At the federal election on 2 July, Rod Culleton was among the more attractive candidates for Pauline Hanson’s One Nation – cheerfully free from any sign of cultural and ethnic prejudice, and given to enjoyably flamboyant flourishes of Australian vernacular. (He initially insisted that any challenge to his Senate position had ‘as much chance of running as a dinosaur fossil’, since the truth always comes out in the end ‘like a dag in a bale of crutchings’.)
His main political aim was to challenge the predatory practices of the major banks. But his own financial difficulties have led him into a series of litigious imbroglios, through which he has developed a repertoire of delaying and deflective tactics. In August he explained his litigious strategy with characteristic candour:
It’s just a matter of getting all my ducks in a row and taking each fight as I can and so far I’ve been able to bat them all off. But in some cases I’ve had to act like the wounded female duck and go off like with a busted wing, so the fox keeps away from the chicks and that’s why some of these litigations have taken their time to come around.
But strategic agility goes only so far. On the morning of Friday 3 February, a High Court bench of five judges unanimously confirmed in Re Culleton [No 2] that, by virtue of s 44(ii) of the Constitution, Culleton had never been validly elected to the Senate, since throughout the election period he was ‘incapable of being chosen’. On the afternoon of the same day, a Federal Court bench of three judges unanimously dismissed his final appeal against a sequestration order which, by virtue of s 44(iii) of the Constitution, had rendered him incapable of sitting in the Senate.
Although the sequestration order was made on 23 December, it determined that Culleton had been bankrupt (and therefore incapable of sitting) since 30 August 2016 – ironically, the very day when he first took his seat in the Senate.
The underlying debt dated from 24 October 2013, when Culleton and his wife Joanna were ordered to pay damages of $205,536.50 (plus interest) for repudiation of a leasing agreement. In the intervening years Mrs Culleton had twice appealed unsuccessfully to the Western Australian Court of Appeal.
In a final application for injunctive relief against further action on the bankruptcy notice, heard on 5 October 2016, Culleton relied primarily on the claim that, since 2005, no courts in Western Australia have been constitutionally valid, since their judges are no longer required to swear allegiance to the Crown. That argument, reflecting a misconception now apparently widespread in that State, appears to be based on the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), which deleted references to the Crown and the Queen from a number of relevant statutes.
Culleton himself played no direct part in his wife’s appeals to the Western Australian Court of Appeal because he was bankrupt at the time, as the result of a sequestration order made on 31 October 2014. In that case, too, the bankruptcy notice was issued in 2013; but Culleton had avoided service – and when eventually the notice was left affixed to the padlocked gates of his property in Western Australia, he argued that he had not lived there since 2010, despite an affidavit in 2013 giving that as his address.
Although Culleton had lodged an appeal against the sequestration order made in October 2014, he failed to comply with directions for the lodgment of documents, and failed to turn up at the hearing. On 9 March 2015 his appeal was dismissed. Yet nine months later, on 4 December 2015, that order of 9 March 2015 was itself set aside. In lieu of that order the original appeal was allowed; the orders made in October 2014 were also set aside; and the creditor’s petition was dismissed. Culleton had been allowed to present new grounds of appeal; the creditors had conceded that the new grounds were arguable, and had therefore agreed to bring the case to an end without proceeding to a hearing on whether the new grounds were established. What the new grounds were is not known: the judgment issued on 21 December 2015, recording the orders made by consent on 4 December, dealt only with the question of costs.
Section 44(ii) and ‘incapable of being chosen’
The conviction on 2 March 2016 which triggered the operation of 44(ii) was the result of another dispute. On 11 April 2014, at his property in Guyra, NSW, Culleton confronted a tow truck driver who had come to repossess a truck. Initially Culleton removed the ignition key from the tow truck. In the ensuing scuffle the key was lost: the tow truck driver said Culleton had stolen it, and Culleton was charged with larceny. The charge was listed for hearing in the Armidale Local Court on the morning of 2 March. But a somewhat similar charge in Western Australia, also involving alleged interference with the movement of a receiver’s vehicle, was due to be heard on the previous day. Claiming that this made it impossible to attend the hearing in Armidale, Culleton telephoned the Armidale courthouse and offered to give evidence by telephone. But the offer was rejected. Culleton was convicted in his absence and a warrant was immediately issued for his arrest.
