West Australian Senator in exile, ‘bank basher’ Rodney Culleton is expecting to be re-instated to the senate after the High Court delivered a fatal blow to the long-running ANZ Bank campaign to destroy his career and livelihood
A unanimous decision handed down on March 21, 2018, Alley-v-Gillespie, paves the way for the senate to re-install senators Bob Day and Rod Culleton, however it could have further far-reaching ramifications for other senators removed under s44 of the Commonwealth Constitution.
In essence the HCA has ruled it cannot decide on a question of disqualification or vacancy without first empowering the House under s22 and s47 challenging any question under s44 of the Constitution which states any question of eligibility for an elected candidate to the Upper or Lower House can only be decided by the respective House of Parliament.
Culleton has maintained this argument ever since Judge Barker of the Federal Court in 2016 found Culleton bankrupt because a proposed land deal between himself and Perth businessman and leading Liberal Dick Lester had turned sour.
Lester was reported as spending $1.6 million with Perth law firm King Wood Malleson chasing an alleged
debt of $200,000.
Culleton alleges the law firm and Lester were acting on instructions from the ANZ Bank because he had challenged the ANZ Bank’s bona fides over bank foreclosures through the senate.
Two solicitors, Michael Lundberg and Adam Rompopis who were leading the Culleton offensive, have since departed the firm.
To add insult to injury in June last year, the Federal Government pursued Culleton for $712,000 in expenses and wages incurred while his senate office was in operation.
It was a first ever demand for office expenses by government against a former Member.
On March 7 the Finance Minister Mathias Cormann wrote to Culleton stating he had forgiven the office bill. Culleton said he refused the offer because legally, he remained a senator.
“I did not accept Cormann’s waiver of the debt because I was unlawfully removed from the senate,” Mr Culleton said.
“After the s47 ruling on March 21 I informed the senate President he must recall the senate to deal with the matter of my disqualification which will have implications for other senators who were also disqualified by the High Court.
“All facts must be debated in the House and questions of disqualification or vacancies must be dealt with by the House.
“My argument regarding s47 has never changed and I put the President on notice last week the ‘surrogate’ senators not elected by the people are only filling the void created by the High Court sitting as the Court of Disputed Returns.
“They should pack up and go home. The whole senate has been brought into disrepute by former Liberal Attorney General George Brandis and former President Stephen Parry when Brandis withheld the statement of agreed facts from the senate.
“The new president must recall the senate and deal with the matters.”
The extract below is from a story published by Cairns News on March 8, 2017:
A single judge of The High Court of Australia, on March 2, 2017 struck out Culleton’s appeal against bankruptcy, previously handed down by the Full Bench of the Federal Court.
“I am outraged and disappointed Justice Patrick Keane of the High Court did not ever read my written submissions yet he handed down his finding in spite of me asking for more time to prepare,” Mr Culleton said.
Coincidentally, March 2, 2017 was the 12 month anniversary when he was convicted of larceny in absentia in the Armidale Magistrates Court over the disappearance of a truck key worth $7.50, a charge for which he would not ever have been jailed.
“My counsel clearly told Justice Keane that the High Court did not have jurisdiction to deal with my position in the senate,” he said.
“Counsel told the court only the senate could deal with it and Justice Keane only had to read Section 47 of the Constitution which says any question over the qualification of a senator or a member of either House, ‘….shall be determined by the House in which the question arises.’
“The High Court says it gets its power from the unlawful Australia Act 1986 which was introduced two years after a referendum of Australian people said they did not want the Commonwealth to give its powers to the States.
“This referendum failed but here we have the High Court using powers the states should not have such as the denial of juries.”
Lower House supporter Katter’s comments from January 19, 2017.
KAP Federal Member for Kennedy, Bob Katter who had formed an alliance with Senator Culleton because of his effective attack against unlawful bank foreclosures, waded into the fray last year.
“The more we become aware what has been done to Senator Culleton the more clear it becomes that the Liberal Party counts on the vote of One Nation,” Mr Katter said.
“This morning in the Perth Federal Court, Senator Rod Culleton was granted his right to have an Appeal heard on his bankruptcy ruling.
“The Senator’s Appeal application was a live matter last week when the Senate President removed Senator Culleton from his elected seat in the Senate on the basis of Senator Culleton’s bankruptcy declaration being finally determined, which at the time — it was not.
