Catch-22 in the Court of Disputed Returns: Re Culleton (No 2)

By Jeremy Gans

Re Culleton [No 2] Case Page

‘What did you mean,’ he inquired slowly, ‘when you said we couldn’t punish you?’ ‘When, sir?’ ‘I’m asking the questions. You’re answering them.’

No-one cares about Re Culleton [No 2] [2017] HCA 4. Not Rod Culleton, who is out of the Senate regardless, thanks to his bankruptcy problems. Not political types, because the One Nation candidate’s spot will just be taken by another one. Not anyone else, because no-one much likes the ex-Senator (or never Senator or whatever he is — was? — now) or cares who’s who in One Nation. And, it seems, not the High Court either, which last week phoned in a judgment in the case.

This indifference is a bit of a pity. Re Culleton [No 2] raises lots of issues that have nothing to do with Culleton and a number that have nothing to do with elections — and the High Court’s judgment fluffs several of them. Re Culleton [No 2] is a fine example of much that is wrong with Australia’s apex court these days.

‘I didn’t say you couldn’t punish me, sir.’ ‘When?’ asked the colonel. ‘When what, sir?’ ‘Now you’re asking me questions again.’

Every Australian’s right to be elected to Parliament (and to cast a valid vote for their preferred candidate) is limited by the following text:

44 Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or 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; or

(iii) is an undischarged bankrupt or insolvent; or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Section 44 of the Constitution is well meant, but has mostly silly effects. Para (i) forces all dual citizens who want to stand for election to first give up their non-Australian citizenship forever. Para (iv) likely forces all public servants (including all teachers) to quit (and not just take leave from) their jobs if they just want to try to become an MP. Para (v) is basically incomprehensible (and might invalidate the election of many investors, depending on how the High Court rules in Re Day [No 2].) Para (iii), the best of a bad bunch, still makes it risky for anyone to combine running a business with being a politician (as both Rod Culleton and Bob Day exemplify.)

And then there’s para (ii), which keeps Parliament free of (some) criminals. While that certainly sounds like a good idea, Australia’s contemporary criminal law is a good deal broader than most people imagine. The drafters of s 44(ii) wanted to ban people convicted of a ‘felony or any infamous crime’, which in 1900 covered the sort of crimes that could see criminals executed or deprived of all of their property. But Samuel Griffiths, realising that criminal law terms can change or lose their meaning over time, suggested a different test: ‘any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’. Alas, those replacement words – especially ‘offence punishable’ – are now s 44(ii)’s biggest problem.

‘When didn’t you say we couldn’t punish you? Don’t you understand my question?’ ‘No, sir. I don’t understand.’ ‘You’ve just told us that. Now suppose you answer my question.’

We mainly know criminal ‘offences’ by their shorthand labels — murder, rape, theft, etc — but, under Australian law, offences actually consist of a complex (often very broad) definition and a maximum (often very high) penalty. Lots of offences cover an extremely wide range of behaviour, from absolutely trivial to extremely serious. Assault can be anything from an unwanted tap on the shoulder to a kick in the face. Drug possession can be anything from one banned pill to a truck full of contraband. Criminal damage can be anything from putting up a poster to burning down a house. Child pornography can be anything from a sext on your phone to a hard drive’s worth of horror. And so on. We tolerate these broad definitions (and the accompanying vast maximum penalties) because Australia’s criminal justice system is also full of discretion: prosecutors rarely chose to prosecute trivia and, if they do, judges rarely choose to punish it.

But there is no discretion in s 44(ii). If you have ever done anything trivial that happens to fall within the definition of a serious offence, then you can lose your right to stand for election (and your voters will lose their right to elect you) simply through bad timing, even though you never came within cooee of ‘imprisonment’. All it takes is for someone to charge you with an offence that bundles together whatever trivial thing you did with much more serious behaviour that merits a lengthy stay in prison. That is exactly what happened to Rod Culleton.

‘Now you’re telling us when you did say it. I’m asking you to tell us when you didn’t say it.’ Clevinger took a deep breath. ‘I always didn’t say you couldn’t punish me, sir.’

What was Culleton’s ‘offence’? The High Court’s reasons only said that it was ‘larceny’ (a common law crime that most people call ‘theft’) and that the charge was heard in a NSW Local Court, which could impose up to two years in prison for that crime. The Court doesn’t ever say what Culleton actually did. There are no publicly accessible reports of Culleton’s behaviour, but he claims — and no-one seems to dispute the broad details — that his offence was to take some tow truck keys in October 2014 while arguing with the truck’s driver. If that’s right, then what Culleton did was certainly wrong and probably ‘larceny’, but also quite trivial. Incidents like these are rarely prosecuted, but Culleton was. He says that he was arrested a year later while passing through Sydney Airport and that, six months after (on 2 March 2016) a Local Court in Armidale convicted him in his absence, before adjourning the matter for sentencing. Crucially, that remained the situation during the 2016 federal election period.

And that’s it. A barney, some discretionary decisions and some painfully unlucky timing was enough to bring Culleton within s 44(ii). In turn, that was enough to quash an otherwise perfectly valid election result (which, but for Culleton’s other troubles, would have stood for up to six years). Now, some readers probably think it’s a good thing to exclude people who grab truck keys from the nation’s Parliament. But, even then, s 44(ii) is still capricious, because there is absolutely no independent way to check whether anyone standing for Parliament is in this particular situation. While minor criminal matters are always heard in open court (so they can be witnessed by anyone who happens to be there), there’s no way anyone else can easily search for such events. Parties and electors must depend on the candidate himself or herself to reveal what happened, or run the risk of unwittingly campaigning for or voting for a person who cannot legally win. (The same is also true if an elected politician falls into this situation during his or her term in office.)

Whose fault is this? Like most flaws in the Constitution, we can blame the drafters — that would be Griffiths and the Lucinda crew — who in this instance wrote a overly broad and inflexible section into the Constitution that was poorly future-proofed. We can also blame the Australians who keep voting ‘no’ in referenda — that would be you and me, though actually just you — which makes the Constitution’s many drafting flaws (otherwise readily fixed; just repeal s 44) so hard to repair. Or we can blame the High Court for failing to read s 44(ii) so that it works less stupidly. For instance, why not read ‘punishable’ less literally, as at least requiring a plausible chance of serious punishment? Or reading it as not covering summary proceedings (rather than ‘indictable’ proceedings that cover serious matters and generate more public records.) To be clear, these creative interpretations aren’t the most faithful readings of the words of s 44. But such creativity is pretty standard for most countries’ constitutional courts and past High Courts have been fairly creative in reading ss 24, 51(xxxi), ch III and (for some of the Court’s judges) s 80. We don’t presently have that sort of bold apex court. But, as will be discussed next, Culleton invited some smaller fixes to s 44(ii) that would suit even a timid judge.

