Re Culleton [2017] HCATrans 9 (31 January 2017)

Last Updated: 8 February 2017

[2017] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

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

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 31 JANUARY 2017, AT 9.58 AM

Copyright in the High Court of Australia

MR P.E. KING: If your Honour pleases, I appear with MR P.W. LITHGOW for Senator Culleton. (instructed by Maitland Lawyers)

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

HIS HONOUR: Mr King, you move on the summons dated 12 January 2017, as I understand it?

MR KING: That is correct, your Honour. We have given notice of an amendment to paragraph 6, which I am informed was not opposed. Can I hand to your Honour a schedule of that amendment?

HIS HONOUR: Yes, thank you. Now, apart from that amendment, the orders as set out in the summons are the orders that you would ultimately seek on that - - -

MR KING: Ultimately seek, yes.

HIS HONOUR: Yes, and as I understand it what you are proposing today is the making of directions. I was provided last night with a form of directions. Is there any amendment to that form of directions?

MR KING: No, your Honour. Those directions are designed to address – if I can put it this way – two issues: firstly, the interim application before your Honour and, secondly, directions for the further conduct of the reference. That is how we designed it.

HIS HONOUR: Yes.

MR KING: If I can just interpolate this, my friend in his submissions raised certain issues. It will be our submission that they should be dealt with by directions, that is to say, we have proposed written submissions be lodged within a short timeframe and a response - - -

HIS HONOUR: Yes, I see that. Now, in direction 8 there is a reference to “further notice under section 78B of the Judiciary Act”. Have you formulated a draft of that notice?

MR KING: We have not but I had proposed to liaise with my learned friend with a view to reaching a consensus as to what should be in that notice.

HIS HONOUR: Yes.

MR KING: We can do that more promptly, of course, than that. That is simply our proposal.

HIS HONOUR: Well, as I understand it, the Attorney-General seeks that the summons be dismissed so I will hear both of you on your respective positions but I have a couple of other preliminary questions. In your written submissions in-chief in paragraph 9, you refer to an article by Professor Enid Campbell – or at least the views of Professor Enid Campbell.

MR KING: Yes.

HIS HONOUR: Is that an article, is it a book?

MR KING: It is a learned article in the Federal Law Review, your Honour. I did not bring that with me.

HIS HONOUR: In the Federal Law Review?

MR KING: Yes.

HIS HONOUR: Can you remember the title, or the year?

MR KING: Just off the top of my head I cannot, your Honour.

HIS HONOUR: It is easy enough to search.

MR KING: Of course, and we can provide that promptly. The reason that we have not taken that any further is because two courts are now reserved on questions which demonstrate a serious question to be tried we say in relation to the interlocutory issues.

HIS HONOUR: Well, I do not need any further explanation just now. The other question that I have concerns the second affidavit of Mr Maitland.

MR KING: Thank you.

HIS HONOUR: Paragraph 12. Is that the correct date?

MR KING: I believe not. I believe the date is the 7th but may I just inquire – get instructions?

HIS HONOUR: Thank you.

MR KING: I am instructed it is the 7th, your Honour, but - - -

HIS HONOUR: Yes, very well. Mr King, I have read your submissions. I understand what you want. I take it that you read the three affidavits of Mr Maitland.

MR KING: I do, your Honour. Perhaps I can just ask your Honour to formally grant leave to amend paragraph 6 first.

HIS HONOUR: Of course.

MR KING: Thank you. I then read the affidavit of Mr Maitland of 12 January 2017, 17 January 2017 and 30 January 2017, if your Honour pleases.

HIS HONOUR: Very well. I will take those as read unless there is any objection.

MR WILLIAMS: There is no objection.

MR KING: We have also provided to your Honour a chronology – supplementary chronology which may be of some assistance. One of the things that is contained in that chronology, which I do not think is in dispute, is that on 8 August 2016 a bankruptcy notice was served – that is the subject of decision in the bankruptcy matter – and on 7 September, two petitions in the Court of Disputed Returns were filed by Mr Bell and Mr Bertola.

HIS HONOUR: Yes, thank you. Now, before we go any further, Mr Williams, do I understand it correctly that you seek dismissal of the summons?

MR WILLIAMS: Yes, your Honour.