Culleton appealed against the conviction, and throughout the ensuing election period that appeal was pending. But he made no attempt to respond to the warrant until after he was elected. The declaration of the poll took place on Tuesday 2 August. On the following Monday, 8 August, Culleton presented himself at the Armidale courthouse and the warrant was executed. Later that day the magistrate, Mr Michael Holmes, annulled the conviction to clear the decks so that the original charge could finally proceed to trial. At a final hearing on 25 October, Culleton pleaded guilty. He was ordered to pay compensation of $322.85 for the theft of the key, but otherwise the charge was dismissed without proceeding to a conviction.
Culleton appears to have thought that his actions after the election were sufficient to dispose of any constitutional problem. Yet the fact remained that, throughout the election period, he remained subject to the conviction imposed on 2 March. Almost immediately after the election, the question arose whether this meant that he was ‘incapable of being chosen’ by virtue of s 44(ii) of the Constitution, which ascribes such incapacity to 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.
The High Court decision on 3 February unanimously confirmed that s 44(ii) applied. Four members of the Court gave a joint judgment; in a separate judgment Nettle J concurred. Culleton had argued that the annulment on 8 August had solved the problem. But that would only have been the case if the annulment was fully retrospective, wiping out the legal effect of the conviction as if it had never happened.
The day after the annulment, on 9 August, in a postscript to a comment posted on Inside Story the previous week, I suggested that the answer must depend not on any general assumptions about the effects of annulment, but on the precise interpretation of the relevant statutory provision– s 10 of the Crimes (Appeal and Review) Act 2001 (NSW), which says simply that: ‘On being annulled, a conviction or sentence ceases to have effect.’ To say that something ‘ceases to have effect on Monday’ (I wrote) ‘means that it did have effect before Monday. It means that there can be no new effects, but it doesn’t wipe out the previous effects.’
The joint judgment in the High Court took a similar view:
To say … that the annulment ‘ceases to have effect’ is to acknowledge that it has been in effect to that point.
Section 10 adds that ‘any enforcement action previously taken is to be reversed’. But the joint judgment pointed out that this language, too, is prospective: its effect:
is to leave the legal state of affairs previously established by the conviction unaffected, save for the actual reversal of any action taken by way of enforcement against the defendant.
In short, the provisions ‘indicate that a conviction is annulled only for the future’; they ‘do not purport to operate retroactively to deny legal effect to a conviction from the time that it was recorded’.
Justice Nettle took a similar view, accepting it as ‘the necessary consequence’ of ‘conditioning the decretal clause “a conviction … ceases to have effect” on the anterior temporal clause “[o]n being annulled”’. But he added a qualification. In his view the annulment was not retrospective in the sense that it might wipe out the legal effects which the conviction had already had; but its prospective operation included the result that, for purposes of events occurring after the annulment, the person is to be regarded as never having been convicted. Thus, if the conviction had been annulled before the election period, Culleton would have been entitled to stand (even if the charge of larceny had still been pending against him). Similarly, when the case was argued on 7 December, Nettle J had suggested that a person whose conviction had been annulled, when interviewed on some future occasion, might truthfully deny that he had ever been convicted.
In an AUSPUBLAW post on 26 August, I had undertaken a lengthy review of the earlier decisions on the effect of disqualification under s 44; and in a postscript uploaded on 29 August, I added a further argument. This was that, even if s 10 of the New South Wales legislation were interpreted as allowing the annulment to operate retrospectively, it could not operate retrospectively for constitutional purposes – since, prior to the annulment on 8 August, the Constitution had already operated throughout the election period to render Culleton ‘incapable of being chosen’. Any subsequent annulment arising under State legislation (I said) could not undo a consequence which the self-executing provisions of the Constitution had already produced. I ascribed this to the idea that a stream cannot rise higher than its source, as memorably articulated by Fullagar J in the Communist Party Case. Others have supported a similar conclusion by reference to University of Wollongong v Metwally, with its insistence that once ‘the immediate and self-executing provisions’ of the Constitution ‘have already operated’ to produce a result, no operation of a mere legislative provision can change that result.
Justin Gleeson SC, in what was to be his last opinion as Commonwealth Solicitor-General (SG No 23 of 2016, 28 October 2016), was inclined, as a matter of statutory interpretation for purposes of New South Wales criminal law, to think that an annulment should be treated as having full retrospective effect. But he argued that, even if that were the case, no such retrospective operation could affect the fact that s 44(ii) had already operated to produce the result that, throughout the election period, Culleton was and remained ‘incapable of being chosen’. He based that conclusion not on appeal to fundamental constitutional principle, but on the need for ‘certainty in the identification of whether a person is eligible for election at the point of nomination’, and for ‘certainty of make-up of the Parliament’.