‘Yes, Yossarian. That’s right. Yossarian. Yossarian? Is that his name? Yossarian? What the hell kind of a name is Yossarian?’ Lieutenant Scheisskopf had the facts at his fingertips. ‘It’s Yossarian’s name, sir,’ he explained.

Now, you might be thinking: wasn’t all of this actually Culleton’s fault? After all, he could have avoided s 44(ii) entirely by just not taking the keys (duh), or not annoying a cop so much that he was charged with such trivia, or simply showing up at his hearing on 2 March last year. Had he done the latter, he could have been sentenced then and there, and that sentence (if any) would almost certainly have been done and dusted before the federal election. For what it’s worth, Culleton claims that he had a clash (actually — sigh — another criminal hearing in WA, where he maintains his innocence) and that he phoned the Armidale court about his problems and offered some sensible solutions. Nothing came of that, so I guess that he annoyed the court staff too. So, yes, Culleton owes his lack of success to nobody.

The thing is: the lower reaches of the criminal justice system are full of annoying people like Culleton. They are exactly the people who end up charged with trivia, and they are also the sort of people who courts get sick of and try in their absence. However, because no-one really wants to actually punish these folks, the criminal justice system provides plenty of processes to ensure a sane result in the end. Culleton says (and no-one disputes) that he took advantage of two of those mechanisms: he had the results of the 2 March proceeding annulled (almost certainly because of his earlier absence) and he convinced the  judge at his replacement hearing to not ‘convict’ him of larceny (almost certainly because his offending was trivial.) These are common enough processes, but they can take a while. Culleton says that he put them in train in mid-March 2016, but the Armidale Local Court didn’t act on them until, respectively, on 7 August and 12 September 2016, both after the July election. Of course, few annoying people who end up in criminal proceedings have federal elections and the Constitution to worry about.

‘Didn’t you whisper to Yossarian that we couldn’t punish you?’ ‘Oh, no, sir. I whispered to him that you couldn’t find me guilty -‘ ‘I may be stupid,’ interrupted the colonel, ‘but the distinction escapes me.’

The central issue in Re Culleton [No 2] was whether these two protective mechanisms, despite only being resolved after the election, took Culleton outside of s 44(ii). The issue that got the most public attention was whether or not the 7 August annulment meant that the 2 March conviction no longer counted under s 44(ii). This sort of technical question is a recurring legal puzzle in many contexts — contracts, marriages, administrative law, precedent — and courts usually have a lot of wiggle room to find the best and fairest outcome. However, in Culleton’s case, the High Court said it was bound entirely by the nuances of NSW’s criminal procedure statutes. Those provisions were hardly crystal clear — Justin Gleeson SC thought they favoured annulments being retrospective, Nettle J thought they favoured being prospectively retrospective, while the majority thought they favoured being only prospective.

Anyway, the majority’s view meant that Culleton’s larceny conviction remained in place from 2 March to 7 August and was subject to s 44(ii) during that time. The majority’s reasoning applies well beyond constitutional and election settings and captures other uses of criminal convictions as a way of determining whether someone is disqualified from public office, or a statutory licence, or working with children, or whatever (at least in NSW, but perhaps beyond). And that means that people may be prospectively disqualified or disadvantaged because of annulled convictions in plenty of situations.

What makes the majority’s stance especially strange is that the situation is different if, instead of having your conviction annulled, you simply appeal it. In 1935, the High Court heard the case of a man who was convicted of larceny (like Culleton) and was deemed by a statute (in similar terms to the original draft of s 44) to have ‘vacated his office’ as a result. Unlike Culleton, he appealed against his conviction and had it quashed when the appeal succeeded. The High Court unanimously and firmly held that the effect of the quashing was that the man was never convicted at all and was entitled to his back pay:

The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. “The judgment reversed is the same as no judgment”.

In last Friday’s decision, the High Court said that the earlier ruling was correct but only applied to appeals, not annulments. So, if Culleton had simply appealed his conviction — typically, a much slower, albeit more common, process — instead of getting it annulled, he might not have been subject s 44(ii)!

‘Now, where were we? Read me back the last line.’ ‘”Read me back the last line,”‘ read back the corporal who could take shorthand. ‘Not my last line, stupid!’ the colonel shouted. ‘Somebody else’s.’ ‘”Read me back the last line,”‘ read back the corporal.

Less public attention has been given to Culleton’s other, more complex argument that particular features of his case meant that he was never ‘under sentence, or subject to be sentenced’ for a forbidden offence. These words in s 44(ii) are designed to restrict any disqualification to particular periods, ensuring that even people who commit serious crimes can still stand for parliament after their punishment is done. Culleton relied on past authoritative statements that simply assumed that s 44(ii) only applied to people while they are ‘serving’ a sentence (something Culleton has never done). The High Court ruled that those authorities ignored the words ‘subject to be sentenced’, which it said were designed to catch people like Culleton who weren’t yet sentenced, but theoretically could be. They also rejected Culleton’s argument that, because NSW law bars sentencing an ‘absent offender’ to prison and various other serious punishments, he was never ‘subject to be sentenced’. The High Court held that the term ‘absent offender’ only applied at the time a person was actually sentenced, not when they were awaiting sentence. (A sounder argument would have been that absence only bars serious punishments, but left Culleton ‘subject to be sentenced’ to minor punishments.)

The irony of all this technical nitpicking is that s 44(ii) is expressly built on a technical oddity. It only applies to a person who was ‘convicted’ of an offence (as Culleton was on 2 March) rather than merely found guilty (as Culleton was on 12 September). Under modern sentencing practice, ‘conviction’ of an offence is part of (and, for minor offenders, sometimes the entire) punishment for an offence. This means that, typically, trivial offenders simply cannot be caught by s 44(ii)’s ‘subject to be sentenced’ language because the entire punishment happens in an instance. Had Culleton’s judge on 2 March either opted merely to find Culleton guilty in his absence (and to defer his conviction and any other sentencing until later) or to convict Culleton in his absence and then end the sentencing process entirely, then Culleton would never have been caught by s 44(ii). Culleton’s fate was sealed because his judge, for whatever reason, opted to partially punish Culleton in his absence (by convicting him) and then adjourn the matter without finalising his (likely non-existent) sentence.

Culleton tried to convince the High Court that his fate should not hinge on such pointless differences in form, by citing a provision of the federal election statute that says the Court of Disputed Returns ‘shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities’. But the High Court held that that rule only bars meaningless technicalities in the High Court’s own processes, not anyone else’s.

‘Popinjay, is your father a millionaire, or a member of the Senate?’ ‘No, sir.’ ‘Then you’re up shit creek, Popinjay, without a paddle.’

In case you have any doubt about the soundness of the majority’s judgment, consider Culleton’s final argument: that the behaviour of the Local Court in not adjourning his trial and entering a conviction meant that his conviction was a nullity (and hence outside of s 44(ii) due to ‘procedural unfairness or fraud’. The majority had two responses to that. First, ‘[t]he factual basis for such an argument was not established.’ As it happens, that’s true, but that’s because both French CJ (when Culleton was unrepresented) and later the Full Court refused Culleton’s request for an adjournment to give him time to subpoena evidence about what happened on 2 March 2016, including (presumably) his conversations with the Local Court’s staff. In short, the Court didn’t give him a fair chance to establish that he was treated unfairly.

