Scott Morrison suffers historic defeat as border protection election looms

«It cannot be contorted into that kind of outcome,» he said. «The election will be in May, after the budget.»

The government slammed the “shameful” move by Labor to pass the bill in the face of legal advice that the changes breached the constitution, which in turn led to warnings from constitutional experts that the Coalition’s ability to hold power was at risk.

Mr Morrison warned the changes claimed to be humanitarian but would encourage people smugglers and risk more deaths at sea from asylum seeker boats.

“The people of Australia will remember this day and know that this is now on your head,” the Prime Minister said to Mr Shorten in Parliament.

Mr Shorten dismissed that claim and argued the bill simply allowed for better medical care for asylum seekers who needed help in Australia.

“I believe we can keep our borders secure, we can uphold national security, but still treat people humanely,” he said.


The final vote, shortly after 6pm on Thursday, delivered a stunning victory for Labor, the Greens and crossbench MPs to enforce new rules to give doctors more say over the transfer of refugees from Manus Island and Nauru for treatment in Australia.

The bill approved by the lower house must go to another vote in the Senate, where the government does not appear to have the numbers to stop the new scheme becoming law.

Furious at Labor for insisting on the changes, the government is now preparing for an election fight on border protection by claiming Mr Shorten would dismantle offshore processing and allow more asylum seekers to arrive by boat.

Labor made a strategic move to avoid turning the bill into a test of confidence in the government, withdrawing part of the medical transfer scheme that required funding to pay for medical experts to review transfers.

Prime Minister Scott Morrison before losing the vote on Tuesday night.

Prime Minister Scott Morrison before losing the vote on Tuesday night. Credit:Alex Ellinghausen

The move cut short a furious debate over whether the vote in the lower house could be seen as a vote on a money bill and was therefore a vote of no confidence in the government itself.

Mr Shorten proved the government’s vulnerability by gaining support from five independent and one Greens MP to gain 75 votes on the floor of the House of Representatives to pass the new rules for refugee medical transfers.

In a surprise legal twist just hours before the vote, the government cited legal advice from the Solicitor-General to argue the bill would incur additional expenses by creating a panel of medical experts to rule on refugee transfers.

Section 53 of the constitution states the Senate “may not amend any proposed law so as to increase any proposed charge or burden on the people” – a provision that gives the government grounds to challenge the crossbench bill.


The legal advice, which was tabled in Parliament on Tuesday afternoon by the Speaker of the House of Representatives, Tony Smith, raised the stakes by turning the bill into a money bill that could become a test of confidence in the government.

Constitutional expert Anne Twomey, a professor of law at the University of Sydney, said the Solicitor-General’s opinion was «pretty fair and accurate» but that the final decision was up to the Parliament itself, with completely different views on section 53 between the two chambers.

Section 53 is «non-justiciable» and therefore a court will not decide if a law is valid, meaning the government cannot challenge the medical transfer bill in the High Court.

Professor Twomey said that if the government claimed the bill was a money bill, the government would be exposed to claims it should lose power if it lost a vote on the bill.

«Once a government loses control of government finances, it is obliged to resign or seek a dissolution,» Professor Twomey told The Sydney Morning Herald and The Age.

«See, for example, the fall of the Fadden government in 1941 when the budget was amended to reduce it by the nominal sum of one pound. So there are risks involved.»

Labor had of its 69 members as well as support from Greens MP Adam Bandt and independents Julia Banks, Cathy McGowan, Kerryn Phelps, Rebekha Sharkie and Andrew Wilkie.

«I know how much the people who are sick on Manus Island and Nauru are suffering and Parliament is saying enough is enough,»Dr Phelps said after the vote.

This bloc of 75 was enough to pass the bill over the 73 government votes and another vote from Queensland independent Bob Katter.


Mr Shorten secured the votes after giving ground on his initial proposal to the crossbench.

Mr Shorten proposed a deadline of three days for each decision to transfer a refugee to Australia for medical treatment, scaling back Labor’s initial deadline of one week.

Labor has also added detail to the “character test” to be used to reject transfers if a refugee has a criminal record, helping to address concerns raised by the Greens and Dr Phelps.

In the form passed by the lower house, the bill says the Immigration Minister must make decisions on each transfer within 72 hours unless the refugees should be rejected on security grounds.

The security grounds have also been clarified. In the first version of its position, Labor suggested the minister could reject transfers if the refugee had a “substantial criminal record” under a provision of the Migration Act that covers any crimes subject to prison terms of more than one year.

The later version of the Labor proposal applies the same section of the Migration Act but adds the condition that the minister must “reasonably believe the person would expose the Australian community to a serious risk of criminal conduct”.

This change is intended to protect refugees who need medical help but might have been convicted of minor offences or perhaps crimes of freedom of expression in their home countries.

David Crowe is Chief Political Correspondent of the Sydney Morning Herald and The Age.

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