Modern Australian



The government was defeated on the 'medivac' bill, but that does not mean the end of the government

  • Written by Anne Twomey, Professor of Constitutional Law, University of Sydney
The government was defeated on the 'medivac' bill, but that does not mean the end of the government

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 medivac 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.

Authors: Anne Twomey, Professor of Constitutional Law, University of Sydney

Read more http://theconversation.com/the-government-was-defeated-on-the-medivac-bill-but-that-does-not-mean-the-end-of-the-government-111635

NEWS

There's little reason for optimism about Closing the Gap, despite changes to education targets

Again this year, the Closing the Gap report delivered disappointment.www.shutterstock.comThis week saw the release of the annual Closing the Gap report. Much like the previous decade of reports, we learned...

how queer texts could fight homophobia in Australian schools

Books are a good starting place to make schools more inviting places for queer students.www.shutterstock.comRecently, the Australian Association for the Teaching of English (AATE) — the peak professional body for...

The glowing ghost mushroom looks like it comes from a fungal netherworld

The ghost fungus emits an eerie green glow.Author providedSign up to Beating Around the Bush, a series that profiles native plants: part gardening column, part dispatches from country, entirely Australian.It’s...

Michelle Grattan on reopening Christmas Island and One Nation's shenanigans

University of Canberra Vice-Chancellor Deep Saini and Michelle Grattan talk about the week in politics. They discuss including the government’s historic defeat in the House of Representatives on the medevac...

The Catholic Church is headed for another sex abuse scandal as #NunsToo speak up

All eyes will turn to Rome between 21-24 February, when senior church clerics across the world meet to discuss how to handle the widening sexual abuse crisis in the Catholic...

well placed to join the Moon mining race ... or is it?

The Moon could be mined for water.NASA/JPLIt’s 50 years since man first stepped on the Moon. Now the focus is on going back to our nearest orbiting neighbour – not...

who are the Uyghurs and why is the Chinese government detaining them?

Many Muslim minorities in China, particularly the Uyghurs, are arbitrarily arrested and imprisoned.from shutterstock.comThe Uyghurs are Turkic-speaking Muslims from the Central Asian region. The largest population live in China’s autonomous...

Electronic waste is recycled in appalling conditions in India

The vast majority of e-waste in India is processed by hand.Miles Parl, Author providedElectronic waste is recycled in appalling conditions in IndiaThe world produces 50 million tonnes of electronic and...

saints or monsters, pop culture's limited view of nurses

Nurse Ratched in the 1975 film One Flew over the Cuckoo's Nest. Netflix is now producing a TV series built around this character, to star Sarah Paulson.Fantasy FilmsWhen health care...

when watchdogs become pets – or the problem of 'regulatory capture'

Australia's two financial watchdogs have been criticised for their cuddly relationship with banks.ShutterstockMarkets require regulators. As Adam Smith, the champion of the invisible hand, notes in The Wealth of...

For people at risk of mental illness, having access to treatment early can help

Treating somebody at risk of developing a mental health disorder may improve their outcomes later on.Jeremy Perkins/UnsplashHow can we best help Australians who are at risk of developing a mental...

You need more than just testes to make a penis

Testosterone is primarily made in the testes, and creates many of the characteristics we see in adult men. from www.shutterstock.comIn prenatal ultrasounds or at delivery, many new parents look between...

Popular articles from Modern Australian

Why you should hire equipment for your next party or eventLiving life without fearFive Trends That Will Transform Beauty Moving home is always complicated but even more challenging in SydneyWhy Chocolate Can Be Good For YouHow to Choose the Right Wedding SuitTop 5 Non-Surgical Cosmetic Procedures for Men in 20192019’s Unforgettable Valentine’s Day Ideas In SydneyFashion Trends to Know in 2019David Lennon:   Five reasons to get your car loan sorted before visiting a dealership5 Sleep-Friendly Bedroom Tips for Career WomenTop 5 Car Finance TipsAustralian Bathroom Design Trends for the Upcoming Season6 Signs it’s Time to Consider Laser Tattoo RemovalLocal Moving Checklist