Second, the majority held that, regardless, Culleton couldn’t argue that the 2 March conviction was unfair and hence a nullity because (at [31]):

these possibilities are not consistent with the circumstance that Senator Culleton sought and obtained relief under the Appeal and Review Act on the basis that the conviction of 2 March 2016 was truly a conviction.

In other words, asking for (and having) his conviction annulled (almost certainly on fairness grounds) implied that the conviction was ‘true’ and, hence, barred him from later saying that it was an unfair nullity!

And that (contra Anne-Marie) is what’s called a Catch 22:

“You mean there’s a catch?”  “Sure there’s a catch,” Doc Daneeka replied. “Catch-22. Anyone who wants to get out of combat duty isn’t really crazy.” There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane, he had to fly them. If he flew them, he was crazy and didn’t have to; but if he didn’t want to, he was sane and had to.

Re Culleton [No 2]‘s readers should ‘let out a respectful whistle‘.

 ‘I said to him, sir, that you couldn’t find me guilty of the offense with which I am charged and still be faithful to the cause of…’ ‘Of what? You’re mumbling.’ ‘Stop mumbling.’ ‘Yes, sir.’ ‘And mumble “sir” when you do.’

Now, while I think that Re Culleton [No 2] was probably wrongly decided and certainly has some bad future consequences, that isn’t the reason I’m writing about it on Opinions on High. Rather, I think a minor case like this — well, a major minor one — is a good opportunity to ponder a major question about the High Court: why do smart people write bad judgments?

This question has been on my mind recently because I’ve been reading the brilliant judgments of United States Supreme Court nominee Neil Gorsuch. Even though I doubt I agree with much of Gorsuch J’s politics, I am sure, after reading his judgments, that he would never write a judgment about a crime that never mentions the facts of that crime, or write a judgment that blandly gives annulments a totally different effect to appeals, or blame someone who he denied an adjournment to prove facts for failing to establish those facts, or set out a literal Catch-22 in a constitutional decision. I’m sure of all that because Gorsuch J makes it clear that he owns everything he says, by writing in an accessible and highly personal style (a style that will get him smoothly onto the Supreme Court bench despite who nominated him.)

What’s the connection to the majority judgment in Re Culleton [No 2]? This:

Looking back at earlier reports of cases in the High Court, one may be struck by the number of individual judgments written. In more recent times, by which I mean the last few decades, one sees more joint judgments. This may simply reflect an increase in the volume of work; it may also indicate a shift in attitude.

That’s the current Chief Justice, Susan Kiefel, in a speech she gave in 2013. I agree with her that there seem to be a lot more joint judgments this past decade. But the change does not reflect ‘an increase in the volume of work’; the High Court does significantly less work this century then it did in the past.

Rather, as she says, the change is likely one of ‘attitude’. She spells out her own attitude to judgment writing later in the speech, stating that:

  • ‘Most judges would be more interested in substance than style.’ (She criticises Denning LJ).
  • ‘Judges usually avoid humour. Litigants, understandably, do not find judgments
  • ‘A judge also has to be careful of criticising other judges. Judges on the receiving end of such treatment are quite capable of putting an erring colleague in his or her place.’

On her view, Gorsuch J (who follows none of this advice) writes bad judgments. It’s certainly true that the High Court’s primary contemporary vehicle for judgments — joint judgments — are invariably style-free, humourless and uncritical. Certainly, no High Court joint judgment would ever include a grammar diagram or reference the Hunger Games.

‘Yes, sir,’ mumbled Clevinger. ‘Of justice, sir. That you couldn’t find —’ ‘Justice?’ The colonel was astounded. ‘What is justice?’ ‘Justice, sir —’ ‘That’s not what justice is,’ the colonel jeered, and began pounding the table again with his big fat hand.

This, according to Kiefel CJ, is how the High Court writes its joint judgments:

Often one judge of the panel which has heard the appeal will be asked to write a first draft and to circulate it to the other judges, who will then consider whether they can agree with it or not. … In the High Court, this is determined posthearing. It usually only occurs when there is a level of consensus and therefore the possibility that others will agree with the view expressed, although sometimes when the Justices are undecided, one will volunteer to write a first draft in any event. A Justice might volunteer to do so because of his or her particular interest in the issues or it may lie within an area of special experience. Or it may simply be that it is a Justice’s turn.

She says that this process is necessary because ‘it is not possible for appellate judges to write a comprehensive judgment in a timely way on every case they hear.’ But in the two years before Kiefel CJ’s speech, Heydon J put the lie to this claim, at least in the High Court, when he wrote a separate judgment in every single case he sat on. And, anyway, why did these timing bench marks become the rule in the High Court?  I suspect that the High Court has simply adopted the norms of the (much busier) Federal Court, the source of so many High Court judges these days (and, now, two Chiefs.)

I had once assumed that the High Court’s joint judgments were genuine collaborative projects, but Kiefel CJ reveals otherwise:

It is rarely correct to say that what appears as a joint judgment was co-written by the judges ascribing their names to it. It is, in my experience, quite rare to have an appellate judgment written by more than one judge, not the least because it is difficult in a practical sense to do so. Very occasionally, a judgment will be able to be divided into discrete sections, but even then substantial editorial adjustments are necessary so that the judgment appears homogenous. It does happen that a concurring judge will suggest an addition or amendment. There is no obligation to agree to any changes. Some joint judgments in the past have clearly suffered from too much input and the clarity of the judgment has thereby been compromised.

The problem is that the joint judgments also aren’t what the (true) author would write on his or her own:

In the High Court when a Justice signifies concurrence, he or she is joined in the judgment (by which I mean his or her name is added to it) if that is so desired. When a judgment is published, it will not be apparent who the author is. It is partly for this reason that Justices will make a conscious effort not to intrude their own personality into their reasons when they are writing a first draft for the other members of the Court to consider.

So, writers in High Court majorities must keep even their draft judgments ‘personality’-free and other members of the majority should avoid ‘too much input’. It sounds to me like working on an anonymous committee.

And the results of this process certainly look like the work of a committee. Every High Court follower knows the distinctive writing styles of Isaacs J, Dixon J, Evatt J, Barwick CJ, Mason J, Murphy J, Deane J, Gaudron J, McHugh J, Kirby J, Heydon J and so on. But could anyone identify the writing style of Kiefel J, Keane J, Bell J or Gageler J? Indeed, High Court judges who wrote distinctively in their previous roles seem to lose that distinctiveness in the current apex court, even when they write separately, for example Nettle J in the current court.  I’ve long had the sense from reading High Court judgments that the current judges simply don’t enjoy their work. Unless you’re a ‘great dissenter’, life on the apex court sounds incredibly dreary. Contemporary High Court judges are born great, rise to great heights but seem to have mediocrity thrust upon them.

