Re Culleton [2017] HCATrans 45 (2 March 2017)

Last Updated: 3 March 2017

[2017] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C15 of 2016

B e t w e e n -

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

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 MARCH 2017, AT 4.34 PM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR C.L. LENEHAN for the Attorney-General of the Commonwealth. (instructed by the Australian Government Solicitor)

MR P.E. KING: Thank you, your Honour, I appear for Senator Culleton. (instructed by Maitland Lawyers)

HIS HONOUR: Mr Williams. Mr Williams, I have the summons filed on 23 February and the affidavit of Mr Courtney. I have read that material and your submissions. I have also read Mr King’s submissions that we received today. I take it you have seen them as well.

MR WILLIAMS: We have, this afternoon, yes, your Honour.

HIS HONOUR: So I have had the benefit of those submissions. You can both proceed on the basis that I have read them. So, Mr Williams.

MR WILLIAMS: Perhaps, your Honour, given that the issues have crystallised relatively recently, if I could take your Honour to some brief references to Culleton (No 2) and Culleton (No 1). Culleton (No 2) in which, of course, your Honour joined, the orders that were made by the Full Court were given by way of answers.

For present purposes, answer (b) is the critical one. Question (c) referred by the Senate is also worthy of note. By question (c) the Senate expressly contemplated final disposition of this reference by the Court and referred that to this Court. That was, of course, unnecessary to answer in light of the answer given by the Full Court to question (b). Paragraphs 40 and 41 of Culleton (No 2) set out the Attorney-General’s submissions as to a couple of matters and paragraph 42 reflects that those matters were not contested on behalf of Senator Culleton.

If I could then take your Honour as briefly as I may to Re Culleton (No 1), in that case Justice Gageler was dealing with an earlier interlocutory application. At paragraph 20 and following of Culleton (No 1), his Honour identifies the nature of the issue that was raised before him and the test. Could I invite your Honour to peruse through to the end of paragraph 25?

HIS HONOUR: Yes.

MR WILLIAMS: Then paragraph 29.

HIS HONOUR: Yes.

MR WILLIAMS: This is, of course, well-travelled territory. In re Wood considered many of these questions. If your Honour has that in volume 167 CLR - page 170 or perhaps it is convenient to start to start on page 146 where the questions that were referred are set out at the foot of page 146 of the report, the paragraph numbered 3. There were three questions there which were of their nature quite general. Then, at page 172, in the subsequent consideration of the matter by Chief Justice Mason after the Full Court, at about point 8 on page 172, before turning to that issue, I invite your Honour’s attention to that paragraph.

HIS HONOUR: Yes.

MR WILLIAMS: The answers, in fact, given in that case are reflected on page 175, but it is necessary to follow those to go back to 172 and 173. Order 1 is that which appears at the top of page 172 really coming over from the foot of page 171. The third and fourth orders set out at the top of 172 were made in those terms by Chief Justice Mason. Order number 2 that Chief Justice Mason made reflects directions that are set out on page 173 which your Honour will recognise as having significant similarity to those which we seek in the present matter.

HIS HONOUR: Yes.

MR WILLIAMS: Your Honour, in the present case the Senate has expressly referred the question of directions and orders necessary for final disposition of the reference to the Court. There is a clearer source of authority for the Court than that in In re Wood in which comparable orders were made. In our submission, no constitutional question has been identified, still less an arguable constitutional question.

HIS HONOUR: Well, even if there might have been one once, the determination in Re Culleton stands against the proposition in the sense that, if it were arguable, it should have been argued; it not having been argued, it is passed into the realms of what is now determined by the judgment.

MR WILLIAMS: Yes.

HIS HONOUR: My authority is to make directions in relation to the recount that has been ordered. So it seems to me that, whether one follows Justice Gageler’s view in Culleton (No 1) or whether one simply has regard to the fact that these questions have been determined necessarily in order for the Court to have reached the conclusion it did, there is no question as to the jurisdiction of the Court to make the orders that it made in Culleton or as to my authority to make directions in relation to the recount.

MR WILLIAMS: I respectfully adopt that, your Honour.

HIS HONOUR: Having said that, in relation to paragraph 1 of your summons, which seeks a declaration that Mr Culleton was not duly elected to the Senate, there are two things. Firstly, it seems to me that to make that order would be simply to repeat the effect of the answer to the question, question (a), so that it is inutile. Secondly, my remit is to make directions in relation to the recount.

