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Transcript of interview with Patrica Karvelas: ABC RN Drive: 24 October 2018: Peter Dutton's eligibility to sit in Parliament; asylum seekers and the New Zealand deal; Kerryn Phelps and the crossbench

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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.