HIS HONOUR: And you read the affidavit of Ms Schwarz, I take it?

MR WILLIAMS: I do, your Honour, and I also tender for the record - - -

HIS HONOUR: Yes.

MR WILLIAMS: - - - the following pages of the court book which are referred to in our submissions.

HIS HONOUR: Thank you.

MR WILLIAMS: We have given a copy to our friends and to the court crier. They are, for the sake of the record, court book pages 5 to 6, 16 and 40 to 42 - - -

HIS HONOUR: Thank you.

MR WILLIAMS: - - - referring of course to the court book from the - - -

HIS HONOUR: I will make them Exhibit 1 on the application.

MR WILLIAMS: May it please the Court.

HIS HONOUR: Well, Mr King?

MR KING: In relation to that last point, your Honour, we have no objection to the affidavit of Nerissa Mary Schwarz, and in relation to the court book, I had assumed that would be before your Honour but we will also be referring to pages 5 and 6 and to the certificate of the Governor of Western Australia at 214.

HIS HONOUR: Yes. Well, I think probably the best thing to do is to withdraw Exhibit 1 and I will treat the court book as being before me on the application.

MR KING: We would be grateful for that course, your Honour.

HIS HONOUR: Mr King, how long do you expect to be?

MR KING: Your Honour, I would think no more than 20 minutes.

HIS HONOUR: Very well, thank you.

MR KING: Would your Honour like me to start?

HIS HONOUR: I would like you to start, thank you.

MR KING: Thank you. Your Honour, this is an interim application to preserve the status quo regarding the privileges, allowances and status of Senator Culleton whose matter is currently before this Court, pending the determination of the Court or any decision of the Senate. It is not a case, as the respondent has attempted to describe it in its written submissions, of the mere notification of a vacancy under section 21 of the Constitution.

It is our respectful submission that my friends have misconceived section 21. That is a machinery provision which takes operation subject to section 47, which is the relevant provision which operates where any question – and I am using the word in the section itself, your Honour – “respecting” the disqualification or respecting the vacancy of a senator arises. That has arisen, and section 47 proscribes, absolutely clearly we say and expressly, that such matters must be determined by the Senate itself or, if it so chooses, by a law of the Parliament, or a referral, one may assume, by this Court, but nobody else.

What must not happen, in our respectful submission, is for any private person – and I here respectfully say that of the President of the Senate and of the Attorney-General, both of whom are Senate colleagues of Senator Culleton – to arrogate to themselves the role and right of ejecting him from his office pending the determination of those questions. What they have done, in effect, using through the – well, as the correspondence demonstrates – is to assume his seat is vacant.

They have taken away his privileges, or are in the process of doing so; they have taken away his allowances and support staff, and are in the process of doing so, all on the assumption that his office is vacant. But that very question, we say, is before this Court, and even if that is not right, that very question is not a matter for them. It is a matter for the Senate, their colleagues, not for individual senators to take such a course.

So it is our respectful submission, your Honour, that these two learned members of the Senate have overreached themselves in a way which this Court ought to prevent because otherwise it is presumed against Senator Culleton that he is disqualified, that his seat is vacant, that he cannot do what he was elected to do by the people of Western Australia to represent them. Now, some people might not like - - -

HIS HONOUR: Well, I do not need anything other than legal submissions, thank you.

MR KING: No, I am trespassing on - - -

HIS HONOUR: You are also using up your 20 minutes.

MR KING: So, your Honour, that is the short point, in our respectful submission, and interestingly enough, my friend’s written submissions do not dispute the power of this Court to grant the interim relief we have proposed. That is fully supported by the views of Chief Justice Barwick in Cormack v Cope, which we have referred to, and which is supported by what - - -

HIS HONOUR: Well, let us take it in stages: Cormack v Cope, you said you have referred to it.

MR KING: Yes, it is in our written submission in reply, your Honour.

HIS HONOUR: Yes.

MR KING: (1974) 131 CLR 432 and I have a copy of it here for your Honour.

HIS HONOUR: I think I will have a copy.

MR KING: I have a copy here for your Honour and I am going to refer to Sue v Hill and R v The Governor of South Australia - - -

HIS HONOUR: That is fine, I do not need further copies. I have the case.

