easier – if less dramatic and headline-grabbing – just to lease some more accommodation near currently-operating facilities?

Anyway, while some of the transferees would be kept in detention,
what’s happened previously suggests a lot could be let into the
community.

It’s true that the advice from the Home Affairs department envisaged a scenario “likely necessitating the stand-up of the Christmas Island facility”, but it had the flavour of a worst-case one. (With an election and the prospect of a change of government raising questions about the future of Home Affairs secretary Mike Pezzullo, one wonders what he thinks about the department’s advice being used publicly by the government as a battering ram against Labor.)

If the government really intends to “reopen” Christmas Island in any major way, it could find itself spending a lot of money there on few if any people. If it is a faux reopening, it’s just a bit of spin that should be called out.




Read more:
A refugee law expert on a week of ‘reckless’ rhetoric and a new way to process asylum seeker claims


The medevac bill was passed despite the best efforts of the minority government to stop it, including a Senate filibuster on the final sitting day of last year, to delay the bill reaching the lower house then.

On Thursday a rather panicked government did a rerun of that December day.

This time, the Senate had passed a motion – opposed by the Coalition – calling for a royal commission “into violence, abuse and neglect of people with disability.” Labor, expecting the motion to reach the House on Thursday afternoon, prepared to push it through with crossbench support.

The government says it knew the message from the Senate hadn’t arrived as question time was nearing its normal end. But it was spooked by the opposition’s tactics, and fearful of what Labor might be up to. So it just kept question time running for some 150 minutes, a record.

Earlier in the day, it had to pull its legislation for applying a “big stick” to errant energy companies, because the House appeared set to amend it to prevent the government underwriting coal projects.

The government says it will take the “big stick” plan to the election. But its inability to have it bedded down before then is another failure in a long line in the energy area.

The vote on the disability motion will happen on Monday and the
Coalition will not oppose it – despite its stand in the Senate. The government says it will then consider what action it should take.

Abuse of disabled people is surely as important an issue as the
ill-treatment of the elderly. With the public increasingly demanding the facts and culprits be revealed where there is evidence of misconduct, a royal commission in parallel with the aged care one would have merit, in both policy and political terms.

The parliamentary week has been rugged for both sides – the government hasn’t been in control of the House but Labor hasn’t been in control of the debate, which it wanted to be all about banks not boats.

Then again, nothing could match One Nation’s tribulation, with its
leader Pauline Hanson accused of sexual harassment by a bitter
ex-colleague, senator Brian Burston, and her right-hand man, James
Ashby, publicly scuffling with her accuser. This is a party beyond
embarrassment.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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The government was defeated on the ‘medevac’ bill, but that does not mean the end of the government



File 20190212 174851 1azgk58.jpg?ixlib=rb 1.1
Cross-benchers Kerryn Phelps, Julia Banks and Rebekah Sharkie celebrate the passing of the Medevac bill.
AAP/Lukas Coch

Anne Twomey, University of Sydney

The Morrison government has been defeated in the House of Representatives by the passage of a government bill containing amendments made against its wishes that allow for the medical evacuation of asylum-seekers from Manus Island and Nauru.

At the last minute, the Speaker tabled, against the wishes of the government, advice from the Solicitor-General raising a constitutional problem with the Senate amendments. In short, those amendments provided for an “independent health advice panel”, of which six members would have to be paid. Their remuneration would come automatically under an existing appropriation in the Remuneration Tribunal Act 1973 for the payment of persons who hold public offices. The effect of the amendments in the bill would therefore have increased the amount payable under that existing appropriation.

This is important, because section 53 of the Constitution says that the “Senate may not amend any proposed law so as to increase any proposed charge or burden on the people”. The argument was that even though the Senate amendments to the bill did not contain an appropriation, they would increase a burden on the people by increasing the amount automatically appropriated under the Remuneration Tribunal Act.




Read more:
Explainer: what is a hung parliament and how would it affect the passage of legislation?


Whether this is enough to trigger section 53 is a matter of dispute between the houses. Understandably, the House of Representatives has long considered that Senate amendments of that kind do breach section 53, while the Senate takes a different view.

