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[2017] HCA 3
defendant. The summons filed by Senator Culleton on 12 January 2017 is dismissed. The costs of the summons are excluded from such order as may be made to the effect that Senator Culleton's costs of the...
After a Full Court heard whether Senator Culleton was disqualified under s 44(ii) because of an earlier larceny conviction, he became bankrupt. The Senate President treated that as automatically vacating his seat. Culleton then tried to reopen the case to argue the whole referral process was unconstitutional and to stop the President removing him. Gageler J refused, holding that the Court was exercising real judicial power because its answers actually decide a Senator's status and what must happen next, not just give abstract advice. The bankruptcy issue was outside the narrow question the Senate had referred, so the Court could not deal with it in this proceeding. The summons was dismissed.
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2,794 words · generated 24/04/2026
Senator Rodney Norman Culleton was convicted in his absence in the New South Wales Local Court at Armidale on or about 2 March 2016 of an offence of larceny under s 117 of the Crimes Act 1900 (NSW). That offence carried a maximum penalty of five years' imprisonment. On 10 June 2016 he nominated as a candidate for the Senate representing Western Australia. Polling occurred on 2 July 2016 and on 2 August 2016 he was declared elected. On or about 8 August 2016 the Local Court annulled the conviction under s 8 of the Crimes (Appeal and Review) Act 2001 (NSW). On or about 25 October 2016 he pleaded guilty, the magistrate found the charge proven but dismissed it pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) without recording a conviction.
7 cited instruments linked from this judgment.
Against that background the Senate, by resolution of 7 November 2016, referred four questions to the Court of Disputed Returns under s 376 of the Commonwealth Electoral Act 1918 (Cth). The questions, transmitted by the President of the Senate on 8 November 2016, asked in substance whether, by reason of s 44(ii) of the Constitution or for any other reason, there was a vacancy in Senator Culleton's place, how any vacancy should be filled, what directions should be made, and what costs orders should follow. A statement of facts accompanied the reference. French CJ ordered on 21 November 2016 that Question (a) be confined to s 44(ii) only. The Full Court heard the reference on 7 December 2016 and reserved its decision. Judgment was expected before the Senate next sat on 7 February 2017.
On 23 December 2016 Barker J in the Federal Court made a sequestration order against Senator Culleton's estate under the Bankruptcy Act 1966 (Cth) but stayed proceedings under that order for 21 days. Successive stays were granted pending an appeal to the Full Court of the Federal Court, which heard the appeal on 27 January 2017 and reserved judgment. On 11 January 2017 the President of the Senate, Senator Parry, wrote to Senator Culleton stating that he was satisfied the sequestration order rendered him an undischarged bankrupt within s 44(iii) of the Constitution, that s 45 operated to vacate his place, and that he was obliged under s 21 to notify the Governor of Western Australia. On the same day Senator Parry wrote to the Governor notifying the vacancy and explaining that, because of the pending reference on s 44(ii), he could not advise that s 15 applied. Administrative steps followed: the Usher of the Black Rod offered assistance to wind up Senator Culleton's affairs as a senator; the Department of Finance wrote about termination of staff employment and closure of the electorate office; and IT services were withdrawn.
On 12 January 2017 Senator Culleton filed a summons in the reference proceeding. The summons sought a declaration that Div 2 of Pt XXII of the Electoral Act was invalid in whole or in part, a stay of the reference, joinder of the President of the Senate, and orders restraining the President, his servants and agents from taking any step to oust Senator Culleton from the Senate or from denying him his privileges or allowances pending determination by the Senate or the Court. The summons was heard by Gageler J on an expedited basis on 19 January 2017. The Attorney-General appeared to oppose the summons. Gageler J dismissed the summons in its entirety and ordered that the costs of the summons be excluded from any later order that the Commonwealth pay Senator Culleton's costs of the reference.
Gageler J divided the relief sought in the summons into two distinct categories and dealt with each on its own legal footing. The first category attacked the jurisdiction of the Court of Disputed Returns itself. Senator Culleton sought to reopen the Full Court hearing to argue that Div 2 of Pt XXII, by allowing the Senate to refer a “question” and requiring the Court to “hear and determine” it, conferred power to give an advisory opinion forbidden by Ch III. His Honour applied the principle stated by six Justices in University of Wollongong v Metwally (No 2) that a party is bound by the conduct of its case and that reopening to raise a new argument after a hearing is contrary to principle except in the most exceptional circumstances. The policy retained force even though judgment had not yet been delivered. Orderly conduct of High Court proceedings, especially constitutional ones, requires that all substantial issues, particularly jurisdictional ones, be identified in advance so that s 78B notices can be given. The “first duty” of the Court to satisfy itself of jurisdiction (Federated Engine-Drivers) reinforced the need for early raising of any objection.
