KIEFEL, BELL, GAGELER AND KEANE JJ. Section 44(ii) of the Constitution relevantly provides:
"Any person who:
…
(ii) … 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 ...".
On the return of the writ for the election of Senators for the State of Western Australia in 2016, Rodney Norman Culleton was noted as elected and he has since sat as a Senator. On 2 March 2016, prior to his nomination for election and before polling day for the election, Senator Culleton was convicted, in his absence, in the Local Court of New South Wales, of the offence of larceny. He was then liable to be sentenced to imprisonment for a maximum term of two years when he was brought before that Court. The Local Court subsequently granted an annulment of the conviction, proceeded to deal with the matter afresh, found Senator Culleton guilty of the offence, on his own plea, but dismissed the charge without proceeding to conviction.
The President of the Senate has referred to this Court, in its capacity as the Court of Disputed Returns, a question whether, by virtue of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned. In the circumstances outlined above, the issue is whether Senator Culleton's conviction had the effect of disqualifying him from being elected as a Senator.
In the reasons which follow, it will be explained that Senator Culleton was a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer at the date of the 2016 election. That was so, both as a matter of fact and as a matter of law. The subsequent annulment of the conviction had no effect on that state of affairs. It follows from s 44(ii) that Senator Culleton was "incapable of being chosen" as a Senator. In the result, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned.
The circumstances which gave rise to the reference
On 2 March 2016 Senator Culleton was convicted, in his absence, in the Local Court of New South Wales at Armidale of the offence of larceny. The larceny was committed on 11 April 2014. Under s 117 of the Crimes Act 1900 (NSW) ("the Crimes Act"), the offence of larceny is punishable by imprisonment for a period of up to five years; but where the value of the property in respect of which the offence is charged does not exceed $5,000, the maximum term of imprisonment that the Local Court may impose is two years. The offence of which Senator Culleton was convicted concerned property of a value less than $2,000. Accordingly, he was liable to imprisonment for a maximum term of two years.
Under s 25(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act"), a sentence of imprisonment may not be imposed upon an "absent offender". Section 25(2) of the CSP Act provides that the Local Court may issue a warrant for the offender's arrest for the purpose of having the offender brought before the Local Court for sentencing. Such a warrant may issue at any time after the Local Court convicts an absent offender for an offence. On 2 March 2016, the Local Court, having convicted Senator Culleton of larceny, issued a warrant for his arrest in order to have him brought to the Court for sentencing.
On 16 May 2016, the Deputy of his Excellency the Governor of Western Australia caused a writ to be issued for the election of 12 Senators for the State to serve in the Senate of the Parliament of the Commonwealth. Rodney Norman Culleton was nominated as a candidate in a group nomination for Pauline Hanson's One Nation party. Polling day for the election was 2 July 2016.
On 2 August 2016, the Australian Electoral Officer for the State of Western Australia returned the writ for the election certifying the names of the 12 Senators elected, in order of their election. Senator Culleton was noted as elected in the 11th place. In accordance with s 7 of the Constitution, the Governor of Western Australia certified to the Governor-General the names of the chosen Senators.
The warrant issued by the Local Court on 2 March 2016 was executed on 8 August 2016, on which date the Local Court granted an annulment of Senator Culleton's conviction pursuant to s 8 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"). On 25 October 2016, the Local Court found Senator Culleton guilty of an offence against s 117 of the Crimes Act on his own plea but, pursuant to s 10(1)(a) of the CSP Act, without proceeding to conviction, dismissed the charge. Section 10(2) provides that the Court may make such an order if it is satisfied that it is inexpedient to inflict any punishment on the person, or that it is expedient to release the person on a good behaviour bond. Senator Culleton was ordered to pay compensation in the sum of $322.85 to the complainant.
The reference
The question identified at the outset of these reasons was referred to the Court by the President of the Senate by letter dated 8 November 2016 addressed to the Chief Executive and Principal Registrar of the Court. An affirmative answer to that question gives rise to a further question as to how that vacancy should be filled. Questions were also referred as to what directions should be made by the Court in order to hear and finally dispose of the reference, and as to what orders should be made as to the costs of these proceedings. The jurisdiction of this Court to entertain the reference from the Senate was not in question in the hearing before this Court.
By orders made on 21 November 2016, French CJ made directions for the reference to be referred to a Full Court for hearing in the December sittings of the Court.
At the hearing of this matter, submissions were made on behalf of the Attorney‑General of the Commonwealth in favour of an affirmative answer to the question of whether there is a vacancy in the Senate. Senator Culleton was represented in the proceedings and made submissions in favour of a negative answer to the principal question. The Commonwealth agreed to pay Senator Culleton's costs of the proceedings in this Court in any event.
Incapable of being chosen?
