News: The Court of Disputed Returns Returns

It seems that the High Court’s extraordinary run of cases on the qualifications of federal MPs has ended at last, with no new referrals in (or likely to be added to) the pipeline. Nevertheless, the very first of this term’s thirteen referrals is now back before the High Court. Yesterday, Kiefel CJ heard an application from Rob Culleton to reopen his referral (which led to his disqualification) on the basis that the Senate lacked quorum when it sent his election to the Court of Disputed Returns. The relevant Hansard reads:

I just raise—and I may be out of order—that I spoke to Senator Culleton a few minutes ago and he indicated to me in very broad terms that he was looking at seeking leave to move an amendment. I wonder, out of fairness to him, if that is what he is still intending to do, whether we ought to draw attention to the state of the chamber. I just do not want to be seen as being unfair to Senator Culleton. I want to be fair to the man.
The PRESIDENT: Thank you, Senator Xenophon. You have drawn to my attention that he chamber may not be quorate, so we shall bring the bells. (Quorum formed)

(As it happens, both parties to this conversation, Senators Xenophon and Parry, were later the subject of their own referrals!) Apparently, parliamentary video shows that there were fewer than the required 19 senators present when the chamber voted to refer his position to the Court of Disputed Returns, some three minutes later.

So, what should the High Court do? Nothing, argues the sole other party to the referral, the Attorney-General. After voicing doubts about both the High Court’s power to reopen a closed referral and the relevance of any alleged lack of quorum, his counsel argued that Culleton’s ship has long sailed:

If there had been any point to take about that implicit proposition of jurisdiction, the point should have been taken at the outset and certainly well before now.

Brenndan Lim pointed out that Culleton’s successor (his brother-in-law Peter Georgiou) has been sitting in the Senate for well over a year now, as have other Senators who perhaps owe their position to an inquorate referral. Moreover, Gageler J rejected an earlier attempt for Culleton to reopen his referral – made while the Court’s decision was reserved – noting that such reopenings require ‘exceptional circumstances’ and ‘sufficiently strong’ arguments.

Culleton’s counsel, former Cth Solicitor-General David Bennett, claimed that this is just such an extraordinary case, because the Senate’s quorum is a matter of constitutional law:

That is a mandatory provision of the Constitution…  It cannot simply be excluded in the manner my learned friend suggests. The stream, putting it a little differently, cannot rise higher than the source.

As well, he says, Culleton’s delay in bringing his case is understandable. During his full court hearing, the High Court ruled that the Parliamentary Privileges Act 1987 barred Culleton from telling the Court about Senate proceedings (after the Senator sought to rely on them as grounds for an adjournment. As noted here, the transcript of that hearing may be incomplete.) But that ruling was made without reference to a 1988 Senate resolution seemingly waiving such privilege:

Now, we do make the point that it is apparent – and I put this in our written submissions – that neither Mr Williams nor those instructing him from the Attorney-General’s Department or the Australian Government Solicitor, nor Mr Williams nor his junior, nor Mr King, nor any of the counsel, nor any of the Justices of the High Court were aware of that resolution.

At yesterday’s hearing, Kiefel CJ seemed dubious of this claim and the overall merits of Culleton’s new case. However, in contrast to earlier occasions when Culleton sought adjournments in his reference, she declined to issue her judgment immediately or on the same day. Rather, she foreshadowed ‘orders with reasons during the course of the present sittings.’

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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.

22 thoughts on “News: The Court of Disputed Returns Returns

  1. I didn’t read the transcript reference to Ludlam the same way you have. It seems the Attorney wasn’t saying anything about whether there was or was not a quorum in Culleton’s case (presumably because of privilege/justicability). So they would hardly be positively asserting that there was a quorum problem in Ludlam. I read the reference to Ludlam as saying that when Ludlam’s vacancy was filled later on, the special count (of WA Senate ballots) would have treated votes for Culleton on the basis that Culleton was not capable of being chosen as per the orders that Culleton is now trying to revisit. So a win for Culleton might affect two replacement senators, not just one.

