One Nation Senator Referred to High Court

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Australian attorney-general George Brandis announced on Wednesday that the Coalition plans to refer One Nation senator Rod Culleton to a High Court probe on Monday. The investigation will consider whether the Western Australian senator was eligible to be elected to parliament.

A former associate of Culleton’s, Bruce Bell filed an action against the senator on September 7, petitioning the court to disqualify him due to a NSW larceny conviction that was pending at the time of the July 2 federal election.

The offence senator Culleton had been convicted of was punishable “by imprisonment for one year or longer”, and under Section 44 (ii) of the Australian Constitution, makes him “incapable of being chosen or of sitting as a senator.”

For a $7.50 key

The larceny conviction arose over an incident in the northern NSW town of Guyra in 2014. Culleton allegedly stole a “$7.50” key from a tow truck driver, who was trying to repossess the car the politician was leasing.

At the time of the last election, there was an outstanding warrant for Culleton’s arrest, because he’d failed to attend court over the incident. On March 2 this year, Magistrate Michael Holmes convicted the One Nation party member in his absence and issued the warrant.

Culleton was arrested on August 8, when he attended Armidale local court in a bid to have the conviction annulled. The magistrate dismissed the conviction, saying the annulment was “in the interests of justice.” However, the court adjourned until a later date to finalise the matter.

At a court appearance on October 25, Culleton pleaded guilty to the charge, but avoided having the conviction recorded against his name. He was ordered to pay costs of $300 to the tow truck driver, who the senator described as “hairy backed” and “cranky” outside the court.

The list goes on

But the senator is also facing another charge of theft. Culleton allegedly stole a $27,000 hire car in the town of Cuballing in WA’s Wheatbelt region last year. The theft happened during a heated clash with bank-appointed receivers, who were trying to repossess a friend’s farm.

However, if the High Court inquiry doesn’t find that Culleton should be ousted from the senate, there might be another constitutional issue the beleaguered politician has to face. On Thursday, creditors of a company Culleton is a director of, Elite Grains, met to discuss possible liquidation.

A leaked report written by PPB advisory liquidator, Jeff Herbert, stated that the collapsed company has debts of approximately $6.1 million and creditors have no chance of getting the money back. The ANZ bank is owed $4.3 million, while the Australian Taxation Office is owed $231,000.

The ABC asked Mr Culleton on Wednesday, if he’d been trading while the company was insolvent. The senator responded, “No, not at all.” Another company Culleton is involved with, Deqmo, is also being liquidated and Perth businessman Dick Lester has filed a bankruptcy petition against him for $205,536.

A halt to votes in the Senate

Senator Culleton has vowed to fight the High Court case all the way, although he has already questioned the integrity of the court. He admitted that he’d “come to senate with a couple of battle scars.” And in the meantime, he told reporters that he would “remove himself from any legislation voting.”

The attorney-general said Culleton had sent him an email stating he would not vote on any contentious legislation while the case is underway. However, the office of Pauline Hanson said her colleague had asked Mr Brandis for written confirmation that if he does vote, he will face no “further legal challenge.”

Culleton opposes Coalition bill

The Coalition’s push for the High Court probe comes just days after Culleton expressed his concerns over the government’s Australian Building and Construction Commission (ABCC) legislation. Culleton doesn’t want any “adverse pressure” placed on the 130,000 CFMEU construction union members.

“We’re not going to push things through just because the Coalition says we should,” Culleton told the Guardian. However, all three other One Nation senators support the ABCC bill and a party spokesperson said they would vote as a bloc.

The One Nation bloc

One Nation currently holds a significant amount of power in the Senate. If the Coalition is opposed by Labor and the Greens, they have to turn to the eleven independent and minor party senators to back them. And One Nation holds most of these seats.

The One Nation party – built on a platform of anti-immigration and bigotry – has been gaining traction since the federal election. Earlier this month, a poll found that support for the party is now at 6 percent nationwide, which is up from 1.3 percent four months ago.

So if Mr Culleton loses his seat, does this mean Pauline Hanson will lose her bargaining power? According to the Financial Review, it doesn’t. If the senator is thrown out, One Nation will “replace him because the party ran on a group ticket in that state.”

The section 15 argument

However, Tony Blackshield, Macquarie University emeritus professor of law, doesn’t agree. Writing in Inside Story, he argues that if Culleton lost his seat, section 15 of the Constitution would take effect, which means another One Nation member would take his place.

But Blackshield says that section 15 only applies when a senator who was validly elected becomes disqualified, not when a senator is found to have been disqualified at the time of the election. He adds that if Culleton is found to have been wrongly elected, then a recount must occur.

And with the way the distribution of preferences works in WA, this means that the outcome of a recount would not be assured. As Blackshield sees it, it’s doubtful that Culleton’s fellow running mates would get the senate seat if you look at how the votes were initially distributed.

A flawed party

John Pasquarelli, senator Hanson’s former adviser, told Fairfax that One Nation has a problem with vetting its candidates. He cited the case of Queensland senator Heather Hill. In 1999, the High Court found her election was invalid because she held a dual UK and Australian citizenship.

So it seems that Rod Culleton’s High Court case may jeopardise One Nation’s position in the senate. But if the party did lose its fourth seat, it might mean the Turnbull government could stop trying to appease the right-wing party with its policies, like their tough new immigration legislation.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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