The issue cannot be decided by a court, because the courts have held that section 53 is an internal matter for the houses, and not one to be determined judicially. This was made clear in the recent case on the same-sex marriage postal survey. So even if the houses chose to ignore section 53 and pass a bill that breached its terms, and the validity of the law was challenged, a court would not find it to be invalid.

The consequence was that this was a battlefield for the two houses. In the absence of any judicial precedents, all we have to guide us is parliamentary practice and the competing views of parliamentary committees. These do not provide clear answers. While the houses are under a moral and political obligation to obey the Constitution, this is difficult when the Constitution itself is unclear and its interpretation is disputed.

The government’s action in seeking to declare the bill to be a money bill also raised the political stakes. In order to govern, a government must retain control over government finance. Defeat on a money bill in the House of Representatives is regarded as a loss of confidence, which by convention requires the government to resign or seek an election. For example, the Fadden Government resigned in 1941 when its budget was reduced by the nominal sum of £1. So if the bill was treated as a money bill by the government, its passage against the wishes of the government would have raised a serious issue of whether it could continue governing.

However, the Labor Party moved an amendment to remove any right to payment of officers of the panel. This should mean that it is not a money bill, with the consequence that the constitutional issues about s53 should go away (although there would still be a precedent of the House of Representatives dealing with the Senate amendments, rather than rejecting their validity outright).

The bill still has to pass the Senate. If it does so, it will then be presented to the governor-general for royal assent. I have previously discussed why it would not be wise for the government to advise the governor-general to refuse royal assent. Assuming that royal assent is given, then the medevac amendments will take effect the day after the bill receives royal assent.




Read more:
Why a government would be mad to advise the refusal of royal assent to a bill passed against its will


Can the Morrison government continue to govern after its defeat on this bill? Yes. As the bill is no longer a money bill and is not one that the government has declared to be a matter of confidence, the government can continue to govern.

If the House of Representatives has truly lost confidence in the government, it can always move a vote of no confidence to make this clear. Unless that happens, the Morrison government can continue governing until the election is held.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from the Hill: Shorten’s victory will bring dangerous counter strikes from a desperate government


Michelle Grattan, University of Canberra

An extraordinary amount of hype and some confected hysteria preceded Tuesday’s vote on the medical transfer legislation.

The government threw everything at trying to avoid a defeat. In a last stand, it fell back on a constitutional argument – backed by
Solicitor-General advice – that carried no practical weight and was simply circumvented by the majority that passed the bill in the House of Representatives.




Read more:
Crossbenchers must decide between something or nothing on medical transfers bill


While the government frantically attempted to thwart Labor and the crossbench, Scott Morrison also ran the line that he wasn’t that fussed. Afterwards he told a news conference: “Votes will come and votes will go, they do not trouble me.” That claim wouldn’t pass a fact check.

This was a big vote, and everyone knew it. Morrison operates a
minority government and Tuesday’s loss underscored that he can’t
automatically get his way. (Ironically, in the last days of Turnbull’s majority government, the threat of losing a House vote came from internal dissidents.)




Read more:
The government was defeated on the ‘medevac’ bill, but that does not mean the end of the government


The next test for Morrison will be on whether the House agrees to
extra sitting days to discuss the measures from the banking royal
commission. For procedural reasons, this needs 76 votes, one more than the 75 required on the medical transfer bill. The government has been leaning heavily on Bob Katter, the crossbencher who will be the key.

While the government looked rattled as the votes on the medical
transfer bill proceeded, Labor was calm and steely.

For all the talk about Labor’s misjudgement on the issue, this week it has moved cautiously and methodically.

Originally pushed by the crossbench into taking a stand on
humanitarian grounds – the bill is based on a proposal from
independent Kerryn Phelps – Labor has sought to display compassion but contain the political risk.

Bill Shorten, knowing the danger, decided the version of the bill
coming from the Senate (which Labor had supported there) left the ALP too exposed. He flagged last week he’d like a “middle” course.

So the opposition came up with amendments to give the minister wider discretion and more time in making decisions, and to limit the application of the legislation to those on Nauru and Manus now. The latter change was to minimise the “pull” factor – the extent to which the new arrangement would encourage the people smugglers.

Then it was a matter of persuading the required six crossbenchers.
They accepted in the negotiations that a modified bill was better than nothing (though there was some Greens cavilling).

