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Monday, 7 November 2016
Page: 1931

Senator XENOPHON (South Australia) (13:58): I indicate on behalf of my colleagues, Senator Griff and Senator Kakoschke-Moore, that we will support this matter being referred to the High Court. Clearly an issue has arisen under section 44(ii) of the Constitution as to the eligibility of Senator Culleton to be a member of the Senate. It was initiated by a petition brought by Mr Bell and crystallised by the opinion of the former Solicitor-General, and I am grateful to Senator Culleton for providing me with a copy of the former Solicitor-General's opinion in relation to this matter. It has now been tabled. I want to have an opportunity to refer to that in the context of the remarks I will make.

It seems to me to be very clear that this is a matter without precedent. It is a matter where there is no authority directly on the question. It boils down to whether the conviction of Senator Culleton which was subsequently annulled was relevant at the time Senator Culleton nominated for the Senate. There are two arguments here that the High Court will ultimately need to deal with, and there are two competing interpretations of the effect of an annulment under the New South Wales Crimes (Appeal and Review) Act, as former Solicitor-General Justin Gleeson has indicated. The first interpretation of the annulment means that in law there was never a conviction, which is supported by section 9(3) of the New South Wales Crimes (Appeal and Review) Act.

Debate inerrupted.