Labor passes encryption bill as Morrison dodges lower house vote on Nauru
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
point-scoring”.
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.