News: Senator Culleton’s ‘dark cloud hanging over the High Court’

Those interested in federal politics have spent the past couple of days pondering the possibility that two senators elected at the recent election were disqualified on various grounds and the possible outcomes of proceedings in the High Court potentially raising those matters. One of those senators, One Nation’s Ron Culleton, gave an interview yesterday, which reportedly included the following statement:

Under Section 33 of the constitution, writs need to be named in the name of the Queen and that clearly hasn’t been happening. So when the media jumps on this and say there’s a dark cloud myself, I would say there is a dark cloud hanging over the High Court. Until the answer comes back (advice from the Senate), I’m not sure I’m going to participate in any High Court jurisdiction. If I do, I will represent myself.

Those following up on this statement would soon discover that s. 33 of the Constitution refers to writs, but not ones from the High Court:

Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.

Section 33 is actually concerned with casual vacancies in the House of Representatives (which are resolved by by-election.) Vacancies in Senator Culleton’s upper house are dealt with by s. 15 of the Constitution, which makes no mention of writs (as such vacancies are filled by state parliaments.) Neither constitutional provision includes any requirement that process should be in the name of the Queen.

However, it is likely that Senator Culleton was actually referring to s. 33, not of the Constitution, but of the High Court of Australia Act 1979:

All writs, commissions and process issued from the High Court shall be:
(a) in the name of the Queen;
(b) under the seal of the Court…; and
(c) signed by… the Chief Executive and Principal Registrar…

In fact, Senator Culleton’s first parliamentary question, a week after an action was filed against him, concerned this very section:

Senator CULLETON (Western Australia) (14:24): Mr President, I have just one question for Senator the Hon. George Brandis — Honourable senators interjecting—
The PRESIDENT: Order on both sides. Senator Culleton, start again.
Senator CULLETON: Thank you, Mr President. One question for Senator the Hon. George Brandis QC Attorney-General and Leader of the Government in the Senate. Since Senate school, it has come to my attention that there is a discrepancy between section 33 of the High Court Act 1979—which states that all process shall, which means must, be issued in the name of the Queen—and the High Court Rules 2004. If this appears to be the case, why has the High Court felt free to defy the parliament for 12 years?
Senator BRANDIS (Queensland—Attorney General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:25): Thank you, Senator Culleton. Congratulations on your inaugural question in this chamber. I must confess, Senator Culleton, I was not expecting to be asked about the High Court rules, an object of some fascination to me, I might say. I will have a look at section 33 of the High Court Act and whether or not it is apparent that there is an inconsistency, as you say, between section 33 of the act and the rules made under the High Court Act.
As you would be aware, Senator Culleton, the rules of the court are procedural rules. They attach forms, usually, that are used in the process of the court and the various procedural steps in proceedings before the court. I must confess it has never been drawn to my attention before that there may be an issue about the consistency between the High Court rules and section 33 of the act, but, as I say, I will look at the matter.

There does, indeed, appear to be no mention of the Queen in the current High Court Rules 2004. By contrast, the previous High Court Rules 1952 provided that writs of summons, subpoenas and habeas corpus applications contain the words ‘ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.’

So, Senator Brandis’s eventual response was the opposite of dismissive:

Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (15:04): I have some further information in response to a question asked of me on Monday by Senator Culleton. Senator Culleton, in his question to me on Monday, pointed to what he said was an apparent discrepancy between the requirement in section 33 of the High Court of Australia Act that all process shall be issued in the name of the Queen, and the High Court Rules 2004. I undertook to have a look at the issue, and I did, and, having looked at the issue, through my department, I drew the matter to the attention of the Principal Registrar of the High Court, Mr Andrew Phelan. Mr Phelan has responded, and he has advised that the High Court’s Rules Committee wants to have a look at the question, and that will probably take place at the next meeting of the High Court’s Rules Committee in October.

If I may say so, Senator Culleton, it is very, very unusual, if not unprecedented, for a senator’s question to find its way onto the agenda of the Rules Committee of the High Court of Australia. And I am sure it is utterly unprecedented for a senator’s inaugural question to do so. Thank you, Senator Culleton.