The joint judgment in the High Court accepted the lesser argument that Gleeson had been inclined to reject: that, simply as a matter of statutory interpretation, the annulment was not retrospective even for purposes of State criminal law. It followed that there was no need to consider the constitutional argument. That approach conformed to the idea of ‘judicial parsimony’: if a case can be decided on grounds of statutory interpretation, constitutional issues need not be reached.
Justice Nettle did consider the constitutional argument. Like Gleeson, he based it primarily on ‘the need for certainty in the electoral process’ – for ‘certainty that, at the date of nomination, a nominee is capable of being chosen’. He spoke of the need to avoid ‘long periods … until an appeal or application for annulment is finally heard and determined’, during which ‘it would be impossible to say’ whether a conviction had the effect of disqualification or not. He supported these arguments by two considerations sitting rather oddly together. One was that a focus on ‘order and certainty in the electoral process’ must follow from reading s 44(ii) ‘in the light of the system of representative and responsible government established by the text and structure of the Constitution’. (He quoted Lange v Australian Broadcasting Corporation.) The other was ‘originalism’. On the one hand, the framers of the Constitution were likely to assume that a conviction ‘would remain’ a conviction, since at that time ‘there were only very limited mechanisms’ for annulment and appeal. On the other hand, if they had foreseen the possibility that an annulment might affect disqualification, they were ‘inherently unlikely’ to have been satisfied with such an outcome.
Section 44(ii) refers to offences ‘punishable … by imprisonment for one year or longer’. Under s 117 of the Crimes Act 1900 (NSW), the maximum sentence for larceny is imprisonment for five years; but under s 268 of the Criminal Procedure Act 1986 (NSW) the maximum term of imprisonment that a Local Court may impose for larceny or stealing is two years. Thus, on either basis, Culleton was convicted of an offence ‘punishable … by imprisonment for one year or longer’. In fact, of course, the offence of which he was convicted was a trivial one: the alleged theft of an ignition key said to have a value of $7.50. If any sentence had ever been imposed, it clearly would have fallen far short of ‘imprisonment for one year’. It might have been remotely possible to argue that, if the focus was on the particular offence involved in the individual case, this particular offence was not ‘punishable … by imprisonment for one year or longer’. But no such argument was ever made. It was assumed throughout, as has always been assumed, that s 44(ii) applies to any offence falling into a category for which the maximum punishment is ‘imprisonment for one year or longer’. Clearly the provision is intended to apply only to serious offences; but what the Constitution selects as its index of ‘seriousness’ is the maximum punishment prescribed by statute for offences in the relevant class.
Section 44(ii) refers to a person who ‘has been convicted and is under sentence, or subject to be sentenced’. Throughout the election period Culleton’s appeal against conviction was pending, and it might have been possible to argue that his liability to sentence was somehow suspended until his appeal had been heard. But the argument would be unlikely to succeed, and Culleton offered no such argument. He did, however, advance two other arguments.
Under s 25(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a Local Court ‘must not make … an order imposing a sentence of imprisonment’ on ‘an absent offender’. Culleton had been convicted in absentia, and did not show himself in Armidale again until after the declaration of the poll. Was he not therefore ‘an absent offender’, and hence not ‘subject to be sentenced’?
The answer was: No. Immediately after Culleton’s conviction, a warrant had been issued for his arrest, and according to s 25(2) it was issued ‘for the purpose of having the offender brought before the Local Court … for sentencing’. The warrant, which remained unexecuted throughout the election period, was for the purpose of sentencing, and was itself an indicator that he was ‘subject to be sentenced’.
The major argument advanced on Culleton’s behalf had even less chance of success. Section 44(ii) applies to a person who ‘has been convicted and is under sentence, or subject to be sentenced’ (emphasis added). In Nile v Wood, the word ‘and’ was emphasised as a sufficient answer to Elaine Nile’s contention that Robert Wood was ‘incapable of being chosen’ because he had been convicted of one offence (as a protester in a demonstration) ‘which carries a term of imprisonment’, and another offence (under the National Service Act 1951 (Cth)) for which he had in fact been imprisoned. The joint judgment of Brennan, Deane and Toohey JJ emphasised the word ‘and’ to make it clear that ‘conviction of an offence per se’ is not enough to attract s 44(ii); the references to conviction and sentence are ‘conjunctive’.