MR WILLIAMS: Can we say just a couple of things in respect of the declaration that we seek?

HIS HONOUR: Yes.

MR WILLIAMS: In Sue v Hill, in giving the directions for the final disposition of that matter, Chief Justice Gleeson, on what I think was the final occasion when the matter came before the Court, that is 2 July 1999 - I am not sure whether your Honour has that.

HIS HONOUR: No, I do not.

MR WILLIAMS: I will hand a copy up, your Honour.

HIS HONOUR: Thank you.

MR WILLIAMS: On page 2 of 5, if your Honour’s print is the same as mine, towards the foot of the page, Chief Justice Gleeson asked:

Do I not need to make a declaration that the first respondent . . . was not duly elected –

in effect, clearing the decks, if I can use the vernacular, in order to permit the subsequent orders that were to be made to give effect? So it is that which motivates our first paragraph of the summons. We certainly accept that the question has been determined in a juridical sense by the decision of the Full Court. But in order to give that traction, as it were, in final orders of the Court, in our submission it may be necessary to make a declaration that makes clear that there is, in effect, that vacancy.

HIS HONOUR: Well, this is why I said to you it seems to me to lack utility. In answering the question, the Court has declared the vacancy. The seat is vacant because Senator Culleton could not be elected to it.

MR WILLIAMS: That is necessarily implicit in the answer given to the question.

HIS HONOUR: Well, it is express.

MR WILLIAMS: That is so; I accept that. The question is whether an answer to a question is - - -

HIS HONOUR: It is a statement of the position as much as a declaration is.

MR WILLIAMS: There may be something in that, your Honour. I should say, as Mr Lenehan points out, that Chief Justice Gleeson did make that declaration in Sue v Hill.

HIS HONOUR: Yes, it may be that he made it because he was also making declarations as to whether or not others had been duly elected. He goes on to make the order “I go on to declare Senator Harris has been duly elected”. Here, those sorts of things can await the report that the directions contemplate will be prepared before this Court - I apprehend in accordance with the directions you propose - will make a further order when the report is available and this Court will make an order confirming the due election of whoever is elected on the recount.

MR WILLIAMS: We accept that, your Honour, yes. Unless there are other matters your Honour wishes to raise, those are our submissions.

HIS HONOUR: Thanks, Mr Williams. Mr King.

MR KING: Thank you, your Honour. I have three propositions, your Honour, to bring to the Court’s attention relating to Senator Culleton. Your Honour, before I do, however, can I just check that the Court has been able to make the proceedings open to Senator Culleton. He, I understood, was hoping to be online from Perth at 1.30.

HIS HONOUR: Well, no one asked us anything about that, Mr King. The Court is open, there are people here. He is not here, so far as I can tell. If arrangements have not been made, that is nothing to do with the Court. It has nothing to do with what we are doing here.

MR KING: Thank you, your Honour.

HIS HONOUR: If he wished to be in attendance, I am afraid he has not made the arrangements necessary for that to happen.

MR KING: Thank you, your Honour, it did come on quickly.

HIS HONOUR: Happily, you are here so you can say what needs to be said on his behalf.

MR KING: I will do my best, your Honour. The first concern we have, your Honour, is based upon the form of the questions. The second concern we have is based upon the effect of section 47 in a context such as the present and Division 2 of Part XXII. The third area of concern is the substance of the directions which are attached to the summons which, in our respectful submission, changes both the character of the election and the detail of the scrutiny in this particular case which is unprecedented. As to the first point, can I ask your Honour to – I refer respectfully to - - -

HIS HONOUR: Mr King, you will need to speak to the microphone.

MR KING: Thank you, your Honour. I refer respectfully to the letter from the President of the Senate referring to the matter on 8 November 2016 which is based on certain facts and then asks the four questions to which my learned friend, Mr Williams, has referred. For present purposes, we note that, leaving aside other formal issues relating to the questions, none of which ask the Court to make any orders – but leaving that issue to one side, the third question which Mr Williams has already drawn attention to is what directions and orders, if any, should the Court make?

This Court held that that was unnecessary to answer. That is the basis of our first point which is outlined in our written outline that there should be an orderly process for the resolution of this summons and that orderly process should commence by a referral of the question, or questions which are now being - your Honour is now being asked to consider, that being important because it may have implications, both as to the nature of the count and the result in the light of the electoral system in the Senate which now prevails.

In our respectful submission, this Court finding it unnecessary to answer that question – that being the proper response - your Honour should not proceed further but the matter should the subject of reference from the Senate. The problem is obvious, your Honour.

