Medivac bill: Refugee transfer amendments 'unconstitutional', says solicitor-general

12 February 2019 12:51 Australia Desk

Laws aimed at making it easier for asylum seekers to get medical help are unconstitutional, Australia's solicitor-general says.

Proposed new laws making it easier for asylum seekers to get medical treatment are unconstitutional, the federal government has been advised.

The solicitor-general told Attorney-General Christian Porter that Labor's proposed amendments are unconstitutional because they set up a panel of doctors who must be paid.

The amendments were originally made in the Senate and under the constitution the Senate is not allowed to make bills increasing the spending of public money.

The bill, which would allow doctors more say on asylum seekers getting medical treatment in Australia, passed the Senate in December with Labor's support,.

But under pressure from the government, Labor pushed to make last-minute changes.

Greens Senator Richard Di Natale effectively killed the amendments, saying his party could not support the proposed amendments, including giving the minister power to reject a medical transfer on character grounds.

"The amendments put forward by the Labor Party may make the situation worse than doing nothing," Senator Di Natale told reporters on Tuesday.

The changes will not pass without the Greens support.

Speaking to the ABC on Tuesday afternoon Senator Di Natale said the House should get on with the job and pass the legislation.

“The solicitor general has got it very badly wrong in the past, our job is to get on with it and legislate and help those people,” he said.


* Amendments made in the Senate in relation to an "independent health advice panel", to deal with asylum seeker medical issues, breach the constitution in two ways.

* The panel members will need to be paid. The payment is drawn from public money. So the legal consequence of the bill is to increase government spending.

* Section 53 of the Constitution requires all "money bills" to originate in the House of Representatives, not the Senate.

* Section 56 of the Constitution has the effect of amendments such as this requiring the government to seek a message from the Governor General recommending the spending. This requirement has not been met.

* The government is urging MPs to reject the amendments on these grounds.

* The Solicitor-General also advised that in the past the House has responded to a problem of this kind by disagreeing to the Senate amendments and then, after obtaining and announcing a Governor-General's message recommending appropriation, proceeding to make amendments in the same terms.

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