FRAN KELLY (HOST): Tony Burke is the Manager of Opposition Business in the House of Representatives. Tony Burke welcome back to breakfast.

TONY BURKE, MANAGER OF OPPOSITION BUSINESS: What a week! And it’s only up to Wednesday.

KELLY: Well and we know things quite well out in to the future now. We know the budget will be on the 2nd April and we know the election will be sometime in May but we also know that thanks to Julia Banks the Government is now deeper into minority status. How tempted will Labor be to push the Government out early to test the numbers on the floor by moving a no confidence motion.

BURKE: Oh look whenever we've had times when we've had numbers on the floor and let's not forget we had a majority on the floor in the first week of this term when the Government members all went home early. Our focus has always been to deal with issues. Back then it was to try to get the Royal Commission into the banking sector over the line. When the Government including Scott Morrison were running all the arguments why we didn't need it. And you know the first thing that we go to with a change in the numbers on the floor is how can we advance the agenda. What are the issues that we can focus on? Previously we've come very close to being able to restore people's penalty rates but there's a series of issues there that we've got on the notice paper that we're now working our way through.

KELLY: So what does that mean you'll move those forward will you now have some of those and do any of those you need absolute majority?

BURKE: Well if all the crossbench vote together absolute majority is now possible. So the principle of working through what sort of what sort of issues we might be able to get agreement on is the absolute focus. On this just look at our record. Whenever we've had a situation where we might be able to form a majority we've gone straight to how can we use this opportunity to try to deliver for the Australian people.

KELLY: So you're already talking to the crossbench to try and get them on board. What kind of bills are you speaking to them about and how quickly when might we see those? Will we see a couple of those come into the Parliament this week or next week.

BURKE: We certainly won't be able to get there on any anything like that this week and in terms of the crossbench it's a case for them to work through the issues in their own time. Some members of the crossbench for example, have been very passionate in agreeing with Labor on wanting to do something about live sheep. There's a series of issues but you don't necessarily have all the crossbench on that but you have members of the Government who have claimed that they would support that issue. So there's a bit of complexity to it all and we've been in this situation for less than 24 hours now. But the first conversations that I've been having with the crossbench have been, you know sometimes people have raised other issues with me, but the first issues that I've been raising with people have been about private members bills.

KELLY: So are you saying am I reading you correctly that perhaps from next week we will see the opposition bringing legislation into the House expecting and anticipating the support of enough crossbench members to get that legislation passed so we will now have opposition introduce legislation being passed in the House of Reps?

BURKE: I don't know whether how we'll be able to go I don't know whether we'll be able to get the majority on a series of these issues but there should be a possibility now of being able to bring people together. We had the situation on Monday where we did have the majority on the floor to be able to have a federal Integrity Commission, a National Integrity Commission, and rather than be defeated on the floor the Government rolled over pretended that they supported it and then spent the rest of the day explaining why in fact they didn't. So you know that's the approach that we'll be taking and you know on the timetable it all depends on a whole series of crossbenchers and what issues we might all be able to agree on. But that's the focus. I know the Government's gone straight to a series of game playing and trying to prevent the Parliament from sitting next year. Our focus has been on the issues.

KELLY: I'm going to come back to the Parliamentary timetable but there was already talk about the quote division dysfunction and civil war within the Liberal Party, that was before Julia Banks quit. If it's really that chaotic if the Government is really going to have legislation sort of forced upon it if you like have we reached the point where no confidence motion is warranted in your view?

BURKE: Well I've never had great confidence in this Government but from public statements from the crossbench it's a motion that at this point would not be carried.

KELLY: As Manager of Opposition Business you can introduce a motion at any time to refer Peter Dutton to the High Court over his eligibility to sit in the Parliament when you tried in August, I think it was, you failed by a single vote. Will the numbers be there now and will you give it another go?

BURKE: My public call, and I've been on the record on this for quite a while now, I've continued to call on the Government to refer him. Peter Dutton is in a different situation to any other Member of Parliament in that we're at a point now where, even if people were referred to the High Court, we will be out of time for by elections. There probably won't even be any sitting days left by the time the High Court made its decision but we're in a situation with Peter Dutton where because of the executive role that he holds in Home Affairs the cases are already starting to turn up in the Courts of people claiming that significant decisions that he made might not be legally backed up because of the doubts and his constitutional status. This is a serious concern. There's a whole series of people, for example who've had visas cancelled, who both sides of politics don't want in Australia. And if there is any legal doubt about the decisions that Peter Dutton made we need that doubt resolved and for whatever action needs to be taken to assure a national security to be done straight away.