In the House, the ALP troops were kept carefully in check; the emotion was turned down; the speeches from the bill’s supporters were few and brief. Labor just wanted one thing in the chamber – a win. This wasn’t the time to grandstand.

The government, wounded and worried, is seeing this as one (albeit
major) battle in the long war to the election. Its spruikers will say that in defeat it has had a victory – that Labor has given the
Coalition ammunition for the campaign.

It’s true the bill has breathed new life into the border security
debate, but whether this will be enough to do Labor serious harm is an open question. `

The ALP is always vulnerable on boats. On the other hand, boats are lower in voters’ minds than they used to be.

The government will turn up the dial by announcing “contingency plans” against fresh arrivals. Morrison, having accused Shorten of
undermining offshore processing, is already moving on to the claim that he couldn’t be trusted to be strong on turnbacks.

Goodness knows how the politics would play out if a boat appeared on the horizon in the next few weeks. You can be sure, however, that the government would be quick to tell us about it, and point the finger at Shorten.

In all this, the bill itself (which has to go back to the Senate for a tick off on the amendments) should be kept in perspective.

The minister has a veto on “security” grounds, including being able to exclude anyone who has committed a major crime. The composition of the medical panel which would have the final say on other transfers is broad and balanced.

Probably, over a period, there would be a lot of transfers out of the 1000 people offshore. But there have already been nearly 900 (some after legal action). These transfers have amounted to a backdoor route into Australia.

If the legislation in the longer term opens that door a little wider, it will also be a way of “settling” people in Australia without acknowledging that is being done.

More of the same? Or a radical change? It depends how you look at it.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

We don’t know how many asylum seekers are turned away at Australian airports


Asher Hirsch, Monash University; Daniel Ghezelbash, Macquarie University, and Regina Jefferies, UNSW

The immigration department doesn’t keep a record of how many people apply for asylum at Australian airports, and how many are turned away. Documents released under Freedom of Information show a lack of accountability and oversight by Australian immigration officials with regard to people who request asylum at airports.

This means the ultimate decision to admit or deny an asylum seeker entry into Australia rests with the Border Force official who interviews them. Without oversight, an asylum seeker could be turned away and sent back to a country where they may be at harm, after being interviewed behind closed doors and without access to lawyers.

Last week, ABC’s Four Corners reported that two Saudi women were turned back at Sydney Airport after letting customs officers know they intended to apply for asylum. This has led to concerns Australian Border Force officers may be deliberately targeting and blocking Saudi Arabian women, who they suspect may apply for asylum, from entering the country.

Until 2014, a person could apply for a permanent protection visa before being cleared at customs, also known as immigration clearance. However, amendments passed in 2014 mean those stopped before being cleared can only apply for a three-year temporary protection visa or a five-year safe haven visa.

Had the two women not disclosed their intention to seek asylum at the airport, they would generally have been cleared at customs and allowed to enter Australia. They would be able to apply for a permanent protection visa after leaving the airport.

But by making an asylum claim at the airport, they were subsequently detained and then deported from Australia without a chance to apply for protection, or access to lawyers, in violation of Migration Act.

The ABC report suggested at least 80 Saudi women have sought asylum in Australia in recent years, many of them fleeing Saudi Arabia’s male guardianship laws, which allow their husbands, fathers, brothers, uncles and sons to control their lives.




Read more:
Are women escaping family violence overseas considered refugees?


A response from the Department of Home Affairs to a Freedom of Information request for the number of individuals who have made protection claims before, or at, immigration clearance at airports since 2008, said:

the location of the applicant in Australia at the time of lodgement … is not relevant to the assessment of the applicant’s asylum claims, and therefore is not recorded in the Department’s database. As such, the Department does not hold existing documents as falling in the scope of the request.

But this can’t be correct given the disparity between the safeguards available before and after an asylum seeker clears customs.

Asylum seekers who have passed through customs can appeal their application for protection if it is rejected in the first instance.
from shutterstock.com

Australia has non-refoulement obligations under the 1951 Refugee Convention, various human rights treaties and customary international law. These prohibit the return of asylum seekers to places where they would face certain types of persecution or harm.

This extends to returning asylum seekers to transit countries where they may fear harm, or be at risk of being returned to their home country where they fear harm.