In Sykes v Cleary, it was held that the words "shall be incapable of being chosen" in s 44 refer to the process of being chosen: a process which operates from the date of nominations, as that is the date on which the electoral process begins, until the return of the writs for the election, as that is the time at which the electoral process is complete. No question arises in this case as to the temporal operation of s 44(ii). If Senator Culleton was incapable of being chosen by reason of the circumstances which gave rise to the reference to this Court, that disability persisted during the whole of the period from the time of nomination to the return of the writs for the election.
A broad submission was advanced on behalf of the Attorney‑General to the effect that the mere fact of the conviction, pursuant to which Senator Culleton was liable to be sentenced to a term of imprisonment of one year or longer, which was current at the date of the election, was sufficient to engage the disqualifying effect of s 44(ii) of the Constitution, even if the conviction were to be nullified retrospectively. The Attorney‑General also advanced a narrower submission to the effect that the annulment effected under the Appeal and Review Act on 8 August 2016 operated only prospectively and so the conviction was not avoided ab initio. Because the Attorney‑General's narrower submission is correct, it is unnecessary to deal further with the broader submission.
At the time at which the question as to Senator Culleton's eligibility to be chosen fell to be determined, he was, in fact, a person who had been "convicted and … subject to be sentenced". That was the case even though the point was not taken at the time by anyone with an interest in the question. Senator Culleton argues that even if he was, as a matter of fact, a person who had been "convicted and … subject to be sentenced" at the time of the election, he was not, as a matter of law, incapable of being chosen by the electorate by reason of s 44(ii). In this regard, three submissions were advanced on his behalf. The first was that he was not convicted and sentenced at any time during the electoral process. Secondly, it was said that he was not a person who was "convicted" within the meaning of s 44(ii) because his conviction was annulled with retrospective effect after the electoral choice of the people of Western Australia was made, so that in the eye of the law it did not exist at that time. Thirdly, it was said that he was not "subject to be sentenced ... for any offence punishable … by imprisonment" at any time during the electoral process.
Not convicted and sentenced
Counsel for Senator Culleton put at the forefront of his argument the submission that, because Senator Culleton had at no time actually been sentenced to imprisonment for the offence of larceny, s 44(ii) of the Constitution had no application to him. This submission was based upon a misunderstanding of what was said in Nile v Wood. Further, the submission treats s 44(ii) as if the words "or subject to be sentenced", which appear after the words "and is under sentence", have no operation.
In Nile v Wood, Brennan, Deane and Toohey JJ made it clear that a conviction alone is not sufficient to disqualify a candidate under s 44(ii). Their Honours said:
"It is not conviction of an offence per se of which s 44(ii) of the Constitution speaks. The disqualification operates on a person who has been convicted of an offence punishable by imprisonment for one year or more and is under sentence or subject to be sentenced for that offence. The references to conviction and sentence are clearly conjunctive … This is so as a matter of construction of the language used in s 44(ii)."
The argument for Senator Culleton seized upon the sentence which followed in their Honours' reasons:
"And it is apparent that it was the intention of the framers of the Constitution that the disqualification under this paragraph should operate only while the person was under sentence: see Quick & Garran, Annotated Constitution of the Australian Commonwealth (1901), pp 490, 492; Official Report of the National Australasian Convention Debates, Sydney (1891), pp 655‑659."
In Quick and Garran's The Annotated Constitution of the Australian Commonwealth, the only relevant discussion of s 44(ii) proceeds under the rubric "Or has been Convicted, and is Under Sentence for any Offence". No mention is made of the additional words in s 44(ii) "or subject to be sentenced". The argument proceeds that because those words are not mentioned, either by Quick and Garran or in Nile v Wood, they are no more than a reiteration of the words "under sentence".
It may be accepted that Quick and Garran's reference to s 44(ii) is not complete. That omission was not relevant to the decision in Nile v Wood, which concerned a deficiency in an election petition, in that it failed to allege that Senator Wood had been convicted of an offence punishable by imprisonment for one year or more and was under sentence for that offence. No question arose in that case about whether Senator Wood was "subject to be sentenced".
It was not suggested by the Court in Nile v Wood that although s 44(ii) expressly refers to the case of a person who "has been convicted and is … subject to be sentenced", in truth it applies only to a person who "has been convicted and is under sentence". It is apparent from the passage from their Honours' reasons which is set out above that their Honours did not treat the words "subject to be sentenced" as simply a repetition of the words "is under sentence". Counsel for Senator Culleton was obliged to accept that, on his contention, "under sentence, or subject to be sentenced" in s 44(ii) should be read as meaning under sentence "or having been sentenced being subject to sentence". Section 44(ii) cannot sensibly be read in that way.
It is evident from the terms of s 44(ii) that 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.
