DAVID SPEERS (HOST): Tony Burke is the manager of Opposition Business, also the Shadow Minister for the Environment and Water. A very good morning to you Tony Burke thank you for joining me. Can I just before we get to the medical transfers ask you about the story this morning in relation to what's coming at the ALP national conference that some in Labor will be pushing for you to dump offshore processing altogether and boat turn backs altogether. Now, I can't imagine that he is going to happen at the conference but if it did would that have an impact on Labor policy? Would it mean you'd have to follow suit in terms of your policy?

TONY BURKE, MANAGER OF OPPOSITION BUSINESS: Look, this article appears before every Labor conference at least since 2004. It may well have occurred before as well. But every national conference there are some delegates who push for this and every national conference there's been a determination to make sure that we don't adopt any policy that would start the drownings again and secondly to make sure that within that frame that we're being decent to people as we can. Now if you stop the turnbacks policy I don't think there's any doubt and certainly, all the advice I've seen would be that the drownings would commence again. We tried to effectively introduce a turn backs policy with respect to the Malaysia agreement. That's the agreement that Scott Morrison voted with the Greens to prevent happening. Half the people who drowned when we were in office drowned after Scott Morrison and the Greens had spiked that Malaysia Agreement. What we're seeing with the conference is the same we've seen at each conference. I don't mind that there are some delegates who have that view and they push it but they haven't been in the majority in the past and they won't be in the majority this time.

SPEERS: Well let's talk about where you have shifted and that's on these medical transfers. Just to clarify a few things, would this new approach apply to both refugees and those who have been found not to be refugees but are still on Manus Island and Nauru.

BURKE: The first thing can I say, it doesn't only deal with the security issue that you referred to in your intro, the advice that I’ve received it also refers to the minister can knock someone back on the grounds of there not being the necessity. So for example, if doctors recommended particular care and that level of care was, in fact, available on Nauru the minister would be able to say there's no necessity for that transfer. So the ministerial discretion is a good deal broader than what the government's been wanting to claim. The principle here is not that somebody gets transferred to Australia and gets to live here permanently the principle is someone gets transferred for medical treatment on the basis that they're in our care. So it doesn't hinge on someone having a permanent claim to asylum or a successful claim, it hinges on this concept if someone is in our care and they need medical care then medical care should be provided. Of all the different things that have been said by the government with respect to refugee and asylum seeker policy up until this last fortnight, I can't remember anyone claiming that in order to stop people from drowning at sea we needed to deny medical treatment to people within our care. That's a new argument. That's an argument that the government has got to think about what has the policy become? If in the mind that the government now critical to stopping people drowning, it’s an important point though David, if it's now meant to be critical to stopping drownings at sea that you have people in need of medical care and you deny it to them. It's an extraordinary claim from the government.

SPEERS: Well the government, of course, would say they do receive medical care there in Manus Island and Nauru but we can put to one side I suppose the debate about the sufficiency of that care. Just to pick up on what you said about coming here for treatment. Reading the amendment that Labor is supporting it also would apply if the doctors believe they just need to be assessed in Australia and says that quite clearly the person requires medical or psychiatric assessment or treatment. So two doctors simply have to form the view that a person needs to be assessed in Australia and they would come.

BURKE: And once again the minister would have to determine that that assessment couldn’t be conducted on Nauru. And once again the full breadth of the ASIO Act, if there's any national security risk at all to bringing someone here would apply. There's still a broad discretion for the minister but what the minister would be no longer able to do is simply say well I'm not even going to have a look at what the doctors are recommending and that's the big shift.

SPEERS: Okay but you're arguing here, Tony Burke, that the minister could simply say they can be assessed or treated in Nauru or Manus and therefore that transfer can't happen. My understanding is that a medical panel can overrule the minister there under what you're suggesting. The minister can only stop a transfer on security grounds under the definition in the ASIO Act.

BURKE: Look I've explained to you as it has been briefed to me in terms of the issue of necessity being something there. Both ministerial claims in different ministerial decisions in different ways under the Migration Act have different levels of review. On occasions of medical assessments there can be a medical review, on occasion security assessment there are different very limited legal reviews that happen. The problem is that some of these reviews are happening already because of the doubt as to whether Peter Dutton is even qualified to hold his job. And they're happening without any supervision from the Parliament in terms of security rejections that he's made.

SPEERS: And that's another matter I suppose about Peter Dutton’s eligibility but just coming back to where the minister can deny transfer if it is on security grounds under the definition of the ASIO Act. I mean that Act says we're talking about espionage, sabotage, politically motivated violence and promotion of communal violence…

BURKE: David if I could just cut you off there…

SPEERS: …or acts of foreign interference and I just want to finish this. That would seem to be a…

BURKE: You’re going to a level of detail that you’re going to have to go to the relevant shadow.

SPEERS: I appreciate that. But what you’re saying is the minister has a broad ability to knock back a transfer.

BURKE: Sorry David but with that level of detail you will have to go to the relevant shadow.

SPEERS: Okay but when you're saying there's a broad power for the minister to knock back a transfer, what I'm pointing to there is is what you've agreed to and it seems to be fairly narrow it doesn't include other serious offences, for example.

BURKE: The breadth of the ASIO Act is pretty wide, it's pretty extraordinary as it should be. Because we want our intelligence agencies to have that sort of full breadth. That's why the same definition has been put there. If there's a problem in terms of whether or not that properly safeguards national security then there'd be a problem with the ASIO Act itself and I haven't heard the government argue that.