As part of the non-refoulement obligation, Australia must fairly and efficiently assess the claims of any person who applies for asylum under its territory or jurisdiction. Australia may not remove, or refuse admission at the border to, an asylum-seeker while considering that individual’s claim.

The demarcation of immigration clearance zones, or international zones has no consequence to Australia’s obligations under international law.

The Department of Home Affairs sets out the procedures to follow when an asylum claim is made at immigration clearance. The policies – which cannot be accessed publicly, but we have provided screenshots here – require that “if the person raises protection related claims, the interviewing officer should interview the person for a second time and explore the protection claims”.




Read more:
Explainer: how Australia decides who is a genuine refugee


If the person “makes a prima facie protection claim that is not considered to be ‘far-fetched and fanciful’, they are considered to be a person who potentially engages Australia’s non‑refoulement obligations” and must be permitted to enter Australia.

We do not know whether the department followed its own policies in the case of the two Saudi women. The interviews took place behind closed doors, and the minister has not made a comment on the cases. Even if the policy was followed, it still leaves much discretion to the interviewing officer.

There are no clear standards that must be followed when determining whether a claim meets the threshold of not being “far-fetched and fanciful”. The words are not found in the Migration Act, or the Migration Regulations, which govern migration determinations.

If Australia returned these women without a proper consideration of their asylum claims, it will be in breach of its international obligations. The failure to keep or share these statistics compounds the lack of accountability.The Conversation

Asher Hirsch, PhD Candidate, Monash University; Daniel Ghezelbash, Senior Lecturer, Macquarie Law School, Macquarie University, and Regina Jefferies, Scientia PhD Scholar, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Morrison may reopen the Christmas Island detention centre


Michelle Grattan, University of Canberra

Scott Morrison has foreshadowed the re-opening of the Christmas Island detention facility, announcing his government would be stepping up border security after the medical transfer bill passed the Senate on Wednesday.

The legislation was carried 36-34, with the support of Labor, Greens, Centre Alliance, Tim Storer, and Derryn Hinch – who delayed revealing his position until after he was briefed on security issues.

Morrison told a news conference cabinet’s national security committee had met early Wednesday to discuss the contingency planning already in train in anticipation of the bill’s passage.

“A range of strengthenings” had been put in place in the border operations.

He hinted at an advertising campaign in Indonesia and elsewhere.

“I’ll be engaging in direct messaging as part of Operation Sovereign Borders with people smugglers and with those who might be thinking of getting on boats,” he said.

“I’m going to be engaged in very clear and direct messaging to anyone who thinks they should get on a boat, I’m here. And I will stop you.”

He would be sending the very clear message “that my government is in control of the borders. As long as my government is here you can expect strong border protection and resolve to be in place.

“Under a Labor government you can expect them to see fold like a pack of cards, like Bill Shorten did yesterday”.

Morrison stressed all the government’s actions and decisions were
implementing the recommendations of the security agencies and
officials presented to the cabinet committee on Wednesday morning.

Declining to go into detail about the measures he said: “This
parliament has already tipped its hand enough to the people
smugglers”.

He said the government had approved “putting in place the reopening of the Christmas Island detention facilities, both to deal with the prospect of arrivals as well as dealing with the prospect of transfers”.

The government at the weekend released a costing of reopening
Christmas Island at more than $1 billion over several years.

People transferred from Nauru and Manus for medical care can be kept in detention or released into the community.

Labor Senate leader Penny Wong told the Senate the government was telling lies about the bill.

“They are doing it because they are desperate. They are desperate.
They are led by a desperate prime minister, who is leading a bitterly divided government. He is clearly only concerned about one thing: clinging on to his job, she said.

“Rather than running these lies, why don’t you just call an election?”

Hinch said he had been swayed by the amendment specifying the
legislation would apply only to the present cohort on Manus and Nauru.

“It is not an encouragement, I believe, to people smugglers who are despicable and should be despised, because it will only apply to people who are there.”The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Explainer: how will the ‘medevac’ bill actually affect ill asylum seekers?


Nicholas Procter, University of South Australia and Mary Anne Kenny, Murdoch University

Both the House of Representatives and the Senate have now passed amendments to the Migration Act 1958 that allow for the medical evacuation of asylum-seekers from Manus Island and Nauru. These amendments are also known as the medevac bill.

