I'm told by someone very close to the action in the parliament today that this is the essence of the Solicitor General's advice regarding the Phelps/Shorten/Greens illegal Centrelink Seeker medical travel-to-Australia bill.
(Great photo from The Australian - speaks a thousand words)
The Senate Amendments are unconstitutional. The amendments establish an Independent Health Advice Panel, staffed by doctors nominated by the Australian Medical Association or other medical professional bodies. Unsurprisingly, Commonwealth law is very clear that when a person is appointed to do a job, they should be paid. That payment is determined by the Remuneration Tribunal and drawn from public money. In other words, the direct legal consequence of the Senate Amendments is to increase Government expenditure.
These types of amendments are expressly prohibited by two sections of the Constitution. Section 53 requires money Bills to originate in the House of Representatives. The effect of section 56 is that amendments such as this—which can only be sent to the House of Representatives in the form of a request—would require the government to seek a message from the Governor General recommending the expenditure. The Senate Amendments contravene both of these requirements.
This is not a lawyer’s technicality. This is about one of the most fundamental aspects of Government—control over public spending. Section 53 of the Constitution protects the Australian people’s decision to elect a Government in the House of Representatives by ensuring that spending must originate in that House. Because the Governor-General only acts on Ministerial advice, the need for a message in section 56 of the Constitution means that spending is controlled by the Government of the day, and not the opposition or the cross bench.
Not only would the Senate amendments have disastrous effect on our border protection, but they would make a mockery of our system of Government and its control over public finances. The only proper course is to reject the amendments.