- Re Culleton [No 2]  HCA 4
- Commissioner of State Revenue v ACN 005 057 349 Pty Ltd  HCA 6
- Palmer v Ayres; Ferguson v Ayres  HCA 5
- Western Australian Planning Commission v Southregal Pty Ltd; Western Australian Planning Commission v Leith  HCA 7
Parliamentary elections – disqualification under the Constitution
In Re Culleton [No 2]  HCA 4 (3 February 2017) the High Court (sitting as the Court of Disputed Returns) held that Senator Rodney Culleton was incapable of being chosen as a senator at the 2016 federal election.
Senator Culleton was convicted of larceny by the NSW Local Court, in his absence, prior to the election. However, under the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentence of imprisonment cannot be imposed on an offender in their absence. The offence for which Senator Culleton was convicted carried a possible jail term of up to two years. A warrant for his arrest was therefore issued. Before the warrant could be executed, Senator Culleton stood for election as a Senator for Western Australia and was elected. After the election, the warrant was executed and Senator Culleton was brought before the local court.
The Court annulled the conviction and re-tried the matter. The Court dismissed the charge without conviction, but ordered Senator Culleton to pay compensation.
The question was then whether, at the time of the election, s 44(ii) of the Constitution applied. That section renders a person incapable of being elected if they have been convicted and are under sentence, or subject to be sentenced, for an offence with a penalty of one year’s imprisonment or more.
The High Court held that s 44(ii) applied. The annulment operated only prospectively, meaning that at the time of the election, Senator Culleton had been convicted and was subject to sentence. That was so even though the conviction was in his absence. The Senate vacancy thus created was to be filled by a special count of the ballot papers and votes distributed accordingly.
Kiefel, Bell, Gageler and Keane JJ jointly; Nettle J separately concurring. Answers given to questions referred.