SABRA LANE: Tony Burke, good morning welcome back to the program. 


LANE: Four Labor MPs appear to be in breach of the constitution. Susan Lamb, David Feeney, Justine Keay and Josh Wilson how do you respond?

BURKE: Certainly David Feeney if he's not able to find the relevant documents it doesn't make sense the situation because he was asked to do deal with both potential Irish citizenship the UK. The records are all there for the Irish. He's still looking for the records for the UK. 

It doesn't make sense that he would only have done one but if we can't find the documents he needs to be referred. With respect to the other MPs, there are no steps they could have taken prior to nomination that they did not take and that's not in dispute. Every possible step they could have taken prior to nomination they took.

LANE: The constitution’s the law. Based on the documents released yesterday Justine Keay, Josh Wilson were still British citizens when they nominated for election last year. The High Court seems to have a fairly black and white view of this. If you haven't got the renunciation papers back and confirmed you're gone.

BURKE: Well what you've just described is something that the High Court never said. What the High Court has said is you have to take reasonable steps and there are no steps…

LANE:  Reasonable steps before nomination? 

BURKE: Correct yes. And there are no steps...

LANE: And confirmation?

BURKE: No, no. You've just added a word that's not there from the High Court. The only place where…

LANE: They may not have said that but that's the clear implication of the ruling they have previously given.

BURKE: No. When they've talked about reasonable steps they've talked about the steps that a candidate can take prior to nominating. There is no additional step that those individuals could have taken and thought through what this argument that the Liberal Party is currently running would actually mean. Because for the people you've referred to then the British Home Office took many, many weeks, months to be able to process their applications their renunciations for. Fiona Nash, The National Party Senator, they did it in about three days. 

We can't have a situation where the onus which we've always been told is on the candidate to complete all their reasonable steps but the decision about whether or not they're eligible is driven by a junior public servant in Great Britain. 

LANE: Well that's what the rules are. 

BURKE: The only document that says those are the rules are a piece of legal advice prepared for the Liberal Party that Malcolm Turnbull waves around, not from the High Court. I've got to say when it comes to Malcolm Turnbull waving legal advice, we remember what happened last time.

LANE: We’ve got a lot to delve into with Labor. Has the Labor Party blown its credibility on this issue from the leader down, the party has argued the parties checking processes were pure? Clearly they're not.

BURKE: Every check in terms of the reasonable steps test that we had to take was taken. The one area, the one area where we did end up was something unexpected yesterday and there's no way of describing it in any other form was that David Feeney even though he had answered all the questions, he has been unable to provide one of the relevant documents and if that document doesn't turn up then I will be moving that he'll be referred in the Parliament.

LANE: Bill Shorten has previously said he could guarantee that no MPs would be caught up by this. Your critics say that you've been less than upfront in releasing the documentation to show it. Mathias Cormann labelled Mr Shorten, quote ‘dishonest, sanctimonious and a hypocrite’ 

BURKE: And let's think about this the only reason there is a disclosure process at all is because Labor called for it. Were it not for Labor's calling for there to be a disclosure process none of this would be happening. But the way the Liberal Party have dealt with it is to not disclose.

LANE: Neither has Labor. Labor said trust us, believe us. And it’s only because we've now got the Parliamentary process here that you are revealing your documents

BURKE: Which we called for. 

LANE: And we called for. I asked you on this program I asked you when we talked about this on the 15th of August to show us your documents. You said no, there's no need to do that. 

BURKE: And we then ultimately called for this process. The process has gone ahead. The only person who has been unable, like the information that you're referring to with the other Labor members that have been public for a very long time. None of that has changed as a result of the disclosures. The one person for whom the situation has changed is David Feeney where we had been told a decade ago that actions had been taken with respect to both Ireland and the United Kingdom and at the time of the close that everything had to go in, he’d been unable to locate one of those relevant documents.

LANE: Steve Georganas, Emma Husar, Anne Aly, Ed Husic, these people?

BURKE: Steve Georganas? Sorry, Steve Georganas has…

LANE: Hand on your heart they are all in the clear?

BURKE: Steve Georganas I came into Parliament the same time I did and every election has renounced his Greek citizenship. Every election, just in case, he renounces it again. Julia Banks, Alex Hawke, Michael McCormack, Arthur Sinodinos none of them have any record of ever announcing their Greek citizenship. So of all the examples in this, it's hard to find a member of Parliament who has done more than Steve Georganas in terms of repeatedly renouncing every time he's contested.

LANE: How does this end? Is this a game of mutually assured destruction between the Government and Labor?

BURKE: I think what we're in now is a situation where there will be a very large number of referrals to the High Court. What we can't have at the end of all of this is a situation where either the Government uses its numbers for hostile referrals or where the public still have question marks and the High Court don't get to deal with all the relevant issues. The Labor ones who you've referred to the Government has either said they will refer them or David Feeney’s case I've made clear I'll refer them. But the Government must not use its numbers to resist its own members being referred. 

LANE: Well Josh Frydenberg, his ancestors were Jewish. They were made stateless. The Shadow Attorney General seems to think he should be referred. But your own party's deputy leader has said that that would be a disturbing thing to do. A bridge too far.

BURKE: And he's probably okay. But he said in the declarations, the disclosures, that he has a Hungarian document, a Polish document and an Australian document but he won't disclose them. Now the whole process of disclosure can't be just to say 'I've got these documents, they put me in the clear but I'm going to keep them secret'. I wouldn't be surprised if what the Liberal Party has done is they know which members are in trouble and they've got a large number saying ‘I'm not going to give up my documents’ so that we don't know exactly who is in trouble. Josh may well be fine, but you can't have a system where you say ‘I've got the documents but I'm keeping them secret’. 

LANE: How well prepared is Labor to fight a rash of super Saturday by-elections?

BURKE: At the moment we're in a situation where any day they want to have a general election, which is your ultimate Super Saturday, we are there for a general election and we are ready to put this Government out of office. 

LANE: And David Feeney he could be in trouble? He used to be a safe seat with a 10 percent buffer now it's 1 percent, he’s under threat by the Greens.

BURKE: We don't take any seat for granted and as I say, at the deadline, David hadn't found the relevant documents. He's still looking for them. I will move this week that he be referred if he still hasn't found them.

LANE: Tony Burke thank you very much for joining AM this morning. 

BURKE: Great to be back.

Tony Burke