This would have been clear enough if their Honours had not invoked Quick and Garran. Those authors, in their Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901), glossed the constitutional text by picking out particular words and phrases as the subject (and title) of expository sections. Their commentary on s 44 was broken into eleven sections, of which §146 was headed: ‘Or has been Convicted, and is Under Sentence for any Offence’.
That heading did not include the words ‘or subject to be sentenced’, because the section that followed did not in fact include any gloss on those words. But what Culleton’s counsel seized upon was that when the joint judgment in Nile v Wood paraphrased what was said by Quick and Garran, they too spoke only of an intention that the disqualification should operate ‘only while the person was under sentence’. The words ‘or subject to be sentenced’ were elided.
The judgment in Nile v Wood was the unanimous judgment of a three-judge bench. When the Culleton reference was argued on 7 December, counsel had repeatedly tried to argue that the judgment had elided the words ‘or subject to be sentenced’ not merely from its formulation of the temporal limits of disqualification under s 44(ii), but from the metes and bounds of the operation of s 44(ii) itself. On that reading, s 44(ii) applied only to a person who ‘has been convicted and is under sentence’. The mere fact of conviction would be insufficient unless the person convicted was also ‘under sentence’.
The argument was clearly untenable, and the joint judgment explained with laborious patience that s 44(ii) ‘cannot sensibly be read in that way’. Yet the explanation was followed by a curious addendum, itself perhaps misled by irrelevant attention to Quick and Garran. It repeated that s 44(ii) applied not only to ‘a person who has already been sentenced to a term of imprisonment for one year or longer’, but also to ‘a person who is able to be so sentenced’. But it added that, in both such cases, the reason for disqualification was simply that, for a period of one year or longer, the person affected ‘might not be able to sit’. The idea that imprisonment for one year was selected, not as a measure of the maximum length of a tolerable absence from the Senate, but as a criterion of the degree of criminal turpitude that might disqualify a person from representing a democratic electorate, seemed itself to be elided from the reasoning.
When the matter was argued on 7 December, Culleton had sought an adjournment to give time for the Senate to reconsider the issue. He was hoping that (aided by other Senators sympathetic to his plight) he might persuade the Senate to withdraw its referral of the matter to the Court, and he tendered an affidavit intended to suggest that this might be a real possibility. Counsel for the Attorney-General successfully argued that the affidavit should not be received, since under s 16(3) of the Parliamentary Privileges Act 1987 (Cth):
In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received … concerning proceedings in Parliament … for the purpose of …
(c) drawing, or inviting the drawing of, inferences or conclusions … from anything forming part of those proceedings in Parliament.
At that hearing, Culleton had also argued that the notice given to Attorneys-General under s 78B of the Judiciary Act 1903 (Cth) was defective (in part because it failed to suggest that the conviction on 2 March was void on grounds of abuse of process or jurisdictional error). He had also sought an adjournment to give him more time to gather evidence to support such claims, and to shed fresh light on the original dispute about the ignition key. Finally, he had invoked the enjoinder in s 364 of the Commonwealth Electoral Act 1918 (Cth), that when sitting as a Court of Disputed Returns ‘[t]he Court shall be guided by the substantial merits and good conscience of each case’. Although that enjoinder relates to proceedings instituted by petition under Part XXII, Division 1, he assumed that it should also apply to proceedings instituted by referral under Part XXII, Division 2. Indeed, he argued that it required the Court to return the referral to the Senate and decline to give any answer, for reasons of laches and delay – delay because, although the issues relating to the conviction on 2 March had been widely publicised since early July, there was no referral until 7 November, and laches because the referral was the result of a personal vendetta by Senator George Brandis QC.
None of these tactics was successful.
On Tuesday 31 January, three days before the delivery of the final judgment, Gageler J dismissed yet another attempt by Culleton to avoid or delay the result. In part the attempt arose from the consequences that had flowed from the sequestration order on 23 December 2016. Despite the fact that an appeal to a Full Bench of the Federal Court was pending, but consistently with the idea of the inexorable self-executing operation of the Constitution, the President of the Senate (Senator Stephen Parry) had written to the Governor of Western Australia on 11 January 2017, advising that a vacancy had arisen under s 44(iii) – though stressing that, until the High Court had disposed of the issue under s 44(ii), it would not be possible to determine whether the vacancy should be filled in the manner prescribed by s 15 of the Constitution.