Gageler J indicated that, had the new argument possessed sufficient strength, he would have referred the question of reopening to the Full Court. He found it did not. The argument rested on a misunderstanding of In re Judiciary and Navigation Acts. That case does not stand for the proposition that judicial power can be exercised only in a controversy between parties or that a matter cannot be couched in the form of a question. The joint judgment in Mellifont v Attorney-General (Q) had explained the critical passage as identifying two vices: an abstract question of law not involving any right or duty, and a declaration of law divorced from any attempt to administer it. Neither vice was present in Div 2. An answer to a s 376 reference determines the Senator’s status under ss 44 and 45 and the duties of the President, the Governor and others under ss 15, 21 and the Electoral Act. If answered adversely, the Full Court would declare a vacancy and give directions for a special count—acts of judicial administration, not advice. The result in In re Wood was therefore not undermined. Because the constitutional point was not real and substantial, s 78B did not prevent immediate dismissal. In the interests of justice the Full Court’s answers should not be further delayed.
The second category of relief concerned the events flowing from the sequestration order. Senator Culleton argued that the question whether ss 44(iii) and 45 had operated to vacate his seat was committed by s 47 exclusively to the Senate (subject to reference to the Court) and that the President had no power to act on his own view. Gageler J found it unnecessary to decide that substantive argument. The jurisdiction invoked by the Senate’s reference was limited to the matter defined by the questions referred, read as a matter of substance against the transmitted statement of facts. French CJ’s order had confined Question (a) to s 44(ii). The bankruptcy issue that crystallised on 23 December 2016 therefore fell outside the invoked jurisdiction. The orders sought (joinder and restraint) were not necessary to protect the efficacy of whatever the Full Court might decide on the s 44(ii) question. If the Full Court found disqualification under s 44(ii), later events would be irrelevant. If it found no disqualification under s 44(ii), the President’s actions based on later events would not affect the efficacy of that determination. The summons therefore failed in its entirety. Costs of the summons were excluded from any later costs order favourable to Senator Culleton because he had been wholly unsuccessful on an application that raised discrete and late issues.
Before Re Culleton the law was settled by In re Wood that the Senate could refer under Div 2 a question respecting a vacancy said to arise from disqualification at the time of election, and that the Court of Disputed Returns had jurisdiction to determine that question even if it required deciding whether the Senator had been duly elected and whether the election was void. The Full Court in In re Wood answered questions that there was a vacancy and that it could be filled by further counting or recounting, and Mason CJ later made consequential orders under the powers incorporated from s 360. Sections 376–381 had been treated as valid exercises of power under ss 51(xxxvi) and 47 of the Constitution, subject only to Ch III. The prohibition on advisory opinions derived from In re Judiciary and Navigation Acts was understood to prevent Parliament from conferring jurisdiction to answer abstract questions or to make declarations divorced from legal administration. The strict approach to reopening was long established by University of Wollongong v Metwally (No 2) and the limited operation of s 78B had been confirmed in cases such as ACCC v CG Berbatis Holdings and Re Finlayson; Ex parte Finlayson.
Re Culleton did not change the pre-existing law but applied and reinforced it in two important respects. First, it confirmed that Div 2 does not offend Ch III because a s 376 reference necessarily involves determination of status and duties rather than abstract advice. The decision supplies a clear doctrinal bridge between the Mellifont explanation of In re Judiciary and Navigation Acts and the specific statutory regime for qualifications references. Second, it established that the “matter” before the Court in a Div 2 reference is narrowly confined by the terms of the Senate’s resolution and any clarifying order, read against the statement of facts. Events occurring after the reference that engage a different head of disqualification (s 44(iii) rather than s 44(ii)) do not automatically fall within the invoked jurisdiction. The decision also underlined that interlocutory relief within the reference proceeding must be tied to protection of the efficacy of the anticipated answer on the referred questions. Costs principles were clarified so that discrete unsuccessful interlocutory applications are not subsidised by a general costs order in the reference.
The law after Re Culleton is therefore more precise about the boundaries of a reference and the circumstances in which late constitutional attacks or relief relating to supervening events will be entertained. The case stands as authority that the Court of Disputed Returns, when seized of a qualifications reference, is exercising judicial power because its orders have immediate operative legal effect on parliamentary membership and the filling of vacancies.
