FRAN KELLY (HOST): Tony Burke is the Manager of Opposition Business, he is in our Parliament House studios. Tony Burke welcome back to breakfast.


KELLY: Well, did Labor blink in the end? Passing the Government's encryption legislation at the eleventh hour. Basically so the Prime Minister couldn't accuse you all summer of being soft on terrorists. Is that what happened?

BURKE: That's absolutely not why. It is true that the only reason those laws passed was because Bill Shorten decided that they needed to. Scott Morrison was willing to have those laws not passed. There had been a unanimous agreement from the Intelligence Committee that certain amendments had to go through and Labor's position was that we wanted to see all those amendments through. Scott Morrison then stopped the Parliament, clocked off, went home at 5 o'clock to make sure that the amendments couldn’t go through. It was one of those cases where effectively Scott Morrison chose he'd rather have the angle, he'd rather have the political fight than have the outcome. Bill Shorten decided the outcome was more important. He [Bill Shorten] wanted to make sure that even though the amendments that had been put forward so far didn't fully implement the committee's report, he wanted a commitment from the Government that when we came back in February the rest of the amendments would then be put to the Parliament.

KELLY: But Bill Shorten only decided that very late in the day after Labor holding on all day to get amendments to the Bill. At the last minute when half the Parliament had gone home he said okay, have your bill without our amendments. What was that if not political manoeuvring?

BURKE: Well no, you can understand absolutely why we fought the whole way through to try to get the full report implemented and that was the right thing to do. In fairness we did not expect that Scott Morrison would decide that he'd rather have the political fight than get it fixed.

KELLY: You didn't expect that? You say if it wasn't to stop the PM calling you soft on terrorists and pedophiles. What was this if not a tactic to try and tempt the Government into giving in on offshore detention changes in the knowledge that if they didn't do that in time then they would risk not getting these encryption laws through?

BURKE: The Labor members on the National Security Committee get the intelligence advice and make decisions based on what keeps Australians safe. That's what they do

KELLY: At the eleventh hour?

BURKE: No, they made the recommendations for all the amendments to go through. And so we fought the whole way through as to what was the pathway, one, to make sure that protections that were necessary for people were put in place and secondly to make sure that the full gamut of all those amendments could find their way through. We were left with this choice, Scott Morrison had gone home. He decided he was very happy to have the political fight and not get any of the protections implemented. We decided that it was better to get the protections implemented immediately provided the Government agreed that all the amendments that had been recommended by the committee ended up back before the Parliament in February. Only when the Government agreed to that did we then make sure that the legislation went through. Think about this, for everything that Scott Morrison has said over the last couple of weeks and there's been some pretty extreme language about how important he said those laws were. He was willing to not have them passed at all because he thought it was exciting to be able to have a fight with Labor.

KELLY: Well, that's your take on it. But he says Labor put politics ahead of national security by trying to embarrass the Government with the asylum seeker bill.

BURKE: If the resolution on asylum seekers was a resolution simply saying the Parliament condemns the Government then you'd be able to at least credibly run an argument saying this is some political game. That's not what happened. What was happening in the Senate was a change to the law. A change to the law that would have guaranteed that medical advice was taken first for people within Australia's care. When you're talking about changing the law that's not a political game, that's actually the job of Parliament. That's why we're here.

KELLY: You see, both sides are accusing each other of political games. That was exactly the language used by the Prime Minister when he went on the attack yesterday saying that Labour can't be trusted with Australia's borders. That's an attack that wounded labour in the past.

BURKE: We're not afraid of making sure that people within Australia's care are in a situation where the Government has to listen to medical advice. I mean really to describe that as a political game. I just find that extraordinary. What Scott Morrison had in front of him was a situation where the majority of the Parliament says you haven't been listening enough to the doctors and we want to make sure that you do. And we didn't carry a resolution, a stunt, a condemnation. We had legislation go through the Senate to change the law. Scott Morrison decided that that was such a bad thing to do that he would rather dump all the national security legislation he'd spent the previous two weeks talking about

KELLY: The Prime Minister had two angles on this he said that was a bad thing because he described it as basically unwise and dismantling the offshore detention operation regime but also there was a political reality for the Government. If the Government had been defeated on the floor of the House on that bill it would have been the first defeat for a Government and the House of Representatives in 89 years would that have been a de facto vote of no confidence in the Government in your view.

BURKE: It wouldn't have been a vote of no confidence he still would have been Prime Minister and you've asked me about these issues before and I go back to our record when you know in the very first week of this term when we had the majority on the floor because they'd gone home early again. What did we do? We didn't move a vote of no conference. We tried to make sure there was a Royal Commission into the banks. On this occasion we're making sure that people on Nauru, that medical advice has to be listened to and you know the crossbench had asked me would I suddenly move a vote of no confidence that this was carried? And I said no. What we were there to do was to deliver an outcome and what Scott Morrison has decided is the outcomes of this Parliament don't matter. All he's concerned about is the political angle and when the angle is not going to suit him he would rather cancel the Parliament. He cancelled the Parliament for a full week when we had the numbers for a Royal Commission. He cancelled the Parliament only a few months ago because they wanted to sack Malcolm Turnbull. And this time they cancelled the Parliament to try to keep people on Nauru even if doctors say they need medical attention.

KELLY: Can we try and make it clear for people listening then what actually where we ended up yesterday on this bill? Because you're right it is an important piece of policy. The Senate did pass the amendment on that on that Manus and Nauru asylum seeker bill about medical evacuation let's call it the Phelps bill. The House had adjourned. What happens now? Will that bill that amended bill come into the House when Parliament resumes in February. Will it be passed into law if the numbers are there on the floor of the House or can the Government prevent that again?

BURKE: So when Parliament next sits which now we presume won't be until February. There will be a message waiting with the Speaker from the Senate which the Speaker will report to the House. And the House will have to decide by a simple majority whether we agree with that message and the message will be that the legislation is reported back to the House from the Senate with amendments. Does the House agree with those amendments or not and with a simple majority if we agree with those amendments then medical advice will have to be followed.

KELLY: Tony Burke on another matter just finally and briefly if you would. Emma Hussar, Labor Member for Lindsay, stood and said she's not a thief, she's not a bully, she's not Sharon Stone. Will Labour change its mind and back her? A woman feels she's been defamed and unfairly shamed by the media.

BURKE: Two separate issues in terms of the preselection process itself. The Labour party initiated the preselection process after Emma had said she wasn't going to run again. And my understanding is that's been dealt with today by the admin committee. I'm not part of that but that's the process there. In terms of the issues that Emma raised yesterday and I stood up immediately after she had, everybody in the House showed complete respect and I think there is a frustration and I very rarely comment on the media itself, I let the media comment on itself. But there is no doubt that in at least one of those allegations certainly the most salacious allegation against Emma Hussar it was demonstrably untrue and it was published one minute before she was asked for comment. And that is a terrible way for any organisation to pretend to be informing the public.

KELLY: Tony Burke thank you very much for joining us.

BURKE: Enjoy your break Fran.

Tony Burke