HIS HONOUR: Mr King, I do not know whether you were listening when I was speaking to Mr Williams, but as I explained to him the Court answered the question as to whether there was a vacancy and how it was to be filled. That being all that was before the Court, apart from a question as to how the special count should be conducted, the Court has disposed of the matter, that is to say, when question (c) was answered “unnecessary to answer”, it was answered in that way because the view was that further directions or orders other than in relation to the count were unnecessary because the matter had been determined. It has been determined.

MR KING: Yes. So, in our respectful submission, the Court is functus because it has answered the questions asked of it and it is now for the Attorney-General not to come to this Court but to go back to his own forum, the Senate, and seek a further referral.

HIS HONOUR: Mr King, the orders that the Court made included the order for a recount. The order made provision for this Court to give directions in relation to any question that arose on the recount. That is what the summons asks in paragraphs 2 to 5. You may have heard the discussion between Mr Williams and myself in which I indicated I was not disposed to make Order number 1.

MR KING: Yes.

HIS HONOUR: In relation to the other paragraphs, unless you have something to say as to why those orders should not be made in accordance with my remit under the answer to question (b), I would be disposed to make those orders.

MR KING: Yes, thank you, your Honour. We would respectfully adopt your Honour’s observation in respect of Order 1 in the summons and ask your Honour to note that at page 18 of the transcript before Chief Justice French from 21 November, which is also referred to in the judgment in Culleton (No 1) to which my learned friend Mr Williams made reference, the first question was narrowed and confined and, in our respectful submission, that demonstrates and we would respectfully adopt the proposition that the question having been answered no further issue arises. Can I then put my second proposition, which is that section 47 comes into play in a case such as this? Section 47 provides:

Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.

Both Sue v Hill and In re Wood, and Sykes v Cleary in the judgment of Justice Dawson in particular emphasised, as did indeed the learned presiding Judge in discussions and argument towards the end of the 7 December hearing, that the Court’s powers are limited to answering the questions asked. But what the learned Attorney-General here is asking is for more than that. In our respectful submission, what section 47 contemplates is that the questions that have been asked should be now remitted to the Senate - we do not know why that has not happened already – instead of sent off - - -

HIS HONOUR: Mr King, the difficulty with this argument is that section 47 provides “Until the Parliament otherwise provides”.

MR KING: Yes.

HIS HONOUR: This case was heard and determined on the footing that Parliament had otherwise provided.

MR KING: That is correct.

HIS HONOUR: That being so, there being absolutely no argument to the contrary in relation to the Court’s jurisdiction, the Court proceeded to hear and determine the case and to answer the questions. All we are doing here today is giving effect to the order that the Court made in relation to answering those questions.

MR KING: We would respectfully - - -

HIS HONOUR: It is not beyond that.

MR KING: We would respectfully adopt that, your Honour, which is why we, with respect, endorse what fell from your Honour in relation to paragraph 1 of the summons. When one looks at section 376, it quite clearly limits the reference to question and to hearing and determining that question. Section 377 sets out the basis upon which that question is to be determined. My point is slightly different in that what we submit is that a staged or orderly process is now appropriate. The Court having determined the questions, the issue as to whether or not and how Senator Culleton should be replaced is now a matter for his colleagues, not a matter for the Court.

HIS HONOUR: Mr King, the Parliament passed laws, pursuant to which the Senate resolved to refer the questions to the Court. That is it.

MR KING: Yes.

HIS HONOUR: If anyone is functus, it is the Senate. They have done what they have done and we have done what they referred to us to determine.

MR KING: Your Honour, on the question as to whether the Senate is functus, we would say that section 47 is clear.

HIS HONOUR: Well, Mr King, you have made your submission about that. I have drawn your attention to the circumstance that it makes provision until Parliament otherwise provides.

MR KING: Yes.

HIS HONOUR: Parliament has otherwise provided. You have said nothing to suggest that that is not so and that what the Court has done has been other than to act in accordance with Parliament’s otherwise providing.

MR KING: In our respectful submission, the Court would be going beyond its remit, both to make the declaration sought in paragraph 1 and to make the other orders sought in the summons because (a) they do not fall within any authorised issue that has been referred by section 47 or the letter from the President of the Senate.

Furthermore, your Honour, we respectfully submit that such – to the extent that Division 2 authorises anything further than what the answers to those questions provides – and, in particular, the first part – sorry, (a) and the first part of little (b) is invalid and would not be permissible on the basis of the matters that I have put in our written outline and the observations of Professor Enid Campbell to which we have referred.

