FRAN KELLY (HOST): Why have one election when you can have two? The Morrison Government has reportedly looked at sending voters to the ballot box twice next year. First for the Senate and then later for the House of Representatives to give the Government more time to regroup following the leadership coup that unseated Malcolm Turnbull. The manoeuvres being canvassed as all six crossbenchers in the hung parliament leave open the possibility of preferring Liberal backbencher Chris Crewther to the High Court which would further undermine the government's grip on power. Tony Burke is the Manager of Opposition Business. Tony Burke, good morning.


KELLY: Now, the Prime Minister's office has told us this morning there are no plans for dual elections but we do understand that the two election option has been under active consideration. If the election for the Reps was delayed until November it would give the government more time to recover its position with the voters. How would that affect Labor's chances do you think?

BURKE: Whenever an election is called Labor is ready, we're stable, we're united. But the fact that the Government has even had this consideration is about as focused on yourselves as you can get. It would have them clinging to power until the last minute for the election, inconvenience to the public, massive additional costs. This is something that ordinarily the concept of separating House and Senate elections, governments of both sides have just dismissed as not even an option.

KELLY: It has been done before, a few times.

BURKE: But you don't want to nominate the date because it's a while ago.

KELLY: No it is, the sixties and the seventies, just for everyone listening.

BURKE: And so the reason it hasn't happened is that the public know that if you make that sort of decision it's all about the politicians, it's not about the public. Why is it good for the public to have to vote twice? To have to pay for two elections? It's a ridiculous proposal and I'd be surprised if they end up deciding to do it. What stuns me is that they even had it under active consideration.

KELLY: Well the Prime Minister's office has told us this morning that there are no plans for a dual election. The election will be next year and most people have been thinking it would be May after the NSW state election. But it is possible for the Government to have an election in early March to be called soon after Australia Day. When do you think the election is most likely?

BURKE: I think the story today says it all. The timing will all be about power and it'll be chosen obviously by Scott Morrison.

KELLY: Which is always the case.

BURKE: Well I don't know that it's always all about power.

KELLY: Well the adage is that Prime Ministers go to the election when they think they can win.

BURKE: And maybe that's why he was wanting to cling to the last possible date with this other thing being under active consideration. But they've got the problem that at the last election they spent a whole lot of the campaign saying how illegitimate minority government would be and that's the reason you shouldn't vote Labor. They're now in exactly that situation as a minority government which they said would bring instability not just for the Parliament but for the economy. And every day it goes on the fact that Scott Morrison still can't even say why Malcolm Turnbull's not Prime Minister just makes the public think what on earth is happening here?

KELLY: Let's go to the other notion with regards the hung Parliament. None of the six crossbenchers have ruled out supporting a Labor motion referring Liberal MP Chris Crewther the Member for Dunkley to the High Court under section 44 of the Constitution. A number of crossbenchers say they want detail briefings, Kerryn Phelps told us this yesterday before she makes up her mind for instance. Is Labor planning to test the numbers by seeking to refer Chris Crewther when Parliament resumes later this month?

BURKE: We're certainly providing all the information we can to the crossbench. I have always said on these matters that the smart thing for the government to do is for them to make the referral themselves. Now, the government threatened a number of times referring our members and ultimately once the Katy Gallagher case came down our members made the decision the High Court ruled on our facts anyway and went straight to by-elections. But no one can say that they can be sure what the High Court will rule on these matters and every time the Government walks into Parliament without a majority. So they're by the skin of their teeth every day and if there is any reasonable argument that says constitutionally they might not be entitled to be there, even with just one of their members, you have to refer to the High Court.

KELLY: Well that’s the notion of whether there is a reasonable argument. We've heard from constitutional lawyers in recent days like Anne Twomey and George Williams, two of our top constitutional lawyers, of the view that Chris Crewther probably doesn't have a problem. His shareholding in the biotech company Gretals Australia probably doesn't have a financial agreement with the Commonwealth, even if it's received a benefit via research grants. Have you sought your own legal advice on this?

BURKE: I'd have to refer the full detail of that to Mark Dreyfus. The issue that we have though, and it was the same with the solicitor general's recommendations on Peter Dutton, is we all know that we've all been wildly off on predicting what the High Court would do in these cases.

KELLY: So given that, will you let sleeping dogs lie? Or is Labor actively contemplating or in view that the position of Chris Crewther should be tested in the High Court?

BURKE: Well, our view is that it should be tested in the High Court and we are calling on the Government to move the motion themselves. That's what the Government should do.

KELLY: If it doesn't do that will Labor try and bring it on?

BURKE: We'll deal with that when we get there. At the moment our position is that the Government should do that. It goes to every law that's passed in the Parliament. It goes to whether or not the Government has any legitimacy to govern. It's not unreasonable to say the High Court should check and from the Government's perspective, it's one thing to have not realised that Peter Dutton or Chris Crewther might be having these problems but it's another thing to not care and to not care and to not bother to check.

KELLY: Don't you think the Australian public are a bit sick of the parade of MPs through the High Court? They just want the Parliament to get on with governing.

BURKE: I think that's absolutely true. They also don't want the Constitution to be ignored. That's reasonable too. They want whoever is in government for it to be legitimate. And as long as you've got a government that is hiding and refusing to let the High Court check on the eligibility of its own members, one of whom is in charge of national security and home affairs then it's just a reckless way to deal with principles that have been in our Constitution for more than 100 years.

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

BURKE: Good to be back.

Tony Burke