MR KING: I am sorry, my apologies. So we have referred to that in our reply submissions, your Honour, at note 4 at page 6, where at page 455, Chief Justice Barwick said – which is quoted in my note.

HIS HONOUR: It is a sentence, is it, that you - - -

MR KING: It is actually at 454, not 455, your Honour. I am sorry, previous page.

HIS HONOUR: What part?

MR KING: The bottom of the page about point 9:

It seems to me that in an appropriate, though no doubt unusual, case when moved by parties who have an interest in the regularity of the steps of the law-making process at the time intervention is sought, the Court is able, and indeed in a proper case bound, to interfere.

That was in response to a submission that this Court ought not to interfere in the workings of the Parliament. But it is not submitted by my learned friends that the Court does not have the power to make the orders we seek, but I just wanted to assure your Honour that it is supported by authority.

HIS HONOUR: Yes.

MR KING: That is the first point. The second point, your Honour, is in relation to the three issues in O’Neill. My friends do not contest that O’Neill is the appropriate test, nor do they contest, as we understand their written submissions, that there is not a serious question to be tried. We say that is demonstrated by the reservation of the referral questions but also now, according to the affidavit evidence of Mr Maitland in his third affidavit, the reservation of the issue of the bankruptcy appeal by the Full Court in Perth on Friday; and, as the Chief Justice pointed out in that case in arguendo, I acknowledge, that if the appeal is successful the effect of that, leaving aside any question of the effect of the stay granted by Justice Barker when the order was made instantaneously, is to treat the sequestration as if it had never been.

So there is a serious question at two levels. Secondly, what is the balance of convenience? We say that is almost incontrovertibly in favour of Senator Culleton because, if your Honour goes to page 214 of the court book, Marie Neilson, the Australian Electoral Officer for Western Australia, on 2 August 2016 certified Senator Culleton as duly elected and on the previous page, 213 – I thought I had in this the certification of the Governor herself, but in any event, your Honour, section 7 of the Constitution authorises the government to issue such a certificate and did so. That is not in dispute.

So nothing has happened, in our respectful submission, to dislodge that status quo, save and except for the action since 12 January, a date which is not explained in the evidence of the respondents as to why they have set about ejecting him from his office. Now, it is a serious thing, your Honour, when - - -

HIS HONOUR: I do not think I need any further submissions on that point, I understand exactly what you are saying.

MR KING: Thank you, your Honour, I do appreciate that. Now, your Honour, it is said by my learned friend in his argument, if I could take your Honour to his submissions in paragraph 4, that the matter is based upon a factual misconception, that steps are being taken or proposed to be taken to fill a vacancy. That is not correct. The real problem is that my friend’s case is founded upon a legal error that the steps that have been taken to oust Senator Culleton and his staff et cetera from his place in the Senate has been taken under section 21 when there is a question, overriding question, about his disqualification and/or his vacancy that is before this Court, and if not before this Court then only the Senate can deal with it, not individual members of the Senate pro tem. So we say that there is a factual misapprehension on the part of my friend and a legal error.

Then my friend says in his second point summarised at paragraph 4 that there is a legal misconception about the scope of the Court’s jurisdiction. That, we would say, is misconceived for two reasons. Firstly, if your Honour goes to the court book and the letter signed by the very respondent himself – that is, the President of the Senate and perhaps I should pause there, your Honour. I see that we have received a letter from the second respondent submitting to any order the Court should make. We would ask your Honour to make an order under rule 21 joining him, as the former Chief Justice joined the Attorney-General on 21 November as a party. Section 378 also authorises your Honour to make such an order.

HIS HONOUR: That is one of the orders you seek in the summons, I think.

MR KING: Yes, that is right.

HIS HONOUR: Yes.

MR KING: And I understand that is not opposed but subject, of course, to the arguability of our case.

HIS HONOUR: Yes.

MR KING: But if your Honour goes back to the court book, we find at page 5 the referral of this matter by the second respondent, the President of the Senate, which became proceeding C15 of 2016. And if your Honour goes to page 6 of the court book, the questions which are referred:

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 –

The “place”, your Honour, is a word that is very significant in this whole context. The Constitution does not use the word “office” in relation to senators or members. It uses the word “place”, for example, in sections 45 and 15 and elsewhere.