  2. Hmmm – are the things said in a House that lacks a quorum part of “proceedings in Parliament”? Since s 22 of the Book of Rules says ” the presence of [a quorum] shall be necessary to constitute a meeting of the Senate for the exercise of its power” it’s arguable that a bunch of less than 19 senators talking in the chamber is not a meeting and the talking does not constitute proceedings but is mere chat. (And while the Senate (Quorum) Act 1991 lowers the quorum from 1/3 to 1/4 it does not purport to, and almost certainly cannot, change the effect of a lack of quorum*.) So the CCTV showing a small number of people chatting in the chamber may be admissible, whereas the minute a quorum is present it would not be – even though the whole population of Australia could have watched it!

    The other point raised by the government was of course the finality rule – but where a reference to the HCA is in law no reference at all, can its decision really be a final decision? I laughed when I heard Culleton was having another go, but it seems to me he has a reasonable case. Of course, it could all be made futile if a properly-constituted (“quorate”) Senate simply passed the resolution again. As many administrative lawyers have found, that’s the problem with relying on procedural defects – the administrators can make the same decision again, getting the procedure right this time.

    *Ultra-pedantic point here – s 22 is prefaced by “Until the Parliament otherwise provides”. Does this mean the Parl’t could not only change the quantum of the quorum but also the *effect* of having or not having a quorum? I suspect not. In any case the 1991 Act repeats the words about being necessary for the exercise of its powers.

    • “But where a reference to the HCA is in law no reference at all, can its decision really be a final decision?”
      As a superior court of record, the orders of the High Court would be valid until set aside, even if there was no jurisdiction to make them (Kable No 2) — and there might be a good discretionary reason not to set them aside.

    • Where did the Parliament get its authority to introduce the Senate (Quorum) Act 1991 that lowers the quorum from 1/3 to 1/4? This is a Constitutional change that must require a referendum as it is effecting a change to an established law and section of the Cth Constitution. So where did they get their authority to change the numbers for Quorum?

          • From Burgess Political Science II page 124. as referenced in the Quick and Garran s137 “Quorum” page 83 of the 1901 edition. Regarding Quorum: The quorum of the absolute majority, i.e. the majority of the legal number of members, may be said to be the modern principle in general legislation. Its reason is that the majority represents in this respect the whole, and is vested with the powers of the whole. If this were not the principle, legislative action would be exposed to the tricks and stratagems of the minority to an unbearable degree.

            The three legislative houses which do not follow this principle, viz; the two houses of the British Parliament and German Federal Council, must be regarded as exceptional cases. There are reasons of convenience and reasons of state which make the rule unnecessary in these cases. In both houses of the British Parliament legislation is controlled so completely by the ministry that there is no opportunity for either body to be captured by a minority of the members. The ministers represent the majority in the House of Commons; i.e. a majority quorum of the House of Commons is present in the ministry. It is not, therefore, necessary to hold to a majority quorum in the houses, and it would, frequently, be inconvenient. The exception in these cases is therefore more apparent, as I have shown, than real. In the case of the German Federal Council it would be a constant threat to the efficiency of the Imperial legislature, if the activity of the Council could be suspended by the failure of the commonwealth governments to send their representatives. The natural excuses for absence, which exist in regard to membership in the other legislative houses, do not exist in this case. The members of the Federal Council are mere instruments. They hold at the pleasure of the commonwealth governments sending them. They can be relieved at any moment. If they are compelled to be absent, other persons can be immediately substituted. The absence of members from the Federal Council can, as a rule, only mean a particularistic hostility to the Empire on the part of the commonwealth governments whose representatives do

            not appear. It would be a poor political science which did not provide against the abuse by the commonwealths of such a control over Imperial legislation. The practice of regarding the Federal Council as competent to do business upon the appearance of the Chancellor or his substitute at a regularly called meeting fully provides against this danger. At the same time the rule creates no hardships for the commonwealths nor does it expose the Council to the caprice of a minority. The peculiar character of the Federal Council makes the majority quorum unnecessary and possibly dangerous.