The third point that we respectfully submit is this, your Honour. If your Honour would go to the summons. In our respectful submission, the schedule of directions which are sought to be endorsed by paragraph 3 and the powers referred to the Acting Australian Electoral Officer under 2 are not either permissible or beyond the remit from the Senate because it changes the nature of the vote. The particular clauses that concern us in the directions are 1, 5 - - -

HIS HONOUR: You have not noted any of these in your written submission. There is no mention of any difficulty with these directions in the written submission you put in.

MR KING: I have not addressed the detail of them; that is correct, your Honour.

HIS HONOUR: Or at all. Not just no detail, or at all.

MR KING: The subject matter of them is referred to, your Honour. That is to say, we respectfully submit that when one examines the way in which the vote is indicated on the ballot paper, opposite the name of Rodney Culleton for above-the-line votes as distinct from below-the-line votes, and the way that the new Senate procedures involved for the election of subsequent candidates in relation to a particular group, the result of these directions will have the effect of changing the vote so far as a particular grouping is concerned or indeed a particular party, as distinct from a particular candidate.

HIS HONOUR: How is that so?

MR KING: Because section 272(b) of the Act and 273(8) of the Act make particular provision in relation to transfers and 269(1)(b) deals with the situation as to where there is above-the-line voting, the old system that formerly prevailed, upon which the Act is substantially structured, of just voting “1” above the line has now been altered to voting “1” to “6” or indeed further above the line.

So the first problem with the program or the directions that are proposed in these orders is that if the vote for Culleton above the line, not below the line, is deleted in the way that is proposed in these orders it will then go to the candidate next which will not be, in fact, anybody who would be below the line in his grouping. In other words, the count now proceeds above the line, not below the line and the deletion of a candidate above the line will have the result of excluding votes to his number 2 and/or number 3.

The same goes also in respect of those candidates who voted for him personally as distinct from his grouping. In relation to paragraphs 5 and 6, the effect of 269(1)(b) in relation to a vote where a person votes one only above the line but then votes for others below the line is to render what would otherwise be a formal vote informal and, indeed, possibly vice versa.

So, in our respectful submission, the directions may not have the result for which the Court provided and I note, with respect, in paragraph 9 of the reasons of Justice Gageler in Culleton (No 1) that his Honour referred to in Re Wood as to what was open to the Senate to do to refer to the Full Court.

In our respectful submission, the Senate did not refer any question of the actual recount itself. It may have done that in In re Wood as argued by my learned friend but it has not done it in this case and the Attorney-General has no authority from his colleagues to advance the matter in the way that he is presently seeking to do. He needs to go back to his colleagues in the House and obtain the authorisation that section 47 provides for, in our respectful submission. If the Court pleases.

HIS HONOUR: Thanks, Mr King. Yes, Mr Williams, anything in reply?

MR WILLIAMS: Your Honour, we make the point in a footnote in our submissions that by reason of section 272(2) a vote above the line is now taken to have the effect of being a vote below the line for the candidates. This is a point that was dealt with in the Day Case last year. In respect of formality 268A(1)(b) deals with formality where notwithstanding the general direction that there should be a vote for a minimum of 12 candidates if there are more than 6 squares on the ballot paper and the voter votes for 1 to 6 it is valid and this is a case in which Senator Culleton or Mr Culleton’s name was validly on the ballot paper because it was a formal nomination. These ballots are, therefore, formal.

For the same reason, the second category that we deal with, 268A(2)(b)(ii), the directions that we seek simply give effect to the precise terms of that provision. Unless there are matters your Honour wishes to raise - - -

HIS HONOUR: No. Thanks, Mr Williams.

I have before me a summons filed by the Attorney-General of the Commonwealth on 23 February 2017. The summons seeks directions necessary to give effect to the conduct of the special count ordered by the Full Court of this Court in Re Culleton (No 2) [2017] HCA 4. The summons is supported by the affidavit of Mr Courtney, also filed on 23 February 2017.

I have had the benefit of submissions on behalf of the Attorney-General of the Commonwealth and on behalf of Mr Culleton.

It was contended on Mr Culleton’s behalf that I should make no order on the Attorney-General’s summons. It was said that this Court lacks jurisdiction to make any orders on the reference considered by the Court in Re Culleton (No 2). I am not persuaded that Mr Culleton’s contention is fairly arguable. In this regard I agree with the views expressed by Justice Gageler in Re Culleton (No 1) [2017] HCA 3, at paragraph 26.