HIS HONOUR: What is the significance of that difference?

MR KING: I do not think there is any difference, your Honour. I just highlighted the fact that that focus is on the generality of his place becoming vacant.

HIS HONOUR: Yes.

MR KING: So as at the date of the referral, of course, the principal question which is reserved was whether or not the annulled larceny conviction has any moment, is a matter which would lead to his disqualification and a vacancy. But the referral was not limited to section 44(ii), it said “for any other reason”, and section 376 of the Commonwealth Electoral Act makes it clear that the Senate may refer any question it is so disposed.

Now, it is true at that time the Bell and Bertola petitions, as I have indicated in the chronology, were extant. There was an opinion of the Solicitor-General, Mr Gleeson – that which the Solicitor-General had given to the Attorney-General who had then given it to my client, so that is how I can speak with authority about it – which said those petitions were doomed to fail because they were bad as to form and there were other reasons which I need not presently mention.

But, nonetheless, it may well be that that was contemplated as perhaps one of the other reasons because they were then extant and, indeed, they are still extant in the Court and we will be moving to have those dismissed by summons in due course. But also there was floating around the issue of the bankruptcy because, as the chronology indicates on 8 August, the bankruptcy notice had been purportedly served. Now, that was not specifically mentioned anywhere in the referral but the words “for any other reason” have now been triggered by events which have happened.

So we say that my friend’s technical objection that this Court is not seized of any question regarding the bankruptcy issue is in error. But we say it is in error for another two reasons, your Honour. Firstly, section 47 is very clear. That is to say, once this Court is seized of a question, as it properly is, as my friend concedes by his own letter, of the question of the vacancy of Senator Culleton, the mere fact that some other reason may arise subsequently does not mean that the question disappears or can be overcome or overreached or outflanked, which is really the position that my friends have taken. On the contrary, we say the issue becomes more protracted and by their own conduct is a matter that needs to be resolved.

HIS HONOUR: I do not quite understand that submission. Can you put it again?

MR KING: Yes, I will try and make it clearer, your Honour. If I can take your Honour to section 47.

HIS HONOUR: Yes.

MR KING:

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.

Now, your Honour, what has happened is that a question respecting the qualification of a senator and respecting a vacancy has arisen. So that even if my friend is correct, which we say he is not for the third reason - - -

HIS HONOUR: That question, how do you formulate that question?

MR KING: That question is whether or not and, if so, what is its character – that is not good English, your Honour, let me start again.

HIS HONOUR: That is good enough, I will put in the commas.

MR KING: Whether or not there is a vacancy and, if so, what is its nature. Whether or not there is a vacancy, if so, what is its nature? That is to say, is it a vacancy that arises under section 15, as some people politically would hope, or is it a vacancy that this Court determines as put to it by my learned friends on 7 December? That is to say, by a recount. So those questions are clearly before the Court and they arise from the first aspect of section 47, a “question respecting the qualification of a senator”.

HIS HONOUR: Now, I actually do understand the submission now, thank you.

MR KING: Yes. So that it does not matter that a subsequent issue has arisen, it just makes the question more refined, if I can put it that way.

HIS HONOUR: Yes.

MR KING: But, your Honour, the Court is seized of - of the very question that my friend is doubting because Mr Maitland, my instructing solicitor, in his letter in response to Senator Parry’s letter of 11 January, responded immediately by saying there is a question as to the effect of the sequestration order made by the Court. That is to say, it has not taken operation and, in any event, we are appealing and if we succeed in the appeal the question dissipates.

HIS HONOUR: I understand that and you say the entire question falls within the scope of section 47.

MR KING: The entire question.

HIS HONOUR: The question is either for the Senate itself or within the scope of the reference that has already been made to this Court.

MR KING: That is so. So, therefore, it is impossible for my friend to make a submission of the sort that he makes in paragraph 4, we respectfully submit, and it is appropriate that O’Neill is then considered and, as I have submitted, my friend does not put a proposition that O’Neill is not satisfied and it would be very difficult for him to do so in two distinguished courts, perhaps the most distinguished in this country.

HIS HONOUR: Well, I do not need you to tell me that.

