House debates

Tuesday, 12 February 2019


Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018; Consideration of Senate Message

5:06 pm

Photo of Christian PorterChristian Porter (Pearce, Liberal Party, Attorney-General) Share this | Hansard source

I move:


(1) the House endorse the statement of the Speaker in relation to the constitutional questions raised by Message No. 493 transmitted by the Senate in relation to the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018; and

(2) that consideration of the Senate's amendments be made an order of the day for the next sitting.

Thank you, Mr Speaker, for your statement. It's worth a little bit of background on this matter. The amendments that have been unconstitutionally transmitted to this House were passed by the Senate on 6 December 2018. Those amendments were circulated on the last day of sitting for that year. The amendment sheet circulated by the Greens is time stamped 11.02 am of that day. Those amendments were considered by the Senate and the bill was passed at 4.47 pm on the same day. Members opposite in Labor at the Senate level gave themselves less than six hours to consider the amendments and, astonishingly, Labor senators were in such a desperate race to bring the matter before this House that Labor even voted against getting advice. Labor and the Greens voted against a motion to refer the matter to the Parliamentary Joint Committee on Intelligence and Security for inquiry. Labor senators voted against a motion to defer consideration of the bill to allow advice from the director-general of ASIO and the commissioner of the AFP to provide advice on the national security implications of these amendments.

So it was the case that on 6 December last year, in less than six hours and rejecting a briefing from ASIO, 19 Labor senators voted 22 times for all the amendments to this bill now before the House. Of course, those amendments did not deal with minor or tangential issues. The three fundamental pillars of border security—temporary protection visas, boat turnbacks where they are safe to perform, and offshore processing—have been, and are still likely to be, the most critical national security issues of the last decade. The Labor Party supported the amendments 22 times against the warnings of this government to the effect that the amendments minimise the critical ministerial discretion to irrelevancy and so effectively and irrevocably weaken the central pillar of offshore processing and that that would reignite the people-smuggling trade. That was our government's position of principal. It remains our government's position of principal because that is what we are continually and consistently being advised by our security agencies.

The Labor Party supported the amendments against our warnings and, astonishingly, in circumstances where Labor rejected a briefing from our security agencies. Now, after months of those warnings being repeated and repeated and repeated, Labor have finally accepted a briefing and advice from Australia's security agencies and today have withdrawn support for the very same amendments that they supported in December last year.

The question begs: why did Labor rush headlong to support the amendments in the Senate? Why such incredible haste on such an issue when the results of getting it wrong can be, as we have learnt from bitter experience, so catastrophic, including the risk and actuality of people losing their lives? Why do this without the advice of our security agencies and against the words of so many warnings? The answer is that the opposition leader thought there was a short-term tactical advantage on the last day of parliament last year in trying—unsuccessfully, as it turned out—to force the government to a vote in this House on those amendments, a vote on amendments that we now know that the Leader of the Opposition himself acknowledges should not be supported and are not in the national interest, because he has withdrawn support for them.

Labor's support for the amendments on 6 December 2018 and Labor's withdrawal of support for those same amendments today is all about the Leader of the Opposition. All Australians now have a critical, unfiltered line of sight into the character and qualities of someone who wants to be the Prime Minister and have permanent control over our national security. That line of sight into the opposition leader's political character shows nothing other than the core of a person who would take massive risks with national security for short-term, high-risk, speculative pointscoring. And now, with the Speaker's statement today, the Australian people are also aware that on 6 December last year the opposition leader was not only willing to trash national security for short-term political pointscoring but also willing—and may yet still be willing—to trash a critical constitutional convention and law in the process.

The unarguable fact before this House is that the Senate amendments of the member for Wentworth increase expenditure from a standing appropriation. The amendments establish, as we are all aware, an independent health advice panel—what has become known as the doctors panel. Section 199B(1)(c) of the amendments requires the minister to appoint at least six other members to the doctors panel. Once appointed, those doctors hold public office. Those circumstances automatically engage the provisions of the Remuneration Tribunal Act. That will automatically result in the Consolidated Revenue Fund being appropriated for the purposes of paying those six appointed doctors. The amendments sent to this House would initiate a short, direct series of automatic and unavoidably occurring events that would result in an appropriation. This House is required to apply a very simple test: what are the probable, expected or intended practical consequences of those amendments transmitted?

