SUBJECTS: High Court decision, Barnaby Joyce, Indigenous recognition

PATRICIA KARVELAS: Tony Burke welcome. 

TONY BURKE: Good evening. 

KARVELAS: So Labor has warned of these legal challenges to Government decisions of Barnaby Joyce staying in the cabinet when you’re saying he shouldn’t have. What kind of legal challenges should we expect? Because according to Simon Birmingham there, the only people who would be launching them are GetUp!, Labor and the Greens. 

BURKE: Yeah, I found that argument a bit bizarre because we haven't flagged that there’s any particular decision that we would challenge. Our objection the whole way through has been that certainly from the…it’s one thing to be reckless and to not have checked whether or not you’re a citizen, but from the moment you realised, that Barnaby Joyce realised he was a New Zealand citizen, if he had done what Matt Canavan did which was to step aside while waiting for the High Court decision we’d be in a completely different situation here because there wouldn't be this legal question over what executive decisions
had been made over the last two and a half months. Now the fact that we pointed that out doesn't mean that we’re the ones doing the challenging. Because a whole lot of the ordinary business of Government will be decisions that we agree with. I used to be minister for agriculture. I know when you're in charge of quarantine and bio-security you make decisions that have a big financial impact on importers and exporters no matter which way you go. And there will be vested interests that will be combing through the decisions he has made because now they may well be able to make money out of the challenge. 

KARVELAS: Are you now egging on vested interests? Because that’s what Simon Birmingham has effectively, well actually blatantly, accused Labor of doing. That you are egging others on to legally challenge these decisions. Is that what you are doing?

BURKE: No. No. The entire answer to that question is no. 

KARVELAS: So you don't want legal challenges here? You want people not to legally challenge the Government’s decisions?

BURKE: I’m not encouraging or discouraging the challenges. What I did encourage, quite actively, was for Barnaby Joyce to not put Australia in this position. Was for Barnaby Joyce and Fiona Nash to do exactly what Matt Canavan did. Then there would be no decisions to be challenged at this point in time. Because they would have taken the responsible, precautionary method. And what they have done instead is just take a dumb risk, a really dumb risk with Australian Government and it’s a big deal being a member of the Australian cabinet. And if you don’t honestly believe you are legally meant to be there then you shouldn't go ahead and do it anyway. But Barnaby has acknowledged that’s exactly what he has done in the last two and a half months. If all of this was based on the Solicitor-General’s advice that was unbelievably strong, why is it that we still haven't seen a copy of that advice? 

KARVELAS: Will you wreak havoc with the coalition’s management of the Parliament when Parliament sits again? 

BURKE: We’ll pursue our agenda. One of the issues you have already referred to is presuming that the postal vote comes out with a ‘yes’ vote. If it does then there’ll be legislation in front of the Parliament which we want to get through. It’s a conscience vote issue but the vast majority of Labor member want to get it through. So we’re hardly going to blow up the Parliament when the moment comes for that legislation to get through. So that’s a simple example of something we will be very cooperative on. At the same time, if the opportunity comes and it might not, it’s very difficult to get something on to the Parliamentary agenda. For a lot of things, you need 76 votes which we don't have. But if it becomes possible for 700,000 people to get their Sunday penalty rates back then we would act to do that. If it becomes possible for the victims of banking and financial services rorts to be able to get justice through a royal commission then we would take that opportunity. For us, it will be about the issues. 

KARVELAS: So, I just want to take you back to that gay marriage issue. You're saying you’re not going to play games during that period because you want to make sure that legislation passes by Christmas? Is that what you're indicating? 

BURKE: I presume that the Government won't be able to formally manage that debate to make sure that it doesn't just become a filibuster that goes on forever without our support and without our cooperation. I’m putting down, very clearly, on the record - I don’t think anyone has asked me before on air - that we will cooperate with the Government in making sure that this is dealt with in a timely manner this year. 

KARVELAS: On citizenship, George Brandis flagged future changes to the citizenship act to give certainty to people who were born overseas or have a parent who was born overseas and want a political career. Simon Birmingham went further I thought in my interview he really sort of outlined some changes that could be made without constitutional change. Do you support that kind of legislative change to make it more clear-cut in terms of dual national? 

BURKE: If there are proposals that come back from this committee that it’s been referred to that deal with legislative change then we will deal with those issues in good faith. One of the reasons that we haven't supported this audit proposal is these laws aren't new. This is something that is relevant to every single term of the Parliament and the major political parties have been doing their checks each term at election time and clearly, the minor parties I guess from now on they will be doing the same. But legislative change? If it comes through from the committee and there is a way of streamlining and checking at an earlier point before nomination or something like that to make sure that people are properly nominating then all of that if it’s possible would no doubt be a good idea? Constitutional change, I think given the decision the Government has recently made on indigenous recognition, we would have a very different view if they tried to make politicians a priority. 

KARVELAS: Let’s get to indigenous recognition. Where to now? Because you need a bipartisan approach, we all know it to be true, to get a referendum through the Parliament. That’s now dead. That’s been revealed this week. Where to from here? Because clearly, this idea of a voice to Parliament embedded in the constitution is a completely dead idea. 

BURKE: I don't want to talk in the terms that the door is closed forever. I want to get to a situation where the Government comes back to the table on this. At the moment the other issues that have been referred are going through a committee process. But I don't think you can talk reconciliation, say to the first Australians we want to you consult on what you think is important. Have them come back to you and then you say yeah, no no you got it wrong. If that is the process that we’re going through then we’ve learnt nothing. We’ve learnt absolutely nothing. And part of principals of self-determination and of recognition and of respect involve allowing people to make decisions. And when you ask a community yo go and consult and come back to you with what they want - I don't think it’s open to you to say yeah, nah that’s not what you really want. 

KARVELAS: Okay how about as Nigel Scullion said to me in my radio interview with him this week that you think you’re going to take reconciliation backwards if you take it to a referendum and it’s voted down because the Government says that’s what it thought 

BURKE: And that’s what it thought before they had even worked up a proposal. There's a postal ballot happening at the moment that some years ago probably would have failed. I suspect, you cant get ahead of ourselves but I suspect it’s probably going to be carried. If you work up a proposal and you're willing, over a period of time, to explain to the Australian people the merit of it then if merit is on your side you’ll end up winning that conversation. And I just think before they had even worked up a proposal to be rejecting it out of hand it’s too early to know the answer to that question and there is work that I have to believe the Government at some  point whether they’re in Government or opposition will come back to the table and say we need to work this up. 

KARVELAS: Tony Burke thanks for your time tonight. 

BURKE: Good to be back on the program. 

Tony Burke