Re Culleton (No 2)

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.