            8. The Principles of Internal Organization and Procedure.
            The general constitutional principle upon this subject is that each house shall determine for itself its internal official organization, its rules of discipline, and its rules of procedure. This principle, however, is placed under a variety of limitations in all four of the constitutions. The purpose of these limitations may be said to be threefold, viz; the maintenance of intercourse between the legislature and the executive, the information and protection of the public, and the protection of the individual member against the tyranny of the legislative body.

            Accordingly, in three out of four of the upper houses of the legislatures which we are considering, a part of the official bureau is filled either by express constitutional direction or by executive act; and in one of the four lower houses, all the officials of the house except the speaker are appointed by the executive. In seven of the eight houses, publicity of procedure is required either by constitutional law or custom. In every case, the expulsion of a member for violating the rules of order and procedure is either prohibited, or permitted only by vote of an extraordinary majority. In every case, finally, the power to try and punish an outsider for contempt is limited both as to the extent of the power and the gravity of the penalty. The four systems do not exactly agree upon the details of these limitations; but in principle and in purpose, the limitations are substantially identical.

            Within the domain thus bounded, each house is permitted to develop its parliamentary practice according to its own judgment and convenience. This is certainly good political science. Any other principle would result to a greater or less degree in the destruction of legislative independence. The parliamentary practice developed by these eight legislative houses is substantially uniform. We may say that upon this subject we have a jus gentium. The body of this law, however, is neither constitutional law nor statute law. The consideration of its details, therefore, does not come within the scope of this work.

  3. Yes, orders made under an Act later found to be invalid are valid until set aside, but I still wonder about orders made pursuant to an invalid reference of the matter to the court. But you’re right, if there’s any room for discretionary arguments here, there’s probably a very good one in that the matter could be referred again, validly, and the same result would follow.

    • But there is a distinction to be made because whilst a Court,Tribunal or Minister could be relied to correct such a circumstance which lead to lack of jurisdiction,the same cannot necessarily be said of the Senate,and of course the Senate is differenty constituted since the referral of Culleton(this presumably would not alter the matter in fact but it is certainly capable of doing so in theory).

      • Yes, and also Culleton – who tried and failed to get adjournments – may have had enough time now to make his case that the conviction was vitiated by unfairness in some way.

  4. There were 8 senate positions challenged after Culleton and only two(Canavan& Xenephon) survived.But Xenephon resigned and his successor (Kokosche Moore) was successfully challenged.That incidentally means that more than 10% of the Senate’s composition has changed since Culleton’s referral.

  5. So the issue of finality (albeit on a decision made beyond jurisdiction?) overrides the Constitutional requirement (mandatory?) on the basis that, if everyone (including the judiciary and parliament, and their highly paid legal advisors, you know, the guys us laypeople think should have their legislative and legal sh1t together) failed to have their act (or acts?) together, leaves us with the (more important than Constitutional compliance) ‘error’ – not noticing an inquorate Senate earlier, or with sufficient argument – and that it shouldn’t have occurred and tough, because if we ran it again it would all be good?

    This is a High Court that seems to be playing loose and fast on Constitutional black letter stuff and thriving on utilitarian legal procedure and practice as the higher good. Thank goodness they aren’t donning the black handkerchief these days!

    • JK has expressed views that, I suggest, would becommon amongst laypersons who take an interest in the Court’s decisions re. our elected representatives. I echo these lay views, less colourfully and less succintly but including, if I read JK correctly, that this Court is a relatively inferior version of the superior Court.

      Rather than finding it was up to Culleton to raise at the start of Re Culleton in 2016 the issue of a possibly inquorate Senate at the time Senate purported to refer Culleton to the CoDR, the Court might better have taken note of s 47 and the alternative provisions made by Parliament in the Electoral Act for answering questions on MP eligibility. As recently as 2018 in Alley v Gillespue, the Court has been quite adamant that no one can be found disqualified except via the procedures provided under s47. So, when a matter of law is raised with the Court as to whether a person has been properly disqualified, a matter of substantial public interest, one might expect the High Court to hear the matter.

