Coalition wanted bombshell to sink medivac changes

Government MPs hoped bombshell legal advice would sink changes to the medivac bill on constitutional grounds.

Attorney-General Christian Porter. Picture: AAP

Government MPs hoped bombshell legal advice provided by ­Solicitor-General Stephen Donaghue on the Kerryn Phelps-­inspired medivac bill would sink the proposed changes on constitutional grounds.

The advice, procured by ­Attorney-General Christian Porter and tabled in parliament, said the bill contravened section 53 of the Constitution because amendments by the Senate had transformed it into an appropriation bill, which could originate only in the House of Representatives.

However, it also confirmed that the High Court would never rule on the matter because the “ultimate arbiter as to the operation of that provision is the parliament”, which subsequently voted to ­ignore the legal advice.

The third paragraph of section 53 states that “the Senate may not amend any proposed law so as to increase any proposed charge or burden on the people”.

The “charge” inserted in the bill by the Senate was the proposed ­establishment of an independent health advice panel, which would assess refugee medical evacuation orders issued by treating doctors.

“Accordingly, the Remuneration Tribunal would be under a duty to inquire into and to determine the remuneration to be paid to the (panel members),” the ­advice states.

Mr Donaghue said “the better view” was the Senate amendments “did contravene section 53 of the ­Constitution”.

 

He cautioned that the High Court had held that failing to comply with section 53 was “non-­justiciable” and “does not give rise to invalidity of the resulting act when it has been passed by both houses of the parliament and has received royal assent”.

He also noted the house and the Senate differed in their interpretations of what constituted an increase in a “charge or burden on the people”, with Senate practice asserting that amendments must “clearly, necessarily and directly” cause an increase in expenditure to be classified as an appropriation.

Labor responded to the advice with an amendment, passed by the house, stipulating members of the independent medical assessment panel would not be paid.

Constitutional lawyer Anne Twomey said the Solicitor-General’s advice was “fair and accurate”, but warned that the gov­ern­ment’s decision to label it a money bill meant the loss of the vote on the bill could be considered as a vote of no confidence.

“Where we get to a very, very tricky point … is that if the government is now asserting that this is a money bill, then if the bill actually gets passed against the wishes of the government, that would be an indication that the government has lost control over the finances of the country,” Professor Twomey told Sky News.

“That is critical on confidence and loss of government.”

Constitutional lawyer George Williams said the advice was “reasonable, credible, but debatable”: “It is open to debate and disagreement,” he said.