Re Culleton (No 2)

Case [2017] HCA 4

HIGH COURT OF AUSTRALIA

KIEFEL, BELL, GAGELER, KEANE AND NETTLE JJ

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 [No 2]
[2017] HCA 4

3 February 2017

C15/2016

ORDER

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 8 November 2016, as amended by orders made by French CJ on 21 November 2016, be answered as follows:

Question (a)

Whether, by reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned?

Answer

By reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned.

Question (b)

If the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers.  Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Senator Culleton's costs of the proceedings should be paid by the Commonwealth save for costs excluded from this order by an order of a Judge.

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 C L Lenehan and B K Lim appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

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 [No 2]

Parliamentary elections (Cth) – Senate – Reference to Court of Disputed Returns – Where at date of nomination person convicted of offence punishable by term of imprisonment for one year or longer – Where person liable to be sentenced – Where person elected as Senator – Where conviction subsequently annulled – Whether annulment of conviction of retrospective effect – Whether person incapable of being chosen as Senator under s 44(ii) of Constitution – Whether vacancy should be filled by special count of ballot papers.

Words and phrases – "annulment", "convicted and is under sentence, or subject to be sentenced", "incapable of being chosen", "retrospective effect", "special count", "void ab initio".

Constitution, s 44(ii).
Commonwealth Electoral Act 1918 (Cth), ss 364, 376.
Crimes Act 1900 (NSW), s 117.
Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 9, 10.
Crimes (Sentencing Procedure) Act 1999 (NSW),…

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AGLC
Re Culleton (No 2) [2017] HCA 4
Case
[2017] HCA 4
Decision Date

CaseChat Overview and Summary

The High Court of Australia, sitting as the Court of Disputed Returns, considered a reference concerning Senator Rodney Norman Culleton. The dispute arose from Senator Culleton's eligibility to be chosen as a Senator for Western Australia under section 44(ii) of the Constitution, given a prior conviction for an offence punishable by imprisonment for one year or longer. The question was whether an annulment of this conviction had retrospective effect for the purposes of constitutional disqualification, and if so, how any resulting vacancy should be filled.

The Court was required to determine two primary legal issues. Firstly, whether Senator Culleton was, by reason of section 44(ii) of the Constitution, incapable of being chosen as a Senator, thereby creating a vacancy in the representation of Western Australia. Secondly, if a vacancy existed, the Court needed to decide the appropriate means and manner by which that vacancy should be filled.

The Court reasoned that the annulment of Senator Culleton's conviction did not operate retrospectively to cure his initial ineligibility to be chosen as a Senator. Section 44(ii) disqualifies a person who "has been convicted and is under sentence, or subject to be sentenced, for any offence punishable... by imprisonment for one year or longer." The Court found that at the time of his election, Senator Culleton fell within this disqualification. Consequently, there was a vacancy in the representation of Western Australia. The Court ordered that this vacancy should be filled by a special count of the ballot papers, as this method would best reflect the true legal intent of the voters, given that the vast majority of votes cast for Senator Culleton were for his political party. Senator Culleton was ordered to be paid his costs by the Commonwealth, subject to certain exclusions.

Orders

Orders of the court

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 8 November 2016, as amended by orders made by French CJ on 21 November 2016, be answered as follows:

Question (a)

Whether, by reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned?

Answer

By reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned.

Question (b)

If the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Senator Culleton's costs of the proceedings should be paid by the Commonwealth save for costs excluded from this order by an order of a Judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL, BELL, GAGELER AND KEANE JJ NETTLE J
Since Senator Culleton was incapable of being chosen as a Senator for Western Australia, the votes actually cast in favour of the party of which he was an endorsed candidate should be counted in favour of the next candidate on that list, at least so far as votes "above the line" for Pauline Hanson's One Nation party are concerned. There is no reason to suppose that the votes cast "above the line" in favour of that group were not intended to flow to the next individual nominee of Pauline Hanson's One Nation party in the event that Senator Culleton was not capable of being elected. The evidence established that 96.04 per cent of the votes received by Senator Culleton were votes for Pauline Hanson's One Nation party. A special count would not distort the true legal intent of the voters.Conclusion The questions referred to the Court were[31]:(a) whether, by reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned;(b) if the answer to Question (a) is "yes", by what means and in what manner that vacancy should be filled;(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and(d) what, if any, orders should be made as to the costs of these proceedings.[31]Question (a) was amended by orders made by French CJ on 21 November 2016. These questions should be answered as follows:(a)By reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned.(b)The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.(c) Unnecessary to answer.(d)Senator Culleton's costs of the proceedings should be paid by the Commonwealth save for costs excluded from this order by an order of a Judge. I agree with the plurality that the questions referred to the Court in its capacity as the Court of Disputed Returns should be answered as they propose. My reasons, however, are in some respects different from theirs.Relevant constitutional and other legislative provisions Section 44 of the Constitution relevantly provides:"Disqualification Any person who: (i)is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or (ii)is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or (iii) is an undischarged bankrupt or insolvent; or (iv)holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or (v)has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives."

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL, BELL, GAGELER AND KEANE JJ, NETTLE J

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