‘I’ll tell you what justice is. Justice is a knee in the gut from the floor on the chin at night sneaky with a knife brought up down on the magazine of a battleship sandbagged underhanded in the dark without a word of warning. Garroting. That’s what justice is when we’ve all got to be tough enough and rough enough to fight Billy Petrolle. From the hip. Get it?’ ‘No, sir.’ ‘Don’t sir me!’

My concern isn’t with High Court judges’ career happiness. Rather, it’s that I fear that this lack of personality can translate into a lack of justice. To quote another passage from Heller’s masterpiece:

It was miraculous. It was almost no trick at all, he saw, to turn vice into virtue and slander into truth, impotence into abstinence, arrogance into humility, plunder into philanthropy, thievery into honor, blasphemy into wisdom, brutality into patriotism, and sadism into justice. Anybody could do it; it required no brains at all. It merely required no character.

To put it shortly, if no-one truly writes a judgement, then there’s a lot less chance that the judgment will truly be right. (Justice Gageler spoke about this — and its impact in multi-member courts — at length in 2013, though maybe he’s since changed his mind.)

Of course, this is all guesswork. Apart from Kiefel CJ’s speech, the High Court’s judgment writing process happens in private and everyone involved is bound by strict secrecy. Maybe, as is sometimes suggested, life as a High Court judge is a non-stop intellectual frenzy that just doesn’t show (at least to me) in the Court’s outputs. And maybe Kiefel CJ is right that the joint judgment process carries other advantages and that the disadvantages are reduced in practice:

Most appellate judges in Australia would, I think, express a preference for a joint judgment where it is possible, when judges are in agreement, unless a judge has a different approach to reasoning to the same conclusion and wishes to express it or has something that he or she wishes to add. One English judge has gone so far as to suggest that it is a vanity to write when there is nothing to be added. Of course if a judge cannot agree, he or she must write in dissent. No judge would agree unless able to do so completely.
Views have differed over the years about whether joint judgments are to be preferred. One of Australia’s most distinguished jurists and a prolific judgment writer, Sir Owen Dixon, once told a colleague that he usually regretted agreeing with another’s judgment; nonetheless, he continued to do so on occasion. His colleague later remarked that ‘the advantage of certainty in the law was aided by his doing so’.
The need for certainty is particularly important in areas such as criminal law. Appellate judges are conscious of the position of a trial judge, who is not assisted by a multiplicity of judgments, all with some qualification or addition. And in some controversial cases, the view is taken that it is preferable that the court speak with one voice, if it can.

I was never one to decry the Court’s multiple judgments (though many of them could have been improved by cross-referencing), but I know that I’m in the minority on that view.

But there’s no need to discard joint judgments to resolve the problem of judgment ownership that I raise here. Rather, I think one small change will make a big difference:

In the High Court, we do not currently adopt a system such as that in the United Kingdom (and in Hong Kong) where one leading judgment may be written with the other members of the court publishing separate concurrences, even if they say no more than ‘I agree with Justice X.’ By this means, the author is always evident.

I’m heartened by that word ‘currently’. While the High Court’s practice (which also differs from that in the US and Canada) is well known, there has (to my knowledge) never been any justification provided for it. If the joint judgments were genuinely collaborative, then identifying a single author would be capricious and pointless. But, if they aren’t, then why the secrecy?

In my view, if the writer of a joint judgment is identified (and the judges know that he or she will be identified), then three good things would follow. First, I believe that the writer would write a much better — and a more just — judgment, because his or her name would be attached to it; I can’t believe that any of Kiefel, Bell, Gageler or Keane would ever have let that ‘Catch 22’ passage stay if theirs was the sole name on the judgment. Second, other judges would find it less worrisome to join a judgment that had its own individual ‘personality’ if they were not labelled as the judgment’s ‘co-author’. And, finally, other judges would also be more likely to express (however briefly) how their own personal takes differ from the main judge, freed of the fear of wrecking the principal judgment with ‘too much input’.

And that would give everyone else a judgment that was actually worth reading and worth criticising:

Catch-22 did not exist, he was positive of that, but it made no difference. What did matter was that everyone thought it existed, and that was much worse, for there was no object or text to ridicule or refute, to accuse, criticize, attack, amend, hate, revile, spit at, rip to shreds, trample upon or burn up.

So, how about it? Why not tell us which of Kiefel, Bell, Keane or Gageler JJ was responsible for Re Culleton [No 2]? As Leieutenant Shiesskopf promised Clevnger, I swear I won’t punish you.

Clevinger was guilty, of course, or he would not have been accused, and since the only way to prove it was to find him guilty, it was their patriotic duty to do so. He was sentenced to walk fifty-seven punishment tours.  Popinjay was locked up to be taught a lesson… A punishment tour for Clevinger was fifty minutes of a weekend hour spent pacing back and forth before the provost marshal’s building with a ton of an unloaded rifle on his shoulder. It was all very confusing to Clevinger.

This entry was posted in Opinions by Jeremy Gans. Bookmark the permalink.

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.

23 thoughts on “Catch-22 in the Court of Disputed Returns: Re Culleton (No 2)

  1. I must say I agree with you regarding the quality of the judgment on Culleton No2 for all I dislike the personal politics of the man. There are a number of unique pressures on the Court in this case and perhaps they have affected the quality of the judgment in this case. It does seem rather foolish that an annulled conviction can nonetheless be treated as having an effect, but the certainty argument- and the point that at the relevant time, he couldn’t know the conviction would be annulled, and this would effectively encourage ineligible people to stand on a chance they could become eligible after the fact- has some merit… or it would if the Court didn’t simultaneously undermine it with the view that the situation would be different in an appeal, which is simply inconsistent.

    One suspects that a future High Court, if called upon to do so, would have to reverse one or other of those precedents as they are logically inconsistent.

    I’m not sure I agree that the quality of the HC judgments in generally has been declining (from a legal sense; I don’t really go in for literary criticism of judgments). Not so sure about some of the appellate courts but the French Court seemed to me to be doing a very good job fixing lower mistakes and keeping the wheels turning smoothly on the bus of justice. Which other judgments have concerned you?

    I suspect the HC’s approach to boring judgment-writing and avoiding individuality in judgments has a lot to do with a determination to avoid becoming as politicised and cult-of-personality-filled as the US Supreme Court (and, to some extent, with an eye on examples from Lord Denning MR to Justices Kirby and Heydon).

