This is a bill written to empty the offshore centres

Leader of the Opposition Bill Shorten during Question Time yesterday. Picture: AAP

Labor has changed its stance, its policy and its heart on border protection. This is the enduring ­element in the present dramas. It is high-risk politics and misconceived policy by Bill Shorten that ensures border protection will be elevated as a frontline issue for the election.

The amended bill passed in the house late yesterday is irresponsible and weakens Australia’s border protection and seeks to ­impose on the minority Morrison government a new policy that the government has declared would endanger the nation’s interests.

It constitutes an extraordinary conflict between the executive and the parliament over border controls and raises the prospect of people coming to Australia because of decisions made by doctors in defiance of our government.

This situation moved into a poss­ible constitutional conflict with the opinion released by Attor­ney-General Christian Porter to the effect the bill was unconstitutional — a doomed effort to stop the parliament from this legislative step.

Constitutional issues aside, the critical shift is Labor’s calculation that humanitarian concerns jus­tify significant changes in people movement to this country. Labor believes sentiment on border protection has shifted given the plight of people in the offshore centres. In this political gamble the Opposition Leader seeks to lead and control the campaign involving the Labor Left, the Greens, the independents, refugee groups, sections of the medical profession and GetUp. This alliance reflects a powerful movement and the ­determination of progressive politics to compromise, weaken and eventually dismantle the border protection policies run by successive Coalition governments. Those policies have stopped boats coming to Australia but at the price of punitive treatment of individuals in offshore camps.

Labor repeatedly says Australia can have strong borders without treating people harshly. It sounds wonderful; it appeals to our better angels. And it is false. That sounds terrible but it has proven to be false as the Australian experience since Tampa shows and the global ­experience shows every year. Strong borders come with harsh consequences for many.

The converse is also true — if you run policy based mainly on humanitarian concerns then, ­depending upon the degree, you open the way for weaker borders with sometimes catastrophic human consequences as happened during the Rudd-Gillard years. The public expects the executive government to deliver border security and any exceptions need to be rare and justified.

The issue now is unique: a proposal for the parliament to impose a policy on the Australian government against its will. Scott Morrison’s warning to Shorten was stark: “If Bill breaks this, he owns it.” If the boats begin to come, they will be Shorten’s fleet. Morrison said of the MPs contemplating this action: “They have no idea of the consequences of what they are playing with and they will unleash a world of woe again.”

Shorten has ­decided to elevate border protection policy to the top of the agenda. This is entirely Labor’s choice, not the Prime Minister’s. But it was the Liberal dream. Morrison, the minister ­responsible for halting the boats, will turn this into a crusade.

Labor offered three concessions yesterday to the legislation that passed the Senate in December. While significant, the core principles of the legislation and its purpose remain. The declared purpose is to get sick people out of the offshore centres and into Australia quickly for medical treatment.

In doing so, there are two far-reaching policy consequences. The proposal shifts decision-making responsibility for entry here from the government to doctors; second, the practical effect is to terminate offshore processing ­arrangements.

Whether the revised legislation is passed or not, the change in Labor’s stance is decisive. Its commitment to strong border protection after the Rudd-Gillard fiasco has fractured — and this is driven by deep political sentiment on the progressive side. Shorten has moved either because his party is too divided, or he feels challenging the government is smart politics, or he judges public opinion demands it — or all three.

Morrison fingers Shorten’s problem: there is no compromise on border protection, no middle ground. Because border protection is tough, only a conviction politician can implement it and stick by it. How can Labor pretend to be tough on border protection in office when the party demands this legislation? It cannot. Shorten, in ­effect, has announced he doesn’t have the fortitude or the conviction, so Labor has made ­itself a risk on border protection.

This was apparent from the Labor vote in the Senate in Dec­ember. It is apparent from Labor’s stance yesterday. It is no surprise Morrison said: “We will not be giving any comfort or any ­licence for the parliament to support this in any way, shape or form.”

Despite its concessions based on security advice, Labor’s final position is still in defiance of the published security advice from the Department of Home Affairs stating: “The effect of this bill will undermine the Australian government’s regional processing ­arrangements”, described as “the third pillar” of border protection.

Labor now limits the bill to people on Nauru and Manus. It no longer reaches into the future. That’s important. It is Labor’s main concession. If the original bill made the end of regional processing a certainty, now it is just a probability.

The bill provides for two doctors to recommend the removal of individuals to Australia. The ­departmental advice said: “It is ­expected within four weeks of Royal Assent that most of the 1000 individuals would be in contact with ‘treating doctors’ willing to recommend their transfer to Australia.” This may or may not happen. But the bill makes it possible — that’s the point.

The bill is written to empty the offshore centres. The consultation may be by phone, desktop or teleconference. The individual does not need to be sick. The need for medical assessment will suffice. There is no limit to the number of references a doctor can make. The politicisation of the medical profession guarantees quick action.

Independent MP Kerryn Phelps anticipates a third of the people can be moved quickly, saying Australians “are demanding action” to get sick people here. The declared aim of the Greens is to end offshore arrangements. They want everyone out, believing they should never have been sent. Labor, as the departmental advice shows, fudges the truth — it wants humanitarian kudos for removing people but refuses to admit the policy consequences.

The original and latest bills compromise the principle that the government decides who comes to this country. Under the bill, if the minister ­rejects the doctors’ ­advice, the issue goes to an independent doctors’ panel and, as the departmental advice says: “If the panel recommends the person’s transfer be approved, the minister must approve unless prejudicial to security.”

Labor is ready to widen the ­security ambit but this is not the main point. The minister loses the power of final determination. This was always obvious. Yet it has been denied repeatedly by Labor frontbenchers who say there is no loss in ministerial discretion. Those statements are false. All advice to the government shows that.

The Greens, again, are open about their intent — they oppose the minister having the final say. Labor’s problem is obvious. It says it believes in the principle of final ministerial control on border protection but denies such ministerial control in this bill.

The passage of these measures yesterday is a humiliation for the Morrison government. It is a ­defeat for the ages. Morrison has stated he does not regard this issue as one of confidence.

Beyond that, the Australian people have a choice on border protection. Presumably, significant numbers will now come here from offshore centres. How will the public react? Labor will ­applaud and say it is saving sick people whose punishment must end. Morrison will say that Labor has weakened border protection and this proves its inability to ­secure the borders in office.