Gageler J’s reasons contain several carefully crafted passages that repay close attention.
The first is the adoption of the Metwally (No 2) principle: “It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.” In plain English this means once you have had your day in the Full Court you cannot ambush the Court with a brand new constitutional theory just because you thought of it after the hearing finished. The policy protects finality and procedural fairness.
The central passage on judicial power reads: “An answer given by the Court of Disputed Returns to a question referred by the Senate respecting the qualifications of a Senator or a vacancy in the Senate is not an answer to an abstract question of law and is not given in circumstances divorced from an attempt to administer the law as stated in that answer. The answer is determinative of the status of the Senator whose qualifications might be in issue, and of the obligations of those having duties to perform to fill such vacancy as might be determined by such an answer to exist.” Translation: when the Court says “yes, there is a vacancy because of s 44(ii)”, that is not advice; it immediately changes who is a Senator and forces the Governor and others to act. That is the hallmark of judicial power.
On s 78B his Honour quoted Toohey J with approval: “In terms of s 78B, a cause does not ‘involve’ a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does.” Plain English: you cannot force the Court to issue notices and stop the case simply by shouting “Constitution!” The point must be genuinely arguable.
Finally, on the scope of the reference: “The matter in respect of which the jurisdiction has been invoked by the existing reference from the Senate is relevantly limited to whether there is a vacancy … by reason of s 44(ii) … Whether, by reason of the operation of s 44(iii) … is a question which falls outside the matter in respect of which the jurisdiction of the High Court has been invoked in the proceeding in which the summons has been filed.” Translation: the Senate asked a specific question about the old conviction; the new bankruptcy problem is a different fight that must be fought elsewhere or by a fresh reference.
Re Culleton is triggered whenever a party to a s 376 reference attempts, after the principal hearing has concluded but before judgment, to reopen to advance a constitutional attack on the validity of Div 2. It applies with particular force where the attack alleges that the Court is being asked to give an advisory opinion. The case also governs applications for interlocutory relief (joinder, injunctions, stays) that seek to bring into the reference matters arising from supervening events that engage a different constitutional disqualification from the one referred. The precedent is engaged when the Senate’s questions, properly construed against the transmitted statement of facts and any clarifying order, do not encompass the new issue. It further applies to costs questions where an interlocutory summons raises discrete issues on which the moving party fails wholly. Fact patterns involving multiple overlapping disqualifications (for example a conviction followed later by bankruptcy) that arise at different points in the life of a reference are classic triggers. The decision is not limited to Senate references; the same reasoning governs House of Representatives references under the identical statutory provisions. Any attempt to obtain relief that is not necessary to protect the efficacy of the answer ultimately given on the referred questions will engage the ratio.
The judgment has been treated as correctly applying the ratio of In re Wood and the distinction drawn in Mellifont. Subsequent decisions have accepted that a s 376 reference invokes judicial power because the Court’s answer operates to determine legal status and duties rather than merely to advise. The strict approach to reopening has been reinforced; late jurisdictional arguments are routinely refused unless truly exceptional. Courts have cited the decision for the proposition that the “matter” before the Court of Disputed Returns is defined by the substance of the referred questions, so that events falling outside those questions cannot ground relief within the same proceeding. The clarification that s 78B is not engaged by merely colourable constitutional points has been followed in other expedited electoral matters. The costs carve-out has been regarded as a useful precedent when unsuccessful interlocutory applications are brought within a larger reference that may ultimately attract a costs order against the Commonwealth. Overall the decision is treated as confirmatory rather than revolutionary; it is followed in cases involving the intersection of bankruptcy, disqualification and the limits of a reference.
Several questions explicitly left open by the judgment remain unresolved. Gageler J found it unnecessary to decide whether the President of the Senate may form and act upon his own view that s 44(iii) has operated when a sequestration order is subject to a stay and an appeal is pending. The precise interaction between a stayed bankruptcy order and the constitutional concepts of “undischarged bankrupt or insolvent” was not determined. The judgment assumes but does not decide that the Senate could, had it chosen, have referred a broader question that encompassed both s 44(ii) and s 44(iii) issues. The limits of what constitutes a single “matter” for the purposes of a reference therefore remain somewhat flexible. Whether administrative steps taken by the Department of Finance and the Usher of the Black Rod in reliance on the President’s notification could themselves be restrained by the Court of Disputed Returns if they were brought within a properly framed reference is untouched. The judgment notes that the Full Court would in due course answer the costs question for the reference itself; that issue was left for later determination. Finally, the precise procedural route by which a Senator who contends that a vacancy has been wrongly notified may challenge that notification—whether by fresh reference, petition under Div 1, or other proceeding—remains an open practical question. These issues continue to test the boundaries between parliamentary privilege, executive administration of parliamentary entitlements, and the judicial role under Pt XXII.
