So One Nation Senator Rod Culleton is out. Senate President Stephen Parry has notified the Western Australian Governor that Mr Culleton’s Senate seat became vacant as a necessary and automatic consequence of his bankruptcy.
He’s listed on the Australian Parliament House website as Former Senator Rod Culleton:
- Elected to the Senate for Western Australia 2016. (Pauline Hanson's One Nation Party to 18.12.16; Independent from 18.12.16).
- Disqualified 11.1.17 under sections 44 and 45 of the Constitution.
But this is not the end of the story. We still need to wait for the High Court to decide whether Mr Culleton was capable of being chosen as a Senator, before the method of replacement can occur.
So what has the Senate President Stephen Parry actually done?
In December last year Rod Culleton was declared bankrupt by the Federal Court. A bankrupt person cannot sit in Parliament, which is outlined in Section 44 of the Constitution:
Section 44 Disqualification
Any person who….is an undischarged bankrupt or insolvent….
The vacancy is automatic and outlined in Section 45 of the Constitution:
Section 45 Vacancy on happening of disqualification
If a senator or member of the House of Representatives….takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors….his place shall thereupon become vacant.
Once Mr Culleton’s name popped up on the official register, the national personal insolvency index, and the case details were published on the court website, the President of the Senate informed the Governor of Western Australia that a vacancy had occurred in the Senate. This process is outlined in Section 21 of the Constitution:
Section 21 Vacancy to be notified
Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor‑General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened.
It has been reported that Mr Culleton and his staff are no longer being paid after the automatic vacancy. Mr Culleton has also been warned to stop calling himself a Senator as he could be charged with impersonating a federal official.
Mr Culleton is appealing his bankruptcy and the Federal court yesterday heard that a benefactor was willing to pay his debts.
However, if the vacancy of a Senate place is automatic once a person is declared bankrupt, can the country just sit around and wait to for someone to exhaust all appeals processes before they are actually removed from the Senate?
The day after the Senate President informed the Western Australian Governor of the Senate vacancy Mr Culleton’s legal team wrote to Stephen Parry stating their belief that his letter declaring the seat vacant was premature.
How is a new Senator chosen to replace Mr Culleton?
We do need to wait until the High Court sitting as the Court of Disputed Returns makes a decision as to whether Rod Culleton was eligible of being chosen as a Senator. If he was ineligible of being chosen there could be a recount of the Western Australian Senate ballots, or even a new election (click here to read an article we wrote about this late last year).
If the High Court decides that he was eligible of being chosen as a Senator, he is still disqualified because of the bankruptcy (please note that it looks as though Rod Culleton might challenge this in the High Court). A Bankrupt person is replaced through a casual vacancy outlined in Section 15 of the Constitution. Section 15 is very long and was amended through a referendum in 1977 (we’ve actually written a number of articles about this section here, here and here). The main change in 1977 was to ensure that a Senate vacancy was filled by someone from the same party. The convention has been that the party chooses the new Senator, however this is not stipulated in the Constitution. What is stipulated is that the Parliament (sitting together if there is two houses) of the State the Senator was from sit and vote to choose a new person to hold the place. This section is quite wordy, so we’ve broken it down a bit:
Section 15 Casual vacancies
If the place of a senator becomes vacant….the Parliament of the State for which he was chosen….shall choose a person to hold the place until the expiration of the term.…
…But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place….(until the Parliament can choose)
Where a vacancy has….occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party….a person chosen or appointed under this section in consequence of that vacancy….shall….be a member of that party.
Why is this important?
Well, earlier this week the Western Australian Premier said that he would choose the replacement Senator. While One Nation Leader Senator Pauline Hanson had earlier stated that she had someone in mind, but wouldn’t announce it yet. Here’s Premier Barnett in the Australian:
I don’t think there’s been a wide comprehension throughout Australia about how this could play out. It actually falls on me as Premier and (state) cabinet to select the replacement….It could well be that the state Parliament in a joint sitting takes a different view (to One Nation).
Because an election is about to occur in Western Australia, the Parliament won’t sit for the next few months. This could mean that the Western Australian Executive Council (i.e Premier and Cabinet) would advise the Western Australian Governor on who to appoint to the Federal Senate.
The article in the Australian suggested that Premier Barnett was looking at whether the number 2 on the One Nation ticket at the last election should be nominated to take the vacant Senate place. This is Peter Georgiou, who is Rod Culleton’s brother-in-law.
Election analyst Antony Green believes that Western Australia would have to choose the replacement nominated by One Nation. He explains:
Whoever fills the vacancy must be a member of One Nation, and must be approved of by One Nation because the nominee must still be a member of the party to be sworn in as a Senator. If a One Nation member not approved of by the party is appointed, then One Nation can revoke their membership and the replacement cannot be sworn in as a Senator.
This concept suggests that if the Premier and cabinet chose Peter Georgiou to replace Rod Culleton and the One Nation party were unhappy about this, they could disendorse him. He then couldn’t be sworn in as the replacement Senator.
Mr Culleton’s personality has been on display for months as he continues with his plethora of legal battles. But is this actually good for Australia? Or is it a distraction.
The processes of government are outlined in our Constitution and must be followed. This includes the court system that Mr Culleton has found himself within, which is separate from the Parliament and the Executive. At one stage Mr Culleton asked for the Parliament to be recalled early to help him with his eligibility:
Mr Culleton wrote to other Senators seeking support for his move to try and recall the Upper House to use its powers to try and fight the court’s judgment against him.
The Senate has no power to fight a court’s judgement against an individual. The federal court’s power is derived straight from the Constitution. We don’t have Presidential pardons like in the US.
If a person doesn’t like being disqualified from Parliament, should they be able to try and hang on like this case. Mr Culleton’s own colleague doesn’t think so:
Mr Burston said he disagreed with Mr Culleton’s request to use the Senate’s powers to try and help fight his bankruptcy charge, given a separation of powers existed between the court and Parliament which should be respected.
The High Court’s first sitting fortnight for the year starts on 30 January. The federal Parliament reconvenes on 7 February. We may or may not have an outcome by that date. We’ll have to wait to find out how Rod Culleton will be replaced.