Re Culleton (No 2)

Last updated

Re Culleton (No 2)
Coat of Arms of Australia.svg
Court High Court of Australia as the Court of Disputed Returns
Full case nameIn 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
Decided3 February 2017
Citation(s) [2017] HCA 4, 263 CLR 176
Transcript(s)
Court membership
Judge(s) sitting Kiefel, Bell, Gageler, Keane & Nettle JJ

Re Culleton (No 2) [1] was a significant Australian court case, decided in the High Court of Australia sitting as the Court of Disputed Returns on 3 February 2017. The case was an influential decision concerning the construction of Section 44(ii) of the Constitution, which held that Rod Culleton's conviction for larceny meant that he was incapable of being chosen as a senator and the subsequent annulment of that conviction did not operate retroactively to deny the legal effect to the conviction from the time that it was recorded. [2]

Contents

Background

Culleton was declared one of the elected senator for Western Australia as the lead candidate on the Pauline Hanson's One Nation ticket during the 2016 federal election, which was held on 2 July 2016. At that time, he had been convicted in absentia on a larceny charge over a vehicle key in New South Wales, but had not yet been sentenced. [3]

Criminal charge

In April 2014, Culleton was involved in a dispute with a tow truck driver in Guyra, New South Wales. The tow truck driver was attempting to repossess a truck and the key to the tow truck went missing. Culleton was charged with larceny in relation to the missing key. When the matter came before the local court in March 2016 Culleton was not present, saying he did not have time to travel to the Court as he was required to be in court in Western Australia the day before on unrelated larceny charges. Culleton was convicted in his absence. [2] He successfully applied for the conviction be set aside, [3] with the conviction being annulled on 8 August 2016. [4] Culleton then pleaded guilty to the offence, and was ordered to pay the truck driver's costs with no conviction being recorded. [5]

Section 44 of the Constitution

Under section 44(ii) of the Constitution, any person who "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 (section 44 continues) "be incapable of being chosen or of sitting as a senator or a member of the House of Representatives". [6] Previous time in prison was not a disqualification and there have been numerous politicians who had spent time in prison before their election. [7] The High Court had previously observed that the disqualification is not simply for the conviction for an offence, nor serving time in prison. The disqualification required both conviction and that the person was imprisoned at the time or awaiting sentence. [8] The WA larceny charge did not give rise to any question of disqualification as Culleton had only been charged and had not been convicted. At the time of Culleton's nomination and election, he had been convicted for the New South Wales offence but had not been sentenced.

A former colleague lodged a petition with the High Court (sitting as the Court of Disputed Returns), claiming that Culleton was not able to nominate for the election as he was convicted and awaiting sentence in New South Wales at the time of the election. [9] Subsequently, the Australian Government asked the Senate to also refer the matter to the High Court; the reference included a request to determine what should be done if Culleton's seat were found to be vacant. [10] The primary issues before the High Court concerned the effect of the subsequent annulment of Culleton's conviction and whether Culleton was subject to be sentenced to a term of imprisonment for one year or longer.

Judgment

On 3 February 2017, the High Court determined the Senate reference, unanimously finding that Culleton had been ineligible for election to the Senate. At the time of the 2016 election he was subject to being sentenced to imprisonment for up to two years, which under Constitution section 44(ii) rendered him ineligible for election. This had not been affected by the subsequent annulment of the finding of guilt; the annulment had operated only from the time of the annulment. 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. However, the Court anticipated that a simple recount, as if Culleton had not been a candidate, would make the votes cast for him (so far as they were "above the line", which was 96% of them) would flow through to the next One Nation candidate. The Court ordered, as the Commonwealth had previously agreed, that most (with specific exceptions) of Culleton's costs of the action would be borne by the Commonwealth (Culleton had initially represented himself, but eventually he had been provided with counsel). [1] [11] [12]

The majority stated, in an introductory summary of their judgment (with which Nettle J differed only as to reasoning): [13]

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.

Result

Culleton had been found ineligible for election to the Senate. His vacancy was filled by a countback of the ballot papers in Western Australia, on the basis that Culleton's name was not on the paper. As had been anticipated, the recount resulted in votes cast for him, including the "above the line" votes (which were 96% of his vote) flowed through to the next One Nation candidate, which was Peter Georgiou, Culleton's brother-in-law. Georgiou's election was confirmed on 10 March [14] and he was sworn in on 27 March 2017. [15]

The government has demanded repayment by Culleton, as "a debt to the Commonwealth", of payments he had received while disqualified, and indicated it might also seek repayment of superannuation payments, other entitlements and staff payments.

