The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the President of the Senate over the validity of the election of Senator Culleton. Culleton was elected as a Senator for the State of Western Australia in July 2016. In March 2016, prior to his nomination and election, he was convicted in his absence of larceny in a NSW court, and was liable to be sentenced to up to two years imprisonment. In August 2016, after his election, Culleton was brought before the court, which annulled the earlier conviction and heard the matter afresh, found him guilty on his own plea, and then dismissed the charge without convicting him of the offence. In November 2016 the President of the Senate referred the matter of Senator Culleton’s eligibility to the Court of Disputed Returns (see at [10]–[12]).

Section 44(ii) of the Constitution provides that ‘Any person who:

has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer … shall be incapable of being chosen or of sitting as a senator.

The Court unanimously held that because Culleton had been convicted of and was subject to be sentenced for an offence punishable by imprisonment for a year or longer, s 44 operated to disqualify Culleton from being elected as a Senator. Consequently there is a vacancy in Western Australia’s Senate representation, which the Court held must be filled by a special count of ballots.

The plurality (Kiefel, Bell, Gageler and Keane JJ) accepted the Attorney-General (Cth)’s submission that the annulment of the conviction in August 2016 only operated prospectively: that is, it did not void the March conviction from the beginning (at [14]), and consequently at the time at which the question of Culleton’s eligibilty to be chosen was to be determined he was, as a matter of fact, a person who had been convicted and was subject to be sentenced (at [15]).

The plurality then rejected each of Culleton’s three submissions in support of his response that even if, as a matter of fact, he was a person who had been convicted and was subject to be sentenced, as a question of law, s 44(ii) still did not operate to make him incapable of being chosen. Rejecting his first argument that while he had been convicted he was never actually sentenced to imprisonment, the plurality noted that this contention rested on a misunderstanding of Nile v Wood [1988] HCA 30 (which Culleton urged read s 44(ii) as requiring a person to be ‘under sentence’ (see at [18]–[21])), and secondly that it is clear from the text of s 44(ii) that it should apply to a person who is able to be sentenced to a term of imprisonment (see at [22]).

The plurality then rejected Culleton’s second argument — that the August annulment voided the March conviction ab initio (from the beginning) — because whether an annulment operates prospectively or retrospectively depends on the statutory text and context, which here operates prospectively: ‘The annulment of the conviction was not apt to expunge the legal rights and obligations arising from it, save in relation to the future and in the reversal of things done under it. The provisions of the Appeal and Review Act … indicate that a conviction is annulled only for the future: these provisions do not purport to operate retroactively to deny legal effect to a conviction from the time that it was recorded.’ (at [28], and see at [25]–[31]).

Finally, the plurality rejected Culleton’s third argument that even if the annulment operated retrospectively he was not subject to be sentenced at the time of the election because he was convicted as an ‘absent offender’ and the NSW court’s sentencing procedure statute precluded it from making a sentencing order against him. This argument proceeded on the erroneous assumption that ‘absent offender’ status led to immunity from imprisonment (at [34]). Instead the term simply indicates whether a person is present or absent when dealt with by the court, and when Culleton was convicted in March and a warrant was issued for his arrest, the legal processes for sentencing him were put in train, and he was then ‘subject to be sentenced’ (at [36]).

The plurality also declined Culleton’s invitation to not answer the vacancy question on the basis of s 364 of the Electoral Act 1918 (Cth), which provides that the Court of Disputed Returns, on a reference from the President of the Senate, ‘shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities’, because that section does not override the Court’s obligation to apply substantive rules of law on electoral eligibility (at [37]–[38]).

Finally, the plurality ordered that Culleton’s vacancy should be filled by a special count of the ballot papers, and not a further poll (at [43]). Consequently, ‘above the line’ votes actually cast in favour of his party should be counted in favour of the next candidate on the list of candidates. In this case, 96% of Culleton’s votes were ‘above the line’ One Nation votes, and consequently a special count recording the votes for the next candidate would not distort the true legal intent of the voters (at [44]).

Nettle J agreed with the plurality’s answers to the questions referred to the Court, but for partly different reasons. Nettle J held that s 44(ii) is best construed as directed to a conviction in fact, regardless of whether it is subsequently annulled. This reading better accords with the historical circumstances at Federation of limited mechanisms for annulment of or appeals against convictions, and the overriding need for certainty that at the date of nomination a candidate is clearly eligible to be chosen (at [57], and see at [59]). While the Constitution is not limited to this understanding as at Federation, nothing has occurred since then that suggests the current denotation or understanding of the concept of s 44(ii) has changed (at [58]). Turning to the effect of annulment, Nettle J held that while a conviction ceases to have effect only on annulment, the annulment still operates retrospectively in the sense that a person is not be regarded as having been convicted in relation to events occurring after annulment: ‘Hence, if nomination in this case had not occurred until after the annulment of Mr Culleton’s conviction, he would have had the capacity to nominate even if, at the date of his nomination, the charge of larceny remained pending.’: at [61]. Consequently, Culleton’s conviction was ‘voidable, not void’ and until it was annulled it remained valid, which means that at the time of his nomination, he was not capable of being chosen as a senator, notwithstanding the later annulment: at [63]. Finally, like the plurality Nettle J rejected Culleton’s arguments on the ‘subject to be sentenced’ phrasing, concluding that the disqualification applies to either a person under sentence or subject to sentence (at [65] and [66]). Nettle J concluded by agreeing with the plurality’s reasoning on s 364 of the Electoral Act 1918 (Cth) and in the plurality’s answers to the questions referred.

The questions referred to the Court of Disputed Returns by the President of the Senate in his letter dated 8 November 2016, as amended by orders made by French CJ on 21 November 2016, be answered as follows:

Question (a)

Whether, by reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned?

Answer

By reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Senator Culleton’s costs of the proceedings should be paid by the Commonwealth save for costs excluded from this order by an order of a Judge.