House debates

Tuesday, 12 February 2019

Bills

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

5:01 pm

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

As I foreshadowed a little over an hour ago, in tabling correspondence from the Attorney-General and an opinion from the Solicitor-General, I'll make a statement in respect of this now. I wish to make a statement about the constitutional implications of the Senate's amendments to this bill. This statement follows the receipt by me of advice from the Attorney-General and the Solicitor-General which, as I said, I tabled just prior to the matter of public importance coming on so that members would have the opportunity to read both the correspondence and the Solicitor-General's advice.

In essence the advice to me is that the Senate's amendments increase a charge or burden on the people contrary to the requirements of section 53 of the Constitution. Further, I'm advised that those amendments do not comply with the requirement of section 56 of the Constitution; namely that a proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by a message of the Governor-General to the House in which the proposal originated. Thus the Senate's amendments should have been made to the House as requested amendments.

Specifically the advice I have received is that the amendments, by creating a new Independent Health Advice Panel, would engage a standing appropriation in the Remuneration Tribunal Act 1973 in that a number of members of the panel would hold public offices for which the remuneration tribunal would need to determine remuneration. The remuneration would be paid out of the Consolidated Revenue Fund, which is appropriated for this purpose by a standing appropriation in the Remuneration Tribunal Act. The direct legal effect of the Senate's amendments thus would be to dictate an increase in expenditure under that existing appropriation. In terms of the test that the House has used, as referred to in House of Representatives Practicewhat are the probable, expected or intended practical consequences of the proposed amendment?—the advice to me is that section 53 is engaged by the proposed amendments.

In addition, as the Senate amendments would increase expenditure under a standing appropriation, the amendments would require a message to be reported from the Governor-General recommending an appropriation for them under section 56 of the Constitution.

The advice from the Attorney-General also referred to the importance of the House adhering to the requirements of sections 53 and 56 as otherwise, to quote the Attorney-General:

… the Senate would be given the power to dictate the expenditure of public revenue, with potentially crippling effects on public finances.

This reflects the important constitutional principle of the financial initiative of the Crown which rests with the House of Representatives and executive government.

Issues to do with section 53 of the Constitution have been matters of difference between the Houses since the early years of Federation. As it is generally recognised that the provisions of sections 53 and 56 are matters for the Houses themselves and may not be determined by the courts, the point has been made that this provides some flexibility. In considering the application of the third paragraph of section 53 of the Constitution, the House Standing Committee on Legal and Constitutional Affairs stated:

… the Committee considers that the Houses do, in some ways, have more flexibility in approaching the interpretation and application of the third paragraph of section 53 than if it were a strictly legal question.

In this respect, I note that the practice in relation to the creation of statutory offices and the reporting of messages under section 56 of the Constitution has at times varied. However, the committee also noted that it did not follow that the parliament should give the section any meaning it chose. The Attorney-General and the Solicitor-General have pointed to the direct link between an amendment proposed by the Senate and the engaging of additional expenditure under a standing appropriation in this particular case.

It is a matter for the House as to how it wishes to proceed with the Senate's amendments. The matter for consideration is not so much one of the privileges and rights of the two houses, as one of the observance of the requirements of the Constitution concerning the appropriation of revenue. I will leave it in the hands of the House as to how it wishes to proceed.

5:06 pm

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

I move:

That:

(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.

5:20 pm

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | | Hansard source

I move:

That all words after "That" be omitted with a view to substituting the following words

"(1) the House notes the statement of the Speaker in relation to the constitutional questions raised by message transmitted by the Senate in relation to the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018;

(2) the House, having regard to the fact that the public interest demands the early enactment of the legislation, refrains from the determination of its constitutional rights in respect of the Senate message; and

(3) the amendments be considered immediately."

Our moving of this is far from the drama we just heard from the Attorney-General about this being some constitutional disaster. Anyone who looks at page 859 of Practice will find an almost identical resolution moved under the Howard government—that constitutional radical, John Howard—because it is up to the House to determine whether or not it wants to assert its constitutional rights. That's clear in the advice. That's clear from the statements made by the Speaker. The House would be determining not to do so if this amendment is carried, as the Howard government did in November 1996.

Mr Pyne interjecting

Mr Albanese interjecting

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | | Hansard source

The second issue that's referred to in the legal advice goes to the issue of whether or not, before this ultimately gets taken to the Governor-General, an appropriation would have to be made. For that reason, when we get to the next stage of the debate—and I'm referring to it simply because part of this amendment is that the amendments be considered immediately—the amendment that will later be used will contain these words: 'a person is not entitled to remuneration in respect to their position as a member of the panel'. In doing that, the two legal issues that have been raised will both be dealt with.