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR RODNEY NORMAN CULLETON
P E King with P W Lithgow appearing on behalf of Senator Rodney Norman Culleton (instructed by Maitland Lawyers)
N J Williams SC with B K Lim appearing on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
No appearance for the President of the Senate, Senator the Hon Stephen Parry
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Constitutional law (Cth) - Judicial power - Election of Senator - Validity - Court of Disputed Returns - Power to hear petition - Whether non-judicial -Constitution, Ch III - Commonwealth Electoral Act 1918 (Cth), Pt XXII, Div 2.
Practice and procedure - High Court of Australia - Failure to raise argument at hearing - Principles applicable - Validity - Commonwealth Electoral Act 1918 (Cth), Pt XXII, Div 2.
Constitution, ss 44(ii), 44(iii), 45, 47. Commonwealth Electoral Act 1918 (Cth), Pt XXII.
GAGELER J. Subject to the Constitution, including the constraints of Ch III of the Constitution, s 51(xxxvi) read with s 47 of the Constitution confers power on the Commonwealth Parliament to make laws with respect to any question respecting the qualification of a Senator or Member of the House of Representatives and any question of a disputed election to either House. The Parliament has exercised that power in the enactment of Pt XXII of the Commonwealth Electoral Act 1918 (Cth), under which the High Court, designated by s 354(1) as the Court of Disputed Returns, is conferred with original jurisdiction under s 76(i) of the Constitution. Within Pt XXII, Div 1 is concerned with questions of disputed elections and Div 2 is concerned with questions respecting the qualifications of a Senator or Member of the House of Representatives. The jurisdiction conferred on the Court of Disputed Returns by Div 2 of Pt XXII of the Commonwealth Electoral Act is as stated in s 376. That section provides: "Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question." Section 377 provides: "When any question is referred to the Court of Disputed Returns under this Part, the President if the question arises in the Senate, or the Speaker if the question arises in the House of Representatives, shall transmit to the Court of Disputed Returns a statement of the question upon which the determination of the Court is desired, together with any proceedings, papers, reports, or documents relating to the question in the possession of the House in which the question arises." Under s 378 the Court of Disputed Returns may allow any person who in its opinion is interested in the determination of any question referred to it to be heard on the hearing of the reference and any person allowed to be heard or so directed to be served is deemed to be a party to the reference. Section 379 provides: "On the hearing of any reference under this Part the Court of Disputed Returns shall sit as an open Court and shall have the powers conferred by section 360 so far as they are applicable, and in addition thereto shall have power: (a) to declare that any person was not qualified to be a Senator or a Member of the House of Representatives; (b) to declare that any person was not capable of being chosen or of sitting as a Senator or a Member of the House of Representatives; and (c) to declare that there is a vacancy in the Senate or in the House of Representatives." Section 360, to which s 379 refers, is located within Div 1. Section 360 confers a range of powers on the Court of Disputed Returns. They include "[t]o declare that any person who was returned as elected was not duly elected", "[t]o declare any candidate duly elected who was not returned as elected", and "[t]o declare any election absolutely void". Section 380 provides: "After the hearing and determination of any reference under this Part the Chief Executive and Principal Registrar of the High Court shall forthwith forward to the Clerk of the House by which the question has been referred a copy of the order or declaration of the Court of Disputed Returns." Section 381 makes certain other provisions of Div 1 applicable to proceedings on a reference to the Court of Disputed Returns under Div 2. Those provisions include s 368, which provides that "[a]ll decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way", and s 374, which provides: "Effect shall be given to any decision of the Court as follows: (i) If any person returned is declared not to have been duly elected, the person shall cease to be a Senator or Member of the House of Representatives; (ii) If any person not returned is declared to have been duly elected, the person may take his or her seat accordingly; (iii) If any election is declared absolutely void a new election shall be held." The Full Court of the High Court, sitting as the Court of Disputed Returns, held in In re Wood that it is open to the Senate under Div 2 of Pt XXII to refer to the Court of Disputed Returns a question respecting a vacancy in the place of a Senator who allegedly lacked the qualifications of a Senator at the time of his election or return or was allegedly then disqualified from being chosen as a Senator, and that the Court has jurisdiction to determine the question referred notwithstanding that it may involve a decision as to whether the Senator was duly elected and whether the purported election of the Senator was void. The Full Court in that case answered questions referred by the Senate to the effect that there was a vacancy in the representation of a State in the Senate for the place