Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning Senator Rodney Norman Culleton

• Jurisdiction: Australia Federal only
• Judge: Kiefel,Bell,Gageler,Keane JJ,Nettle J
• Judgment Date: 03 February 2017
• Neutral Citation: [2017] HCA 4
• Date: 03 February 2017
• Docket Number: C15/2016
• Court: High Court

[2017] HCA 4

HIGH COURT OF AUSTRALIA

Kiefel, Bell, Gageler, Keane AND Nettle JJ

C15/2016

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

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)

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), ss 10, 25.

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’.

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.

1 Kiefel, Bell, Gageler AND Keane JJ. Section 44(ii) of the Constitution relevantly provides:

‘Any person who:

…

(ii) … 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 …

shall be incapable of being chosen or of sitting as a senator …’.

2 On the return of the writ for the election of Senators for the State of Western Australia in 2016, Rodney Norman Culleton was noted as elected and he has since sat as a Senator. On 2 March 2016, prior to his nomination for election and before polling day for the election, Senator Culleton was convicted, in his absence, in the Local Court of New South Wales, of the offence of larceny. He was then liable to be sentenced to imprisonment for a maximum term of two years 1 when he was brought before that Court 2. The Local Court subsequently granted an annulment of the conviction 3, proceeded to deal with the matter afresh 4, found Senator Culleton guilty of the offence, on his own plea, but dismissed the charge without proceeding to conviction 5.

3 The President of the Senate has referred to this Court, in its capacity as the Court of Disputed Returns, a question 6 whether, by virtue 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 Culleton was returned. In the

circumstances outlined above, the issue is whether Senator Culleton's conviction had the effect of disqualifying him from being elected as a Senator.

4 In the reasons which follow, it will be explained that Senator Culleton was a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer at the date of the 2016 election. That was so, both as a matter of fact and as a matter of law. The subsequent annulment of the conviction had no effect on that state of affairs. It follows from s 44(ii) that Senator Culleton was ‘incapable of being chosen’ as a Senator. In the result, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned.

The circumstances which gave rise to the reference

5 On 2 March 2016 Senator Culleton was convicted, in his absence, in the Local Court of New South Wales at Armidale of the offence of larceny. The larceny was committed on 11 April 2014. Under s 117 of the Crimes Act 1900 (NSW) (‘the Crimes Act’), the offence of larceny is punishable by imprisonment for a period of up to five years; but where the value of the property in respect of which the offence is charged does not exceed $5,000, the maximum term of imprisonment that the Local Court may impose is two years 7. The offence of which Senator Culleton was convicted concerned property of a value less than $2,000. Accordingly, he was liable to imprisonment for a maximum term of two years.

6 Under s 25(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the CSP Act’), a sentence of imprisonment may not be imposed upon an ‘absent offender’ 8. Section 25(2) of the CSP Act provides that the Local Court may issue a warrant for the offender's arrest for the purpose of having the offender brought before the Local Court for sentencing. Such a warrant may issue at any time after the Local Court convicts an absent offender for an offence. On 2 March 2016, the Local Court, having convicted Senator Culleton of larceny, issued a warrant for his arrest in order to have him brought to the Court for sentencing.

7 On 16 May 2016, the Deputy of his Excellency the Governor of Western Australia caused a writ to be issued for the election of 12 Senators for the State to serve in the Senate of the Parliament of the Commonwealth. Rodney Norman

Culleton was nominated as a candidate in a group nomination for Pauline Hanson's One Nation party. Polling day for the election was 2 July 2016.

8 On 2 August 2016, the Australian Electoral Officer for the State of Western Australia returned the writ for the election certifying the names of the 12 Senators elected, in order of their election. Senator Culleton was noted as elected in the 11th place. In accordance with s 7 of the Constitution, the Governor of Western Australia certified to the Governor-General the names of the chosen Senators.

9 The warrant issued by the Local Court on 2 March 2016 was executed on 8 August 2016, on which date the Local Court granted an annulment of Senator Culleton's conviction pursuant to s 8 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘the Appeal and Review Act’). On 25 October 2016, the Local Court found Senator Culleton guilty of an offence against s 117 of the Crimes Act on his own plea but, pursuant to s 10(1)(a) of the CSP Act, without proceeding to conviction, dismissed the charge. Section 10(2) provides that the Court may make such an order if it is satisfied that it is inexpedient to inflict any punishment on the person, or that it is expedient to release the person on a good behaviour bond. Senator Culleton was ordered to pay compensation in the sum of $322.85 to the complainant.

The reference

10 The question identified at the outset of these reasons was referred to the Court by the President of the Senate by letter dated 8 November 2016 addressed to the Chief Executive and Principal Registrar of the Court. An affirmative answer to that question gives rise to a further question as to how that vacancy should be filled. Questions were also referred as to what directions should be made by the Court in order to hear and finally dispose of the reference, and as to what orders should be made as to the costs of these proceedings. The jurisdiction of this Court to entertain the reference from the Senate was not in question in the hearing before this Court 9.

11 By orders made on 21 November 2016, French CJ made directions for the reference to be referred to a Full Court for hearing in the December sittings of the Court.

12 At the hearing of this matter, submissions were made on behalf of the Attorney-General of the Commonwealth in favour of an affirmative answer to the

question of whether there is a vacancy in the Senate. Senator Culleton was represented in the proceedings and made submissions in favour of a negative answer to the principal question. The Commonwealth agreed to pay Senator Culleton's costs of the proceedings in this Court in any event.

Incapable of being chosen?

13 In Sykes v Cleary10, it was held that the words ‘shall be incapable of being chosen’ in s 44 refer to the process of being chosen: a process which operates from the date of nominations, as that is the date on which the electoral process begins, until the return of the writs for the election, as that is the time at which the electoral process is complete. No question arises in this case as to the temporal operation of s 44(ii). If Senator Culleton was incapable of being chosen by reason of the circumstances which gave rise to the reference to this...