So here we have a very simple situation. The amendments would create an obligation on the part of the minister to appoint six doctors to the panel and an obligation on the part of the tribunal to determine to pay them. The doctors are entitled to be paid in accordance with the tribunal determination from consolidated revenue, which happens automatically by an appropriation for that purpose under the tribunal act, section 7(13). The connection between the amendments and the appropriations is not speculative; it's not uncertain. The chain of causation is not long or complicated. The amendments commence a short, direct series of automatic and unavoidably occurring events that result in an appropriation. As the Solicitor-General points out, not merely does this automatic path to appropriation clearly meet the applicable test of this House, being the probable, expected or intended consequences of those amendments; it even meets the Senate's own test. The amendments appropriate money, and that point is inarguable. The law here is also perfectly clear. The third paragraph of section 53 of the Constitution provides that the Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. Those words have always included an existing charge or burden that would be altered or enlivened by the provisions proposed in a bill. The High Court, in a completely analogous context, detailed in the matter of Pape v Commissioner of Taxation, held that a bill effects an appropriation notwithstanding that the bill itself does not contain an appropriation clause.

But of course the reason the motion that I have just moved before this House today is so unbelievably important is that it is not the High Court that decides whether the House should abide by the Constitution in this instance. We, the parliament, bear that responsibility. I note Senator Di Natale, as he walked past some or other office, using his deep legal knowledge, said, 'Pass the bill and let the High Court decide.' Well, the undisputable fact is that under sections 53 and 56 of the Constitution this matter is not justiciable by the High Court. The responsibility for whether or not this House abides by the Constitution of Australia is our responsibility and ours alone. This decision is one that we will all need to look back on many years after it is made, because it is utterly critical.

We must be all clear on this: the responsibility is ours. When deciding how to vote on this motion, it needs to be understood by every single member here, even those who might have very passionate views about the subject matter that is now before this House, that it has been the practice of this House since 1910 to treat the third paragraph of section 53 of the Constitution as applying to a bill that, while it may not itself contain an appropriation, contains a Senate amendment that would increase expenditure from a standing appropriation in another act or bill. This 109-year-old principle was clearly and explicitly recognised by the House Standing Committee on Legal and Constitutional Affairs in 1995. It is not a technical question about some preferable process or what is convenient or inconvenient; it is about our parliament deciding whether or not to observe the clear requirements of the Constitution of this nation itself—constitutional requirements which concern the critical issue of the appropriation of revenue. Were the House to ignore the requirements of sections 53 and 56 of the Constitution and consider these amendments, the House would be giving the Senate the power to initiate the expenditure of public revenue, breaching the most essential principle of our Constitution. The power of control over public finances is the essential feature of responsible government, the government formed in the house that we sit in.

Everything that we do here has a consequence. If you get border protection policy wrong, if you misjudge the consequences of policy changes on that terribly vexed issue—the bitter lesson that we thought everyone in this place had learnt is that you can cause untold damage by unwinding the effective border protection policies we have in place. The policies that we have in place today have stopped the deaths at sea, when over 1,200 men, women and children drowned. They have closed 19 detention centres. This government has removed all children from detention. There were over 8,000 children put into detention under the previous government. As a matter of policy principle we should not support these amendments because the risk of the practical, real-world consequences being manifest is enormous and can and would result in the loss of life.

Perhaps even more important than voting against the motion on that policy principle is that if you vote against this motion you would be voting against 109 years of House of Representatives practice; you would be voting against maintaining the central feature of responsible government. The power to manage public finances is the prerogative of the government formed in the House and not the Senate. If you vote against this motion, you would be putting us as a parliament and every one of us as parliamentarians in contempt of the Australian Constitution, and you'd be doing it because it's convenient for you to do it.

We know that the Leader of the Opposition is willing to risk restarting the people smuggling trade for tactical political pointscoring. The question now is this: is there any risk too high for the Leader of the Opposition to score a political point? Centuries of Westminster tradition hold that financial initiative lies with the government in this House. Voting against the motion trashes that principle. It is a rare day when you have to withdraw your support for motions which would have trashed successful government policy on border protection and, in the course of doing so, trash the Australian Constitution. Even if you have deeply held views about the issues with respect to these amendments, the fact is that the risk is too high. Voting against this motion is to ignore the Australian Constitution. No-one is going to sort this out for us afterwards. This doesn't get to the High Court. It doesn't get put to a judiciary. We make the decision whether or not to observe the clear terms of the very Constitution that puts us in this place, and this motion must be supported.


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