Prime Minister Scott Morrison is holding out against any change to existing rules that give the Immigration Minister full discretion to reject transfers, but he is exposed to the first defeat of a government on a substantial piece of legislation since the 1920s.
Mr Shorten held talks with the Greens and the crossbench before Question Time and has put forward a modified version of draft amendments circulated by Labor ahead of the talks.
A comparison of the two documents shows that Labor initially suggested the minister had to make a decision on each transfer “as soon as practicable” without naming a timeframe. It later suggested one week.
Mr Shorten later put forward amendments saying the decisions should be made within 72 hours unless the refugees should be rejected on security grounds.
The security grounds have also been clarified. In the first version of its position, Labor suggested the minister could reject transfers if the refugee had a “substantial criminal record” under Section 501 (7) of the Migration Act – a provision that covers any crimes subject to prison terms of more than one year.
The later version of the Labor proposal applies the same section of the Migration Act but adds the condition that the minister must “reasonably believe the person would expose the Australian community to a serious risk of criminal conduct”.
This change is intended to protect refugees who need medical help but might have been convicted of minor offences or perhaps crimes of freedom of expression in their home countries.
Labor is understood to be comfortable with the latest version of its amendments after the negotiations with the Greens and the crossbench, believing the terms give security agencies enough leeway to stop transfer that might present a security risk.
The decision to give the minister 72 hours to make an assessment on character grounds is seen as a "solid" outcome for Labor.
Earlier, Labor was warned against amending a crossbench bill to allow refugee medical transfers from Manus Island and Nauru amid signs the Senate could drag out debate on any changes until the election.
The Morrison government is prepared to use delaying tactics in the Senate to slow or halt the passage of the divisive bill, turning this into a key factor for crossbench MPs in their negotiations with Labor on Tuesday.
Dr Phelps said the bill needed to be passed swiftly to allow medical treatment for asylum seekers.
“I don’t want to see the politics get in the way of a good solution here,” Dr Phelps said.
“What we’ve been seeing is a lot of discussion about the politics. And what we need to bring this back to is that this is about the lives of real human beings.
“We have a detention system that is inhumane, it’s cruel, it lacks accountability and it’s enormously expensive.”
Dr Phelps and other crossbench MPs are negotiating the wording of any amendments ahead of a vote in the House of Representatives on Tuesday afternoon on the bill passed by the Senate last December.
The bill would become law without another vote if it is approved by the House on Tuesday. If amended, however, it would have to go back to the Senate for approval.
While an alliance of Labor, the Greens and independent Senators could secure a majority in the upper house to force the medical transfer bill through, the Greens are concerned about any delaying tactics from the government.
Finance Minister Mathias Cormann, the government’s leader in the upper house, signalled a hard-line approach to the bill if it goes back to the Senate.
“We are doing whatever it takes to prevent this bill from becoming law and you will of course see how these processes are going to evolve over the next 24 to 48 hours,” he said.
“I know as is always the case in this place many people have made judgements about what they apparently know will happen, all I will say is ‘watch this space’.
“The government is unequivocally committed to protecting our borders. As we did before Christmas we will do everything we can to stop Bill Shorten from undermining our national security and our strong border protection arrangements.”
The Labor caucus agreed on Monday night to authorise negotiations on the crossbench bill to widen the definition of security in the bill to allow refugees to be rejected if they have a criminal history, to give the Immigration Minister more than 24 hours to decide transfers and to limit the rules to about 1,000 individuals currently on Nauru and Manus Island.
The bill is expected to come to a vote in the House after matters of public importance are debated after Question Time.
The supporters of the bill will not need an absolute majority – that is, 76 of the 150 members of the lower house – to win the debate.
Labor has 69 members and is negotiating support for its changes from Greens MP Adam Bandt and independents Julia Banks, Cathy McGowan, Rebekha Sharkie and Andrew Wilkie as well as Dr Phelps.
If it is not decided on Tuesday, the crossbench may need to suspend standing orders on another day – a move that would require 76 votes and may be impossible.
The Greens are concerned about Senate delays and about the way the amendments give the Immigration Minister more discretion, which could force applications for medical transfers to go through the courts as they are today.
“On first look, Labor’s amendments don’t make the current terrible situation any better,” Mr Bandt said.
“Labor is giving a lot of power back to Peter Dutton and it’s not clear that sick refugees will come to Australia any quicker than they do now.”
Dr Phelps raised concerns about the definition of security and the character test when a criminal history was already grounds to reject an application for refugee status.
“We need to look at what the definition of serious crime is,” Dr Phelps told ABC TV.
“What I am very keen to do is to avoid being in exactly the same position we are in now where the minister excessive veto powers and runs every serious medical case through the courts, only to find that the doctor’s original recommendations were upheld.”