La­bor passes en­cryp­tion bill as Mor­ri­son dodges lower house vote on Nauru

The Guardian Australia - - Front Page - Paul Karp and Katharine Mur­phy

La­bor has waved through the Mor­ri­son gov­ern­ment’s en­cryp­tion bill, cap­ping off a day of high po­lit­i­cal drama where the prime min­is­ter man­aged to avoid a de facto vote of no con­fi­dence in the Coali­tion in the lower house.

A Se­nate fil­i­buster thwarted ef­forts by the non-gov­ern­ment par­ties to pass leg­is­la­tion that would have re­moved refugees from Nauru and Manus Is­land, forc­ing a sit­u­a­tion where an in­cum­bent gov­ern­ment would have lost a sub­stan­tive vote for the first time in al­most 90 years.

With Scott Mor­ri­son’s au­thor­ity on the line on the fi­nal par­lia­men­tary sit­ting day for 2018, the gov­ern­ment went into over­drive to try and head off the de­feat.

The Se­nate passed pro­vi­sions from a bill ini­tially moved by the in­de­pen­dent Kerry Phelps, but an ex­traor­di­nary fil­i­buster from the Coali­tion, Cory Bernardi and Pauline Han­son pre­vented it re­turn­ing to the lower house in time to test the gov­ern­ment, en­tan­gling the med­i­cal trans­fer is­sue with the en­cryp­tion bill in the process.

The day be­gan with La­bor and the cross­bench on the front foot, pre­par­ing to pass med­i­cal trans­fer pro­vi­sions in the Se­nate in the hope it would pass the House of Rep­re­sen­ta­tives.

Mor­ri­son went on the of­fen­sive, ac­cus­ing La­bor of mov­ing to dis­man­tle the off­shore de­ten­tion sys­tem and frus­trat­ing the en­cryp­tion leg­is­la­tion to cre­ate the con­di­tions for a leg­isla­tive upset.

The refugee de­bate in the Se­nate was trig­gered by Sen­a­tor Tim Storer and the Greens im­mi­gra­tion spokesman, Nick McKim, amend­ing an un­con­tro­ver­sial gov­ern­ment mi­gra­tion bill in the Se­nate, adding the med­i­cal trans­fer pro­vi­sions.

De­spite an hours mo­tion stip­u­lat­ing the mat­ter be dealt with at 1.50pm, the bill’s pas­sage was de­layed by Bernardi and Han­son mov­ing mul­ti­ple sus­pen­sions of stand­ing or­ders and other pro­ce­dural tac­tics to slow the vot­ing on amend­ments, sup­ported by the Coali­tion.

La­bor rounded on the Coali­tion. La­bor’s Se­nate leader, Penny Wong, ac­cused the Coali­tion of play­ing “games in the Se­nate” in or­der to pro­tect the gov­ern­ment’s po­si­tion in the House, and said the pro­ce­dural games put Aus­tralia’s na­tional se­cu­rity “at risk”.

With lower house MPs mut­ing the nor­mal Thurs­day row­di­ness in the cham­ber to avoid ejec­tions by the Speaker, La­bor went on the of­fen­sive in the Se­nate.

Wong warned the fil­i­buster could “pre­vent ur­gent na­tional se­cu­rity leg­is­la­tion be­com­ing law”, as the en­cryp­tion leg­is­la­tion had not passed the Se­nate and the gov­ern­ment was on no­tice that La­bor would move amend­ments that would need to go back to the lower house.

With the House of Rep­re­sen­ta­tives speed­ing to­wards a sched­uled ad­journ­ment at 4.30pm, the Se­nate slowed to a stand­still.

La­bor and the cross­bench par­ties were beaten by the clock, caus­ing Wong and and the gov­ern­ment Se­nate leader, Mathias Cor­mann, to take turns blam­ing the op­po­site party for en­tan­gling the bi­par­ti­san en­cryp­tion bill in the pol­i­tics of off­shore de­ten­tion.