Now, I must say: if the government was so determined that this was a constitutional principle, why do you think the letter from the Attorney-General to the Speaker carried the final sentence: 'I provide the advice on a confidential basis for a limited purpose of assisting you in the consideration of the Senate amendments and would appreciate you not circulating it further'? If the Attorney-General were confident of his arguments, he would never have put that in. But he deliberately thought he would play a game of gazumping everybody on the final day. It takes a special Attorney-General to be able to deliver a 15-minute speech on this issue and not once refer to whether or not people who are ill can get medical care, but it was not referred to once.

I'm not going to delay the House a long time with this, but in the Attorney-General's speech he referred to the 1,200 people who drowned. I have to say that, whenever that figure is referred to, it should be added, every single time, that half of them drowned after the Liberal and National parties voted against the Malaysia outcome. The member for Warringah has made clear that that was an error, but today's Prime Minister still stands by a decision that may well have been able to save not just one or two lives but half the lives that were lost. At the Press Club, he made a comment, something like, 'Oh, you can't cut the number in half.' Well, we nearly did, and it will always hang over the members of the Liberal and National parties who chose to vote against an outcome not because they were outraged by it but because they knew it would work. They knew it would work; that was why. They wanted to keep the issue running all the way to the election.

What is in front of us now allows us to make sure that, when people need medical care, the decisions around their medical care are made by people who are medically qualified. This legislation would not have been required were it not for the fact that those calling out, 'It happens now,' have taken case after case through the courts trying to prevent people from getting medical care. That's why we've got to this situation and so—

Photo of Peter DuttonPeter Dutton (Dickson, Liberal Party, Minister for Home Affairs) Share this | | Hansard source

Complete rubbish!

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | | Hansard source

'Complete rubbish!' There's a refutation! You're doing really well there, Minister! What we have in front of us now is a resolution, an amendment, to what the government has moved that does not in any way defy the information provided to the House by the Speaker, that allows the House to assert its rights in the same way that the Howard government did in 1996. It also deals with the other issue with respect to the Governor-General and the appropriation through the amendment that will come shortly.

Every legal issue raised by the Attorney-General has now been addressed. This all could have been done in an orderly way had the Attorney-General not been so determined to keep this secret to get the element of surprise. When the way to deal with this is already contained within House of Representatives Practice, it doesn't take long to basically copy a resolution from the Howard government.

I urge the House today to vote for the amendment, to vote for the motion as amended and to then vote for the amendments which will be used, because the difference they will make is simple: if someone is unwell they will be able to get medical care. When were we ever told that part of protecting our borders, as they say, was making sure that people who are unwell stay that way? When were we told that that was a principle? When did it suddenly become a pillar of border protection that people who are unwell need to be denied medical care? The amendment will deliver nothing more than that. I urge the House to support the amendment and to support the subsequent amendments that would then be moved.

5:27 pm

Photo of Adam BandtAdam Bandt (Melbourne, Australian Greens) Share this | | Hansard source

This is urgent. This can be dealt with now and it must be dealt with now, because people are sick and people are dying. One thing has become crystal clear, and it is made even clearer by the government's attempt to stop us even debating giving people the help they need, and that is you cannot trust this government to give people the help they need when they're sick.

We have heard report after report that strikes at the heart of most of us on the crossbench and most people in this country. When you have 11- or 12-year-old girls threatening to kill themselves and setting themselves alight because they have been stuck in conditions to the point where they break, where you have people who have committed no crime—no crime whatsoever—being put into prisons and have them deteriorate on our watch, under our care, and get denied the medical treatment they so desperately need, it is clear that something needs to change and that something needs to change quickly.

It will come as no surprise that I do not support the system of offshore detention. I do not support it. I have not supported it for some time, but I know that others do and I accept that others do. There are potentially others on the crossbench who do and there are others in this parliament who do, but whether you do or you don't, and whether you are a voter who supports or doesn't support offshore detention, no-one can argue with the very simple proposition that when there is someone who is sick, who is under our care, then they need to get the medical treatment they need, and we can make that happen by passing this amendment and dealing with this now.

5:29 pm

Photo of Christopher PyneChristopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | | Hansard source

What an extraordinary series of admissions by the Manager of Opposition Business in the House in his address. First of all, he admitted—

5:30 pm

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | | Hansard source

I move:

That the question be put.

5:39 pm

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

The question is that the amendments moved by the Manager of Opposition Business be agreed to.

5:42 pm

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

The question is that the motion, as amended, be agreed to.

5:46 pm

Photo of Christopher PyneChristopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | | Hansard source

I move:

That the amendments be disagreed to.

