A week ago, the High Court published notices on its webpage that it will sit as the Court of Disputed Returns in relation to Senators Bob Day and Rob Culleton. The notices state:
Any person who desires to place any evidence before or make any submission to the Court should apply to the Court by email addressed to Senate.Reference.[Day/Culleton]@hcourt.gov.au by 12:00noon (AEDT) on Thursday 17 November 2016 setting out the reasons why they should be granted leave to appear before the Court. The Court may determine such application on the papers or invite the person to appear and make oral submissions to the Court in Canberra (or by video-link if required) at 11:30am (AEDT) on Monday 21 November 2016.
The apparent purpose of this hearing is to determine who will be a party to the Senate’s reference of these matters, in accordance with s378 of the Commonwealth Electoral Act:
The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.
However, The Guardian reports that Senator Culleton will not attend, physically at least:
On Wednesday Culleton told Guardian Australia he did not intend to appear, nor to send a legal representative, but he would represent himself “in spirit” at the directions hearing.
Presumably, though, the Court of Disputed Returns will ‘direct notice of the reference to be served on’ Senator Culleton, who will then be deemed to be a party.
Senator Culleton lists several reasons for not attending on Monday. First:
“I’m not required to attend because it’s a sitting day,” Culleton claimed. Asked why he didn’t send a legal representative or be absent from the Senate chamber, he replied: “It’s not up to them to decide.”
It is certainly true that Senator Culleton can be neither compelled to attend any court nor compelled to give evidence on a senate sitting day. What is less clear is how this will affect the Court’s hearing on Monday.
Second, there is the issue noted in this previous post:
Culleton says the court has “not yet addressed their errors in their rules which was admitted by Brandis in the Senate. They must first fix this so that it abides by the High Court of Australia Act 1979.” In comments to Guardian Australia, Culleton claimed the error – which deals with a section of the law dealing with issue of writs, which must be in the name of the Queen – needed a massive “constitutional correction”.
Last Thursday, Senator Culleton asked the Attorney-General how the High Court will respond to his previous query and Brandis replied:
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:54): It is not for me to speak on behalf of the High Court, but I can tell you that after your question I did raise the matter with the Principal Registrar and CE of the High Court, Mr Phelan. Mr Phelan has responded to me in a form which I have his authority to read to you. He said: ‘An exposure draft of the High Court Rules 2004 was circulated in April 2004. The exposure draft was the subject of detailed comments by the Law Council of Australia, the Australian Bar Association and the Special Committee of Solicitors-General. After considering those comments, the justices made the High Court Rules 2004 on 5 October 2004. They were tabled in the parliament on 16 November 2004 and came into effect on 1 January 2005. No issue was raised in the process of drafting or consulting concerning the consistency of the rules with section 33 of the High Court of Australia Act 1979. ‘The rules committee of the High Court considered that issue on 12 October 2016. The committee proposes a number of amendments to the rules to address the issue. The proposed amendments will be drafted by the Office of Parliamentary Counsel and will be the subject of consultation with professional bodies before being finalised by the court.’ Senator Culleton, it was you who spotted this discrepancy in the High Court Rules which the High Court Rules Committee has now acted upon. I might say that, since those rules were promulgated in 2004, there have been 16 distinguished Australian jurists who have sat on the High Court, including two chief justices, and I must congratulate you, Senator Culleton, on being the first person to spot the problem.
This confirms that the rules will indeed be changed. But Senator Culleton had additional questions:
Senator CULLETON (Western Australia) (14:56): Given what the Constitution provides in chapter 3(72) regarding the removal of judges, how is it possible to address the now proven misbehaviour by simple amendment without first addressing the original breach of the Constitution by the High Court of Australia in failing to take the changes effected by the High Court of Australia Act to referendum?
Senator BRANDIS (Queensland—Attorney-General, Vice President of the Executive Council and Leader of the Government in the Senate) (14:56): I have to correct you, with respect. There is certainly no breach of the Constitution. There is no requirement. What we are talking about here is a discrepancy that you have identified between the High Court Rules 2004 and the forms to the High Court Rules. That is not a constitutional issue; it is an issue that is entirely able to be corrected by the amendments to the rules that are now in contemplation following your question. There is no issue of constitutional invalidity or indeed no constitutional issue raised here whatsoever.
The Attorney-General is right, of course, as the relevant requirement is in the High Court Act, not the Constitution. There is, perhaps, a lingering question as to the validity of writs issued since 2004, because those writs may not have complied with the requirements imposed by the Federal Parliament. Such a problem (if it exists), cannot be fixed mere amendment to the rules, but would instead require an act of the federal parliament to validate past writs. When Senator Culleton pressed his point about ‘misbehaviour’ by High Court judges, Brandis cautioned him ‘You really should not accuse the judges of the High Court of misbehaviour’, adding that none of the current Court were on the bench when the 2004 rules were drafted and made.
Without looking at the matter too closely, it seems probable that s 77K of the Judiciary Act is enough to obviate any issues about the name in which writs are issued.
Thanks Stephen. That is definitely a very pertinent section and may well be the answer here. It reads:
I can only find one instance where it was applied, here. The defect addressed by the High Court was citing the wrong Court rule. But there is a lengthy history of similar provisions in other statutes (notably bankruptcy) and they aren’t free of problems. There is a detailed discussion of bankruptcy provisions by the High Court here. As the Court makes clear at [1], the question is not simply whether or not there was a substantial injustice (as there clearly isn’t for leaving the Queen’s name out of a writ), but whether a particular defect is ‘formal’. The discussion at [24]-[29] addresses the difficulties.
One other question (to my mind) is whether a provision like s77K is a suitable way of dealing with a systemic error as has occurred in the High Court since 2004. The cases I’ve found are all about one off mistakes – typos and the like – and it is not clear that s77K was meant to be an all-purpose generic validating provision of the sort that is often retrospectively enacted once systemic errors are discovered. Again, that’s a question of interpreting parliament’s intentions when enacting s77K. And it may well be answered by more detailed research into these sorts of provisions.
More on Culletin’s application: http://www.theage.com.au/federal-politics/political-news/one-nation-senator-rod-culletons-bizarre-letter-to-the-elitist-high-court-20161118-gssqxe.html
Text of his application here: http://www.senatorculleton.com.au/single-post/2016/11/20/High-Court-Government-put-on-notice. Includes a request (right at the end) to adjourn the hearing to a non-sitting day, citing the Parliamentary Privileges Act.