In any event, I note that the contention now put was not agitated before the Full Court at the hearing of this case, and to accede to that submission would be inconsistent with the orders of the Full Court which determined the reference and pursuant to which the directions in relation to the special count are sought. Accordingly, I reject Mr Culleton’s contention.

As to the first order sought by the summons, it appears to me that the Full Court held that there was a vacancy in the representation of Western Australia in the Senate for the place for which Mr Culleton was returned: see Re Culleton (No 2) [2017] HCA 4. To make the order sought in paragraph 1 of the summons might be said to give formal effect to that order but it seems to me, with respect, that there is no real utility in making the order given that the answer to question (a) declares the legal position in substantively the same terms. Bearing in mind as well the nature of my remit, that is to say to make orders in relation to the recount, I decline to make the order sought in paragraph 1 of the summons.

In Re Culleton (No 2), the Full Court went on to order that the vacancy in the representation of Western Australia in the Senate for the place for which Mr Culleton was returned should be filled by a special count of the ballot papers: see Re Culleton (No 2) at [45] and [68]. All members of the Full Court in this case held that the votes cast in favour of the party of which he was an endorsed candidate should be counted in favour of the next candidate on that list, at least so far as votes above the line for Pauline Hanson’s One Nation party are concerned: see Re Culleton (No 2) at [44] and [67]. Accordingly, consistently with that view and consistently with the approach taken by this Court in In re Wood [1988] HCA 22; (1988) 167 CLR 145, 165 to 166, votes indicated for Mr Culleton should be counted to the candidate next in order of the voter’s preference, and the numbers indicating subsequent preferences should be treated as altered accordingly.

The orders sought in the summons, and the schedule of directions provided with it, conform to this approach. No good reason has been shown to doubt that that is so. I therefore make orders in terms of paragraphs 2 to 5 inclusive of the summons.

Any further orders?

MR WILLIAMS: Your Honour, in relation to costs. The points that have been raised on behalf of Mr Culleton are points that were raised late. They involve a substantial repetition of matters already rejected by Justice Gageler and are otherwise not properly arguable. In our submission, your Honour should direct that they be excluded from the costs order made by the Court in answer to question (b) in the Full Court.

HIS HONOUR: Mr King?

MR KING: Thank you, your Honour. We would oppose that, with respect. The submissions were not made late. We only got the summons, I think, four days ago. We were - - -

HIS HONOUR: Mr King, perhaps of more significance would be – do not worry about the question of lateness. Of more significance on the question of costs is the contention made against you that the arguments that were put were really hopeless, having been dealt with before and characterised as misconceived by Justice Gageler. That is really the gravamen, I think, of what is put against you in terms of declining to allow today’s appearance to be covered by the previous order.

MR KING: There are at least two answers to that, with respect, your Honour. We did not repeat the argument that was put before the learned Judge, your colleague Justice Gageler. We were quite careful not to do that. We limited it entirely in respect of this summons that has been brought before your Honour. To do it that way, we would submit, is both not unhelpful and may assist the Court.

The second point, and perhaps the more important point, is this, that Senator Culleton had pressed the view to your Honour – which has been rejected – but, nonetheless, section 47 is the guiding mechanism in these cases where the jurisdiction is not exclusive in the High Court - and that has been held on previous occasions - but is shared between the Senate and the Court and depends upon the form of the questions. We put a submission about the form of the questions, one of which was accepted in relation to Order 1, not in relation to Order 2 or the schedule.

The further point that I respectfully draw to your Honour’s attention is – beg your pardon, your Honour. I have just been on my feet for the last three days, your Honour, I am running out of breath – is this, that we have taken the view, respectfully, and drawn it to the Court’s attention that the directions that are sought – attached to the summons – are improvident or, possibly even imprudent. To draw that to the Court’s attention and, indeed, to the Commission’s attention is a matter of public importance and of assistance. We would respectfully submit there is no reason to depart from the usual order, your Honour.

HIS HONOUR: Thanks, Mr King.

I order that the costs of today’s hearing be excluded from the order made in answer to Question (d), that is to say, the order that Senator Culleton’s costs of the proceedings should be paid by the Commonwealth, save for costs excluded from this order by an order of the Judge. The costs of the hearing today should be excluded from that order.

Adjourn the Court.

AT 5.13 PM THE MATTER WAS ADJOURNED