“Whilst One Nation may have started off the ‘Killing of Culleton’, it is most certainly the Liberal Party who are trying to finish the job. The Liberals are doing exactly the same job on Senator Culleton that they did on Pauline Hanson herself. I was always appalled with what they did to her and publicly said so on numerous occasions. However, it is hard to feel sorry for her now.
“It’s becoming clear now that the Liberals with the support of One Nation moved at lightning speed to bankrupt Senator Culleton and in my opinion, stand him down from the Senate.
“On the issue of bankruptcy, the Liberal W.A Government gets to make the decision (in cahoots with One Nation).
“If Senator Culleton is thrown out over the loss of a $7 key then the Liberals and One Nation do not get to choose his replacement. It goes to the number 2 on the ballot who is a One Nation True Believer, not of the new, ‘James Ashby (Liberal) One Nation’ that we see today.”
On March 8, 2017, Culleton warned of the looming “biggest Constitutional correction since federation.” It has occurred.
I assume you refer to the referendum proposing the free interchange of powers between states and the Commonwealth. So far as I can see, the Australia Act included no such provision, though s51 of the constitution has always given the Commonwealth the power to legislate on state matters at the request of the states.
Which powers do you claim were unlawfully handed to the states by the Australia Act(s)?
Thank you for that reply. I understand your argument that the High Court cannot sit as the Court of Disputed Returns. I don’t see that Alley v Gillespie necessarily supports this, but it’s certainly an arguable case.
I wonder if you could post a link to the section of the Crimes Act N.S.W to which you refer? I accept that the Crimes Act 1914 (Com) has such section.
Thanks Mark for your thoughtful reply to this legal impasse. The reply below is from another lawyer with a Constitutional background:
This correspondent is just another lawyer who does not understand what the High Court actually said. In Alley V Gillespie (2018) HCA It said that the question of eligibility to sit in Parliament while disqualified, is exclusively a matter for the House concerned, and mentioned S 77 (i) Constitution. This means that the only Court that cannot be the Court of Disputed Returns is the High Court. The question of the larceny charge which is attainted of fraud, and the Bankruptcy matter which is attainted of treason, because the Court from which the judgment came was not sitting as a delegate of Her Majesty Elizabeth the Second and therefore could not exercise jurisdiction over subjects of the Queen of the Constitution. The High Court of Parliament sitting as the Senate became the court siesed of the whole Culleton matter when Rod Culleton and Jacqui Lambi moved to have it examine the whole matter on the 1st December 2016, and the Parliament of the Commonwealth has the ultimate power over the Judiciary, by S 72 (ii) Constitution, and all matters affecting any sitting member, once declared elected come under the Parliamentary Privileges Act 1987 and cannot be delegated away. In that respect part XXII Crimes Act 1914 (Cth) is beyond the competence of Parliament and the right to Appeal directly to the Sovereign, under the criminal law, remains.–Peter Gargan
Crimes Act N.S.W states no one can be convicted in thrir absentiure. Ut never occured and thats what Brandis and Parry were banking on. They arecas corrupt as they come. Culleton has a massive fight, and he will win
Mark.you’ve obviously not read ‘a referendum was held to pass the australia act.1986.(it failed), but they unlawfully handed the states powers only the Commonwealth held.the anz bank pushed bankruptcy cases through the senate.thats been part of rods argument & rightly so , amongst other bastardry acts from the unlawful/ unconstitutional corporate actors in play..
King & Wood Mallesons (KWM) formerly known as Mallesons Stephen Jacques (MSJ) have been on public funded retainers in my Commonwealth Casualty of Telecom matters (CoT) since 15.05.1994, when a MSJ solicitor was seconded into Telecom-Telstra as an officer of the Commonwealth to mishandle my ‘price sensitive’ still disclosure omitted CoT matter.
In 1995 the Chairman of Telstra DAVID M HOARE an officer of the Commonwealth politically appointed also became the Chairman of MSJ at the same time replacing Stanley Howard the brother of John Howard, all while MSJ were on Telstra thereby on Commonwealth of Australia public funded retainers to conceal the restitution of property liability owing to me, as another CoT victim whose 1800 number was not network conditioned in the exchange for a prolonged period of time, then never had sufficient computer billing capacity in the exchange to allow once net work condition to accept an calls for another prolonged period.