MR KING: No. So, your Honour, in our respectful submission, for those reasons the interim order should be made pending the determination of the Court of Disputed Returns of the referral and any such expanded referral that may occur, but we simply say pending proceeding C15 of 2016 or any other determination by the Senate because, as I understand what the High Court said in Sue v Hill, it is possible for the Senate to presume upon that question at any stage because of the unusual character of the referral.

Your Honour may recall that three Judges of the Court in that case, Justices McHugh, Callinan and Kirby, were of the view that in fact Division 2 of Part XXII did not refer any question of disqualification to the Court of Disputed Returns. Four Justices disagreed which means that it – but the question is a matter of great significance, and whilst I am on Sue v Hill, your Honour, if I can just ask your Honour to go to our submissions in reply.

HIS HONOUR: Yes.

MR KING: We respectfully draw attention to what the High Court said – Justices Gleeson CJ, Gummow and Hayne in Sue v Hill recorded at paragraph 5:

Any question respecting Mrs Hill’s qualification as a Senator, a vacancy in the Senate and any question of her disputed election to the Senate would, if the Parliament had not otherwise provided, have been for the determination of the Senate.

Then section 47 is quoted. There is no suggestion of a third possibility, namely, that the President of the Senate or an individual senator or anybody may presume upon that question where that question has arisen in the way that it has done in this case. Justice Barton was of the same opinion, his view being approved by the whole of the Court in the matter of R v The Governor of South Australia (1907) 4 CLR where a senator is held by the Court of Disputed Returns election to have been void. His Honour said at the end of the judgement, 1513:

It seems to be clear that the question whether there is or is not now a vacancy in the representation of South Australia in the Senate is one of the questions to be decided by the Senate under sec. 47 “unless the Parliament otherwise provides.” Parliament can, no doubt, confer authority to decide such a question upon this Court, whether as a Court of Disputed Returns or otherwise.

So our respectful submission is that those learned observations foreclose any case that my friend might have that somehow or other this Court is not seized of the matter because we say that even if it is purely a Senate matter, we would still be entitled to a restraint to prevent him being ousted.

HIS HONOUR: Yes.

MR KING: To carrying out his public duty. I think I have lasted 20 minutes, your Honour.

HIS HONOUR: And I think that you have covered all of the points.

MR KING: I appreciate that, your Honour.

HIS HONOUR: And I appreciate the submissions, they have been helpful.

MR KING: If the Court pleases.

HIS HONOUR: Mr Williams.

MR WILLIAMS: Thank you, your Honour. Your Honour, the present reference is limited in scope and does not extend to bankruptcy-related issues that postdate the date of the reference. The reference itself is in the court book at page 5. Temporarily, of course, it is an 8 November reference predating the sequestration order and it therefore, we submit, could not include bankruptcy issues. The reference power is not one to be exercised in the abstract. The Senate could not refer to the Court, for example, whether any or all members of the Senate remain qualified or were qualified. It is the power to refer/define questions. These questions were defined by the statement of facts that was communicated to the Court together with the 8 November letter. That relates to issues concerning conviction and not to bankruptcy.

The text of section 379 of the Electoral Act emphasises the necessity for a concrete question to exist in its use in the (a) and (b) paragraphs of the past tense to declare that a “person was not qualified” or a “person was not capable . . . of sitting”. That emphasises, we submit, the necessity for a concrete question to exist at the time of the reference. The order of the Chief Justice which is at page 40 of the book is also of significance. The Chief Justice on 21 November in order number 2 confined the question that had been referred in the following way:

Question (a) of the questions referred by the Senate to the Court of Disputed Returns on 7 November 2016 shall be read as referring to s 44(ii) only and not any other reason for the vacancy referred to in that paragraph.

Now that, of course, has been fully heard by the Court and is reserved and there are case management reasons why – or, first of all, as a matter of law that order subsists and there are case management reasons why it should not be disturbed. The Senate, of course, as is common ground, next sits on 7 February.

So, in respect of the scope of the reference, there is, in our submission, nothing in the reference for the present summons to attach to it. There is, we submit, nothing to enjoy since there is no threat to fill the vacancy and the letter attached to Ms Schwarz’s affidavit makes that point good. There is no irremediable harm. The only question is whether Mr Culleton is not being paid certain amounts that on an alternative view of the facts and law he might be entitled to be paid. That is not something that would lead to an order from this Court because it is not an irremediable prejudice.

