SUBJECT/S: Peter Dutton’s eligibility to sit in Parliament; asylum seekers and the New Zealand deal; Kerryn Phelps and the crossbench


PATRICIA KARVELAS (HOST): Tony Burke welcome to the program.


KARVELAS: Labor is raising fresh concerns over a potential third childcare centre linked to Peter Dutton. What are your concerns here?

BURKE: We don't know whether he's eligible to be in the Parliament or not. There's a pretty clear legal argument that says he's got problems. There's a strong argument and this has nothing to do with the citizenship issues that we've dealt with a whole lot through this term. There's another rule that you're not meant to have commercial relationships effectively with the Commonwealth under Section 44. Now, his childcare centres do that and the experience has been people can get legal advice from whoever they want. The High Court has been unbelievably strict on this and the only way it can be resolved is a referral through the High Court and we've been calling on the Government to do exactly that.

KARVELAS: It's been reported that this relates to a development application for a third childcare centre. It's not a centre that's actually up and running. Are you jumping the gun here to see this as an extra angle on this story?

BURKE: We are already there with enough doubt and you're right as an extra layer this isn't as strong as what we've already got. What we've already got is compelling. Even the solicitor general gave an indication as to what he thought might be the better argument, acknowledged that only the High Court can resolve this. This isn't just a Member of Parliament making up an extra vote for the Government. This is the Minister for Home Affairs, some of his decisions are controversial but a whole lot of his decisions are absolutely critical for national security and it's a shocking situation to have any legal doubt over any of that.

KARVELAS: Okay you haven't been able to refer him in the past but the crucial difference now is that you have potentially, potentially because I don't know what her answer will be, the vote of the new Member for Wentworth Kerryn Phelps. She hasn't said how she's going to vote have you raised this issue with her?

BURKE: No I haven't. I'll make contact with her over the break because it'll be about four weeks before Parliament is sitting again when we would expect that Kerryn Phelps will be here as a new Member of Parliament. So certainly I'll be raising it and she's made clear what she wants to see as the evidence on every issue, which is a very responsible way to deal with it. So I don't take anything for granted. But what I would say is this; the last time this was put to a vote it was defeated by one with Peter Dutton casting a vote himself to prevent him from being referred to the High Court.

KARVELAS: What's more complicated is that during the campaign for Wentworth Kerryn Phelps maintained she would remain a Sydney City councillor even if she won the seat. She says she has legal advice that she would not be in violation of Section 44, so she may have constitutional issues too.

BURKE: That's one that the High Court has already dealt with to some extent anyway. They had a court case only in the last 12 months from memory when Jacqui Lambie left the Parliament and Steve Martin became the replacement Senator and there was an issue about him being a councillor in Tasmania. The High Court went through how all that works and said for that one the constitutional problem is not activated at all.

KARVELAS: So you don't think she has any issues because of course she owns some medical centres as well I understand in her electorate and of course the Medicare rebate is obtained by patients. That is also potentially an issue isn't it?

BURKE: Well the Medicare system works as a payment to patients that in the way that that works. It's a charge that would otherwise go to patients that gets paid in that way. I'm not a constitutional lawyer but there is lots and lots of advice for doctors who've been in Parliament for a very long time about the operation of Medicare. Not worried about that. Certainly the local Government issue was pretty well settled last year with respect to Senator Steve Martin.

KARVELAS: So you don't think Kerryn Phelps has any constitutional issues? You think she'll be able to if she is declared the winner and it looks likely this afternoon if you look at the counting, you think she is going to be fine to sit in Parliament?

BURKE: I can't see a situation where she won't arrive as a Member for Wentworth I really can't. And we’ve all been following that count fairly closely. Day two I think it was there were some wild fluctuations back and forth but everybody from both sides of politics in this building has been acknowledging the inevitability of Kerryn Phelps coming here as the Member for Wentworth.

KARVELAS: The crossbench in the House are still pushing for the federal Government to accept New Zealand's offer to resettle asylum seekers. Are you getting any signals from the Government that there is any room for negotiation here or is this effectively dead? Because I've heard what Peter Dutton has to say, the Home Affairs Minister and it looks like this is off the table. 

BURKE: Can I say, I heard earlier in the week you referring, either on this program or the Party Room podcast referring to some words I'd said on Insiders. Where I'm determined that the Parliament doesn't again do what happened with respect to the agreement on Malaysia which is where everybody goes into their corners and we can't get a sensible outcome and you get the obvious suffering and challenges that we're seeing as a result of that. So yes you can take all the words from the Government at the moment that would indicate they don't want to talk, they don't want to compromise, they don't want to have a conversation. I've got to tell you I don't want to accept that. We're often not big on optimism in this building but I really want to believe that the Parliament is capable of seeing the situation and the reports that have come from the AMA and from the doctors who've been treating people on Nauru and to say we can find a way through this. Certainly in the first instance the Prime Minister last week indicated that he was open to conversations. Bill Shorten responded to that and Shayne Neumann responded to that this week and the Government has come back with a bit of a baseball bat, mocking ‘you've got a new position on this’ even though they asked us to come to the table. There must be a way of the Parliament doing what the Australian people expect us to and finding a way through on this. So, yes, on everything that's public and everything that's out there your analysis is spot on. I'm just not willing to accept that yet. 

KARVELAS: Okay so you're still trying to work with the Government? Are you quietly working with the Government behind the scenes? Do you have an audience with members of the Government, even backbenchers who want to work on this?

BURKE: Look the conversations that are happening back and forth at the moment are not at the sort of senior level where you're close to a resolution. But the conversations haven't stopped and I want to find a way through. And I think there is no doubt that there are a majority of members of Parliament, probably in each house, who want to find a way of fixing this and that goodwill should be met with a sensible response not with a new round of political point scoring. 

KARVELAS: How about to the point that Peter Dutton made in relation to adverse security findings on some of the parents of the children on Nauru? Is that a concern to you? Is that a valid argument for why this isn't feasible? 

BURKE: He’s wanting to make an argument which has never been true which is an argument that Labor somehow would not want the proper security checks to be done. Of course, every country has a different way of doing their security checks and the United States system is different to what Australia does different to what New Zealand does. But obviously if a country says they won't accept a person for security grounds, of course everybody accepts that. And so it's been a bit of a rhetorical game to prove that he can still punch us but you hear those words and that sort of concept was never in dispute. But we don't know what the New Zealand security assessment would be of individuals. 

KARVELAS: So in terms of trying to get to a resolution on this thing you're trying to still be optimistic. You say you don't want a repeat of the Malaysia solution that  we remember spectacularly failing in the Parliament. Given that, is someone like Kerryn Phelps who has said this is number one order issue for her, someone that you plan to talk to over the break to try and build a case for this?

BURKE: I certainly will. And Shayne Neumann will be our lead as the immigration shadow on this but because of my role as Manager of Opposition Business in the house I am talking to the independents a lot. The only way this will work, it will have to involve people from every part of the Parliament. It will have to involve the Government, it will have to involve Labor, it will have to involve the crossbench. Ultimately some people want to take credit for everything for their own party. Truth is on this; all that matters is that we get a diabolical problem fixed. That's the sense of purpose that's really driving this. I know during a sitting week the Government may feel the need to lock in and have the arguments and the games that we've seen this week but the offer from Labor was put as a genuine effort of goodwill to respond to what Scott Morrison said last week. I'm hopeful and it may take after this week at Parliament to finish, I am hopeful but that can all get back on track because there are some people with dire mental health outcomes at the moment where their situation is only going to get worse as games get played here.

KARVELAS: Tony Burke thanks for your time.

BURKE: Great to be back on the program.


Tony Burke