The finding goes to the heart of the government claim that the bill removes the minister’s discretion to the point that hundreds of asylum seekers could use the loophole to leave Nauru and Manus Island and come to Australia.
Mr Albert, in advice sought by Labor in December, finds that the definition of security is broad enough to give the minister grounds to reject a medical transfer to ensure the “protection of Australia’s territorial and border integrity from serious threats”.
“The law applicable to a person transferred temporarily under the Medical Evacuation Bill, if passed in its current form, includes security checks and empowers the minister to have regard to any security issues, as broadly defined, at multiple stages of the process,” Mr Albert concludes.
The medical transfer bill would force the minister to allow asylum seekers into Australia for treatment if two doctors declare that is required, subject to the definition of security in the Australian Security Intelligence Organisation Act.
Immigration Minister David Coleman said Mr Shorten could not claim to support offshore processing when his own senators voted for the medical transfer changes in the upper house.
“Any future arrivals on Manus and Nauru would just need two doctors’ certificates and they would be in Australia,” he said.
“It would only be limited by the amount of time required to get those doctors’ certificates from any two doctors in Australia.”
Mr Coleman insisted the crossbench bill would remove ministerial discretion to refuse medical transfers and would therefore allow hundreds of asylum seekers to come into Australia, given many doctors would approve their transfers.
“If the bill is implemented, essentially everyone on Manus and Nauru would be in Australia within weeks.
“It’s impossible to say you support the bill and you support offshore processing. You can support one or the other but not both.”
But Labor’s legal advice contradicts this government claim and finds the crossbench bill “would add further security checks” rather than weaken border protection.
Mr Morrison wrote to Mr Shorten this week saying the ASIO Act definition does not relate to matters of character or crime such as paedophilia, rape, murder, theft, arson or assault.
Labor is also relying on new findings by the Parliamentary Library showing the number of medical transfers from Nauru and Manus Island totalled 524 people over the past six years, including those who came by departmental decisions or court order.
There were 37 applications to the Federal Court seeking medical transfers to Australia between July 1 and October 21 last year, with the court making 31 transfer orders.
But in 18 of these cases, the department had already approved a transfer to Australia.
Labor advisers believe the findings show that every person who challenged a departmental decision in the courts was successful, which means the government is not stopping people coming to Australia for necessary medical treatment despite some of the tough rhetoric on the issue.
As well, the courts have only considered medical necessity and the government’s duty of care, never “character” or security grounds.
The medical transfer law began as an amendment in the Senate to a miscellaneous Home Affairs bill and has already secured a majority in the upper house, which means it will become law if passed by the House of Representatives next week.
The government will have little or no scope to delay it with further inquiry or procedural tactics, given the law would take effect by royal assent within a fortnight.
In a bid to head off defeat on the bill, Mr Morrison had offered to create an independent medical panel to oversee Department of Home Affairs decisions on medical transfers. The panel would scrutinise decisions but would not have the ability to override them.
Mr Shorten’s language on Wednesday suggested Dr Phelps’ bill might not be Labor’s only approach.
“They may be doing it because they don’t want to lose a vote in Parliament but I’m not going to be a purist – if they get to an acceptable outcome, I’m not going to judge their motivation,” Mr Shorten said of the government’s panel proposal.
Mr Shorten said Australia needed a better process to decide the medical transfers but left his options open on what the final outcome might be, saying only that he backed the crossbench bill «at this stage».
David Crowe is Chief Political Correspondent of the Sydney Morning Herald and The Age.