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.
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.