    • All fair enough, Arky. I deliberately didn’t try to list the other cases that trouble me – ultimately, there’s lots of eye-of-the-beholder issues here, though I still think they’re worth voicing. But most of my opinion posts in this blog criticise the quality of the judgment discussed, and I have some published or conference papers criticising other joint judgments in the past decade (notably Phillips v R from 2006 and R v Dickson from 2010.) For another recent example, close to my heart, that has gotten plenty of criticism from lawyers and academics, see the majority judgment in IMM v R from last year, where the criticisms are not directed so much to the majority’s stance as to its many baffling examples of its stance.
      I don’t disagree that the Court has avoided politics and cult-of-personality (though neither of these things troubles me as much as it seems to trouble others.) But these have to be weighed against the cost of personality-free judging.
      On the ‘appeal/annulment’ issue, I assume that the High Court’s out will simply be to adopt Nettle J’s view that ‘conviction’ in the Constitution is determined by the facts on the ground at the moment of election, rather than any subsequent legal change. That’s what they should have done in this judgment (and, perhaps, is an instance of what gets lost in attempts to create a joint judgment.) But that fix will only resolve the constitutional issue, not the many statutory equivalents to s. 44.

      • From a quick read, today’s judgment in Palmer provides a neat example. Compare the plurality’s bland and cagey analysis (e.g. [36]-[37]) with Gageler’s (e.g. [91]-[93]). Which one is worth reading, worth discussing, worth criticising, addresses what matters, will influence future lawyers and judges?

        • I don’t know about that. I see the plurality as pithy and Gageler as overly wordy. When I see a phrase like “Montesquieuan fundamentalism” in a judgment – ironically, quoted from a joint judgment of French CJ and Kiefel J as she then was- it does not impress me at the judge’s learning nor does it make me feel the judgment is worth reading more.

          The politicisation of the judiciary bothers me a great deal (I think it is leading to the complete breakdown of respect for the judiciary in the USA) and so I commend the HCA for avoiding it, but that’s probably a topic for another post.

          • I don’t like ‘Montesquieuan fundamentalism’ either, but I see that as just a bit of personality (albeit not my kind of personality.) It’s the other stuff, though, in paras [91] and [93], that I like:

            How then, in light of that history, should this Court approach the characterisation of a power to order an examination conferred on a court by what those who support its validity argue to be a modern equivalent of that “‘Star Chamber’ clause”?

            Fidelity to the values which inform the separation of the judicial power of the Commonwealth nevertheless requires that we be extremely cautious about accretion to the judicial power of a power to inquire which is unrelated or tenuously related to the core judicial function of quelling controversies about legal rights. To admit that an inquiry into a subject-matter is in the public interest is very different from admitting that the conferral of a power to conduct such an inquiry on a court accords with the constitutional structure that has been created to secure the enduring interests of the Commonwealth. Our job is to take a long-term view.

            and that I suspect is what you get more easily in an individual, personal judgment than a joint one. As for the ‘pithy’ joint judgment, that’s not the word I’d use.

  2. I don’t think it is controversial to say that it is a harsh result for Culleton in the circumstances(though personally I consider him to be a ratbag).
    However it is hard to fault Nettle J’s reasoning at para 59:-
    “Now, as at the time of Federation, the need for certainty in the electoral process makes it highly desirable that, if a person is convicted of a relevant offence, he or she should forthwith cease to be eligible for election, or, if already elected, should cease to be capable of sitting, until and unless the conviction is quashed or annulled or the sentence is spent[46]. If it were otherwise, there could be long periods following conviction of a relevant offence until an appeal or application for annulment is finally heard and determined in which it would be impossible to say whether the person so convicted is or is not eligible to be elected, or is or is not eligible to continue to sit as a senator or member of the House of Representatives. If the framers of the Constitution had foreseen that a process of annulment might bring about that possibility it is inherently unlikely that they would have intended that to be the result. The disqualification imposed by s 44(ii) must be read in light of the system of representative and responsible government established by the text and structure of the Constitution[47]. An understanding of s 44(ii) as requiring order and certainty in the electoral process accords with that system[48].”
    What alternative to this is satisfactory?

    • Malcolm, I agree that Nettle J’s judgment is more satisfactory than the majority’s and a fair reading of s. 44, not least because his reasoning will have little negative effect on non-constitutional equivalents to s. 44.

      But I’m not convinced about the overriding imperative of certainty for two reasons. First, as noted in the post, there’s no simple way for a party or voter to determine in advance of an election (or, perhaps, for some time after) whether or not most of the criteria in s44 are satisfied, so the only certainty Nettle J’s approach brings is at the hearing at the Court of Disputed Returns. Certainty at that point is of limited worth compared to certainty at other points. Reading s44 as not extending to summary convictions would be a much better step in promoting certainty at elections. Second, in any case, there are other principles at stake, notably justice – the idea that a false conviction or one tainted by procedural unfairness (as alleged but of course not proved here) can have a dramatic effect (especially one that limits the rights not just of the elected, but also the voters) is jarring and, potentially, corrupting. Imagine if this happened to, say, Pauline Hanson, or Tony Abbot, or Nick Xenophon, or Malcolm Turnbull or whatever? I think a softer rule (excluding trivial offences, excluding annulments that were sought before the election, excluding quashed convictions within some arbitrary time limit, whatever) would be worth it despite the (mild) uncertainty. I certainly think that these alternatives should have been fully canvassed by the High Court.

  3. Well said Prof Gans. This was an injustice to Culleton and a disgrace to the High Court. I have no doubt that if any member of the front bench were in the same position as Culleton, the High Court, no doubt fearing the backlash of the media and the public, would have come to the opposite conclusion.

  4. Jeremy,I suggest that the author of the joint judgment in Culleton is Keane J.
    Why?Because of the use of the phrase “For the reasons that follow..”
    Those words appear in his judgment in Paciocco v ANZ Bank.The others don’t appear to use that phrase in their single judgments.

    • Hmmm. That phrase strikes me as not sufficiently distinctive (albeit much less common than ‘for the reasons which follow’) for the purpose of disentangling an amorphous blob of High Court judges, though I agree that it is worth feeding into an educated guess.

      Just looking back at 2016, ‘for the reasons that follow’ was used in the joint judgment of Nettle, Gordon & Gageler in December’s Simic decision; by Gordon (as well as Keane) in Cunningham; by French, Kiefel & Bell in Graham; by Gordon in Crown; and Hall v Hall, a joint judgment of all 7 in last year’s Day (so perhaps also written by Keane, or maybe Gordon?); French, Kiefel, Nettle & Gordon in May; French & Bell in Fisher v Nemeske; French, Kiefel, Bell, Keane & Gordon in both Tatts & Tabcorp; and French, Kiefel, Bell & Keane in CGU, as well as Keane in Paccacio. Given that Gordon J wasn’t involved in Culleton, I think that this is an indication of Keane’s authorship, but not a particularly strong one on its own.

      • Further to this, I went looking for the first ever use of this phrase in the High Court and, surprisingly, the very first use was quite late: in1999 by Gleeson & Hayne in Papakosmas. And yet, 17 years later, it was used 14 times in a single year (and it was used by three different judges, French, Hayne & Bell, in Momcilovic), so it’s certainly come into vogue (if that’s the right term for such a dreary phrase) in the High Court.