Notwithstanding, I now note that KWM are the law firm acting against the apparently still in exile Senator Rodney Culleton. While MSJ are retained by the Commonwealth of Australia.
I find that extra interesting given that KWM for the last year or so have a KWM office setup full time inside Treasurer Scott Morrison MP’s own office, and another KWM officers set up full time inside the Commonwealth’s Treasury. So clearly KWM are advising the Treasurer and thereby the parliament & senate on how to fob off or keep harming Rodney Culleton.
In 2006 MSJ had DAVID HOARE strategically positioned as Chairman of the ASX along with MSJ managing Partner Tony D’Aloisio as HOARE’S deputy, until October 2006 when Treasurer Peter Costello MP appointed Tony D’Aloisio to ASIC to block me exposing the Telstra three share float insider trading and market manipulation frauds.
KWM former MSJ partners became dishonest masters in engaging in tactical deceit, fraud and dishonestly inducing officers of the Commonwealth to commit wilful perjury to pervert and defeat the course of justice. MSJ also had retainer bribes paid to the Queensland Solicitor-General PATRICK ANTHONY KEANE QC in 1999 to 2005 in my CoT matters.
In 2002 KEANE QC (NOW HIGH COURT OF AUSTRALIA JUDGE against CULLETON) was Court of Appeal found by all three justices to have definitely misled the trial judge in 2001.
MSJ also induced special judicial favours via KEANE QC, as has been witnessed by myself for decades. Also MSJ people (now Paul Fletcher MP) was infiltrated as the Chief of Staff to the Senator Richard Alston from 1996 to 2000.
MSJ people were additionally positioned in 2006 into the strategic Telstra three share float scandal committed by the strategically shonky MSJ partners shadow directing to misrun the ASX, ASIC, ACCC, RBA & ACMA boards. I hope this information reaches Rodney Culleton.
Which unconstitutional changes do you refer to. As regards marriage, the constitution reserved to the federal government the right to legislate in relation to marriage, and it has done so. What constitutional issue do you see there?
Interesting post, interesting decision, interesting issue.
With regard to s44 eligibility, the court was not asked to decide on the issue of Gillespie’s eligibility. The private petitioner’s case sought a sum of money in return for the contention that Gillespie was unconstitutionally elected The court considered whether it should address Gillespie’s eligibility to be elected, but decided such a case was not the proper forum for the issue.
As your post rightly notes, the court deemed that the proper path to deciding eligibility is through s47 of the constitution, which provides that “Until the Parliament otherwise provides, any question respecting the qualification of a senator or member of the House or 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.”
Note that first clause: “Until the Parliament decides otherwise.”
The Parliament did indeed provide otherwise, in Part XXII of the Commonwealth Electoral Act 1918, which established the provision for either house of parliament to refer questions of eligibility to the Court of Disputed Returns.
The result in Alley v Gillespie is that “The High Court cannot determine whether the defendant is incapable of sitting as a member of the House of Representatives: that is to be determined by the House unless it refers the matter to the Court of Dispute Returns.”
Key words: “… unless it refers the matter to the Court of Disputed Returns.”
In other words, all the s44 eligibility cases decided in the High Court have been decided properly, through referrall by the relevant house of parliament. Parliament could have decided any of these cases, but chose, quite legally to refer them to the court.
Alley v Gillespie therefore raises no question as to whether s44 ineligibility has been decided wrongly in the past. The case did not make the decision that your post says it did.
As for Culleton’s spectacular financial history, it’s not the least bit relevant. The court decided that he was ineligible to be elected under s44(ii), having “been convicted and … 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.” Culleton actually had a fairly good argument about that issue, and the decision could reasonably have gone either way, but it went against him and that, I’m afraid, is it for him.
Fantastic news.
Rod may finally get re instated and then achieve justice for our constitution to be up held as the highest law in this country.
What can we say. GOOD ONJA MATENDUME..This goes to show that when right is RIGHT. Truth will prevail….Australian Constitution has been ALTERED many times WITHOUT A REFERENDUM by the People…by past and present PM’S…Now is a good time for a panel of
Constitutional Lawyers complete a THOROUGH EXAMINATION TO SET THE CONSTITUTION BACK TO THE ORIGINAL FORM ALLOWING WHERE LEGITIMATE CHANGES ARE LEGIT….TO STAY.. There is much Corruption which has been applied for different things allowing decisions for the government ….to pass….ie..Marriage Act….poor fools believed they won….