It seems that the High Court’s extraordinary run of cases on the qualifications of federal MPs has ended at last, with no new referrals in (or likely to be added to) the pipeline. Nevertheless, the very first of this term’s thirteen referrals is now back before the High Court. Yesterday, Kiefel CJ heard an application from Rob Culleton to reopen his referral (which led to his disqualification) on the basis that the Senate lacked quorum when it sent his election to the Court of Disputed Returns. The relevant Hansard reads:
I just raise—and I may be out of order—that I spoke to Senator Culleton a few minutes ago and he indicated to me in very broad terms that he was looking at seeking leave to move an amendment. I wonder, out of fairness to him, if that is what he is still intending to do, whether we ought to draw attention to the state of the chamber. I just do not want to be seen as being unfair to Senator Culleton. I want to be fair to the man.
The PRESIDENT: Thank you, Senator Xenophon. You have drawn to my attention that he chamber may not be quorate, so we shall bring the bells. (Quorum formed)
(As it happens, both parties to this conversation, Senators Xenophon and Parry, were later the subject of their own referrals!) Apparently, parliamentary video shows that there were fewer than the required 19 senators present when the chamber voted to refer his position to the Court of Disputed Returns, some three minutes later.
So, what should the High Court do? Nothing, argues the sole other party to the referral, the Attorney-General. After voicing doubts about both the High Court’s power to reopen a closed referral and the relevance of any alleged lack of quorum, his counsel argued that Culleton’s ship has long sailed:
If there had been any point to take about that implicit proposition of jurisdiction, the point should have been taken at the outset and certainly well before now.
Brenndan Lim pointed out that Culleton’s successor (his brother-in-law Peter Georgiou) has been sitting in the Senate for well over a year now, as have other Senators who perhaps owe their position to an inquorate referral. Moreover, Gageler J rejected an earlier attempt for Culleton to reopen his referral – made while the Court’s decision was reserved – noting that such reopenings require ‘exceptional circumstances’ and ‘sufficiently strong’ arguments.
Culleton’s counsel, former Cth Solicitor-General David Bennett, claimed that this is just such an extraordinary case, because the Senate’s quorum is a matter of constitutional law:
That is a mandatory provision of the Constitution… It cannot simply be excluded in the manner my learned friend suggests. The stream, putting it a little differently, cannot rise higher than the source.
As well, he says, Culleton’s delay in bringing his case is understandable. During his full court hearing, the High Court ruled that the Parliamentary Privileges Act 1987 barred Culleton from telling the Court about Senate proceedings (after the Senator sought to rely on them as grounds for an adjournment. As noted here, the transcript of that hearing may be incomplete.) But that ruling was made without reference to a 1988 Senate resolution seemingly waiving such privilege:
Now, we do make the point that it is apparent – and I put this in our written submissions – that neither Mr Williams nor those instructing him from the Attorney-General’s Department or the Australian Government Solicitor, nor Mr Williams nor his junior, nor Mr King, nor any of the counsel, nor any of the Justices of the High Court were aware of that resolution.
At yesterday’s hearing, Kiefel CJ seemed dubious of this claim and the overall merits of Culleton’s new case. However, in contrast to earlier occasions when Culleton sought adjournments in his reference, she declined to issue her judgment immediately or on the same day. Rather, she foreshadowed ‘orders with reasons during the course of the present sittings.’