        • And further again, I looked through the FCAFCs (but not the FCAs) during Keane’s tenure as CJ and found a fair scattering of ‘For the reasons that follow’s (but still less than in the HCA), but lots of different judges used them (with Gordon J seeming to be the most common user, and Keane CJ only a handful.)

  5. Dear Professor, thank you for your analysis/critique.

    As a lay person whose judicial experience (as a defendant, or agent for another party – I’m no lawyer) is limited to the former Administrative Decisions Tribunal, NSW Magistrates, District and Land & Environment Courts) my High Court interest was triggered by the 2013 Marriage case.

    My interest in that case was my belief in the position that Howard & Co erred in 2004 by defining a universal term that should never be defined – though I appreciate the redefinition of the universal term by other jurisdictions was problematic.

    Of course, once something is defined in Statute it is open to redefinition by Parliamentary fiat. So, given that common law, statute law and the Constitution itself all held the same position until 2013, I come to your point raised today :

    “To be clear, these creative interpretations aren’t the most faithful readings of the words of s 44. But such creativity is pretty standard for most countries.’

    I am not sure that the apex court of the Nation is supposed to be creative with the Constitution, especially when we have – as you noted, disparagingly, but, correctly – a mechanism to review our Constitution (s128).

    The 2013 decision also brings into question you comment that the HC avoids politics – perhaps by the bucket load, to paraphrase a former Deputy PM.

    My personal opinion is that the law on marriage may well have outlived its effective didactic purpose since 1975, however, my concern remains with the process of academics and the world’s constitutional courts being ‘independently creative’ and effectively telling us that our democratic rights to maintain (or change) constitutions can be more expeditiously dealt with by creative judges!

    Many thanks for an excellent blog.

  6. This reminds me of an interesting book I read at the start of maternity leave (swiftly coming to an end now!) – Alan Paterson, ‘Final Judgment – The Last Law Lords and the Supreme Court’ (2013, Hart). In the UK Supreme Court there is apparently an initial conference where all judges state their views, and then everyone drafts their judgments. Someone is allocated lead judgment writer (usually the judge who is a specialist in the area). Apparently the rate of concurrences has fallen. Some judges prefer joint judgments, some prefer to concur. Some prefer not to dissent, others have their own way and have no difficulty in dissenting. With regard to joint judgments, some judges actively tried to woo other judges onto their camp, whereas others didn’t mind. And the decision whether to dissent or not was a difficult one for some, whereas others ploughed their own row without much concern for others. Fascinating. I wonder if the High Court has a similar practice to the UKSC?

  7. Kiefel CJ (in her 2013 speech) clearly stated that ‘There are no fixed rules’, which certainly sounds like the situation in the UKSC. The interesting question, though, is whether there are fixed attitudes, which can (perhaps) make life less comfortable for those who fall outside the norm? Those with inside knowledge of the HCA (certainly not me) may know something about this, and it may well change from year to year.

    In a different speech from 2014, Kiefel J said the following:

    If judges feel the need to write separately, time must be allowed for them to do so. If a judge has decided that, as a matter of course, he or she will write separately in all cases, two consequences will usually follow. That judge will not be able to contribute much, if at all, by way of first draft judgments because that judge will not be able to produce one promptly, which is a key purpose of a first draft. Of course, a judge who has decided to write separately may not be interested in undertaking the task of a first draft, so this issue may be hypothetical. The second consequence is that the judge will at some point delay the Court giving judgment in a matter….
    On two occasions, in my experience, all but one judge had agreed in a draft and many months were spent waiting for the outstanding judgment. The consequence of the delay in each case was that the matter settled before judgment was given. The parties could apparently wait no longer. On one such occasion, the chance for the Court to produce a collaborative judgment on an important development in the law was lost. Outcomes such as these are bad for litigants and bad for the legal system as a whole. They deny the Court its role in determining the matter before it and tarnish its reputation. If a judge does not often write a first draft or cannot produce a draft in a timely way, he or she will not be able to influence colleagues.

    That all sounds sensible enough (does anyone know what the two settled cases are that she refers to?) but it also sounds like a fair amount of pressure on new judges to toe the line, if they don’t want their stay in the HCA to be a fairly lonely experience.

  8. An excellent, insightful article, though a grim and petty decision, indeed.

    The judges could so easily have made this The Castle come true; demonstrating that a courtroom neophyte can be heard in the highest court in the land and be accorded as much consideration and attention as the most expensively-represented litigant. The former Chief Justice French at least was alive to the possible analogy, raising some chuckles at a preliminary hearing when he assured Culleton that indeed the matter was about the Constitution, but unfortunately the full bench missed the cue and took refuge in the hidebound.

    Regardless of whether Culleton was convicted or not, and as he was never sentenced, this was only ever about whether Culleton was “subject to be sentenced” when he applied to become a senator. Rather than identifying this as the nub of the matter, the court allowed itself to be waylaid by the annulment of conviction red herring and an ill-advised argument that Culleton as an absent offender was never subject to be sentenced to imprisonment for at least a year at the relevant time.

    Only as a seeming afterthought did the court deal with that crux of the matter, and then only as an apparent afterthought warrant scant attention, the plurality stating peremptorily, and without reference to any authority, that when the warrant for Culleton to be brought before the local court for sentencing was issued on 2 March the process of the law pursuant to which Culleton might lawfully be sentenced was put in train, and he was from that day and during the election period “subject to be sentenced”. For his part, Justice Nettle maintained, even more briefly and somewhat haughtily, that when the warrant issued it followed that Culleton remained to be sentenced, and was therefore “subject to be sentenced”.

    This was despite the facts that the warrant was never executed, and that following its issue Culleton remained outside of, and was therefore not subject to, the jurisdiction of the State in which the warrant issued until after the election period, when he submitted himself to the jurisdiction and the conviction was annulled.

    Doubtless it would be news, if they were ever to find out about it, to those who have assumed that, say, the street offence they were charged with years ago while in another State has resulted in them being in a permanent state of being subjected to be sentenced for the offence they were assured would be dealt with without repercussion by bail forfeiture. Perhaps they all experienced an otherwise inexplicable feeling of being unburdened on the days when theirs were among the historic bench warrants periodically deleted en masse.

    Had the court seized on the crux of the matter and given it due consideration, what an opportunately would it have been to show the High Court is not only just but also magnanimous; capable of providing fair judgment regardless whether those who appear before it are wigged in silk, horsehair or even fleece, or not at all.

    Thank you for your alerting to Professor Blackshield’s article. He was, in an earlier article, one of the few commentators or reporters who did not assume that this was only a question of whether Culleton convicted at the relevant time, but rather as well whether he was under sentence or subject to be sentenced. And his raising of the question of why nobody involved thought of arguing that this was a case of de minimis non curate lex (the law does not deal with trifles) does make you wonder.

    The Kiefel court looks to be set on realising its modest benchmark of achieving “business as usual”, I guess.