This response is something of a counter to impressions of many (myself included) that Senator Culleton is ignorant of the law. It does not, of course, mean that his concerns are correct, or that they have any bearing on the proceedings concerning his election to the Senate. It is far more likely that those will turn on s. 44 of the Constitution, as discussed in detail by Professor Tony Blackshaw Blackshield on Inside Story.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

12 thoughts on “News: Senator Culleton’s ‘dark cloud hanging over the High Court’

  1. I suspect the trouble is that because he’s (probably correctly) spotted a minor drafting discrepancy, he:

    1. Regards this as the Court “defying” Parliament and acts like it is a major scandal, rather than being the result of some legislative drafter overlooking a point which is purely one of form and not substance.

    2. Now thinks he’s right about every legal question he turns his mind to.

    Funny thing is that he may well be vindicated on the s44 question also- should be, in any event, regardless of one’s opinion of his politics. It would be a curious quirk of law where one may be suffer a penalty after the fact for a conviction which has been annulled.

    However, if he decides not to respond to the High Court because the writ issued was not issued in the name of the Queen, he will indeed get a rude awakening- there’s no chance whatsoever the Court will treat a writ as ineffective because of that.

    • I think it is somewhat accurate to see this as the Court defying Parliament. It is the Court, after all, that writes its rules (which, according to its explanatory materials, were also the subject of extensive consultation with various peak law groups.) If Victoria is any guide, parliamentary scrutiny of such rules is very lax indeed. Presumably, parliament would assume that the courts would ensure that any legislative requirements in the head statute are complied with. If s33(a) requires that the Queen be name-checked in all writs (as opposed to simply declaring something about the substance and basis of such writs), then the removal of any reference to her in the 2004 forms is hard to fathom.
      I do agree that Senator Culleton ignores a writ purporting to be from the High Court at very considerable risk. But, it might be asked, what is the point of s33(a) – assuming it speaks to the form of the writ – if not to unequivocally communicate to recipients of writs that they must respond. Presumably, for instance, the omission of the Court seal (as required by s33(b)) or the Registrar’s signature (as required by s33(c) would be reason enough to not respond, so why not the omission of the Queen’s name? Moreover, while a writ’s failure to comply with the rules can be corrected or disregarded (under Rule 2.03), that doesn’t seem to apply to a failure to comply with a statute (though it may well be that some sort of implied corrective principle might work.) If the rules themselves are deficient, then it is possible that this is something that has to be dealt with by parliament, via a retrospective statutory validation.

      • Defiance requires intent, to me. It is a rather emotive word. I rather doubt the High Court intended any defiance, although I’m sure Mr Culleton (should he read this blog) would enjoy being able to say a distinguished constitutional law expert agrees that the High Court has defied Parliament on this point!

        The removal of the references to the Queen is not particularly hard to fathom. Over the decades all court rules and forms in Australia have been “modernised” and had “plain English” applied. This is generally a good thing, as I remind myself every time I have to work with American statutes and contracts and court forms. One suspects someone on a modernising kick saw the references to the Queen as rather old hat (she’s not even in the citizenship oath these days, you know) without even turning their minds to the idea that a section of the Act actually required the Queen to be referenced. After all, there is no material effect of name-checking the Queen. It wouldn’t have occurred to people as being an actual legal requirement which they needed to ensure wasn’t mandated by the Act.

        Sloppy, yes. Defiant, no.

        • Well, sure, but that’s a different thing from shrugging it all of as a mistake by a lowly drafter. Like I said, surely they would have checked through the head statute at some point in the last dozen years. If they saw checking the head statute as not their concern, then that’s not (just) mere sloppiness.

          The High Court is, naturally and correctly, held to high standards by lay people (although not by lawyers, who know better.) And the Court itself isn’t remotely forgiving of others’ ‘sloppiness’ on legal requirements with little or no legal significance, e.g. the Evidence Act’s ban on defendants testifying for the prosecution in Kirk.