The government does not agree to the amendments that have been sent to us by the Senate. As the Attorney-General so eloquently pointed out in his speech about the other question that was before the chair, we should not be dealing with these amendments at all in the House of Representatives today. Before I was shut down by the Manager of Opposition Business, I was going to make the very valid point that, in his speech, he admitted the central gravamen of the Attorney-General's argument—that this bill makes an appropriation and therefore cannot be considered by the House of Representatives without giving up 109 years of parliamentary precedents.

Why do we know that the Manager of Opposition Business has admitted the central tenet of the Attorney-General's argument? He seeks to amend this Senate amendment to make the doctors who would form the health panel voluntary, so he has admitted that therefore there must be remuneration in the original amendments from the Senate and it is therefore an appropriation bill, and that's why he seeks to amend it: to remove that appropriation. As the Attorney-General's central thesis was that the House of Representatives could not allow the Senate to make an appropriation, he has admitted the Attorney-General's argument, he has admitted that the Solicitor-General's advice is right and he has admitted that the Attorney-General's letter to the Speaker is correct.

Therefore what the opposition and the crossbenchers have done today in their last series of votes is decide that they don't care about the Australian Constitution and they don't care about the Westminster traditions that form the basis of our Constitution and our parliamentary system. I would remind the House that the English fought a civil war over this matter. The civil war in England between King Charles I and the parliament was over the right of the parliament or the king to make the appropriation. The king tried to implement a ship tax, the parliament said that wasn't his right to do so and they fought a civil war over it, yet the Labor Party today, because of their sheer desperation to score political points, have convinced the crossbench that it is wiser to throw out 109 years of parliamentary precedents and to throw out the hundreds of years of tradition which have formed the basis of our Westminster system in order to make a cheap political point.

It's bad enough that, to do so, Labor is prepared to weaken our border protection. By passing these Senate amendments, the Labor Party is prepared to put the people smugglers back in business, to put out the welcome mat to the people smugglers, to run the green light, if you like, for the people-smuggling trade. They're prepared to do all of that because they want to make cheap political points in the lead-up to an election.

I'm very disappointed that the crossbenchers have acquiesced to allowing this debate to occur, because, for two very significant reasons, they'll be remembered, unfortunately, under parliamentary precedents. This will all become the way the parliament now practises. They'll be remembered for allowing the Senate to send us appropriations initiated in the wrong house, without a message from the Governor-General, just so that the Labor Party could make political points.

Government members: Shame!

It is a shameful act on the part of the Labor Party. As the Labor Party are the only other party that can form government in this country, they have a wider responsibility to act in the interests of the parliament, in the interests of our parliamentary system—the Westminster tradition, which is the foundation of it. They will rue establishing precedents like this. It doesn't really matter what the result of the next election is, at some stage in the future there'll be other hung parliaments where governments will not have a majority, and there'll be crossbenchers who are passionate about a particular issue. Labor might well be in power at that time, in some distant future, and they will rue the day that they established the precedent where the people's house, the house which forms the government, which has for hundreds of years been the only house that can appropriate money, has abrogated that responsibility to the Senate, which can never be the basis of a house that forms a government.

5:51 pm

Photo of Bill ShortenBill Shorten (Maribyrnong, Australian Labor Party, Leader of the Opposition) Share this | | Hansard source

I move:

That all words after "That" be omitted with a view to substituting the following words:

"The Senate amendments be agreed to with the amendments as set out in the schedule circulated to honourable Members."

The amendments read as follows—

(1) Amendment (2), at the end of section 198C, add:

Note: 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.

(2) Amendment (2), subsection 198D(2), omit "Within 24 hours of", substitute "After".

(3) Amendment (2), after subsection 198D(2), insert:

(2A) The Minister must make a decision under subsection (2):

(a) as soon as practicable after being notified; and

(b) no later than 72 hours after being notified.

(4) Amendment (2), omit subsection 198D(3), substitute:

(3) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(3A) Within 72 hours of the Minister being notified under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(5) Amendment (2), subsection 198D(5), omit the subsection, substitute:

(5) If the Minister does not make a decision under subsection (2) within the time required by subsection (2A), the Minister is, at the end of the time, taken to have approved the person's transfer under subsection (2).

(6) Amendment (2), omit subsection 198E(2), substitute:

(2) A transitory person is a relevant transitory person if:

(a) the person:

  (i) is in a regional processing country on the day this section commences; or

  (ii) is born in a regional processing country; and

(b) in the opinion of a treating doctor for the person:

  (i) the person requires medical or psychiatric assessment or treatment; and

  (ii) the person is not receiving appropriate medical or psychiatric assessment or treatment in the regional processing country; and

  (iii) it is necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment.