So, how will the situation for asylum seekers and refugees on Manus Island and Nauru change with the provisions in place?




Read more:
The government was defeated on the ‘medevac’ bill, but that does not mean the end of the government


What’s in the Bill?

The medevac bill allows for the transfer of asylum seekers or refugees on Nauru or Manus Island to Australia for “medical or psychiatric assessment or treatment”. Family members will also be transferred if recommended.

It gives a clear pathway for medical specialists to make medical decisions. Two doctors must assess – either in person or remotely – the person and make the recommendation for transfer. The criteria used in the initial assessment and in any review is that the person:

  • needs medical or psychiatric assessment or treatment
  • is not receiving appropriate medical or psychiatric assessment or treatment in Nauru or Manus Island, and
  • must be transferred for appropriate medical or psychiatric assessment or treatment.

The recommendation is given to the Minister for Home Affairs who must either approve or refuse the transfer within 72 hours. The minister can refuse the transfer if the person has an adverse security assessment or if the person has a “substantial criminal record”.

The minister may also refuse the recommendation on the basis he does not accept the transfer is necessary on medical grounds. In those cases an expert medical panel – known as the Independent Health Advice Panel (IHAP) – would be formed to reassess the recommended transfer.




Read more:
Morrison government defeated on medical bill, despite constitution play


If the panel recommends the person’s transfer should be approved, the minister must transfer the person unless satisfied there are security or character grounds for refusing the transfer.

The panel will consist of at least eight members, including the Chief Medical Officer for the government, the Department of Home Affair’s Chief Medical Officer and the Surgeon-General of the Australian Border Force. Other members would be appointed by the minister based on nominations by various professional medical bodies.

Medical transfers to Australia are for a temporary period only, so those currently in Australia could still be returned to Nauru or Manus Island following their treatment. This will continue to be the case even now this bill is passed.

These procedures are only applicable to asylum seekers and refugees who are on Nauru and Manus Island currently. The law will not apply to anyone who comes after the passage of this bill. Anyone brought to Australia for medical treatment must be kept in onshore immigration detention.

Three examples

Medical transfers that have occurred to date are mostly for psychiatric reasons or a combination of psychiatric and other medical reasons. The importance of provided, rapid medical assessment and response to critically ill, or at-risk-of-dying, refugees and asylum seekers cannot be overstated.

Under the provisions of the medevac bill, asylum seekers with medical or psychiatric conditions can be transferred to Australia.
from shutterstock.com

In August, 2014 a 24-year-old Iranian detainee on Manus Island, Hamid Khazaei, fell ill and presented to clinicians at the detention centre with “flu-like symptoms” and a small lesion on his leg. After a course of antibiotics, his condition deteriorated and he was transferred to a hospital in Papua New Guinea. He died a few days later.

A coronial inquest identified ambiguous and deficient policies for emergency evacuation, finding Mr Khazaei’s death was preventable. If his clinical deterioration was recognised and responded to in a timely manner, and he was evacuated to Australia within 24 hours of developing severe sepsis, Khazaei could have survived.

Medical evacuations are time sensitive because of the nature of the emergency and the logistics of the transfer itself. Were the provisions of the medevac bill in place at the time, independent expert overview of clinical decisions could have saved Khazaei’s life.

Another case was that of a refugee woman on Nauru who attempted suicide. An order was made for her to be urgently transferred to Australia. This was based on reports from a psychiatrist and a surgeon who expressed concerns that, without urgent surgical intervention, she could develop peritonitis (a life-threatening inflammation resulting from her suicide attempt) and die.

This case was heard by the Federal Court within four days of her attempt. Evidence demonstrated she needed complicated surgical intervention and psychiatric care that appeared not to be available on Nauru. Medical evacuation to Australia was requested as soon as possible, and the woman was brought to Australia.




Read more:
Self-immolation incidents on Nauru are acts of ‘hopeful despair’


With the medevac provisions in place, the woman could have been brought to Australia earlier for an independent assessment of her physical and mental health prior to her situation deteriorating to a point where emergency management was required. The costs and delays involved in seeking intervention of the courts to order medical evacuations would also have been reduced with the provisions in place.