for which a named Senator was returned and that the vacancy was able to be filled by the further counting or recounting of ballot papers cast for candidates for election for Senators for that State at the election. Having so answered the questions, the Full Court adjourned the proceeding on the reference, following which Mason CJ in the same proceeding made consequential orders under s 360, first directing the Australian Electoral Officer for the State to undertake further counting and recounting of the ballot-papers cast at the election for the purpose of determining the candidate entitled to be elected to the place for which the named Senator was returned and to report to the Court as to the candidate identified so entitled to be elected, and ultimately declaring the candidate so identified to be duly elected as a Senator for the State for the place for which the named Senator was returned. Conformably with the approach in In re Wood, the Senate, by resolution dated 7 November 2016, referred a number of questions to the Court of Disputed Returns under Div 2. A statement of the questions on which the determination of the Court was sought was transmitted by the President of the Senate, Senator Parry, in a letter addressed to the Principal Registrar of the High Court on 8 November 2016. In the form in which they were stated in that letter, the questions referred by the Senate were as follows: "(a) whether, by reason of s 44(ii) of the Constitution, or for any other reason, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned; (b) if the answer to Question (a) is 'yes', by what means and in what manner that vacancy should be filled; (c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and (d) what, if any, orders should be made as to the costs of these proceedings." There was also transmitted to the Principal Registrar of the High Court, as evidence of the apparent basis on which the reference was made, an attachment to a letter from the Attorney-General, Senator Brandis QC, to the President of the Senate dated 6 November 2016. The attachment was headed "Statement of Facts ‑ Senator Culleton matter" and was in the following terms: "On or about 2 March 2016, Rodney Culleton was, in his absence, convicted in the NSW Local Court in Armidale, of larceny under s 117 of the Crimes Act 1900 (NSW), which carries a maximum sentence of five years' imprisonment. On 10 June 2016, he nominated as a candidate for the Senate to represent the State of Western Australia in the Commonwealth Parliament. The polling day for the election was 2 July 2016, and he was on 2 August declared to have been elected. On or about 8 August 2016, Senator Culleton's conviction for larceny was annulled under the Crimes (Appeals and Review) Act 2001 (NSW). On or about 25 October 2016, Senator Culleton pleaded guilty to the charge, and the Magistrate found the charge proven but dismissed it under the Crimes (Sentencing Procedure) Act 1999 (NSW)." On 21 November 2016, French CJ allowed Senator Culleton and the Attorney-General each to be heard on the reference, by reason of which they were deemed to be parties. Having heard from Senator Culleton and the Attorney-General, his Honour ordered that the reference be referred to a Full Court for hearing. His Honour also made orders which included the following: "Question (a) of the questions referred by the Senate to the Court of Disputed Returns on 7 November 2016 shall be read as referring to s 44(ii) only and not any other reason for the vacancy referred to in that paragraph." Section 44(ii) of the Constitution, in so far as is relevant, provides that a 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 reference was heard by a Full Court of five Justices on 7 December 2016. At issue in that hearing was the effect, if any, of s 44(ii) on the election to the place for which Senator Culleton was returned as a Senator for Western Australia on 2 August 2016 as a result of his conviction on 2 March 2016 in the Local Court of New South Wales of an offence for which he was liable when brought before that Court to be sentenced to imprisonment for up to two years, a conviction which the Local Court later annulled by order made on 8 August 2016 under s 8 of the Crimes (Appeal and Review) Act 2001 (NSW). At the conclusion of the hearing, the Full Court reserved its decision. In the ordinary course, it might reasonably be expected that the Full Court would deliver its decision by making an order in open court which answers each of the questions referred, and that the Full Court would endeavour to do so before 7 February 2017, the next date on which the Senate is scheduled to meet. On 12 January 2017, Senator Culleton filed a summons in the reference proceeding. In accordance with a timetable set by directions made on 19 January 2017, that summons has been heard by me this morning. As on the hearing by the Full Court of the questions referred, Senator Culleton was represented on the hearing of the summons by Mr Peter King with Mr Peter Lithgow. The Attorney-General was represented by Mr Neil Williams SC with Mr Brendan Lim. The Attorney-General argued for dismissal of the summons. Senator Culleton argued that some of the orders sought by the summons should be made today. He sought directions designed to facilitate the hearing of argument about the making of other orders at a later date. The orders which Senator Culleton seeks by the summons can be divided substantially into two categories. Those two categories are best identified