The suggestion that the Court of Disputed Returns reference jurisdiction in Division 2 of Part XXII is invalid is, in our submission, devoid of substance. We have been unable to identify the article – any article from Professor Campbell to supporting the proposition to which our friends refer, nor have our two requests to his solicitors provided us with any assistance in that respect.

HIS HONOUR: She wrote a book on parliamentary privilege. I just wondered whether it might be in that.

MR WILLIAMS: It is possible. I do not want to suggest that - - -

HIS HONOUR: We should not be speculating about the source of the – or at least the inspiration for that paragraph. It is for Mr King to tell me if it exists, I think.

MR WILLIAMS: We have undertaken at least basic searches, your Honour, without success is perhaps the most I should say and we certainly – we see no basis in the terms of the provisions themselves. If your Honour were to open section 47 of the Constitution together with section 376 of the Electoral Act, the latter of course being the necessary focus of any such challenge, it is apparent that the jurisdiction conferred by section 376 very closely follows the contours of section 47 of the Constitution.

It starts with “Any question”, which of course is from the language of section 47, and faithfully reproduces the kind of question respecting qualifications, et cetera, and it concludes with a reference to determining the question, as does section 47. What follows from the determination of such a question in the Act comes from section 360 of the Act, a series of conventional powers. For example, 360(1):

(v) To declare that any person who was returned as elected was not duly elected;

(vi) To declare any candidate duly elected who was not returned –

Those are orders ascertaining and declaring rights:

(vii) To declare any election absolutely void -

Now, these provisions, of course, are made applicable in the reference power jurisdiction. This 360 is in Division 1 but they are picked up in the Division 2 reference power jurisdiction by section 379 of the Act. Those powers come in in that way. Section 380 is another entirely conventional judicial function – the order to be communicated. Section 381 picks up provisions such as section 374:

Effect shall be given to any decision of the Court as follows –

So an entirely conventional legislative scheme comparable, for example, with the mechanisms by which courts refer questions for more authoritative judicial determination and leading to the ascertainment, declaration and enforcement of rights. So the argument for invalidity, we submit, is not a tenable one. It does not bring us anywhere close to the obligations arising from section 78B.

Using the words of Justice French in Berbatis Holdings, there is no question that really and substantially arises under the Constitution. So for those reasons there is no impediment coming from section 78B to the determination of any such questions in the reference that is reserved coming from the submission belatedly put.

So, your Honour, for those reasons there is nothing before the Court requiring determination. The summons is quite outside the scope of the reference. There is no issue of a threatened – of an apprehended nature which would give rise to injunctive relief even if it were within the scope of the Court’s reference and for those reasons it should be dismissed. Unless there are matters with which I can assist.

HIS HONOUR: No, thank you. Thank you, Mr Williams. Now, Mr King, is there anything in reply?

MR KING: Yes, your Honour. The question that my friend spent most of his time on concerning the issues raised by summons paragraphs 2, 3 and 4 are dealt with in our proposed direction 6 through to 8. That is to say, that that question should be the subject of considered submissions and a 78B notice, the matter brought back because it may be necessary - it may be relevant for that question to be referred to a Full Court.

HIS HONOUR: Well, Mr King, you know at this stage of litigation we need more than a thought bubble. Is there anything more that you can say in support of that argument now other than the bare outline that you have given in your written submissions?

MR KING: Simply this, your Honour, two things. Firstly, if your Honour goes to the questions that are referred at paragraph (4) of the letter at page 6, the letter of referral of the court book - - -

HIS HONOUR: Yes.

MR KING: - - - those questions are referred in the form of advice – that is, whether or not there is a vacancy, et cetera. Now, those questions therefore do not – if they are answered yes or no, or that question is yes or no, and indeed even the fourth question relating to costs, costs is framed in the form of whether or not particular orders should be made. It would be our respectful submission that what the Court would do as a consequence of such a referral is to answer the questions and we understood this is what Justice Kiefel said, the presiding Judge, towards the end of the discussion on the 7th, is simply to answer the questions.