Related Research Articles

In jurisprudence, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same charges following an acquittal or conviction and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction. Double jeopardy is a common concept in criminal law - in civil law, a similar concept is that of res judicata. The double jeopardy protection in criminal prosecutions only bars an identical prosecution for the same offence, however, a different offence may be charged on identical evidence at a second trial. Res judicata protection is stronger - it precludes any causes of action or claims that arise from a previously litigated subject matter.

Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offence may vary between jurisdictions. Robbery is differentiated from other forms of theft by its inherently violent nature ; whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words of Germanic origin, from Common Germanic raub "theft".

<span class="mw-page-title-main">Pauline Hanson's One Nation</span> Australian political party

Pauline Hanson's One Nation, also known as One Nation or One Nation Party, is a right-wing populist political party in Australia. It is led by Pauline Hanson.

In the Parliament of Australia, a casual vacancy arises when a member of either the Senate or the House of Representatives:

A suspended sentence is a sentence on conviction for a criminal offence, the serving of which the court orders to be deferred in order to allow the defendant to perform a period of probation. If the defendant does not break the law during that period and fulfills the particular conditions of the probation, the sentence is usually considered fulfilled. If the defendant commits another offence or breaks the terms of probation, the court can order the sentence to be served, in addition to any sentence for the new offence.

<i>Dietrich v The Queen</i> 1992 Australian High Court legal aid case

Dietrich v The Queen is a 1992 High Court of Australia constitutional case which established that a person accused of serious criminal charges must be granted an adjournment until appropriate legal representation is provided if they are unrepresented through no fault of their own and proceeding would result in the trial being unfair.

Causing death by dangerous driving is a statutory offence in England and Wales, Scotland and Northern Ireland, as well as Hong Kong. It is an aggravated form of dangerous driving. In the UK, it was created by section 1 of the Road Traffic Act 1988, and in Hong Kong it was created by section 36 of the Road Traffic Ordinance.

<span class="mw-page-title-main">Court of Disputed Returns (Australia)</span> Special electoral jurisdiction of the High Court of Australia

The Court of Disputed Returns in Australia is a special jurisdiction of the High Court of Australia. The High Court, sitting as the Court of Disputed Returns, hears challenges regarding the validity of federal elections. The jurisdiction is twofold: (1) on a petition to the Court by an individual with a relevant interest or by the Australian Electoral Commission, or (2) on a reference by either house of the Commonwealth Parliament. This jurisdiction was initially established by Part XVI of the Commonwealth Electoral Act 1902 and is now contained in Part XXII of the Commonwealth Electoral Act 1918. Challenges regarding the validity of State elections are heard by the Supreme Court of that State as the State's Court of Disputed Returns.

William Robert Wood is a British-born Australian who has campaigned on peace and justice issues. He was elected to the Australian Parliament in the 1987 elections as Senator for New South Wales, however the High Court subsequently declared his election was invalid as he was not an Australian citizen at the time.

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It has generally arisen for consideration by the High Court sitting in its capacity as the Court of Disputed Returns.

Alan Major Millard was an English solicitor who became an Australian politician.

<span class="mw-page-title-main">Members of the Australian Senate, 2016–2019</span>

This is a list of members of the Australian Senate following the 2016 Australian federal election held on 2 July 2016. The election was held as a consequence of a double dissolution in which both houses of parliament were dissolved. Ordinarily, only half of the senators terms end at each election. In this case, all 76 senators were elected. At the first sitting following the election, half of the senators representing each of the six states of Australia were allocated six-year terms to end on 30 June 2022, with the remainder allocated three-year terms to end on 30 June 2019. The terms of senators from the Australian Capital Territory and the Northern Territory end on the day of the next federal election.

<span class="mw-page-title-main">2016 Australian Senate election</span> Australian federal election results

The 2016 Australian federal election in the Senate was part of a double dissolution election held on Saturday 2 July to elect all 226 members of the 45th Parliament of Australia, after an extended eight-week official campaign period. It was the first double dissolution election since the 1987 election and the first under a new voting system for the Senate that replaced group voting tickets with optional preferential voting.

Rodney Norman Culleton is an Australian politician who was sworn in and sat as a Senator for Western Australia following the 2016 federal election. At that time he was a member of the Pauline Hanson's One Nation party, but on 18 December 2016 he resigned from the party to sit as an independent.