and dealt with separately. The first category of orders is concerned to raise a belated challenge to the jurisdiction of the High Court sitting as the Court of Disputed Returns to hear and determine the questions referred. Senator Culleton seeks a declaration that Div 2 of Pt XXII of the Commonwealth Electoral Act is invalid either in whole or to the extent it authorised the referral of the questions which were the subject of the Senate resolution of 7 November 2016. He also seeks an order staying the further conduct of the reference proceeding. By seeking that first category of orders, Senator Culleton in effect applies to reopen the hearing which was concluded before the Full Court on 7 December 2016 to raise a wholly new argument. Reopening to raise a new argument is something not lightly to be done even if the new argument sought to be raised on reopening is constitutional. In University of Wollongong v Metwally (No 2), six Justices of the High Court said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." Metwally (No 2) was a case in which an application to reopen was made after orders had been pronounced and perfected. The observation applies with somewhat diminished force in a case where a hearing has been conducted by a Full Court of the High Court and where judgment is reserved, but the policy expressed in the observation remains applicable even then. To justify reopening, exceptional circumstances must be shown. Orderly conduct of any proceeding in the High Court requires that all substantial issues be identified in advance of any hearing before the Full Court. The "first duty" of any court always being to be satisfied as to its own jurisdiction, to use the language of Griffith CJ in Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd, if a jurisdictional issue is to be raised at all in this Court, it is of the utmost importance that it be raised at the earliest available opportunity. In the event of an arguable constitutional issue being raised, the procedure of the High Court is also affected by the specific statutory requirement that timely notice is to be given to the Attorney-General of the Commonwealth and the Attorneys-General of each of the States and Territories in accordance with s 78B of the Judiciary Act 1903 (Cth). The new argument sought to be raised by Senator Culleton being a constitutional challenge to the jurisdiction of the High Court as the Court of Disputed Returns, I would nevertheless consider it appropriate at least to refer the issue of whether or not to consider that argument to the Full Court if I thought the argument to be sufficiently strong to warrant that course. I do not. The new argument which Senator Culleton seeks to raise is an argument to the effect that conferral of jurisdiction by Div 2 of Pt XXII contravenes Ch III of the Constitution by purporting to confer on the High Court a power to give an advisory opinion in contravention of the limitation on the judicial power of the Commonwealth recognised in In re Judiciary and Navigation Acts. The argument, if sound, would mean that the result in In re Wood was wrong and that the orders made in the proceeding on the reference in that case were without jurisdiction. The argument, in my firm opinion, is misconceived. In re Judiciary and Navigation Acts does not mean that the judicial power of the Commonwealth can only be exercised in respect of a controversy between parties. It does not mean that the subject-matter of an exercise of the judicial power of the Commonwealth cannot be couched in the form of a question. The joint judgment of five Justices in Mellifont v Attorney-General (Q) rather explained the critical passage expressing the holding in In re Judiciary and Navigation Acts as containing two critical concepts: "One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or dissociated from any attempt to administer it". Div 2 of Pt XXII exhibits neither of those problematic characteristics. An answer given by the Court of Disputed Returns to a question referred by the Senate respecting the qualifications of a Senator or a vacancy in the Senate is not an answer to an abstract question of law and is not given in circumstances divorced from an attempt to administer the law as stated in that answer. The answer is determinative of the status of the Senator whose qualifications might be in issue, and of the obligations of those having duties to perform to fill such vacancy as might be determined by such an answer to exist. The questions referred to the Court of Disputed Returns by the Senate on 8 November 2016, if answered adversely to Senator Culleton in the manner for which the Attorney-General contended in the hearing before the Full Court, would conclusively determine that, by reason of s 44(ii), there is a vacancy in the Senate for the place for which Senator Culleton was returned. By those answers, the Full Court would go on in the judicial administration of the law to determine that the vacancy should be filled by a special count of the ballot papers and would reserve any directions necessary to give effect to the conduct of that special count to be made by a single Justice. The answers to the questions, and consequential directions, would not be advisory in the sense condemned in In re Judiciary and Navigation Acts, and the contrary is untenable. Section 78B of the Judiciary Act does not, in my opinion, prevent me from dismissing so much of the summons as seeks to give effect to Senator Culleton's attempt to raise the constitutional