That is all the Court was there to do, and it is our respectful submission that a jurisdiction to simply answer questions is in substance a jurisdiction to give judicial advice. If it is to give judicial advice then Navigation Co proscribes such a course and we say that even if – so that in a sense is an overarching question. You might consider it a judicial review question. I know there is – I should not be quoting articles that I have not given your Honour, but there is an article by Professor Orr and Professor Williams jointly, I think, in the FORs and where they discuss whether or not you can have judicial review in the Court of Disputed Returns but that is theoretical because it has not happened.

I know it has in the UK, but it is in a sense a preliminary question, or an overarching question, and it may well be that once your Honour has submissions from both parties as to the substance of the question and as to what directions the Court should make to dispose of it, that is, either referral to a Full Court as it now presently is and you with all seven Justices, or otherwise, would be a matter for a further directions hearing once your Honour has seen the detail of the submissions exchanged as we proposed in directions 6 to 8.

That is the way we put it, your Honour, but we say that that is not the question today. The question today, the critical question today is paragraphs 1 and 5 and following, and the directions that we seek which is at paragraphs 2, 3, 4 and 5 of the – sorry, the restraining orders 2, 3, 4 and 5 of the proposed orders and directions.

HIS HONOUR: But just let us go back one step. You said critical question for today includes paragraph 1 of the summons.

MR KING: Well, raised by paragraph 1 but it is really the matters in the - - -

HIS HONOUR: In the directions, I think, is it?

MR KING: Yes. It is 6 and 7; 6 is amended and 7.

HIS HONOUR: Of the summons.

MR KING: Of the summons, yes, that is what we have focused our submissions on because of the interim harm and threatened loss and damage.

HIS HONOUR: Yes.

MR KING: And we say that it is unnecessary to deal with the larger questions in paragraphs 2, 3 and 4 and, indeed, inappropriate and the appropriate way to deal with that is by directions and then a possible referral to a Full Court. And at the same time, of course, by that time it can be expected that the Full Court of the Federal Court will have given its judgment in the reserved bankruptcy appeal and that too can be addressed at that time because the questions may change. Let us assume Senator Culleton - - -

HIS HONOUR: I can think through the scenarios.

MR KING: There are about four or five scenarios.

HIS HONOUR: There are plenty of possibilities. Yes, I follow that.

MR KING: Yes, but we say that whatever happens, until then O’Neill applies and that your Honour should make interim restraining orders. Now, your Honour, we do not hear my friend argue against the form or content of - if your Honour is in our favour, of orders 1, 2, 3, 4 and 5.

HIS HONOUR: Now, let us distinguish between directions and orders. What are you speaking of here, the directions?

MR KING: Yes, your Honour. Order 1 is an order, not a direction. I apologise. I should have - - -

HIS HONOUR: I am just looking at the pieces of paper; one is called “Proposed Directions”. That is the piece of paper you are looking at.

MR KING: That is the piece of paper I am referring to, your Honour, yes.

HIS HONOUR: So 1, 2, 3, 4 and 5.

MR KING: Are not opposed in terms of form or, we say, in terms of substance. Paragraph 6, my friend would say, ought not to be made – 6, 7 and 8 my friend would say ought not to be made because there is nothing in the point, but that does not disturb our case in relation to paragraphs 1 to 5. As to paragraph 9, we would think your Honour would do that because the question now of the effect – the question that was referred by the Senate has now been enlarged or, alternatively, given further scope by events which have happened since that time. Then “Liberty to apply” seems appropriate, and “Costs reserved”, we do not hear any opposition to that. But can I just then deal with two points that my friend has raised which are central to our primary case today?

HIS HONOUR: Yes. Just so I understand it, and perhaps it is just something for me to work through for myself, but orders 6 and 7 you press. I am looking at this time the “summons”, the document headed “summons”. You press those two orders today of your summons, is that right?

MR KING: Yes, and we have refined them, your Honour, in terms of the evidence and events which happened in paragraphs 2, 3, 4 and 5 of the - - -

HIS HONOUR: All right, I am to treat them as a refinement of paragraphs 6 and 7.

MR KING: Yes. Thank you, your Honour.