Another recent case involved a 46-year-old refugee on Manus Island who had lost vision in his right eye after a traumatic injury during a riot on the island. Vision in his left eye was also deteriorating and there was a lack of appropriate treatment in PNG. His mental health had also deteriorated to a point where he was assessed as being at high risk of suicide.

The evidence was that Manus Island did not have adequate facilities to treat his physical deterioration and suicidality. The court ordered his transfer to Australia as soon as possible for assessment and treatment.

Again, this man could have been brought to Australia earlier for an independent assessment, prior to emergency life saving treatment being required. The bill’s provisions will now allow for this. This translates to continuity and consistency of care and reduced deadlocks over treatment decisions.

Medical care can’t be political

Aside from being a circuit breaker to current arrangements, the bill is a new opportunity to establish agreed governance arrangements and a clinical pathway for recognising and responding to medical need without political interference. In the past bureaucrats and politicians have invalidated medical evidence and clinical decision making processes.

To provide safe and high quality care to refugees and asylum seekers based on medically assessed need, independent medical experts must be provided with all available relevant information about the patient. Giving the best medical and health advice must be free from delay and political interference.The Conversation

Nicholas Procter, Professor and Chair: Mental Health Nursing, University of South Australia and Mary Anne Kenny, Associate Professor, School of Law, Murdoch University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Morrison government defeated on medical bill, despite constitution play


Michelle Grattan, University of Canberra

The government has suffered a historic defeat in the House of Representatives, with Labor and crossbenchers passing the legislation facilitating medical transfers from Manus and Nauru by 75-74.

This came after a dramatic last-minute government ploy to try to head off the bill by declaring it was unconstitutional and so should not be considered by the House.

But Labor and the crossbench pressed on, with six of the seven crossbenchers backing the ALP amendment to the bill that had come from the Senate.

They were Kerryn Phelps, on whose proposal the legislation is based, Andrew Wilkie, Cathy McGowan, Rebekha Sharkie, Julia Banks and the Greens Adam Bandt. The other crossbencher Bob Katter voted with the government.

The last times governments were defeated on major substantive votes were the Fadden government in 1941 (on a budget vote) and the Bruce government on legislation in 1929.

Before the bill was considered Speaker Tony Smith tabled correspondence from Attorney-General Christian Porter saying the bill, passed by the Senate last year, contravened the constitution’s Section 53.

This provides that the Senate “may not amend any proposed law so as to increase any proposed charge or burden on the people”.

The Solicitor-General, Stephen Donaghue, said in an opinion that the bill breached Section 53 because the medical panel it would set up would be paid.

But the opinion also said it was “ultimately for the House of Representatives to decide whether it considers the Senate amendments to be consistent” with Section 53, and the matter was not justiciable.

In his letter to Smith, Porter asked the Speaker to keep the Solicitor-General’s opinion confidential but Smith said the House should have it and tabled it with Porter’s letter.

The vote culminated a day of drama as Labor negotiated its amendments to the bill as passed by the Senate with its support.




Read more:
Why a government would be mad to advise the refusal of royal assent to a bill passed against its will


These widen the grounds on which a minister could refuse a transfer to cover those with a substantial criminal record, allow the minister up to 72 hours (instead of 24) for making a decision on transfers, and confine the application of the legislation to the present cohort of refugees and asylum seekers.

Labor moved to circumvent the Section 53 issue by adding a further amendment providing that members of the medical panel not be paid.

Leader of the House Christopher Pyne declared Labor and the crossbenchers “don’t care about the Australian constitution”.
“The English fought a civil war over this matter,” he said.

Bill Shorten said: “This bill and our amendments are about Australia’s character.
It’s about how we treat sick people in our care.”




Read more:
View from the Hill: Shorten’s victory will bring dangerous counter strikes from a desperate government


Scott Morrison said Labor was “failing the test of mettle … failing the test of duty to the Australian people. This is now on your head, Leader of the Opposition.”

The final vote came after the government lost procedural votes by the same margin.

The bill has to go back to the Senate to approve the amendments passed in the House.

Morrison told a Tuesday night news conference that the vote had not been unexpected and the government had already been working on contingency plans.

