Nick Xenophon (SA, Independent) Share this | Hansard source

This is a very important matter. I did have the benefit, as all senators now have, of seeing and reading the opinion of the former Solicitor-General, Justin Gleeson SC, who gave advice in relation to this matter. I think it is worth reflecting on aspects of that opinion now that it has been tabled. This matter relates to a conviction of larceny pursuant to section 117 of the New South Wales Crimes Act on 2 March 2016. On 10 June 2016, Senator Culleton nominated as a Senate candidate for the Commonwealth Parliament for the state of West Australia. The polling date for the election was 2 July 2016. On 2 August 2016 the poll was declared. On 8 August 2016, Senator Culleton's conviction for larceny was annulled under the New South Wales Crimes (Appeal and Review) Act. On 30 August 2016, the 45th Parliament sat for the first time. The opinion of Mr Gleeson suggests that there are both difficulties for Senator Culleton and a defence, a way to resist the petition. There are specific mentions made of the petition itself which Mr Gleeson suggested were deeply flawed but if those remedies were cured—to use the words of Mr Gleeson—then there were arguments in respect of Senator Culleton's ability to be a senator.

But I want to reflect on this—and this is a matter that ultimately needs to go to the High Court. I have great sympathy for Senator Culleton and the dilemma he finds himself in. The issue here is whether Senator Culleton is incapable of being chosen or of sitting as a senator by virtue of section 44(ii) of the Constitution because he 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'. That is something that the founders of our Constitution, during the Constitutional Convention, put in the Constitution to ensure that people in the parliament are of good character and were not in prison or had not been sentenced for a serious offence. I do not think anyone could reasonably say that this is a serious offence, particularly in the context of it being annulled. Again, these are matters for the High Court.

My understanding is that Senator Culleton's argument will be that, because his conviction was annulled, it is of no effect and there are two interpretations. The first is about whether the annulment means that, in law, there never was a conviction—and that is supported by section 9(3) of the New South Wales Crimes (Appeal and Review) Act, which provides that, following an annulment, the relevant court is to deal with a matter afresh as if no conviction or sentence had been imposed. The second argument is that the conviction or sentence only ceases to have effect following the annulment—and that goes to section 10(1) of the New South Wales Crimes (Appeal and Review) Act—so the effect of the annulment is purely prospective.

I think Mr Gleeson never said a truer word than when he said at paragraph 25 of his opinion that there is no authority directly on the question. So this is a very important and interesting issue of constitutional law. There are arguments there about whether the court would promote certainty and speed in the ascertainment of the result of an election. These are factors that members of the High Court previously considered in their approach to section 44 of the Constitution. I imagine that there will be very much a contested argument here.

Senator Culleton clearly has great passion on a number of issues. He has great passion for the bush and for the plight of farmers in the way they have been treated by the banks and financial institutions He is a man of great passion and a good heart. I hope he gets the appropriate advice from senior constitutional lawyers to contest this matter in the High Court and I wish him well in relation to that matter. Leaving aside the technical and legal aspects, there are some issues about essential fairness here. What has occurred here is a minor offence in the scheme of things, notwithstanding what the maximum penalty is. The fact is that this matter was annulled. By the time Senator Culleton took his seat in this place, the matter had already been disposed of. I would like to think these are matters that would be argued quite forcefully in the High Court of Australia sitting as the Court of Disputed Returns.

I wish him well. I believe that the Senate has no choice but for this matter to be referred. I would like to think that there will be many in the community who will have sympathy for his predicament and will have sympathy for what he is going through, because as I said I believe he is a person with a good heart. I will continue to have policy differences with the party that he represents, but that does not mean that you cannot respect him and empathise with what he is going through. I, on behalf of my colleagues, will support this referral because we believe it is an appropriate thing to do. I wish him all the best. I hope that he is successful in his appeal in the Court of Disputed Returns because I, and I think many other Australians, think it is manifestly unfair in the circumstances for him to be disqualified from this place. Ultimately, that is a matter for the High Court of Australia, sitting as a Court of Disputed Returns, and that will be the ultimate arbiter of this important matter.

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.