HIS HONOUR: Yes, all right, that is helpful. Thank you.

MR KING: My apologies, I should have made that clear. So can I turn then to my friend’s two points, the only two points he makes, sort of en passant, regarding our primary case today and that is to preserve the place and position of Senator Culleton until the determination by this honourable Court or any decision of the Senate. His first point was no irremediable damage. Can I just ask your Honour to go to sections 48 and 49 of the Constitution?

HIS HONOUR: Yes.

MR KING: My friend admits that the allowances have been taken away, and as to privileges, can I just ask your Honour to look at the first page of my friend’s written submissions to demonstrate how great is the actions of these respondents against my client. In paragraph 4, my client is referred to as “Mr Culleton”. One of the privileges of being elected, as my client was, is to be called - - -

HIS HONOUR: For the purpose of these proceedings, he will be referred to as Senator Culleton.

MR KING: Thank you, your Honour. That was how he was declared by the Governor. That is how he was referred to by my friend’s client when he wrote the letter on 8 November. What has happened? That is the question we asked. The irremediable damage is to take actions under sections 48 and 49 which the second respondent has had no power to do, no authority to do. No authority of the Senate, no authority of his colleagues and no authority under the Constitution. I will not say anything further about 47 because my friend does not argue against our case. So we say his point about no irremediable damage is simply unsustainable and surprising to have been made.

The second point my friend makes is scope. That is his only other point. Your Honour, I will not repeat what I have said in submissions in-chief about scope. We say that there are at least three bases upon which these issues are properly before this Court. We say that there is, in effect, an overreaching of the Court, a usurpation of its authority and, of course, of Senator Culleton’s person himself and of the Senate. But my friend refers your Honour to the court book and he asked your Honour to look at the orders made on 21 November 2016, paragraph 2, and the effect of that resolution. But, your Honour, the Chief Justice, that was a direction that was made to assist the parties in relation to the dispute as then understood, but section 376 of the Commonwealth Electoral Act, which my friend referred to and which I would ask your Honour to go to, speaks of the power of this Court in relation to:

Any question respecting the qualifications of a Senator . . . or respecting a vacancy . . . may be referred by resolution . . . shall thereupon have jurisdiction to hear –

et cetera. Now, my friend cannot say that these issues are not within the scope of the resolution when the resolution says:

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

any other reason. Any other reason has now been triggered, your Honour, and we say that my friend’s scope argument on the face of the record has no authority, but in any event, it is now before the Court because of our summons, Mr Maitland’s letter, and because we say of section 47 my friend has misinterpreted it. Section 47 you only need one question and the issue is raised before this honourable Court.

In our respectful submission, the orders sought in paragraphs 1 to 5 of our proposed directions – should have been called proposed orders, your Honour – should be made. As to 6, 7 and 8, there is an argument about that, we say, but that is our proposal of the way forward, and then 9, 10 and 11 seem undisputed. If your Honour please.

HIS HONOUR: Thank you. What I will do is reserve my decision in relation to the summons and deliver judgment on the summons at 3.00 pm today.

MR KING: Would your Honour excuse me, at 3.00 pm I am required back before Justice Campbell in the Common Law Division in Sydney. Mr Lithgow will be here.

HIS HONOUR: That is fine. It will not be necessary for counsel to attend. I am sorry, there are circumstances that may prevent me from doing it earlier.

MR KING: No, of course, your Honour - - -

HIS HONOUR: In any event, you will be on a plane.

MR KING: I will be on a plane, your Honour. Thank you.

HIS HONOUR: Yes. All right, well, the Court is adjourned and I will deliver my judgment at 3.00 pm.

MR WILLIAMS: If the Court pleases.

AT 10.53 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

HIS HONOUR: I apologise for the delay in the delivery of judgment. I have no jurisdiction over the power supply.

In this matter, I propose to dismiss the summons. I publish my reasons.

The orders I make are as follows:

1. The summons filed by Senator Culleton on 12 January 2017 is dismissed.
   
2. The costs of the summons are excluded from such order as may be made to the effect that Senator Culleton’s costs of the proceeding on the reference be paid by the Commonwealth.
   

I publish that order.

The Court will now adjourn.

AT 3.14 PM THE MATTER WAS CONCLUDED