He would have “more announcements to make about the actions and decisions the government will be taking to address now the risk and the threat that Labor and Bill Shorten have created”.

He indicated the government would not frustrate the bill getting royal assent once it passed the Senate. Home Affairs Minister Peter Dutton told the ABC the government would abide by the law.

Morrison dismissed any suggestion that the defeat amounted to a no confidence motion in the government, referring back to what Phelps had said. Phelps has consistently emphasised the bill should not be viewed as a confidence matter.

The Prime Minister also played down the historic nature of the defeat, pointing to the Labor government losing a vote on superannuation in 2013.

The government will use the Labor success to ramp up its attack on the opposition. In the run up to the vote Morrison has turned up the rhetoric, accusing Labor of undermining offshore processing.

At his press conference Morrison said that Shorten would also be weak on turning back boats. Shorten “can’t be trusted to do that either,” he said.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Labor leads 53-47% in Newspoll as Shorten struggles with medical transfer bill


Michelle Grattan, University of Canberra

The government goes into the resumption of parliament this week
trailing Labor 47-53% on the two-party vote in Newspoll, unchanged
from a fortnight ago.

The poll comes as Labor’s stand on the legislation to facilitate
medical evacuations hangs in the balance, with Bill Shorten having
indicated he would like to find a compromise and speculation about a Labor retreat from its earlier support.

Shorten receives a briefing on the implications of the bill from the secretary of the Home Affairs Department, Mike Pezzullo on Monday. Shadow cabinet and caucus will discuss Labor’s position.

The opposition has been under concerted attack from the government
over its backing for the legislation, which passed the Senate last
year with ALP support.

Shorten is worried about Labor being wedged, because border protection is always a politically vulnerable area for the ALP.

Scott Morrison says the government will not shift from outright
opposition to the bill, which is based on a proposal originally coming from independent Kerryn Phelps but subsequently refined.

Newspoll, published in The Australian, has Labor’s primary vote up a point to 39%; the Coalition’s vote remains on 37%. The Greens are on 9%; One Nation is polling 5%, down a point.

Morrison has increased his lead over Shorten as better prime minister by 2 points to 44-35%.

Morrison’s satisfaction rating is up 3 points to 43%; his
dissatisfaction rating has fallen 2 points to 45%. Shorten has a net approval rating of minus 15, a worsening by 2 points.

The tactical battle over the medical transfer amendments will dominate the run up to Tuesday’s first day of the sitting. On another front, the opposition is trying to muster the numbers for extra sitting days to consider measures from the banking royal commission.

In comments on the medical transfer bill Opposition spokesman Shayne Neumann said on Sunday: “Labor has always had two clear objectives – making sure sick people can get medical care, and making sure the minister has final discretion over medical transfers.”

The bill provides that where there a dispute between the two doctors recommending a transfer and the minister, the final say on medical grounds would be in the hands of a medical panel.

The minister could override medical decisions only on security grounds (“security” is as defined in the ASIO act).

Passage of the legislation, which would require support from Labor and all but one of the crossbench, would be a big rebuff for the
Coalition.

But the government has managed to turn the heat onto Labor, claiming the legislation would undermine Australia’s border protection.

The briefing Shorten will receive will put more pressure on the
opposition, because Home Affairs will presumably reinforce the
argument it advanced in advice to the government.

The government has now declassified this advice – which last week it provided more informally to The Australian.

The advice, which has some sections blacked out, says: “The
effect of the Bill will undermine the Australian Government’s regional processing arrangements.

“Conduct which would come within the security exception to transfer
based on the minister’s reasonable belief that the transfer would be prejudicial to security, does not include all criminal conduct”.

“Ultimately, the amendments provide that the approximate 1000
transferees currently located in Papua New Guinea (PNG) and Nauru
could have access to a transfer to Australia within weeks of any Royal Assent,” the advice says.

“It is not expected that the Minister’s ability to refuse transfer on security grounds will significantly reduce the number of potential transfers”.

Neumann said on Sunday: “Labor has great respect for our national
security agencies and we’ve always worked cooperatively with them.”The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Morrison plays scare card on medical transfer bill


Michelle Grattan, University of Canberra

As the battle escalates ahead of next week’s vote on legislation to
facilitate medical transfers from Manus and Nauru, Scott Morrison is playing up the dangers if the bill passes while downplaying the
political implications.