Af­ter the re­crim­i­na­tions, the med­i­cal trans­fer bill passed 31 votes to 28, with La­bor, the Greens, Cen­tre Al­liance, Der­ryn Hinch and Storer com­bin­ing to send it to the lower house, where Mor­ri­son still risks los­ing a vote on sub­stan­tive leg­is­la­tion in the new year.

The pas­sage of the med­i­cal trans­fer bill freed up Se­nate time to deal with the en­cryp­tion bill, but that cre­ated a dilemma for the op­po­si­tion: cave on its de­mand for amend­ments or risk pass­ing a dif­fer­ent ver­sion that would re­quire a rub­ber stamp on the House.

Given Mor­ri­son had al­ready ad­journed the House, amend­ments would have meant the laws would not be in place over the sum­mer break.

Faced with that risk, and with Mor­ri­son and the home af­fairs min­is­ter, Pe­ter Dut­ton, al­ready on the po­lit­i­cal warpath, declar­ing the changes ur­gent, La­bor folded.

Bill Shorten and the shadow at­tor­ney gen­eral, Mark Drey­fus, called a press con­fer­ence to “of­fer” the gov­ern­ment to pass the en­cryp­tion bill, pro­vided the gov­ern­ment fa­cil­i­tate its amend­ments in the new year.

While the press con­fer­ence was still un­der way, La­bor sen­a­tors with­drew the op­po­si­tion’s amend­ments af­ter Cor­mann com­mit­ted to “fa­cil­i­tate con­sid­er­a­tion” of amend­ments in the new year. The bill eas­ily passed with bi­par­ti­san sup­port at 7.30pm.

The at­tor­ney gen­eral, Chris­tian Porter, said La­bor had “fi­nally … put the safety of Aus­tralians above po­lit­i­cal


Ear­lier, in his ad­journ­ment speech Shorten said the gov­ern­ment had shown that while it “says na­tional se­cu­rity is num­ber one, un­less it’s prime min­is­ter Mor­ri­son’s pride, be­cause then na­tional se­cu­rity is num­ber two”.

“This gov­ern­ment should be ashamed of it­self.

“It has put its own pride, its own po­lit­i­cal ba­con, ahead of the chil­dren on Nauru, ahead of na­tional se­cu­rity and the peo­ple of Aus­tralia.”

The Law Coun­cil of Aus­tralia’s pres­i­dent, Morry Bailes, said the pack­age passed by the Se­nate re­mained prob­lem­atic. “The half-amended en­cryp­tion ac­cess laws rammed through the Se­nate are bet­ter than the orig­i­nal, but se­ri­ous con­cerns re­main.

“We now have a sit­u­a­tion where un­prece­dented pow­ers to ac­cess en­crypted com­mu­ni­ca­tions are now law, even though par­lia­ment knows se­ri­ous prob­lems ex­ist.”

De­spite be­ing out­ma­noeu­vred on the fi­nal sit­ting day, La­bor did leave a land­mine for the new par­lia­men­tary year in the form of changes propos­ing that treat­ing doc­tors gain the power to de­ter­mine that adults and chil­dren in de­ten­tion re­quire med­i­cal or psy­chi­atric as­sess­ment or treat­ment.

If passed, the Phelps bill would re­quire the min­is­ter to ap­prove trans­fer to Aus­tralia within 24 hours un­less he or she be­lieves the trans­fer is not nec­es­sary or would be prej­u­di­cial to na­tional se­cu­rity.

If the min­is­ter re­fuses a trans­fer, the case will move to an in­de­pen­dent health ad­vice panel to con­duct a fur­ther clin­i­cal as­sess­ment, re­quir­ing the min­is­ter re­con­sider his or her de­ci­sion. If that panel rec­om­mends trans­fer, its med­i­cal ad­vice could only be over­turned by an ad­verse se­cu­rity as­sess­ment.

Bill Shorten and Scott Mor­ri­son cross paths dur­ing divi­sion in the House of Rep­re­sen­ta­tives on Thurs­day, be­fore La­bor agreed to pass the en­cryp­tion into law. Pho­to­graph: Mick Tsikas/AAP

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