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Monday, 7 November 2016
Page: 1926

Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (13:31): by leave—I move:

That, pursuant to section 376 of the Commonwealth Electoral Act 1918, the Senate refers to the Court of Disputed Returns the following questions—

(a) whether, by reason of s 44(ii) of the Constitution, or for any other reason, 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.

On 7 September this year Mr Ian Bruce Bell commenced proceedings in the High Court of Australia against Senator Culleton. These proceedings had nothing to do with the Australian government and the government's only knowledge of them was from reports in the media. Nevertheless, in the course of those proceedings, Mr Bell issued a notice, under section 78B of the Judiciary Act 1903, stating that the proceedings raised a constitutional question. The Commonwealth was served with a section 78B notice on 28 September. The 78B notice relates to the consequences, under the Constitution, of a senator sitting while disqualified. The grounds of qualification are provided for by section 44 of the Constitution, which, among other things, provides that '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 be incapable of being chosen or of sitting as a senator'.

It appears that, on or about 2 March this year, Senator Culleton was convicted in the New South Wales Local Court, at Armidale, of the offence of larceny under section 117 of the New South Wales Crimes Act. The offence of larceny under that section carries a maximum sentence of five years imprisonment. As we know, at the election on 2 July, Senator Culleton was elected to the Senate as a senator for Western Australia representing the One Nation party. On 8 August—that is, a month after the election and six days after the declaration of the Senate poll in Western Australia—Senator Culleton's conviction was annulled under the New South Wales Crimes (Appeal and Review) Act 2001. On 25 October, Senator Culleton pleaded guilty to the charge and the magistrate found the charge proven but dismissed it under the New South Wales Crimes (Sentencing Procedure) Act 1999. Notwithstanding the subsequent history of the matter, it is a fact that, at both the time of the election and the time of the declaration of the poll, Senator Culleton appears to be a person to whom the terms of paragraph (ii) of section 44 of the Constitution may apply.

After receiving the section 78B notice, I asked the Australian Government Solicitor to seek the advice of the former Solicitor-General on four questions relating to Senator Culleton's eligibility to be elected. Those questions were provided to the then Solicitor-General on 13 October. Early on the evening of Friday, 28 October, I was advised that the former Solicitor-General's opinion had been received late that afternoon and it was sent to me. In referring to the opinion, I do not waive the Commonwealth's privilege in respect of it. It is sufficient to say that, in view of its conclusions, I considered that I ought to notify the President of the Senate, which I did the following morning, Saturday, 29 October, and provided a copy of the opinion to him. I also took the view that, in fairness to Senator Culleton, I should notify him and provide a copy of the opinion to him as well, which I did later that day. I also took the view that I should make Senator Hanson, as the leader of the party of which Senator Culleton is a member, aware of these facts, which I also did that weekend.

It is enough to say that, plainly, an issue concerning Senator Culleton's eligibility to be elected has arisen under section 44(ii) of the Constitution. In such circumstances, the law provides for a procedure. It is to be found in section 376 of the Commonwealth Electoral Act, which provides that:

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 354 of the act provides that the High Court is the Court of Disputed Returns.

Also relevant is section 377, which provides:

When any question is referred to the Court of Disputed Returns under this Part, the President if the question arises in the Senate, or the Speaker if the question arises in the House of Representatives, shall transmit to the Court of Disputed Returns a statement of the question upon which the determination of the Court is desired, together with any proceedings, papers, reports, or documents relating to the question in the possession of the House in which the question arises.

After consultation with the President, the government has decided that a reference under section 376 is the appropriate course to follow. The relevant statement of the question is contained in the motion which I have moved. The only relevant documents would appear to be the court records, which you tabled a few moments ago, Mr President. It is, of course, a matter for the Senate, not the government, but since this issue first came to light as a result of the service upon the Commonwealth of the section 78B notice and was crystallised by advice received from the former Solicitor-General, it is appropriate for me to have made the President aware of the matter and for the government to place this course of action before the Senate.

Finally, I should say that the government makes no judgement on the merits or otherwise of Senator Culleton's case, either on the constitutional issue or on the criminal proceedings. Nor, should this motion pass, would it mean that the Senate had formed a view on the merits of Senator Culleton's case either. Neither the government nor, for that matter, the Senate is in a position to do so, and that is not the purpose of this motion. Under a system of government that respects the separation of powers, it is not the executive or the legislative branches of government that make those judgements; they are entirely a matter for the judicial branch. The purpose of this reference is merely to set in motion the process to enable that judicial resolution of the issue to take place. If the motion is passed, it would merely reflect the fact that an issue having squarely arisen as to the applicability to Senator Culleton of section 44(ii) of the Constitution, the Senate has referred the matter for decision by the appropriate arm of government, the courts, by the Court of Disputed Returns.