objection to jurisdiction. French J made the point in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd that s 78B "does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be". To give rise to the obligation not to proceed without notice a cause pending in court must truly "involve" a matter arising under the Constitution or involving its interpretation. As Toohey J stated in Re Finlayson; Ex parte Finlayson, in a passage quoted with approval by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation, "[I]n terms of s 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does". In short, the constitutional point must be real and substantial. Given that Senator Culleton's summons is interlocutory, and important to be dealt with expeditiously, I also incline to the view that s 78B(5) operates to relieve the Court of the strictures of s 78B(1). In my opinion, it is in the interests of justice that the giving by the Full Court of its answers to the questions referred by the Senate not be further delayed. The second category of order which Senator Culleton seeks by his summons of 12 January 2017 arises from events which have occurred since the hearing before the Full Court on 7 December 2016. Those events are as follows. On 23 December 2016, Barker J in the Federal Court ordered that the estate of Senator Culleton be sequestrated under the Bankruptcy Act 1966 (Cth). His Honour stayed all proceedings under the sequestration order for a period of 21 days. On 11 January 2017, Senator Culleton filed a Notice of Appeal from the sequestration order to the Full Court of the Federal Court. The appeal was heard by the Full Court of the Federal Court on 27 January 2017 and judgment on the appeal is reserved. Pending the determination of the appeal, all proceedings under the sequestration order have continued to be stayed by successive orders of Dowsett J, Allsop CJ and the Full Court. Section 44(iii) of the Constitution provides that a person who "is an undischarged bankrupt or insolvent ... shall be incapable of being chosen or of sitting as a senator". Section 45 provides that if a Senator becomes subject to such disability, "his place shall thereupon become vacant". Section 21 provides that whenever a vacancy happens in the Senate, the President must notify that vacancy to the Governor of the State in the representation of which the vacancy has happened. Section 15 sets out a mechanism for the filling of a vacancy in the Senate by the Governor of the State or the Houses of Parliament of the State. On 11 January 2017, Senator Parry wrote to Senator Culleton referring to the sequestration order made by Barker J on 23 December 2016 and stating that he was satisfied that the order confirmed Senator Culleton's status as an "undischarged bankrupt" within the meaning of s 44(iii) of the Constitution. He referred to the operation of s 45 and to his obligation under s 21 of the Constitution. On the same day, Senator Parry wrote to the Governor of Western Australia notifying the Governor "that a vacancy has happened in the representation of the State of Western Australia through the disqualification of [Senator Culleton] as a Senator for that State". The letter explained the vacancy as having arisen by operation of ss 44(iii) and 45 of the Constitution. The letter continued: "Notwithstanding the disqualification, I also advise Your Excellency that, on 7 November 2016, the Senate referred to the High Court sitting as the Court of Disputed Returns questions about the eligibility of Rodney Norman Culleton to have been chosen as a senator at the election of 2 July 2016 because of another disability in section 44 (s 44(ii) - subject to be sentenced for an offence punishable by imprisonment for one year or longer). The Senate has also asked the Court to determine, if there is a vacancy on this ground, how the vacancy should be filled. The matter has been heard and judgment is awaited. In view of the questions referred by the Senate to the Court of Disputed Returns, I am unable to advise Your Excellency that the vacancy in the representation of Western Australia is a vacancy to which section 15 of the Constitution applies and which may be filled in accordance with the requirements of that section. The judgment of the Court of Disputed Returns is expected in the near future. I will write again as soon as I am in a position to provide clarification." On 12 January 2017, correspondence was sent to Senator Culleton from Rachel Callinan, Usher of the Black Rod. Ms Callinan referred to advice she had received from Senator Parry that he had notified a vacancy in the representation of Western Australia, and set out the services her office could provide to assist Senator Culleton in "finalising certain aspects of [his] affairs as a senator". On 24 January 2017 a similar letter was sent to Senator Culleton from the Department of Finance regarding "a number of issues surrounding [his] cessation as Senator", including termination of employment for his employees and arrangements to close down his electorate office. On the same day Ms Margaret Menzel, who is on the staff of Senator Culleton, received email correspondence from the Department of Finance regarding the termination of her employment. Around the same time Senator Culleton also received email correspondence from the Information Services Division at Parliament House about information technology services provided to outgoing parliamentarians. By reason of those events, all of which can be inferred to flow from