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Budget 2018: transcript of interview with Keiran Gilbert: Sky News AM Agenda: 10 May 2018: budget reply; tax cuts; High Court decision

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SUBJECT/S: Budget reply, Tax Cuts, High Court decision

KIERAN GILBERT: With me now is the Manager of Opposition Business, Tony Burke. Thanks so much for your time. Was it all the lawyer's fault the way that this ended up?

TONY BURKE, MANAGER OF OPPOSITION BUSINESS: Obviously we're sorry about how this has ended up and the inconvenience that comes to people. The advice that we followed was the same advice that the Electoral Commission was giving as well. It was the settled view of the reasonable steps test and we now have a precedent that basically knocks out the reasonable steps test, particularly if you come from the UK. Now, one of the things that seems to have been lost in the last 24 hours is the fact that we had tried to refer these cases to the High Court. The only reason these cases hadn't gone to the High Court was when I moved the motion for them to be referred to the High Court the Liberal Party, the Government, voted it down.

GILBERT: Only because you sought to include a number of others that were in a different situation. I'll get to Jason Fallinski, one of those individuals in a moment. You refer to one reason why we're at this point, the other the other one is that Mr Shorten had said role-gold, guarantee, no Labor MP was caught up and he was pretty emphatic.

BURKE: We'd been clear that our reason for that was our belief in the reasonable steps test which had been a settled view for 20 years. It was the advice the Electoral Commission was giving as recently as the Batman by-election. The Electoral Commission was still advising people on the reasonable steps test. The High Court has

now clarified that that is not what we thought it was, what any party thought it was, what the Australian Electoral Commission thought it was. And so once that decision was made we acted within a couple of hours.

GILBERT: But you're saying it as if there wasn't uncontested legal advice. It wasn’t. The Government's legal advice was the complete opposite, that they did have a case to answer. Yet Mr Shorten kept saying no, we don't need to refer these individuals.

BURKE: But as I say, I moved the referral. I moved that they be referred to the High Court.

GILBERT: With a whole heap of Liberals that had no case to answer. They're very different situations. They're not proven dual citizens. They weren’t. These all were.

BURKE: There are two ways people have fallen foul of the Constitution. Either, people thought they could rely on reasonable steps and as of yesterday, we know that they can’t. All people, whether they knew it or not, had a dual citizenship and the people who were referred on the Liberal side were people who were unaware that they had a dual citizenship.

GILBERT: They’ve all been dealt with we know. Barnaby Joyce, John Alexander…

BURKE: No I’m referring to the other four that the Government blocked being referred to the High Court.

GILBERT: Because they don't think there is a case to answer.

BURKE: We didn’t believe we did either.

GILBERT: You’re just trying to muddy the water aren’t you? That’s what you are doing? BURKE: What I'm dealing with is the specific issue as to whether Labor tried to have these cases referred to the High Court. We didn't just try, I’m the person who moved it.

GILBERT: I know you did but you included a number of Liberals that the Government says that they had no case to answer. So why would you refer Liberals, why would they agree to that if they didn’t have a case to answer? That's the point. You should have just referred your individuals and be done with it, but you didn't. And now it's a debacle for Mr Shorten.

BURKE: In the Senate where there was one person the reference was made. Katy Gallagher went to the High Court because we moved that Katy Gallagher go to the High Court. In the House of Representatives, there were a number of people where each side of politics thought their own people would be okay and no one was moving. So we made the decision ‘why don't we just refer all of them to the High Court?’

GILBERT: And it has ended up being a complete debacle for Bill Shorten hasn't it? And affected his credibility. I mean, some of your own colleagues have been saying to me for months that he over-egged it and now this is where it ended up.

BURKE: Well it's ended up where it has. We're now in by-elections and the resignations will be in today for those members and they're off in their electorates finding their campaigns.

GILBERT: It’s a misjudgement though. Do you concede that it was a political miscalculation?

BURKE: We didn't know. The one thing I think we need - it’s the benefit of hindsight now and people are saying it was really clear that this would be the High Court decision.

GILBERT: It’s what the Government has been saying for months.

BURKE: But I think the Australian Electoral Commission is a little bit more independent than either side of politics. As recently as the Batmen by-election they were still advising candidates about the reasonable steps test.

GILBERT: Yes, well that's true. But it's still the question was that it had to be judged by the High Court what was reasonable. And if you've got, as it turns out the Government has been vindicated because it says it should be within the wherewithal of a candidate to renounce before they nominate.

BURKE: What has happened so far, the story of all of this has been what we've said about their people has turned out to be true and it's been tested by the High Court and what they've said about ours has turned out to be accurate when it’s tested by the High Court.

GILBERT: But in terms of Jason Fallinski, let’s look at that case because he’s provided more material. He says - and his lawyers - very clear advice that under Polish law, this is getting all a bit arcane but in terms of the Polish law of his father he was an illegitimate child. Therefore the Polish citizenship wasn't conferred on him, therefore his son Jason Fallinski has no Polish citizenship.

BURKE: That’s right and I don't know how you reconcile that with what's on the front page of The Australian today. Where you've got records that have come out from archives now of him arriving, the father, in 1958 arriving in Australia on a Polish passport. So the person who the Fallinski advice says wasn't a Polish citizen the records on the front page of The Australian today say he arrived in Australia on a Polish passport. 

GILBERT: So you will continue to pursue this case? You think Mr Fallinski needs to be referred?

BURKE: Well if what is in the Australian is true today, up until now I've been saying he should be referred to the High Court. If what's in the Australian today is accurate then he should just resign and we have all the by-elections on the one day.

GILBERT: He’s saying - and as I pointed out he's released more material as well, disputing the case that he ever was. If all that material is there, the legal advice…

BURKE: I don't see how a piece of legal advice from your lawyer gets around the documents…

GILBERT: And the advice of the Polish embassy as well, the ambassador has written a letter saying you don't have the benefits citizenship.

BURKE: I’d read that letter more closely. There's a few generally it's the case these are the general ways things happen.

GILBERT: It wasn’t explicit in your view?

BURKE: No and certainly they were not advised of the information that's been reported today with respect to his father’s citizenship.

GILBERT: There’s a chance to reset tonight for Mr Shorten with the budget reply. Is it a tricky one for him to navigate in terms of the tax cuts because you clearly want to support the first phase of the low to middle income not so much the back end?

BURKE: Well the challenge is how do you make a decision on policies where the Government doesn't know how much they cost? We've had a few months where the revenue figures have turned around. Quite different to what we had only six months ago with MYEFO. The Government then on a few months of better revenue figures, wants us to make 10-year decisions. Now yesterday we spent the whole of Question Time saying give us the updated numbers for how much these different parts will cost year by year. We asked for the same on company tax. A question that last year Scott Morrison was able to give a dollar figure on of $65 billion. This year the exact same question and he won't answer.

GILBERT: Because the tax revenues have gone up, that’s why and the cost is more.

BURKE: Well I suspect that is the view. I suspect he doesn't want to give the figures and he's hiding the figures because he's embarrassed about how much they are giving to the top end of town. Now that's hardly a persuasive argument to get us over the line.

GILBERT: Mr Burke we're out of time. Thanks.

BURKE: Great to be back.



Authorised by Noah Carroll ALP Canberra