Talk:Rod Culleton - Misplaced Pages

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Senator or not

@Wikiain, IgnorantArmies, Jack Upland, The Drover's Wife, and WWGB: Rather than engaging in an edit war, I bring the question here: Was Rod Culleton a senator for the period 2 July 2016 to 11 January 2017 (or any other period)? The Court of Disputed Returns has determined that he should not have been, but as far as I can tell, it has not said that he was not a senator during that period. I can't actually understand how it could have decided that, as if he wasn't a senator, then the history is being rewritten, in much the same way as the conviction anullment would have rewritten history to make it possible for him to have been validly elected. The writ was returned with Culleton's name on it, and I think the actions that have been left for a single justice are to determine that Culleton isn't, and someone else is validly elected despite the writ. --Scott Davis 23:40, 3 February 2017 (UTC)

Correct. The only cases that I know of where an MP has been unseated and hasn't been considered to have been an MP was those like Heather Hill - who, unlike Culleton, was unseated before her term would have begun. The federal parliament website has a gap between about 1983-1996 so there's no pages about any MPs from Cleary or Wood's era, but every other parliament treats unseated MPs like this example from Queensland. An obvious reason why they don't treat unseated MPs like they were never in office is that it would throw into question the outcome of every vote they made in parliament, which would cause chaos about what was and what wasn't invalidated and/or still in force. The Drover's Wife (talk) 00:18, 4 February 2017 (UTC)

@IgnorantArmies, Jack Upland, The Drover's Wife, WWGB, and ScottDavis: Yes, let's discuss here.

The High Court found that Culleton was never eligible for election and therefore was not validly elected. To my mind it follows that he never was a Senator. That "rewrites history" in the same awkward way as annulment of a marriage. The Parliaments' different practice is very understandable. Such considerations are canvassed in the High Court's judgments, relating to the effect of annulment of Culleton's NSW larceny conviction.

Parry's decision to describe Culleton as a "former Senator" was based on the bankruptcy issue, which has a different timescale from the eligibility issue. The current position is governed by the eligibility issue; the bankruptcy issue is now irrelevant to the 2016 election. So the legal position, I think, is clearly that Culleton never was a Senator. It may then be open to the Parliament to treat him as if he had been a Senator. I don't recall a vote in which his absence would have changed the outcome, so Parry might decide either way. But, if Parry decides still to refer to Culleton as "former Senator', that would be a political fiction. We will have to work out how to handle it.

The Court has decided that Culleton should never have been on the ballot paper. Culleton is gone, the position is vacant, the Court has ruled that there be a recount (rather than probably a state-wide election) and the only legal question remaining is how the recount should be conducted. The Court has left it to a single Justice to decide that question, i.e. hearing especially from the Australian Electoral Commission about timescale etc. Wikiain (talk) 01:04, 4 February 2017 (UTC)

I agree with the "never was" position. This is consistent with The Sydney Morning Herald, a reliable source, which states Rodney Culleton was never legally elected to Senate, High Court rules. WWGB (talk) 01:47, 4 February 2017 (UTC)

I'm sorry to be blunt, but the above arguments are utter nonsense. As TDW says, if that logic were followed through, every vote Culleton made in parliament would be thrown into question. But it's not as though this hasn't happened before - see the Parliamentary Handbook on people like Phil Cleary, Jackie Kelly and Robert Wood. There really is no wriggle-room here at all. (Also: it is NOT open to Parry to decide that all of Culleton's votes were invalid!!!!! Can you imagine the chaos that precedent would set?) Frickeg (talk) 02:19, 4 February 2017 (UTC)

(edit conflict):::I note that the headline has been changed (I've updated the reference in our article) to "...never legally elected..." where the original headline said "...never elected...". I saw that headline, but never saw a version of the article that asserted he had never been a senator in the interim. We probably need to give the Senate web site a few days to finalise any changes to their page which currently says "Former Senator Rod Culleton". The question we are trying to clarify here is whether he was "never elected", or "never validly elected". I believe it is the latter, and he was a senator from 2 August (and by convention that is extended back to 2 July) until 11 January (or possibly 23 December). The High Court has ruled that he should not have been elected, and the action of the single judge in the near future will be to implement Section 360(1)(v) and (vi) of the Commonwealth Electoral Act 1918, vis:

(v) To declare that any person who was returned as elected was not duly elected;
(vi) To declare any candidate duly elected who was not returned as elected;

on advice from the AEC of the result of a recount without Culleton.--Scott Davis 02:28, 4 February 2017 (UTC)

Right. It is very obviously "never validly elected", because his name definitely appeared on the return of the writs, etc. I mean, what, are we saying that a random citizen was just sitting in the Senate all that time? You can't rewrite history like that. It's not as though he will have to refund his salary. Frickeg (talk) 02:41, 4 February 2017 (UTC)

Again, just to restate this point: the Parliamentary Handbook entry for Senator Robert Wood states "Wood, William Robert (13.11.1949 - ) NSW NDP 11.7.1987 - 12.5.1988n": noting, exactly as this article presently does with Culleton, that he took his seat when he physically took his seat, and ceased being a Senator when he was found to have not been validly elected. The Drover's Wife (talk) 04:17, 4 February 2017 (UTC)

Extremely sorry, but in law "never validly elected" and "never legally elected" mean the same and both of them amount to "never elected". This is not literally rewriting history ("alternative facts" ...); it is to change the legal significance of past events and with retrospective effect. The events of the 2016 Senate election used to mean that Culleton had been elected; the High Court has now identified that meaning as mistaken (and it is mistaken because the High Court says so). As Frickeg says, this could lead to great difficulties and may have to be worked around with the use of fiction, as only the Parliament could get away with—which seems to be what is happening with the Parliamentary Handbook. Or, as with the votes, letting sleeping dogs lie.

