PATRICIA KARVELAS: Tony Burke welcome to the program. 


KARVELAS: Malcolm Turnbull says his Government will refer Labor and crossbench MPs with doubt over their citizenship status to the High Court. Now I know you're contesting this. You want any MP to be able to make that reference. How are you going to go about achieving that? Are you in talks with the Government to change the rules around this.

BURKE: I’ve raised this with the Government earlier in the week and I've been waiting for them to come back to me. I'm hopeful that they're sensible about this. It didn't matter previously when you had a situation where we were only dealing with self-referrals. They've decided in the years to come they may regret it but they've made the decision so that's life, that they're now willing to do hostile referrals and refer opposing political parties. 

That's fine if that's the world we're in. You can't have a situation where one side of politics can do that and the other side of politics can't. At the moment we're heading to a situation where a Liberal Party minister can refer any member of the Liberal Party, National Party, crossbench or the Labor Party but no one else in the Parliament can. If anyone else wants to move something it cannot be brought to a vote. That's the situation we're in at the moment. Now, I think the Australian public if they see a situation where the Liberal Party can play hostile games against their political opponents and nobody else has the capacity to move something about a member of the Liberal Party who should be referred to the High Court, I think people will see that for exactly what it is. 

KARVELAS: So how are you going to achieve it? You said you've raised it with the Government. Are you hopeful that the Government would be convinced?

BURKE: I am hopeful that the Government will be convinced but if they're not then this will play out on the floor of the federal Parliament tomorrow morning.

KARVELAS: How will it play out?

BURKE: Well we've got a situation where we will be having votes on the floor of the Parliament. There'll be motions moved by the Government and there'll be amendments moved to those motions. This is a week where the Government doesn't have a majority on the floor in its own right. So it would be extremely unwise for the Government not to agree to what is a reasonable request that any member of Parliament is able to move such a referral. You'd still need a majority of the Parliament for it to be carried. But we just can't have a situation, I will often refer to the Government as born to rule but I can't think of what's more born to rule than have a situation where one political party can refer anyone they want to the High Court but their own members are completely protected from anybody else doing the same back to them. 

KARVELAS: Tony Burke can Parliament return after Wednesday night's declarations? I've been told that the Parliament may not come back if there are referrals after that deadline. 

BURKE: The Parliament is sitting. The Parliament has been scheduled to sit so, the Government can cancel sittings when Parliament is not on but once we're all here if they want to change the sitting calendar then it needs to be done through a vote of the House of Representatives.

KARVELAS: So even if there are some resignations and referrals you think it can continue to sit?

BURKE: Well it'll be a decision of the house. It may well be a sensible decision for the house to rise but we'll wait and see where we're at. As you know our view was that we shouldn't have the situation where Barnaby Joyce was sitting in the chamber and voting when there was a serious doubt over his eligibility and that had been carried unanimously by the Parliament that he was in doubt and they kept him voting there only to find out that yes he was, in fact, ineligible and had been his whole Parliamentary career up until then. 

So you know we'll wait and see how many referrals there are. But the first thing that has to be done is to make sure that referrals are not a party political game.

KARVELAS: If there are a number of referrals, if I can just get in here, do you think there would be an argument potentially that the Parliament rise?

BURKE: It will depend on how many on each side, it will depend on a whole range of things. I'm sorry to give you an answer other than it depends. But that is the accurate answer before we know… 

KARVELAS: But it is a live option that Parliament might need to be suspended if there are a couple of referrals. Is it a live option?

BURKE: Well we'll wait and see. We'll just wait and see where we're at. I'm sorry for not being able to give you more than that but there are too many layers of hypotheticals on this one.

KARVELAS: Okay do you accept though that it will have implications for the same-sex marriage debate and passing that bill?

BURKE: No I don’t. Look the fact is whatever problems we discover during the course of this week have been problems that have existed constitutionally ever since the last election. That's the reality of what we're dealing with. Barnaby Joyce was found not simply to have a problem that suddenly arose the day of a High Court decision, he'd had a problem his entire political career. When he comes back it will be the first time he's been elected under the Constitution. So these issues are not brand new. I think the public having been put through what the public was put through with that postal ballot has a reasonable expectation that this issue will be dealt with and dealt with to its conclusion this week. 

KARVELAS: Tony Burke many thanks for your time. 

BURKE: Good to be back on the program.

Tony Burke