(7) Amendment (2), subsection 198E(3), omit "Within 24 hours of", substitute "After".

(8) Amendment (2), after subsection 198E(3), insert:

(3A) The Minister must make a decision under subsection (3):

(a) as soon as practicable after being notified; and

(b) no later than 72 hours after being notified.

(9) Amendment (2), omit subsection 198E(4), substitute:

(4) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably believes that it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment; or

(b) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(c) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(4A) Within 72 hours of the Minister being notified under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(10) Amendment (2), omit subsection 198E(5), substitute:

(5) If the Minister does not make a decision under subsection (3) within the time required by subsection (3A), the Minister is, at the end of the time, taken to have approved the person's transfer under subsection (3).

(11) Amendment (2), subsection 198F(2), omit "Within 24 hours of", substitute "As soon as practicable, and no later than 72 hours, after".

(12) Amendment (2), subsection 198F(4), omit "Within 24 hours of", substitute "After".

(13) Amendment (2), after subsection 198F(4), insert:

(4A) The Minister must make a decision under subsection (4):

(a) as soon as practicable after being informed by the panel of its findings and recommendations; and

(b) no later than 24 hours after being informed by the panel of its findings and recommendation.

(14) Amendment (2), omit subsection 198F(5), substitute:

(5) If the panel recommends that the person's transfer be approved, the Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(15) Amendment (2), omit subsection 198F(6), substitute:

(6) If the Minister does not make a decision under subsection (4) within the time required by subsection (4A), the Minister is, at the end of that time, taken to have approved the person's transfer under subsection (4).

(16) Amendment (2), subsection 198G(2), omit "Within 24 hours of", substitute "After".

(17) Amendment (2), after subsection 198G(2), insert:

(2A) The Minister must make a decision under subsection (2):

(a) as soon as practicable after being informed; and

(b) no later than 72 hours after being informed.

(18) Amendment (2), omit subsection 198G(3), substitute:

(3) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(3A) Within 72 hours of the Minister being informed under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(19) Amendment (2), section 198H, after "198E(4) (b)" insert "or (c)".

(20) Amendment (2), at the end of section 199B, add:

(4) A person is not entitled to remuneration in respect of their position as a member of the panel.

Last week the Prime Minister said that this amended bill would be superfluous and to ignore it.

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

The Leader of the Opposition will resume his seat. The Leader of the House?

Photo of Christopher PyneChristopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | | Hansard source

Mr Speaker, the Leader of the Opposition referred to amendments that have been circulated to the House. I don't see any amendments that have been circulated to the House on the table, and therefore he can't proceed until they've been circulated.

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

I've ruled on this before. There need to be a reasonable number of amendments that are there being circulated. I can see the amendments being circulated. The Leader of the Opposition has four minutes, and I'm sure they'll be circulated in that time. The Leader of the Opposition has the call.

Photo of Bill ShortenBill Shorten (Maribyrnong, Australian Labor Party, Leader of the Opposition) Share this | | Hansard source

The Prime Minister said that this bill was superfluous and he would just simply ignore it. Today the government tells us that this bill is a constitutional crisis. The fact of the matter is: this bill is about providing treatment to sick people. I want to acknowledge to a number of members of the crossbench that the amendments that I'm moving are not everything that they wanted, but we are about getting something done. I thank the Speaker for tabling the advice and correspondence that he received from the Attorney-General.

This motion accepts the amendments from the Senate and it seeks, firstly, to enhance the security requirements, broadening them to ensure that the minister can deny a transfer not just on national security grounds but also in the case of serious criminality, removing any doubt that the minister has the power to keep criminals out of Australia. Secondly, we are extending the time frame for the government to refuse a transfer, to ensure that agencies and medical professionals have enough time to consider complex cases, to have their advice heard and to ensure that the minister has enough time to make an informed decision. Thirdly, and perhaps arguably most importantly, our amendments will ensure that this legislation only applies to a fixed number of people who are already in regional processing. It is not prospective. It currently deals only with the people currently in Australia's care.

What we are proposing replicates the conditions that the government placed on its own resettlement deal with the United States. It did not give the people smugglers a product to sell then, and what we are putting in place will do nothing to change that. In the same way, this legislation will continue the practice that, where people are transferred here for medical treatment, they will be put into held detention as a default, and it will remain the case that the only person who can approve their release into the community is the minister. This existing protection is already in place, and the legislation we're supporting keeps it in place. Fourthly, we have put beyond any doubt—we have made it explicit—that there will be no remuneration for the medical panel.