      The first task for the CoDR in Re Culleton was to determine if it had jurisdiction. Responsibility to do so fully lay with the Court. Culleton had no responsibility. This was not a case brought by Culleton or against Culleton with the Court hearing and adjudicating on disputing parties’ arguments. It was instead purported to be a question referred to the Court by the Senate. Back in 2016, the Court could have appointed amici curiae. It could have made Mr Parry who, in hindsight wrongly, purported to be a Senator and to be President of the Senate (and possibly wrongly advised the CoDR that Senate had referred Culleton to the Court), as a party to the reference or called Mr Parry as a witness. It failed to do so. It failed to do due diligence.

      Under the Electoral Act, decisions of the CoDR are final and not to be challenged. The Constituion allows Parliament to make such a statute but (I presume) that prohibition would not extend to preventing the High Court from hearing a matter of whether a CoDR decision had been made in error for want of jurisdiction. I further presume that a CoDR decision made out of jurisdiction could be set aside by the High Court. It is not clear to me, when the questions referred questions have already been answered by the CoDR (Feb 2017), how the CoDR has come to be dealing with the matter again. Rather than the High Court sitting as the CoDR to deal further with the purported Culleton referral, as it did on 6 August, why would the matter of the possible lack of CoDR jurisdiction to hear the purported referral not have been before the High Court as a matter of original jurisdiction? Further in the absence of any further referral, what jurisdiction did the CoDR, rather then the High Court as High Court, have to determine on August 6 that the original referral was finalized?

  6. Instinctively I agree with you JK – but legalism takes many forms and the finality principle and deference to Parliament on procedural matters are among them, as well as literal interpretation of the Constitution. Despite your criticism of “this” High Court I’m not sure that the courts under Griffith or Dixon or Barwick would have decided such a matter any differently – though I think it would have been good if they had done so.

    But I do think the case may have woken up the Presiding Officers to the text of ss 22 and 49. Until now, the Houses have cruised along on the assumption that the lack of a quorum doesn’t matter unless a member draws it to the Speaker’s or President’s attention – I have even taught that as a matter of Parliamentary law and practice! Now that they have been reminded (by ex-Sol-General David Bennett no less!) that the relevant sections say that a quorum is “necessary to constitute a meeting of the House for the exercise of its powers” they may be a bit more punctilious about motions that are carried on the voices in an almost-empty House. Or not – we shall see.

    • I would have thought from the perspective of a reasonable person, that a Quorum having the Constitutional recognised numbers present in the chamber, is a form of due process, a common law process and right that when not followed, is a breach of due process? There have been previous cases before the High Court that discuss due process in detail i.e. Immigration cases and that a breach of due process especially when its done in the highest public office in the land i.e. The Parliament, might amount to jurisdictional error, an error that would be fatal to their argument i.e. in the Commonwealths Case fatal.

  7. Yes Ross, I seem to remember that when I was studying law (70s) one of the Const texts suggested that the HC had jurisdiction over s 44 matters under para 30(a) of the Judiciary Act 1903 (” all matters arising under the Constitution or involving its interpretation”, which is authorised by para 76(i) of the Cth Const) as well as the specific provisions about the CoDR, based on Const s 47. It’s possibly a bit hard to argue, because s 47 is much more specific than s 76 and they both leave the ultimate power in the hands of the Parliament, so it seems to have disappeared from the texts. (I didn’t even mention it in mine!) But it *should* be true! But I repeat my remark to JK – if you’re suggesting that the current court is some inferior version compared to some “Golden Age” of the past, I don’t think that’s true. There never was a Golden Age.

    • Oh I wouldn’t go so far as to suggest a golden age per se, but, I see this current HCA as part of the demise of respect for institutions and the proper role of those OHMS!

      My experience of lesser courts and tribunals lack of professionalism being repeated in the highest court of the land is more about an impending dark age!

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