Panagiotis "Peter" Georgiou is a former Australian politician, who served as a Senator for Western Australia between 2017 and 2019. He was the second candidate on the Senate ticket for Pauline Hanson's One Nation party in the 2016 Australian federal election. The lead candidate on the ticket was Rod Culleton, Georgiou's brother-in-law. Culleton was declared to have been elected to the Senate when the writs were returned. However, the High Court, sitting as the Court of Disputed Returns, ruled on 3 February 2017 that Culleton had been ineligible to be elected at the time of the election. A consequence of that ruling was that a special recount of the votes was undertaken, as if Culleton had not been on the ballot, and Georgiou was elected in his place. Georgiou was sworn in as a Senator on 27 March 2017.

<span class="mw-page-title-main">45th Parliament of Australia</span> Federal parliamentary term in Australia (2016–2019)

The 45th Parliament of Australia was a meeting of the legislative branch of the Australian federal government, composed of the Australian Senate and the Australian House of Representatives. It met in Canberra from 30 August 2016 to 4 April 2019. The 2016 general election held on 2 July gave the Coalition of the Liberal and National Parties control of the House, albeit with a slimmer majority than the 44th Parliament, allowing their leader Malcolm Turnbull to stay in office as the 29th Prime Minister of Australia. During the term of the parliament, the government slipped into minority due to defections and by-elections. The leadership of the government also changed during the parliament, when Scott Morrison replaced Turnbull as Liberal Leader and Prime Minister in August 2018. The 45th Parliament was officially prorogued by the Governor-General Sir Peter Cosgrove at 8:29 a.m. on 11 April 2019, and the House of Representatives dissolved at 8:30 a.m.

<span class="mw-page-title-main">2017–18 Australian parliamentary eligibility crisis</span> Crisis over the eligibility of members of the Parliament of Australia over citizenship

Starting in July 2017, the eligibility of several members of the Parliament of Australia was questioned. Referred to by some as a "constitutional crisis", fifteen sitting politicians were ruled ineligible by the High Court of Australia or resigned pre-emptively. The situation arose from section 44(i) of the Australian Constitution, which prohibits parliamentarians from having allegiance to a foreign power, especially citizenship. On that basis, the High Court had previously held that dual citizens are ineligible for election unless they have taken "reasonable steps" to renounce the foreign citizenship before nomination.

<span class="mw-page-title-main">The Great Australian Party</span> Australian political party

The Great Australian Party is a political party in Australia. The party was formally registered by the Australian Electoral Commission (AEC) on 7 April 2019 and is associated with former senator Rod Culleton who had been elected in the 2016 Australian federal election as a senator for Western Australia, but subsequently found to have been ineligible and was disqualified.

This is a list of electoral results for the Australian Senate in Western Australia since Federation in 1901.

References

  1. 1 2 Re Culleton (No 2) [2017] HCA 4 , 263 CLR 176. Judgment summary (PDF), High Court, 3 February 2017
  2. 1 2 Blackshield, T (6 February 2017). "Incapable of being chosen". AusPubLaw.org.
  3. 1 2 Chang, Charis (1 August 2016). "Pauline Hanson's surprises keep on coming". News Limited. Australian Associated Press. Retrieved 2 August 2016.
  4. ↑ "One Nation senator conviction set aside". SBS. Australian Associated Press. 8 August 2016. Retrieved 8 August 2016.
  5. ↑ "One Nation Senator Rod Culleton pleads guilty to larceny, avoids conviction". ABC. 25 October 2016. Retrieved 2 November 2016.
  6. ↑ Constitution (Cth) s 44 Disqualification.
  7. ↑ Holland, I (2003). "Crime and Candidacy". Parliament of Australia.
  8. ↑ Nile v Wood [1987] HCA 62 , (1987) 167 CLR 133.
  9. ↑ Day, Lauren (25 August 2016). "One Nation's Rod Culleton faces court challenge over eligibility for Senate seat". 7.30 . ABC . Retrieved 29 August 2016.
  10. ↑ Karp, Paul (2 November 2016). "Government challenges election of One Nation senator Rod Culleton". The Guardian. Retrieved 4 November 2016.
  11. ↑ "Submissions, Case C15/2016". High Court of Australia. 3 February 2017. Retrieved 7 February 2017.
  12. ↑ Remeikis, Amy (3 February 2017). "Rodney Culleton was never legally elected to Senate, High Court rules". The Sydney Morning Herald. Retrieved 4 February 2017.
  13. ↑ Re Culleton [No 2] [2017] HCA 4 at [4] per Kiefel, Bell, Gageler & Keane JJ.
  14. ↑ Silva, Kristian; Anderson, Stephanie (10 March 2017). "One Nation: Rod Culleton's brother-in-law Peter Georgiou confirmed as replacement". ABC News . Retrieved 10 March 2017.
  15. ↑ "One Nation senator Peter Georgiou sworn in". News.com.au. 27 March 2017. Archived from the original on 27 March 2017.


This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.