KELLY: That's already as you say being tested in the courts by some isn't it? Why not let it flow through the courts?

BURKE: Well I would rather have a situation where it was dealt specifically on this issue rather than someone who we don't want in Australia getting a legal decision they can come here, I'd much rather have a situation where we tested the eligibility, had the eligibility resolved and if we need to take remedial action on those visa cancellations with other Ministers making decisions then there is an opportunity to do that immediately. I think the worst situation would be for a risk to national security to occur and then we say oh now it's time to act.

KELLY: Well let's get a clear answer then from you, I'm not sure if you heard Christopher Pyne earlier but he said If Labor moves to refer Peter Dutton and the numbers are there the Government will also move to refer Anne Aly, Mike Freelander, Tony Zappia, three Labor members and crossbencher Kerryn Phelps.

BURKE: Yeah it's a desperate attempt from their dirt unit, the ones that have been thrown up today, so you can just throw up someone's name and suddenly you've got a challenge.

KELLY: Well these names have appeared before and there are questions and you know Kerryn Phelps for one says she has a legal opinion and it would be the same issue I suppose for Michael Freelander. I mean is Labor prepared to move against Peter Dutton at that risk?

BURKE: At the moment, it's nothing to do with the risk. I've continued to call for the Government to refer Peter Dutton to the High Court on the grounds that we don't want to take any risk with national security decisions. I've been consistent on that. I've continued to call for that and that's what the Government should do. And in the interim, since we started calling for that ,we now have at least one case in the courts where I think there would be very few Members of Parliament wanting that challenge to be successful and the way to deal with it is to squarely deal with Peter Dutton’s case in the High Court through a referral and if we need to take action to secure the decisions that he's made we've got a chance to do that.

KELLY: It’s a quarter past eight and my guest is Tony Burke, Manager of Opposition Business. Two quick issues you mentioned the Parliamentary sitting calendar which was revealed yesterday I spoke to Christopher Pyne about it. He is a managing that calendar to some degree next year. Only 10 sitting days before an election in May. Christopher Pyne says that's business as usual, because they brought the budget a month early. Therefore the number of seeing weeks are less. He said the same number of sitting weeks scheduled for the year. As always fair enough?

BURKE: It's not at all. What this calendar means is that all the way up until August next year Parliament will have only sat for 10 days, 10 days all the way through to August. And when they say they changed the budget…

KELLY: But if there is an election in May couldn’t whoever wins that bring the bring the Parliament back in July?

BURKE: Well, the sitting calendar says we come back in August.

KELLY: Right. But you could adjust that?

BURKE: Well the Government previously has. Previously they've cancelled Parliament, a full week of Parliament, when they were worried we were going to get a Banking Royal Commission over the line. They cancelled Parliament again because their own chaos said we can't even face a Question Time and now they've decided for next year they won't even say it's going to sit in the first place. The budget in April if you look at it this way every other year there have been five weeks of sitting before we got to April. And so they're saying but the budgets in April we can only have seven days. It's a ridiculous argument and their own calendars every other time show that there's time for Parliament to sit and for us to do our job. If a Government is afraid of having the Parliament sit you've really got to wonder who's running the country.

KELLY: Tony Burke just finally when Julia Banks stood in the Parliament and quit the Liberal Party yesterday and moved to the front [cross] bench she raised one of the issues of concern to her was the treatment of women within her party and the fact that her party does not represent women enough. Labor has its own problems and this front perhaps backbencher Emma Hussar has changed her mind. She wants to contest her Sydney seat of Lindsay for Labor. That's after an internal investigation into claims of lewd conduct and sexual harassment of an employee. She was cleared of those allegations though it did find that she behaved unreasonably towards employees. Will she be endorsed for Lindsay? And if not why not? She says if I'm not able to be re-endorsed as the Labor candidate it sends a very poor message to anybody outside the party machines you can't make it here.

BURKE: I won't get into the preselection process other than to say the Labor party initiated a process after Emma had announced that she was not going to recontest the election. So that's when the party initiated the process. That will go through. The one thing I will say, and what you've just referred to, is regardless of the fact that you know we have had quotas that have worked, and we are nearly at 50 per cent, there is no doubt with the range of allegations that Emma Hussar has faced the most offensive of them all, the salacious allegation, should never have been made. Once made it certainly shouldn't have received the publicity that it received and I think everybody has to reflect on whether that particular allegation would have been dealt in that way, were it not for the fact that it was made against a woman. And we all need to make sure the politics is better than that.

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

BURKE: Good to be back.

Tony Burke