  9. Jeremy’s Opinion on High piece highlights a number of Catch-22’s in the legal morass in which Rod Culleton found himself. Anyone who attempts to be a bush-lawyer is likely to run into trouble when up against those at the pinnacle of the law.

    Uncowered by this likely reality, my lengthy comment below is one of my attempts at bush-lawyering.

    Jeremy is definitely wrong on one count. It is not true that “no one cares about Re Culleton [No 2]”. I do.

    I happen to think the High Court got it wrong, but for different reasons than those that lead Jeremy to think they “probably got it wrong”.


    Extract from An Opinion Piece: a Low for the High Court

    By Ross Drynan*

    Under the Commonwealth Electoral Act, the High Court is charged with and is responsible for answering questions referred to it by either of the Federal Houses of Parliament.

    In answering such questions, the Court may choose to hear from those with both a real interest in the questions and wishing to bring matters to the attention of the Court.

    In December, the Court heard both Culleton and the Commonwealth Attorney-General on the referred question of Culleton’s eligibility to be elected as a Senator as part of the ‘Re Culleton [No 2]’ case, the Commonwealth arguing Culleton was not eligible to be a Senator and Culleton, unsurprisingly, that he was.

    At the time of the 2016 election in June-July, Culleton was a convicted (Armidale Local Court, March 2016) and subject-to-be-sentenced offender. Subsequently in August 2016, on appeal, the earlier conviction by the Local Court was annulled and the matter considered afresh. The Local Court again found that Culleton was guilty, this time imposing a penalty of $322.85 compensation to the victim. No conviction was recorded. The offence was considered trivial.

    Under the Constitution (s 44(ii)), an offender convicted of an offence for which the punishment under the law could be a year or more of imprisonment is not eligible to be chosen as a Senator while ever under sentence or while ever subject to be sentenced. Eligibility is restored once the sentence is completed.

    Taken at face value, the wording of the section means ineligibility and renewed eligibility apply to sentenced offenders whether the imposed sentence involves imprisonment (of whatever length, 30 days, one year 5 years) or other form of punishment, provided the commited offence was one for which the sentence could involve imprisonment for a year or more. On the other hand, the Court seems (see quote in next paragraph) to suggest ineligibility of an offender may only occur for a year or longer sentence.

    The import of the words ‘subject to be sentenced’ in section 44 (ii) was addressed in the Court’s judgement. The Court says “… the framers of the Constitution were concerned to ensure that not only should a person who has already been sentenced to a term of imprisonment of one year or longer be disqualified from being chosen or from sitting as a Senator; so too should a person who is able to be so sentenced. The circumstance sought to be guarded against was that such a person might not be able to sit and should for that reason not be able to be chosen.”

    As a convcted offender subject to be sentencec, Culleton’s eligibility to be chosen as a Senator in June-July 2016 turns on the potential lawful prison sentence, if any, to which he was exposed at that time.

    In determining the punishability for the offence of which Culleton had been convicted, the High Court focussed first on the maximum penalty for the class of offences (larceny) to which Culleton’s particular offence belongs.

    Under the NSW Crimes Act, the maximum period of imprisonment for a larceny offence is, with a number of exceptions for specifically identified cases, five years. Examples of exceptions are the maximum sentence for stealing a dog (only one year) and that for stealing from a dwelling (seven years).

    The maximum penalty specified in the NSW Crimes Act for a type of offence , eg. larceny, is not necessarily a penalty that can be imposed for any particular instance of the generic offence. Details of both the offence and of the legal process are relevant to the punishment of the particular offence.

    Under the NSW Criminal Procedures Act, unless the prosecution otherwise chooses, a larceny charge in which the value of the stolen goods is under $5000 is to be heard summarily in a Local Court. Furthermore, under that Act, a Local Court cannot impose a prison sentence of more than two years.

    The High Court acknowledged the relevance of these details of the particular offence and the proceedings. Having only stolen a tow truck key of relatively minor monetary value, Culleton was only ever liable at most to two years imprisonment when eventually sentenced by the Local Court.

    There are further caveats imposed by NSW statute law on the imposition of prison sentences for an offence.

    For example, no prison sentence can be imposed by a Local Court while ever the offender is absent.

    The High Court acknowledged the relevance of this detail of the Culleton legal proceedings in the Local Court. Whether Culleton had the status of an absent offender for purposes of sentencing was addressed in the High Court hearing and taken into account in the Court’s judgement: Culleton would eventually be present for sentencing, so would not then an absent offender, and so was subject to a possible prison sentence.

    There are other caveats imposed by NSW statute law on sentences.

    Importantly, under section 5(i) of the NSW Crimes (Sentencing Procedure) Act, no sentence of imprisonment, not even one considered in itself to be appropriate, can be imposed for any offence unless the sentencing court has first satisfied itself that there is no non-prison form of punishment appropriate for the offence. Imprisonment is by NSW law, the punishment of last resort. Certainly, the sentencing court does not have unfettered discretion to impose a prison sentence.

    As well, the sentencing court is obliged (section 21A of the same Act) to give attention to aggravating and mitigating factors of the offence before deciding and imposing a sentence for an offence.

    In concluding that Culleton was ineligible for the Senate, the High Court has evidently befire that determined that Culleton’s offence was one for which he was liable for a prison sentence of a year or more. Before that determination, the High Court (assuming it took account of the statute law in sections 5(i) and 21A of the NSW Crimes (Sentencing Procedure) Act) had first to form the view that it would have been reasonable for a Local Court sentencing Culleton to find that there was no appropriate alternative punishment to a prison sentence for his offence.

    The High Court is concerningly silent on these critical steps of its reasoning in ruling against Culleton’s eligibility.

    Though unlikely, that silence is possibly due to subsection 5(iv) of the Crimes (Sentencing Procedures) Act. This subsection makes it clear that any prison sentence imposed without the sentencing court having first satisfied itself that all punishments not involving some period of imprisonment were inappropriate by themselves, so contrary to subsection 5 (i), is not invalid because of that failure to comply with 5 (i).

    It would seem to be a peculiar interpretation of the law for the High Court to reason that an offender is exposed to a prison sentence by virtue of the fact that the offender is exposed to an unlawfully imposed, though valid once imposed, prison sentence.

    The Court’s silence more likely stems from the fact that the issue of the reasonableness or otherwise of a court viewing all alternatives to imprisonment as being inappropriate punishments for Culleton’s offence was not raised by Culleton’s representatives at the December High Court hearing.

    In a non-adversarial case like Re Culleton [No 2] in which the Court is answering a question referred to it by a House of Parliament, it surely cannot be incumbent on the interested parties in the case to raise all possibly pertinent matters. On the other hand, it behoves the Court itself to identify the relevant facts and relevant law.

