The President of the Senate, Liberal Scott Ryan has been summonsed to appear in the Court of Disputed Returns to defend the unconstitutional referral of Senator Rodney Culleton to the court which saw him dismissed from the senate.
Two weeks ago ‘exiled’ Senator Rodney Culleton filed an action in the High Court of Australia sitting as the Court of Disputed Returns.
Mr Culleton said his dismissal and that of Senator Bob Day were unconstitutional and that all hostile referrals by the senate of other senators since dismissed were unlawful.
“It is clear that at all material times, the Government did not follow proper due process as required under the Constitution. All referrals from the House post 7th November 2016 appear to be invalid,” Mr Culleton told Cairns News.
He said under section 47 of the Commonwealth Constitution of Australia only the senate can decide on the qualifications of a senator.
“On the 4th July 2018, a summons was successfully filed back into the Court of Disputed Returns, Matter No C15/2016 Culleton v Commonwealth.
“This unconcluded case is now unprecedented and has in effect re-opened all invalid hostile referrals that have been invoked by the House under s 376 Commonwealth Electoral Act 1918, post 7th November 2016 which did not comply with the Constitution.
“Section 368 Commonwealth Electoral Act 1918, states Decisions to be final: All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.
“Notwithstanding the prohibition as defined in ss 368 and 364 CEA ,Section 47 of the Constitution, in contrast, is squarely addressed to authority to decide and to nothing other than authority to decide. Each House shall be the Judge of the … Qualifications of its own Members”, there is in s 47 a textually and Sections 22, 23 and 49 Constitution.”
Acting for Mr Culleton is the former Solicitor General of Australia, David Bennett AC, QC who has been following the saga with interest.
Culleton said Mr Bennet believed he had a strong case which was straightforward Constitutional law.
“The relevant effect of the section 47 Constitution is that, unless the Parliament otherwise provides and to the extent that the Parliament does not otherwise provide, ‘any question’ which answers the description of a ‘question respecting the qualification of a senator’ in our matters, must be determined by the Senate and not otherwise,” stressed Mr Culleton.
“The House must hear the disallowance motion 163 of 2016 and allow all constitutionally elected Senators to appear at the bar in order to have the Senate demonstrate its constitutional commitment of the determination of the identified questions to a coordinated political department as a privy council in order to judge the qualification of its own members.
“This must be remedied to restore honesty and integrity back into Parliament.
“The House is not only sitting unconstitutionally but these breaches have set a bad case precedent in allowing the major parties to re-shuffle the deck of cards and regain power by removing Independents and defanging the minor parties.”
The Joint Standing Committee on Electoral Matters has today released its report into matters related to Section 44 of The Australian Constitution.
Committee Chairman Senator Linda Reynolds said the report found that s. 44 was becoming increasingly undemocratic and that future referrals to the High Court would be inevitable.
“Problems with s. 44 are neither new, nor unforeseen,” Senator Reynolds said.
“20 years of Parliamentary Committee reports and a Constitutional Convention have all predicted that without constitutional reform to parts or all of s. 44, challenges would occur to otherwise qualified and validly elected Members of Parliament.
“Problems with the operation of s. 44 have come to public attention over the past year as a result of the high number of s. 44(i) citizenship matters referred to by the High Court. While public discussion has been on these citizenship cases, two other sub sections of s. 44 were also the subject of High Court consideration.”
Senator Reynolds said in addition to the previously identified problems with s. 44, recent High Court decisions have created new uncertainties and future opportunities to manipulate election results, which are likely to end by being referred to the High Court.
“Recent High Court decisions on the interpretation on s. 44 are clear–to nominate as a candidate, all reasonable steps must be taken prior to nomination to ensure all candidates are not disqualified to be on the ballot paper,” Senator Reynolds said.
“The Committee makes no judgement on the dual citizenship issue itself,” Senator Reynolds said.
“The question of whether or not the application of these rules meets contemporary Australian expectations is a different matter altogether and is one for Australians to ultimately determine.”
“We believe that issue is one for Australians to consider as part of a wider debate on qualities we want in our candidates when they stand for election and for those who are elected to Parliament.”
Based on the significant and persuasive evidence to the Inquiry, the Committee has recommended that the Australian Government prepare a referendum question to either repeal sections 44 and 45 or insert the words ‘Until Parliament so provides…’ into both sections.
Senator Reynolds said while the Committee had recommended a referendum to permanently fix the problems with s. 44, the Committee acknowledged the preconditions for a successful referendum do not yet exist and may take time to achieve.
Until such time a referendum is successful in providing Australians or their elected representatives the ability to change disqualifications, the committee has recommended the Federal Government consider implementing a range of mitigation strategies. The first measures should be in place before the conduct of the upcoming by-elections to minimise the chance of those elections being challenged in the high court.
- Recommendation 1
The Committee recommends that the Australian Government prepare a proposed referendum question to either:
- repeal sections 44 and 45 of the Constitution; or
- insert into sections 44 and 45 the words: ‘Until the Parliament otherwise provides…’
- Recommendation 2
If the referendum passes, the Committee further recommends that the Australian Government further engages with the Australian community to determine contemporary expectations of standards in order to address all matters of qualification and disqualification for Parliament through legislation under section 34 of the Constitution.
- Recommendation 3
In the event that a referendum does not proceed or does not pass, that the Australian Government consider strategies to mitigate the impact of section 44 as outlined in this report.
- Recommendation 4
The Committee recommends that the Government consider the implications of this report in the context of the upcoming be-elections, in particular the options outlined in chapter 4.
Further information will be available on the Committee’s website www.aph.gov.au/em.
Submissions called to investigate the unlawful removal of Senator Rod Culleton from the senate earlier this year.
What really happened? Why did the Attorney General Liberal George Brandis, intentionally mislead the senate about Culleton and how did the Senate President Stephen Parry(former Port Arthur undertaker) remove Culleton without a motion of the senate? Section 47 of the Commonwealth Constitution of Australia says only the senate can rule on the eligibility of a senator.
Brandis is hightailing it to London as the new High Commissioner. He will no doubt be called to give evidence. He has a problem.
‘On 6 December 2017, the Senate resolved that the following matter be referred to the Joint Standing Committee on Electoral Matters for inquiry and report by 6 February 2018:
The implications of recent decisions by the Court of Disputed Returns concerning section 44 of the Constitution on questions referred by the Parliament under section 376 of the Commonwealth Electoral Act 1918, with particular reference to:
(a) the decisions in connection with the disqualification of former Senators Bob Day and Rodney Culleton;
(b) a regime for disclosing information relating to aspects other than section 44(i), for which the Parliament has already provided;
(c) the form such a process might take and how it could be implemented; and
(d) any related matters.’
Committee Secretariat contact:
Joint Standing Committee on Electoral Matters
PO Box 6021
Canberra ACT 2600
Phone: +61 2 6277 2374
Fax: +61 2 6277 4773