The effect of the annulment
Senator Culleton submitted that the effect of the annulment on 8 August 2016 was to render the conviction void ab initio, and restore the status quo ante. Senator Culleton made reference to the retrospective effect of annulment in other areas of the law. For example, in family law, the dissolution of a marriage involves the setting aside of the marriage prospectively, whereas the annulment of a marriage means that, in some respects, the marriage is treated as never having occurred.
The submissions made on behalf of Senator Culleton also adverted to dictionary meanings of the term "annulment", but those definitions indicate only that the term may refer to more than one effect. For example, in The Oxford Companion to Law, it is said that "[i]f a judicial proceeding is annulled it is deprived of effect and rendered inoperative, either retrospectively or prospectively." And in Sweet's A Dictionary of English Law, it is said:
"To annul a judicial proceeding is to deprive it of its operation, either retrospectively or only as to future transactions. Thus, annulling an adjudication in bankruptcy puts an end to the proceedings, without invalidating any acts previously done by the trustee or the Court, and makes the property of the bankrupt revert to him, unless the Court otherwise orders." (footnote omitted)
Whether an annulment operates retrospectively or prospectively inevitably depends upon the statutory context in which the term is used. The argument for Senator Culleton ignores the terms of the Appeal and Review Act as they inform the meaning of annulment in s 10(1) of that Act.
Under the Appeal and Review Act, the Local Court is empowered to review certain of its own decisions. Section 4(1) contemplates the making of an "application for annulment" of a conviction made by the Local Court sitting at the place where the original Local Court proceedings were held. Under s 4(2)(a), such an application must be made within two years of the conviction being made: evidently, if such an application is not made within that period, the conviction may stand.
Under s 8(2)(c), the Local Court must grant an annulment if it is satisfied that, "having regard to the circumstances of the case, it is in the interests of justice to do so." Section 9(2)(a) provides that if the decision is made to annul the relevant conviction, the Local Court must "deal with the original matter afresh"; and s 9(3) provides that the Local Court "is to deal with the original matter as if no conviction … had been previously made". As McHugh J said in Re Macks; Ex parte Saint, the phrase "as if" serves to introduce a fiction or a hypothetical contrast: "It deems something to be what it is not or compares it with what it is not." Section 9(3) thus requires the Local Court to proceed upon the fiction that a conviction has not been made, because, in truth, the conviction was not a nullity from the beginning.
Section 10(1) of the Appeal and Review Act provides that "[o]n being annulled, a conviction … ceases to have effect and any enforcement action previously taken is to be reversed." This provision states the extent to which the annulment may affect the legal position established by the conviction. The annulment of the conviction was not apt to expunge the legal rights and obligations arising from it, save in relation to the future and in the reversal of things done under it. The provisions of the Appeal and Review Act to which reference has been made indicate that a conviction is annulled only for the future: these provisions do not purport to operate retroactively to deny legal effect to a conviction from the time that it was recorded.
To say, as s 10(1) does, that the conviction "ceases to have effect" is to acknowledge that it has been in effect to that point. Further, to say that "enforcement action … is to be reversed" is to leave the legal state of affairs previously established by the conviction unaffected, save for the actual reversal of any action taken by way of enforcement against the defendant. One may illustrate this point by hypothesising an action for malicious prosecution against the prosecutor. In an action for malicious prosecution, the plaintiff must ordinarily prove that the prosecution ended in his or her favour. Speaking generally, this ingredient of the cause of action could not be established where a conviction was recorded. Of course, in the present case, this element of the cause of action might not be established for the further reason that Senator Culleton was, by his own plea, ultimately shown to be guilty of the offence charged. But the point for present purposes is that, at the date of the 2016 election, the conviction recorded against Senator Culleton was legally in effect and that position was not altered by the annulment because the effect of s 10 is that an annulment under the Appeal and Review Act does not purport retrospectively to treat the conviction as if it had never occurred. This case presents another example of what Windeyer J described in Cobiac v Liddy when he said that, by the exercise of a power to set aside a conviction, "the court holds that the accused was not lawfully convicted and that the conviction ought not to stand, not that there never was in fact a conviction."
Senator Culleton sought to rely upon this Court's decision in Commissioner for Railways (NSW) v Cavanough, where it was said that if a conviction is set aside on appeal, the conviction is void ab initio and the holder of an office "cannot be deemed to have vacated his office" by reason of the conviction. However, that case was concerned with the effect of an order made upon an appeal, setting aside a conviction which was deemed to have the effect of vacating an office of employment. It has nothing to say about the operation of an annulment of a conviction under the Appeal and Review Act.
In the course of argument, counsel for Senator Culleton also adverted to the possibility that the original conviction had been procured by procedural unfairness or fraud or other circumstances which would warrant the conclusion that it was always and entirely a legal nullity. The factual basis for such an argument was not established. In addition, 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.