Senator Parry having taken the view that ss 44(iii) and 45 of the Constitution have operated in light of the sequestration order made by Barker J on 23 December 2016 to cause Senator Culleton's place to be vacated notwithstanding that the order is the subject of an appeal to the Full Court of the Federal Court and that all proceedings under the sequestration order have been stayed pending the determination of that appeal, Senator Culleton seeks by the summons a number of orders. First, he seeks an order that Senator Parry be joined as a party to the reference proceeding. Next, he seeks orders restraining Senator Parry by his servants and agents from taking steps to oust him from the Senate or deny him his privileges or allowances as a Senator pending determination of whether his seat has become vacant either by the Senate or by the Court of Disputed Returns. What Senator Culleton argues, in substance, is that the question of the operation of ss 44(iii) and 45 of the Constitution in the circumstances which have occurred is a question which s 47 of the Constitution commits exclusively to the Senate subject to any reference by the Senate to the Court of Disputed Returns under Div 2 of Pt XXII of the Commonwealth Electoral Act. Senator Parry, he argues, has no jurisdiction to give effect to his own view of the answer to that question. For the purpose of determining whether Senator Culleton is entitled to the orders which he seeks in the summons, I do not find it necessary to form a view on that argument. The jurisdiction of the High Court within which Senator Culleton seeks the orders is the original jurisdiction conferred on it as the Court of Disputed Returns by Div 2 of Pt XXII of the Commonwealth Electoral Act. The matter in respect of which the original jurisdiction of the Court is invoked on any referral is defined by reference to the question or questions referred to the Court by the Senate, interpreted as a matter of substance. Senator Culleton submits that the matter in respect of which the original jurisdiction of the Court has been invoked by the referral of questions on 8 November 2016 encompasses whether or not there is currently on any basis a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned as elected on 2 August 2016 and, if so, what are the consequences. He relies in part for that argument on the form of Question (a) as transmitted to the Court by Senator Parry on 8 November 2016. I do not accept that submission. Construed against the background of the accompanying statement of facts transmitted to the Court with the questions, the scope of Question (a) as asked by the Senate was, in my opinion, confined to that identified in the order made by French CJ on 21 November 2016. The matter in respect of which the jurisdiction has been invoked by the existing reference from the Senate is relevantly limited to whether there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned as elected on 2 August 2016 by reason of s 44(ii) of the Constitution having operated in light of his conviction on 2 March 2016 to render him incapable of being chosen or of sitting and, if so, what are the consequences of s 44(ii) having so operated. Whether, by reason of the operation of s 44(iii) of the Constitution, a vacancy occurred on 23 December 2016 in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned is a question which falls outside the matter in respect of which the jurisdiction of the High Court has been invoked in the proceeding in which the summons has been filed. I am not satisfied that the orders sought by Senator Culleton are necessary to be made in the reference proceeding to protect the efficacy of any determination or order which might be made in the exercise of the jurisdiction of the High Court that has been invoked by the reference from the Senate. If the Full Court were to determine that, by reason of s 44(ii) of the Constitution, Senator Culleton was disqualified from election at the time he was returned as a Senator on 2 August 2016, the subsequent events would be irrelevant. If the Full Court were to determine that, by reason of s 44(ii) of the Constitution, Senator Culleton was not disqualified from election when so returned as a Senator, nothing that has been done by Senator Parry by reference to subsequent events would affect the efficacy of that determination. In the result, the summons must be dismissed. That gives rise to a question as to costs. In submissions before the Full Court, the Attorney-General submitted that the appropriate answer to the last of the questions referred by the Senate is that the Commonwealth should pay Senator Culleton's costs. The Attorney-General submitted before me, and I accept, that the costs of the summons are not within the scope of that submission to the Full Court. Senator Culleton having been wholly unsuccessful on the summons, I do not think it an appropriate exercise of discretion that he should have his costs. There will be no order as to costs. The orders I make are as follows: (1) The summons filed by Senator Culleton on 12 January 2017 is dismissed. (2) The costs of the summons are excluded from such order as may be made to the effect that Senator Culleton's costs of the proceeding on the reference be paid by the Commonwealth.
The summons filed by Senator Culleton on 12 January 2017 is dismissed. The costs of the summons are excluded from such order as may be made to the effect that Senator Culleton's costs of the proceeding on the reference be paid by the Commonwealth.