The Australian people do not send us to parliament to run and hide from debates that we don't like, to manipulate procedure and the law to try and avoid democracy. We are elected to this place to solve problems, to find common ground where we can. This legislation does that. It gets the balance right. I believe that we can keep our borders secure, we can uphold national security, but still treat people humanely. We can have strong borders while still fulfilling our duty of care to the people in our care.

In closing, I note, regarding the government's legal arguments on this medivac bill, that Practice describes different responses of the House to amendments made in the Senate—and the Solicitor General made clear in his advice that the ultimate arbiter of the operation of section 53 of the Constitution is the parliament—and on a number of occasions since 1994 the House has refrained from the determination of its constitutional rights, as we did today, in order to consider amendments from the Senate. Indeed, we refer to the precedent set by the Howard government. The government have referred, in debating why they think our proposal should be opposed, to character. In fact, this bill and our amendments are about Australia's character. It's about how we treat sick people in our care.

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

Is there a seconder for the amendment?

5:55 pm

Photo of Kerryn PhelpsKerryn Phelps (Wentworth, Independent) Share this | | Hansard source

I second the motion and reserve my right to speak.

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

The original question was that the motion be agreed to. To this, the Leader of the Opposition has moved a number of amendments. If it suits the House, I'll state the question in the form that the amendment be agreed to. The question now is that the amendment moved by the Leader of the Opposition be agreed to.

5:56 pm

Photo of Scott MorrisonScott Morrison (Cook, Liberal Party, Prime Minister) Share this | | Hansard source

Well, here we are again. How many elections, how many times have the people of Australia said, so clearly, that they want their borders secure? How many times have the Labor Party failed them on this issue? How many times do they have to learn the lesson, only to demonstrate they have never learned it? This is a day when the Labor Party have failed the test, and it's not the first time they've failed this test. They repeat the mistake of thinking they can fiddle and change, without consequences, border protection frameworks that are proven to work.

Under our government, 19 detention centres have been closed. Under our government, 8,000 children who were put into detention by the Labor Party have been taken out. Under our government, every single child is off Nauru, with the last four on the way to the United States under the agreement that we put in place. Under our government, the 1,200 deaths at sea stopped. Under our government, the 800 boats and the 50,000 people came to an end because of a border protection framework that not only stopped this vile trade but provided people with care on the ground. We have more doctors and medical treatment people on Nauru per head of population than you will find in any part of this country today. I will not stand here and have it said that that treatment is not provided, because it is. I will not stand here and have this parliament give itself an excuse to weaken the border protection framework that has saved lives, has restored integrity to our immigration system and, in particular, has seen more than 7,000 women come here on our women at risk visa, under our restored Refugee and Humanitarian Program, which is solely the achievement of those who sit on this side of the House, not of those opposite, who, when they were in government, thought they could abolish temporary protection visas and it would have no impact.

August 2008—I remember the date. That was when the vile trade opened and the deaths started. The bodies mounted up, week after week, month after month, and our border protection staff had to pull children out of the water. The Australian people cried out to us in 2013, and they said: 'Please fix it. Please fix it.' We did. We had a plan to fix it and we executed that plan, and it worked. And now the same wreckers who destroyed it last time have come into this place, whispered in the ears of those who sit on the crossbench and convinced them to undermine it all over again. There is no form of this bill that does not weaken our border protection—no form. We on the government side will not allow the parliament to delude itself, or the Labor Party to delude itself, that there is a form of this bill that is safe for border protection. There is not. There is not.

They shake their heads—just as they shook them before, as they trounced around in government and destroyed the border protection framework put in by the Howard government. As they saw the people die and as they saw the detention centres open, they lamented it, and they came into this chamber and they cried and they wept. But they were impotent, and they were impotent because they did not know how to fix the problem. We know. We have. We did. We've implored this House not to undo what is not broken. The Labor Party broke the system, and we have fixed it, and now, even in opposition, they seek to break it again. Imagine what they will do in government if they are elected. Imagine what it means in government. The Labor Party can win as many votes in this House as they care to, but for the Australian people here tonight they are failing the test of mettle. They are failing the test of duty to the Australian people, and they do it trying to kid themselves that this is being done in the name of humanitarianism. Well, I remind them that their supposed humanitarianism last time led to child deaths, it led to the total destruction of our borders and it took the strength again of a coalition government to undo this. The people of Australia will remember this day and know that this is now on your head, Leader of the Opposition.

6:01 pm

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | | Hansard source

I move:

That the question be now put.

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

The question is that the motion be put.

6:09 pm

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

The immediate question now is that the amendment moved by the Leader of the Opposition be agreed to.

The question is that the motion, as amended, be agreed to.