Subject to be sentenced for any offence punishable by imprisonment
Senator Culleton submitted that, even if the annulment did not operate retrospectively, he was not "subject to be sentenced ... for any offence punishable … by imprisonment for one year or longer" at the time of the 2016 election. On behalf of Senator Culleton, it was argued that because Senator Culleton was convicted in absentia, the effect of s 25(1)(a) of the CSP Act was that the Local Court could not make an order imposing a sentence of imprisonment on him because he was an "absent offender".
The argument advanced on Senator Culleton's behalf proceeds on the erroneous assumption that because Senator Culleton was convicted in his absence, he acquired the status of an absent offender, an incident of which status was immunity from imprisonment. This argument cannot be accepted.
Section 25(4) of the CSP Act provides that in s 25, the term "absent offender" means "an offender who is being dealt with in his or her absence." The use of the present tense indicates that whether or not a person is an absent offender for the purposes of s 25(1)(a) depends on whether the person is absent when being dealt with by the court.
Whether or not Senator Culleton was, at any time, an absent offender depended on whether the court was dealing with him in his absence. Once he was present in court, whether in answer to the warrant issued for that purpose or otherwise, he was no longer an absent offender, and a punishment of imprisonment might lawfully be imposed on him.
While Senator Culleton was not liable to be sentenced to imprisonment in his absence immediately upon the conviction being recorded on 2 March 2016, once the warrant issued on that day for his arrest, the processes of the law pursuant to which he might lawfully be sentenced to imprisonment were set in train. If those processes took their course, he would be present when sentenced, and so might lawfully be sentenced to a term of imprisonment without offending s 25(1)(a) of the CSP Act. It is not correct to say that at the time of the 2016 election he was not "subject to be sentenced".
Section 364
Senator Culleton relied on s 364 of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"), which provides that the Court of Disputed Returns, on a reference from the President of the Senate, "shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities". He sought to argue that, by reason of the delay attending the reference and the circumstance that his conviction was a matter of public record, "good conscience" required that this Court decline to answer the question as to whether his seat was vacant.
This Court is obliged by s 376 of the Electoral Act to determine the matter referred to it. Section 364 does not provide any basis for avoiding that obligation. It is a procedural provision which, as was said in Sue v Hill by Gleeson CJ, Gummow and Hayne JJ, does "not exonerate the Court from the application of substantive rules of law". In the same case, McHugh J described s 364 as "ancillary" to the specific powers conferred by the Electoral Act to allow an election to be set aside.
The consequences of a vacancy
The conclusion that Senator Culleton was incapable of being chosen raises for determination by this Court the question as to the order which should be made to fill the resulting vacancy in the Senate.
The Attorney‑General submitted that, if this Court were to hold that Senator Culleton was disqualified from being chosen by reason of s 44(ii) of the Constitution, the vacancy should be filled by a special count of the ballot papers and that any directions necessary to give effect to the conduct of the special count should be made by a single Justice.
The Attorney‑General submitted that this Court, on the hearing of a reference under Pt XXII of the Electoral Act, has the power to "declare any candidate duly elected who was not returned as elected", and that that power carries with it an incidental power to order a special count.
Senator Culleton did not contest the submissions put on behalf of the Attorney‑General upon this question.
It is not necessary to order the taking of a further poll, whether for the unfilled place in the Senate or for all 12 Senators for Western Australia. It was said by this Court in In re Wood that "an election is not avoided if an unqualified candidate stands" because if it were otherwise "the nomination of unqualified candidates would play havoc with the electoral process". There is no suggestion that the presence of Senator Culleton's name on the ballot paper has falsified the declared choice of the people of the State for any of the other 11 candidates who were declared to be elected. There is no reason to suppose that a special count would "result in a distortion of the voters' real intentions", rather than a reflection of "the true legal intent of the voters so far as it is consistent with the Constitution and [the Electoral Act]".
Since Senator Culleton was incapable of being chosen as a Senator for Western Australia, the votes actually cast in favour of the party of which he was an endorsed candidate should be counted in favour of the next candidate on that list, at least so far as votes "above the line" for Pauline Hanson's One Nation party are concerned. There is no reason to suppose that the votes cast "above the line" in favour of that group were not intended to flow to the next individual nominee of Pauline Hanson's One Nation party in the event that Senator Culleton was not capable of being elected. The evidence established that 96.04 per cent of the votes received by Senator Culleton were votes for Pauline Hanson's One Nation party. A special count would not distort the true legal intent of the voters.
Conclusion
The questions referred to the Court were:
(a) whether, by reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned;
(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.
These questions should be answered as follows:
(a) By reason of s 44(ii) of the Constitution, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned.
(b) The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice.
(c) Unnecessary to answer.
(d) Senator Culleton's costs of the proceedings should be paid by the Commonwealth save for costs excluded from this order by an order of a Judge.