    It is possible, again unlikely given the Court acknowledges at least one detail of Culleton’s offence, that the High Court’s silence stems from a view that section 44(i) is not actually concerned with Culleton’s liability to a prison sentence for his specific offence but instead with the liability (five years) of an offender to be imprisoned for the worst possible instance of the type of offence (here larceny) of which the offender has been convicted. This has the obvious advantage for the Court that it does not have to engage in a shadow sentencing hearing for the particular offence and thereby does not need to concern itself with the details of the offence. However, it would mean that Culleton has been convicted on his specific offence (and would eventually be under sentence, if any, on the same specific offence), yet while ever still subject to sentence, is to be viewed as being subject to sentencing for another instance of the same type of offence, namely the worst possible instance of that type of offence, one that he did not commit.

    This would indeed be a peculiar legal interpretation of section 44(i).

    It may reasonably be presumed that the High Court did concern itself with Culleton’s liability to imprisonment for his particular instance of larceny.

    Assuming that Court did consider the statutory sentencing caveats, the Court evidently reached its position on the reasonableness of a sentencing court concluding that there was no appropriate non-custodial sentence for Culleton notwithstanding that the Court was well aware that the Armidale Local Court had already found by September 2016 that there was at least one appropriate non-custodial punishment for Culleton’s trivial offence. The High Court would also have been aware that neither the Local Court’s judgement nor the imposed non-custodial sentence was appealed by the prosecution as being inappropriate.

    Both the relatively small financial penalty that was imposed and the fact that the Local Court considered the offence did not even warrant a record of conviction suggest the Local Court had some wiggle room and would also have been able to see a variety of tougher non-custodial sentences as appropriate had the offence been more serious or had the aggravating and mitigating circumstances of the offence been different.

    Culleton, in reality, was never liable to be lawfully imprisoned for his offence. He should then never have been disqualified from being elected to Senate. There was no reason to believe that he, merely because he was subject to be sentenced, might not be able to attend to his duties as an elected Senator. The concerns of those who formulated section 44 (i) of the Constitution do not arise in Culleton’s case.

    As a remote observer reliant on the news media, available on–line copies of a few pieces of legislation and High Court judgements and transcripts, I may be quite uninformed or worse ill-informed. Nevertheless, with what I have read, it is impossible for me to imagine how a sentencing court might reasonably have concluded there was no alternative to imprisonment for Culleton’s offence. The High Court is evidently more imaginative than I.

    Given that Culleton has elsewhere been found ineligible to sit in the Senate because of his Federal Court determined bankruptcy, the consequences of an erroneous High Court’s ruling on his eligibility to be elected are arguably less severe than they might otherwise have been. However, the processes and outcome of the bankruptcy case may have been quite different if his eligibility to be elected was not in question. As well, there would be no doubt as to his right to salary and allowances for his time as a Senator.

    While there ought to be public disquiet at the injustice done to Culleton and to the Western Australian electorate, there are wider concerns for justice in Australia.

    First, it is important that the judiciary is respected by Australians. Yet the judiciary has no inherent right to respect. In this regard, it is similar to the legislature, the government and the media. Respect must be earned. Australians often (and rightly) feel let down by various lower courts whose decisions are found wanting on appeal. Given their privileged, unchallengeable, position at the pinnacle of the judiciary, the High Court needs both to get it right and to be seen as getting it right.

    It is particularly important they get it right in cases dealing with the election of our parliamentary representatives and thereby our government. Seemingly capricious selection of which details of an offence to acknowledge and what penalty prescribing and proscribing statutes to honour does not bode well for future respect.

    The regrettable decision in Re Culleton [No 2] follows an even worse High Court decision in relation to the constitutional validity of the 2016 changes to the method of electing Senators. In the High Court challenge to the legislation, brought by then Senator Bob Day, the Court could not even grasp the major reason why some electors’ valid votes would go unrecognized under the new legislation, Day’s argument being said by tge Court to be ‘elusive’. That misjudgment, though, is a tale of woe for another day.

    Second, there is a concern that the range in judicial views as to what is reasonable and appropriate in a given case is overly wide. It is not acceptable that one court, the Armidale Local Court, should view Culleton’s offence as one appropriately punished by minor compensation while the High Court thinks that that same Local Court could reasonably have found imprisonment to be the only appropriate punishment for the very same offence.

    Under section 368 of the Commonwealth Electoral Act, there is no appeal against the High Court’s judgement as to Culleton’s eligibility to be chosen as a Senator. Indeed, the judgement is not even to be questioned.

    Hopefully Their Honours will now do the honourable thing by engaging in a selfie and determining that those on the bench should join Rodney Norman Culleton on the list of the out-of-work.


    *Ross Drynan is a cattle farmer in Scenic Rim, South-East Queensland, mostly occupied in battling weeds and dealing with other ecological problems exacerbated, even engendered, by government imposed ecosystems. He has no party political allegiances and does not know or have any direct or indirect connection to Rodney Culleton other than genuine empathy. His principal qualifications for writing this justicial opinion piece are his lack of formal legal education and his not being a member of the legal establishment. Earlier in life, for some years, he was a University of Sydney academic.

    • This is a great essay, well researched, and logical. Are you sure you’re not Ross Drinnan, head of litigation at Allens?

        • Thanks, Ross.

          That’s worth thinking about, particularly in support of an argument that the circumstances were so trivial as to warrant the court deciding not to deal with the matter at all (under the maxim that “the law does not deal with trifles”), which unfortunately was not put to the court.

          Don’t talk down your qualifications. In almost thirty years of lawyering in the private and public sectors I’ve never come across any lawyer capable of handling anything as complex and difficult as running cattle. That is, unless doing so is down to bluff and front.

          I’ve got to say that the court was correct in taking it that the requirement in section 44(ii) – that the person be subject to be sentenced for an offence punishable under law by imprisonment for one year or longer – meant just that. It would have been a bold move for the court to interpret that requirement narrowly as being effectively qualified by the word “realistically”.

          Agreed the decision is disappointing, and it is a shame that Culleton’s bankruptcy effectively made it irrelevant in the practical sense. Not only the decision, but the whole process has been dodgy, beginning with the Solicitor-General (then Justin Gleeson) legal opinion on which the action was based assuming that all that was necessary for section 44(ii) to apply was its conviction elements; the opinion having given no consideration to the required sentencing elements. Also, as I tried to indicate in my reply on this site few weeks ago, the court has quite remarkably assumed that Culleton was subject to be sentenced when he was never at any relevant time within and therefore subject to the jurisdiction of the NSW court: he was outside NSW and no extradition proceedings were taken.

          It is good that Opinions on High at least allows non-Melbourne University Law School persons to contribute to the blog. I suspect, though, that the blog is primarily for the lecturers and students. So, if you find any other good forums, please let me know.

          Again, thanks and best wishes.

          John Burke

          • John, as far as we know, the blog has a readership well beyond lecturers and students, notably to other members of the legal profession (including judges) and to journalists. The blog’s aim is to be accessible to interested lay readers; we do occasionally get (and welcome) lay comments, though we otherwise have no way of knowing how many non-lawyer readers we reach.

  10. Thank you for clarifying that, Jeremy, and all the best to you and all associated with the site.

Comments are closed.