IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR RODNEY NORMAN CULLETON
Re Culleton [2017] HCA 3
31 January 2017
C15/2016
ORDER
1.The summons filed by Senator Culleton on 12 January 2017 is dismissed.
2.The costs of the summons are excluded from such order as may be made to the effect that Senator Culleton's costs of the proceeding on the reference be paid by the Commonwealth.
Representation
P E King with P W Lithgow appearing on behalf of Senator Rodney Norman Culleton (instructed by Maitland Lawyers)
N J Williams SC with B K Lim appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
No appearance for the President of the Senate, Senator the Hon Stephen Parry
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Culleton
Constitutional law (Cth) – Judicial power – Election of Senator – Validity – Court of Disputed Returns – Power to hear petition – Whether non-judicial –Constitution, Ch III – Commonwealth Electoral Act 1918 (Cth), Pt XXII, Div 2.
Practice and procedure – High Court of Australia – Failure to raise argument at hearing – Principles applicable – Validity – Commonwealth Electoral Act 1918 (Cth), Pt XXII, Div 2.
GAGELER J. Subject to the Constitution, including the constraints of Ch III of the Constitution, s 51(xxxvi) read with s 47 of the Constitution confers power on the Commonwealth Parliament to make laws with respect to any question respecting the qualification of a Senator or Member of the House of Representatives and any question of a disputed election to either House. The Parliament has exercised that power in the enactment of Pt XXII of the Commonwealth Electoral Act 1918 (Cth), under which the High Court, designated by s 354(1) as the Court of Disputed Returns, is conferred with original jurisdiction under s 76(i) of the Constitution. Within Pt XXII, Div 1 is concerned with questions of disputed elections and Div 2 is concerned with questions respecting the qualifications of a Senator or Member of the House of Representatives.
The jurisdiction conferred on the Court of Disputed Returns by Div 2 of Pt XXII of the Commonwealth Electoral Act is as stated in s 376. That section provides:
"Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question."
Section 377 provides:
"When any question is referred to the Court of Disputed Returns under this Part, the President if…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Re Culleton
Sign in free to access the full text
Details
AGLC
Re Culleton [2017] HCA 3
Case
[2017] HCA 3
Decision Date
CaseChat Overview and Summary
The High Court of Australia, constituted by Gageler J, considered a dispute concerning the validity of the election of Senator Culleton. The matter came before the Court as a reference, with Senator Culleton also filing a summons seeking specific relief.
The central legal issue before the Court was whether the provisions of Part XXII, Division 2 of the *Commonwealth Electoral Act 1918* (Cth), which confer jurisdiction on the High Court as the Court of Disputed Returns, were constitutionally valid under Chapter III of the Constitution, particularly concerning the exercise of judicial power. A secondary issue arose regarding the Court's approach to an argument raised by Senator Culleton after the hearing had concluded.
Gageler J determined that the jurisdiction conferred by Part XXII, Division 2 of the *Commonwealth Electoral Act* was a valid exercise of the Parliament's power to constitute courts and vest in them federal jurisdiction. His Honour reasoned that the function of the Court of Disputed Returns, while involving the determination of electoral disputes, was consistent with the judicial power of the Commonwealth. Regarding the late argument, Gageler J applied established principles that generally preclude the introduction of entirely new arguments after the hearing has concluded, unless exceptional circumstances warrant it.
The summons filed by Senator Culleton on 12 January 2017 was dismissed. Senator Culleton's costs of the proceeding on the reference were ordered to be paid by the Commonwealth.
Orders
Orders of the court
1. The summons filed by Senator Culleton on 12 January 2017 is dismissed.
2. The costs of the summons are excluded from such order as may be made to the effect that Senator Culleton's costs of the proceeding on the reference be paid by the Commonwealth.