Re Culleton [2017] HCA 3

Re Culleton [2017] HCA 3

Senator Culleton’s attempt to raise a new constitutional argument as to the invalidity of Div 2 of Pt XXII was refused because it was not raised earlier and lacked merit. The High Court’s jurisdiction under the reference was limited to the Senate’s questions regarding s 44(ii) only; subsequent events regarding bankruptcy and the actions of the President of the Senate fell outside the matter referred and the Court’s jurisdiction in the present proceedings. No orders sought by the summons were necessary to protect the efficacy of the Court’s determination on the reference, so the summons was dismissed.

Parties
Applicant: Senator Rodney Norman Culleton; Respondent: Attorney-General of the Commonwealth; No Appearance: Senator the Hon Stephen Parry, President of the Senate
Jurisdiction
Australia
Judgment Date
31 January 2017
Procedural Posture
Reference to the Court of Disputed Returns Under S 376 of the Commonwealth Electoral Act 1918 (cth) / Interlocutory Application (summons) Filed by Senator Culleton; Judgment on the Summons
Outcome
Summons dismissed; no order as to costs
Legal Topics
Qualifications of Senators, Court of Disputed Returns Jurisdiction, High Court Practice, Section 44(ii) of the Constitution, Section 44(iii) of the Constitution, Section 45 of the Constitution, Section 47 of the Constitution, Validity of Statutory Provisions, Failure to Raise Argument at Hearing
Constitutional Law Electoral Law Qualifications of Senators Court of Disputed Returns Jurisdiction High Court Practice Section 44(ii) of the Constitution Section 44(iii) of the Constitution Section 45 of the Constitution +3 more

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Parties

Senator Rodney Norman Culleton

Applicant

Attorney-General of the Commonwealth

Respondent

Senator the Hon Stephen Parry, President of the Senate

No Appearance

Procedural Posture

Reference to the Court of Disputed Returns Under S 376 of the Commonwealth Electoral Act 1918 (cth) / Interlocutory Application (summons) Filed by Senator Culleton; Judgment on the Summons

Legal Issues

  1. 1 Whether Div 2 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) is invalid as conferring non-judicial/advisory jurisdiction on the High Court
  2. 2 Whether the reference to the Court of Disputed Returns can encompass the circumstances of s 44(iii) in light of subsequent events (bankruptcy) and the actions of the President of the Senate
  3. 3 Whether orders restraining the President of the Senate from acting should be granted

Ratio Decidendi

Senator Culleton’s attempt to raise a new constitutional argument as to the invalidity of Div 2 of Pt XXII was refused because it was not raised earlier and lacked merit. The High Court’s jurisdiction under the reference was limited to the Senate’s questions regarding s 44(ii) only; subsequent events regarding bankruptcy and the actions of the President of the Senate fell outside the matter referred and the Court’s jurisdiction in the present proceedings. No orders sought by the summons were necessary to protect the efficacy of the Court’s determination on the reference, so the summons was dismissed.

Court Disposition

Summons dismissed; no order as to costs

Orders

  • The summons filed by Senator Culleton on 12 January 2017 is dismissed.
  • 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.