The lower house has voted in favour of changes that make it easier for refugees on Manus Island and Nauru to travel to Australia for medical treatment – handing a historic defeat to the Morrison government in the process.
There was applause from the public gallery on Tuesday evening when the House of Representatives passed changes to the medical transfer process for refugees and asylum seekers in offshore detention.
The lower house vote constitutes a defeat on a piece of substantive legislation for the government, which is extremely rare.
It passed on a knife edge – 75 ayes to 74 noes – after the Labor and crossbencher coalition also voted to ignore constitutional concerns raised by the government and debate the bill regardless.
The bill, which is actually a piece of government legislation that has been amended to include changes to the medical transfer process, passed the Senate in late 2018 with support from Labor, the Greens and various crossbenchers.
The bill as passed by the Senate introduces a regime under which two doctors would be able to determine if it was necessary for the refugee or asylum seeker to be transferred to Australia. If the minister for immigration disagreed with the transfer, he could submit the case to a body of medical professionals who would then have the final say. The minister could also veto the transfer on national security grounds.
The lower house on Tuesday evening also passed further amendments presented by the Labor party, which expanded the ministerial veto to include people with a history of "serious criminality" and restricted the legislation so that it only applies to people currently on Nauru and Manus.
The bill now has to return to the Senate for those amendments to be approved.
Following the defeat, a defiant prime minister Scott Morrison told reporters "Votes will come and they will go, they do not trouble me" as he criticised the Labor party at length and accused them of creating a threat to Australia's borders.
"Bill Shorten and the Labor Party demonstrated tonight that they have no such metal, that they will easily compromise these things. They will be blown about by the winds of whatever may push them one way or the other," he said.
Morrison said that the vote was "not unexpected" and that the government would be putting contingency plans into place.
Shorten told the parliament that the bill was "about providing treatment to sick people" and would not help people smugglers.
"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," he said.
"I believe that we can keep our borders secure, we can uphold national security, but still treat people humanely."
Under the current system a committee of bureaucrats weighs in on whether refugees and asylum seekers can seek medical help in Australia after doctors have assessed the medical needs.
In 2018 a number of Federal Court cases saw the government being ordered to transfer sick detainees, including tens of children, to Australia. Other medical transfers took place after legal action was filed or threatened.
Tuesday, parliament's first sitting day of 2019, was dominated by heated rhetoric and ongoing negotiations as the Greens and independent MPs considered suggested amendments put forward by the Labor party, and the government talked tough on border security.
But before the bill came up for debate in the house, speaker Tony Smith tabled a letter from attorney-general Christian Porter and advice from the solicitor-general stating that the proposed changes were likely unconstitutional as the creation of the medical body would involve the spending of money, and money bills have to originate in the House of Representatives.
It contained the caveat that the "ultimate arbiter" on whether the amendments are constitutional is the lower house itself.
Shorten told the parliament prior to the bill passing that there would be no renumeration paid to members of the medical body.
House of Representatives speaker Tony Smith tabled both the letter and the advice on Tuesday afternoon – after explaining that Porter had asked him not to.
"I have advised the attorney-general that as speaker, it is important that I ensure in this instance or material available to me is also available to all members of the house," he said.
"As a consequence, I have also decided to table the solicitor-general's opinion."
Later, Smith told the chamber it was "a matter for the House" as to how to proceed.
Constitutional law expert Anne Twomey told Sky News that the constitutional advice potentially raised the stakes for the government when it comes to their control of the lower house – and of the country.
"Where we get to a very, very tricky point however 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. Now that's critical, in terms of confidence and loss of government," she said.
Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.
Contact Lane Sainty at firstname.lastname@example.org.
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