          • Interestingly, Murphy J had something to say about this in 1981:

            The aping of English customs has led to erroneous use of forms which suggest that the judicial power of the Commonwealth vested in the High Court and other federal Courts is vested in the Queen exercisable by the judges on her behalf. For example the Judiciary Act 1903, s. 9, and now the High Court of Australia Act 1979, s. 11, and Schedule, provides that a person appointed as a Justice take an oath or make an affirmation to serve the Queen in the Office of Chief Justice or justice. By contrast the justices of the Family Court of Australia take an oath or affirmation to “serve in the office” (Family Law Act 1975, s. 26). Another example is that all writs, commissions and process issued from the High Court shall be in the name of the Queen (Judiciary Act 1903, s. 33). However, the Queen in her nominal role is a frequent litigant in the federal courts, in civil and criminal matters. In my opinion, the orders of this and other courts vested with judicial power of the Commonwealth may issue against the Governor-General or if necessary against the Queen as well as in their favour.

            : http://www.austlii.edu.au/au/cases/cth/HCA/1981/74.html. He’s right, of course, but the statute remains (and, indeed, the Judiciary Act provision was carried over into the HCA Act) and he clearly doesn’t see the name-checking as just a nothing (although he clearly though it should be.)

          • The rule against a defendant being called as a witness for the prosecution has a real purpose, though. The Court in Kirk described the depature from the rules of evidence as “substantial” notwithstanding that it had been agreed by both sides at the time. It wasn’t a mere matter of form, as this is. For matters of form the tendency is to castigate but not to strike it out entirely.

            And given that striking out a writ for this particular matter of form would have potentially dire consequences for the administration of justice, given it could be applied to the past 12 years of High Court writs, well. Say no more, really.

            For what it’s worth, the High Court rules may be drafted by the Court but they are implemented as statutory regulations by Parliament – so this is a case of Parliament defying itself, really!

            I suspect a legislative amendment will ultimately occur to validate everything and avoid a lot of fuss.

          • Well Heydon J said it was important, but I found his reasons unconvincing – something about the accused losing the ‘advantage’ of being cross-examined by the prosecution! It struck me as just a doubling down on the Court’s game of ‘gotcha!’, because it picked up the error others missed. Now the shoe is on the other foot.

            I entirely agree that this is a problem that can, should and will be readily fixed. I’d rather see it fixed by Parliament, though, rather than by a strained interpretation by the High Court.

            Parliament defying itself by not checking the High Court’s drafting of its own rules? True as a matter of form, but I doubt the substance. And, as another commenter pointed out, it’s not the rules that conflict with the statute, but rather individual writs that don’t conform with s. 33.

  2. It’s not clear to me that it matters that the Rules don’t mention the Queen — if the Act requires it, it would be duplicative to put it in the Rules as well. Isn’t the real question whether the Court has issued writs that don’t comply with the statute? It is not clear to me that it has done so, but perhaps it has. (And if it has, then there would be questions about the effect of that on validity (see, eg, Project Blue Sky), and questions about substantial compliance…)

    • That’s correct, I think. Rule 1.09 says: “A form prescribed by these Rules must be used, with any variations that are necessary or as the Registrar directs.” The forms in Schedule 1, including writs and whatnot, don’t include the language about the Queen (which was in the former High Court Rules 1952.) But that would not stop the language being included anyway on the basis that it is ‘necessary’ or if the Registrar directs, and there would be no problem if that occurred.
      But I doubt the wording was omitted from the forms because it was merely ‘duplicative’ of those requirements. Some of the forms provide for a signature by the Registrar, which is required by s33(c). They don’t provide for the seal, but perhaps that comes with the signature? But leaving the wording about the Queen out is just an invitation to error.
      You are certainly correct that the key questions are compliance and the effect of any non-compliance. This is certainly not my area, but my instinct is that an omission of, say, the registrar’s signature or the seal would be fatal to validity of the writ (though not necessarily to any proceedings and other matters founded on the writ.) If that’s right (and it’s just a guess), then wouldn’t the omission of the queen’s name also be fatal?

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