Morrison declares the amendments, based on a proposal from independent Kerryn Phelps, would leave the government powerless to stop the entry of a paedophile, rapist or murderer.

“It doesn’t provide for the usual arrangements which would enable us to reject someone coming to Australia because they have a criminal history.

“They may be a paedophile, they may be a rapist, they may be a
murderer and this bill would mean that we would just have to take
them,” he said on Wednesday while campaigning in Melbourne.

Morrison raised the spectre of “hundreds upon hundreds upon hundreds of single males being transferred … at the directive of doctors, not the government.

“This will mean we will have to reopen detention centres that we
closed, like Christmas Island.”

But the Prime Minister has been anxious over the last two days to hose down talk that a government defeat on the bill could lead to an election.

“If we lose that vote next week, so be it. We won’t be going off to
the polls. The election is in May. I will simply ignore it and we’ll get on with business,” he told Sky on Tuesday.

Asked on Wednesday whether a loss would be a trigger for an election Morrison said: “Of course not. Why would it be?”




Read more:
Why a government would be mad to advise the refusal of royal assent to a bill passed against its will


The government is firmly locked into the May election timetable and
its April 2 budget that it will use to frame the poll. Passage of the medical evacuation measure would not amount to a vote of no
confidence.

Meanwhile Labor on Wednesday released its legal advice, from barrister Matthew Albert, arguing that the legislation would add to, rather than detract from, present security protections.

“The minister’s power to exclude a person from transfer to Australia is expanded beyond the security protections of the existing law,” the December advice says.

“The expansion empowers the minister to have regard to questions of
both public safety ‘and border integrity’ before a person is
transferred”.

The measure, passed by the Senate last year, would allow the transfer on the advice of two doctors but the minister could intervene on security grounds.

At central issue is the adequacy of the definition of “security” – the bill draws this from the ASIO act.

The government maintains this definition, with its focus on national security, is too narrow, while the ALP’s advice argues it is broad.

Under the ASIO act, “security” means:

“(a) the protection of, and of the people of, the Commonwealth and the several States and

Territories from:

(i) espionage;

(ii) sabotage;

(iii) politically motivated violence;

(iv) promotion of communal violence;

(v) attacks on Australia’s defence system; or

(vi) acts of foreign interference;

whether directed from, or committed within, Australia or not; and

(aa) the protection of Australia’s territorial and border integrity
from serious threats; and

(b) the carrying out of Australia’s responsibilities to any foreign
country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).”

As in present arrangements, under the bill transferees would be
immediately detained and only released from detention if the minister determined this was in the “public interest”.

“This is a broad test which allows the minister to have regard to any issues of security or character relating to that person,” the advice says.

On the last sitting day of 2018 the legislation potentially had the
required crossbench support to be carried in the House but a
government filibuster prevented it reaching there for a vote.

The government is lobbying crossbenchers intensively, while keeping the public heat on Labor. It has also undertaken to set up a medical panel to review transfers from Manus and Nauru.

In his Tuesday Sky interview Morrison played down the significance of this gesture.

“All that I have done is made sure that the Australian people have got an assurance about how well that [present] process works. They can’t change the decisions, they can’t reverse the decisions, the decisions all remain with the Department of Home Affairs”.

But Bill Shorten said he thought the government was “starting to do a backflip”.

“They may be doing it because they don’t want to lose a vote in
Parliament, but I’m not going to be a purist, if they get to an
acceptable outcome I’m not going to judge their motivation.”

Labor would have a look at the government’s position “but this stage we’re still supporting the Phelps amendments,” Shorten said.

Replying to Morrison, Phelps said:“The large majority of people on Manus Island and Nauru have been assessed as genuine refugees. Under the Refugee Convention, they cannot be granted that status if they have committed a serious crime, a hate crime or a war crime in their country of origin.”

The government faces pressure of another front next week, as Labor
tries to muster the numbers for its call for parliament to have extra sitting days to consider recommendations from the banking royal commission. It would need the support of all the crossbenchers to pass its motion but the stand of Bob Katter is not clear.




Read more:
Shorten: we should legislate on Hayne recommendations before election


The Conversation


Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.