In Culleton’s last-ditch manoeuvre on 31 January, he did not attempt to deny that s 44(iii) and s 45 of the Constitution had operated in the manner that Senator Parry suggested. His argument was only that Senator Parry had no power to decide that question, since under s 47 of the Constitution (apart from any reference to the Court of Disputed Returns) the power to make such a decision is vested exclusively in the Senate.
Justice Gageler found it unnecessary to decide that question. He was dealing with the matter at an interlocutory stage in the High Court’s exercise of jurisdiction arising from the Senate’s referral of the issue arising under s 44(ii). But that jurisdiction was limited to the issue under s 44(ii); it did not extend to any issue arising under s 44(iii). As the Court unanimously held in Re Wood:
[The Court] has no jurisdiction to go beyond the terms of the reference transmitted by the President of the Senate under s 377.
In addition, Culleton introduced a fresh challenge to the Court’s jurisdiction relating to s 44(ii) itself. But this challenge, too, was rejected. The issues relating to s 44(ii) had been fully argued on 7 December, with no hint of a jurisdictional challenge; and it is (said Gageler J) ‘of the utmost importance’ that any jurisdictional challenge be raised at the earliest opportunity. He might still have referred the matter to the Full Court if the argument was ‘sufficiently strong to warrant that course’; but it was not.
The argument was that s 376 of the Commonwealth Electoral Act 1918 (Cth) was itself invalid. That section provides:
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.
Culleton had argued that this provision ‘purported to confer … a power to give an advisory opinion’. But in Gageler J’s ‘firm opinion’, the argument was misconceived. The answer given in such a case ‘is not an answer to an abstract question of law’; it is ‘determinative of the status of the Senator whose qualifications might be in issue, and of the obligations of those having duties’ involved in the filling of any resulting vacancy.
Moreover, even though the argument raised a constitutional question, it did not enliven the requirement of notice to State and Territory Attorneys-General under s 78B of the Judiciary Act. In Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd, French J (as he then was) had denied that s 78B would apply ‘no matter how trivial, unarguable or concluded the constitutional point may be’; and in Re Finlayson; Ex parte Finlayson, Toohey J had said that ‘a cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does’. Besides, said Gageler J, in the circumstances of this case he was entitled to rely on s 78B(5) – which effectively allows the Court, in cases seeking ‘the grant of urgent relief or an interlocutory nature’, to proceed without waiting for the usual notices to the Attorneys-General ‘where the court thinks it necessary in the nature of justice to do so’.
The final chapter in this protracted saga was the judgment of a Full Bench of the Federal Court dismissing Culleton’s appeal against the sequestration order made on 23 December. As on the constitutional issue, his final arguments were unavailing. The hearing before the primary judge (Barker J) had originally been scheduled for 8 December, but had been adjourned to 19 December because on 7 December Culleton was in Canberra for the hearing of the High Court case. On 19 December Barker J had refused a further adjournment, and Culleton complained that this was unfair.
He also claimed that he had adduced material which should have been sufficient to negate any finding of insolvency; and in any event that the entire proceedings were an abuse of process – in part because the creditor company was said to be exploiting the judgment debt as a way of pressuring Culleton to yield to an unrelated claim concerning intellectual property, and in part on the ground ‘that the ANZ Bank and the creditor were somehow working together to bankrupt him to stifle his work in Parliament investigating the banks’. There was also an argument that under s 30(3) of the Bankruptcy Act 1966 (Cth), Culleton should have been allowed a trial by jury. Finally, there were said to be technical defects in the proof of service of the bankruptcy notice (effected in Armidale when Culleton arrived there on 8 August to submit to the warrant relating to the theft of the key), and also in the proof of service of the creditor’s petition (by email in October 2016). Most of these issues had not been raised at any earlier hearing, and the Full Court rejected all of them.
Culleton’s vaunted litigious strategies had finally failed. The Full Court summarised his various arguments (‘without intended personal disrespect’) in scathing terms:
[T]he submissions barely touched the issues to be considered on the application, at least directly. They reveal a degree of unfocused and erratic content expressed with not a little assertiveness that deflected attention from whatever might have been [his] real defences.
 See HJ Abraham, The Judicial Process (Oxford University Press, 5th ed 1986) 386.
Tony Blackshield is an Emeritus Professor of Law at Macquarie University, a Visiting Professorial Fellow at the University of New South Wales, and an Honorary Professor of the Indian Law Institute in New Delhi.
Suggested citation: Tony Blackshield ‘”Incapable of being chosen”‘ on AUSPUBLAW (6 February 2017) <https://auspublaw.org/2017/02/incapable-of-being-chosen/>