SPEERS: Alright. Can I just ask about the Parliamentary tactics on this then at least Tony Burke? This didn't go to the house on the final day but can you just explain to us when Parliament does come back given its past the Senate and given it's an amendment to a government bill, will this have to be voted on in the house? Is there anything the government can do to avoid that?

BURKE: The only thing available to the government I guess would be for the Parliament not to meet at all. We've seen before that's not beyond them. But what will happen when Parliament comes back is waiting on the speaker's desk will be a message from the Senate. That has to be reported to the House at the first opportunity and if there's one thing I think we can say about Tony Smith as the speaker is he has followed the precedence and the rules to the letter. So I don't think anyone would argue that he'd act improperly here. So it'll be on his desk, he'll read the message to the Parliament and then Parliament will have to vote as to whether we agree or disagree to the message that's come from the Senate. That decision doesn't require 76 votes, it doesn't require an absolute majority it's a simple majority on the floor as to whether or not the House wants to agree with the amendments that have gone through the Senate.

SPEERS: And you have given, I understand it, an assurance to the crossbenchers that if you win this vote, you wouldn't follow it up with a no-confidence motion. Why is that?

BURKE: Look, my view when numbers change on the floor is you need to look at the issue at hand and you need to focus on the issue. You’ll remember it was only in the first week after the last election when government members all got on planes went home early and we had a three hour period where the government didn't have the numbers on the floor. We used every minute of that time to pursue the banking Royal Commission and we focused on it and we tried to get it through and we basically missed out by 30 seconds in the end when one crossbencher got late to a division. In terms of what we would do on this issue? We are focusing on the issue. There is a real problem if you have a government that is willing to ignore medical advice in the way that Peter Dutton has been willing to. For a whole lot of people who many of whom, including myself, who are willing to go down some policies in this policy area that can be considered pretty tough, when it comes to knocking back medical advice, you don't need to go there in order to make sure that people don't drown at sea. When the issues are that important, you focus on the issues. Some commentators will always argue that it's all a political game and the government this time around tried to argue in the Parliament that Labor's just playing a game with all of this. No, it's an important issue and we'll deal with it on its merits. I thought it was important that I guarantee to the crossbench, you know some crossbenchers probably would have liked me to move a no-confidence motion immediately if it had been carried. I think the public expects that we will deal with issues as they are when they're in front of us.

SPEERS: Can I just ask a couple of other issues here Tony Burke. The Government and Labor couldn't reach agreement on religious schools balancing their rights against gay kids not being discriminated against in school. It seems to me in principle both sides seem to be on the same page but not on the detail. I mean, what is wrong with what the government's put on the table here as far as you're concerned?

BURKE: Effectively the challenge with what the government's put forward is they've wanted to replace one exemption to anti-discrimination law with a new exemption. What an exemption is, is permission to discriminate. Now, the Senate was already willing to resolve, Labor had moved, I'm not sure in terms of the Senate whether it got carried or whether they got to that point the debate or not, but to resolve an acknowledgement for religious schools to be able to run as religious schools. Everyone was shocked when we found out that schools were able to discriminate specifically against children based on who they are and who they love and at an age where kids are working themselves out. And most of the religious schools say they don't even want this exemption anyway. What I think Scott Morrison has done here is he knows that we won't support replacing one form of discrimination with another. He knows that. That's why he did the grandstanding of put in a private member's bill demanding a conscience vote, even though on marriage equality for all those years they wouldn't allow a conscience vote. And I think it really goes to how this government operates. They don't look for the outcome. They look for the angle. They always look for the political angle. They know that religious schools are able to run as religious schools. They know that just getting rid of the exemption on children would not jeopardise that. But they wanted to keep a political angle and therefore they didn't want the issue resolved. They did the same with respect to the security legislation during the week. If their argument is they listened to the advice of doctors then they wouldn't have a problem with the legislation that's in front of the Parliament at the moment either. At every turn now if there is a chance to get an outcome, this is why we haven't had an energy policy for five years. If there's a chance to get an outcome they just want to say how can we keep the fight going for Labor? Well, that's not the way to run a country.

SPEERS: All right, a final one Tony Burke. The lessons of this Parliamentary year as it draws to a close, it has been another fairly wild one and we finished in a hung Parliament territory once again. I mean, do you think governments are going to get used to working with hung Parliaments more often? What do you say about the way this Parliament has worked this year?

BURKE: I think the place has been chaotic. I don't think there's any way of describing the year that we've had. It's been chaotic, it's been disappointing, I think a whole lot of Australians have gone from being angry at the place to just tuning out. And as people go into their summer holidays they'll avoid political conversations as much as they can but if they're stuck in one they will really ask themselves why on earth Malcolm Turnbull isn't still the Prime Minister? I don't think anyone can say the place has improved in terms of order or good government since he was turfed out and Scott Morrison came in. In terms of hung Parliaments, from time to time, everyone has to work with the Parliament they're given and every major party will try to get a strong majority government and certainly I hope after the next election, we don't take anything for granted, but I hope we get a strong majority for a Shorten Labor government. But the only reason we have a hung Parliament now is because they got rid of Malcolm Turnbull. That's the only reason it happened, as a result, they lost both Wentworth and Chisholm. And if that's the way they run themselves I think the public will be having a pretty serious look come election time in terms of the stability of the united Shorten team versus the self-described Muppet show that they've given us over the last few years.

SPEERS: Manager of Opposition Business Tony Burke, thank you very much for joining us this morning I appreciate it.

BURKE: Okay, all the best. Thanks, David.

Tony Burke