Let's see what the Parliament does. The position as from the High Court's decision is that Culleton is not and has never been a Senator. If the Parliament wants to count him as if he had been a Senator, we can decide whether to prefer that view.

The High Court has decided a reference made by the Senate under Commonwealth Electoral Act section 376. The judgements do not refer to section 360. The main judgement says only (para at (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." That judge might make that decision with reference to section 360, but as to Culleton it would be a formality. The question of whether Culleton is or has ever been a Senator is over and done with.

Citing the SMH is fine (I do it all the time), unless there's something better. That story was almost certainly based on the Court's one-page summary issued by email at 10:31 (anyone can sign up to the service). The story happens to be accurate (as usually with the SMH), but reading the decision itself is better. Wikiain (talk) 04:47, 4 February 2017 (UTC)

(Wikiain, I think you may have misunderstood Scott and thus my response to him - the distinction was between "never elected" and "never validly elected", not between "legally" and "validly", which may or may not change your point - I'm not sure, although surely the Court cannot possibly do anything about the first one.) We do not need to wait to see what the parliament will do - we know what they will do, because this has happened before. And this may seem like a technicality, but the High Court decision does not say that he was never a senator. It says his election as a senator was invalid, and that he should not have been a senator, not that he was not.

There seems to be an impression that this kind of thing is new. It is not. It is uncommon, sure, but far from unheard of for people to be declared ineligible. In that case, when that person has already been seated, then without exception they have been treated as having served the term from their election to the decision to invalidate it. I am no lawyer, but the idea above that the parliament is working around these kind of issues with fiction seems to me so ripe for constitutional crisis that it cannot be right, but perhaps someone could point to some kind of source backing it up. Either way, we have acres and acres of precedent here: Culleton was a senator, even if he shouldn't have been, and isn't now. The High Court may presume to change history (though by my reading that is not what it is doing), but we do not. Frickeg (talk) 06:14, 4 February 2017 (UTC)

(Just as an addendum to the above - following whatever recount method is followed, Peter Georgiou will be declared elected. Although he will have been elected from the 2016 election, he will not be regarded - by anyone - as already been a senator for seven months, which would be the only possible view to take if Culleton was "never a senator". See Irina Dunn.) Frickeg (talk) 06:20, 4 February 2017 (UTC)

Thanks @Frickeg:. I was reading to come up with a reply that would have not been that clear, then when I came to type it, found you had already done a better job. I was indeed considering the difference between "never elected" and "never legally/validly elected". Culleton was elected, it now turns out that he should not have been, and steps are being taken to fix it. The judgement refers to In Re Wood several times. The reference to Section 376 relates to the reason that the court is considering the matter, not to what it can do about it. --Scott Davis 06:38, 4 February 2017 (UTC)

I am quite happy to wait and see what happens to this page. If it is expunged then we can do likewise and remove Culleton's senatorship from Misplaced Pages. WWGB (talk) 06:46, 4 February 2017 (UTC)

I'm inclined to think that Culleton never was a senator, but if we are going to assert that we need a good source, better than the SMH. Nevertheless, this page has to be clear that he did sit in the Senate. Otherwise future readers will be confused.--Jack Upland (talk) 07:34, 4 February 2017 (UTC)

Very sensible, Jack. I'll have a go tomorrow! To others: as to legal/valid I was only seeking whether there is a common understanding, which clearly there is on that point. Wikiain (talk) 09:23, 4 February 2017 (UTC)

I've made a few minor amendments, but not addressed anything major as yet. I've added to external links leading constitutional lawyer Tony Blackshield's exhaustive and I think immensely helpful analysis of the whole saga, published today. However, I'll be holding my horses until, perhaps, Parry makes a statement on the matter when the Senate resumes tomorrow. Wikiain (talk) 00:49, 6 February 2017 (UTC)

Parry ~~began the Senate proceedings with~~ made a statement about Culleton, who was in the public gallery (The Guardian has reported online). Wikiain (talk) 04:15, 7 February 2017 (UTC)Wikiain (talk) 00:06, 8 February 2017 (UTC)

Parry's statement describes Culleton's election as "void", which I take to mean that in his view Culleton never was elected. Culleton's homepage still identifies him as "former Senator", but of course changes to websites normally take a while.

Parry cites authority that a parliamentary vote is not invalidated by the fact that a member or senator voting was ineligible. I take this to mean that none of the votes in which Culleton participated will be revisited.

Parry also considers whether any of Culleton's senatorial salary must be repaid and says that this is to be decided by the government. The government will have to identify the moment at which wrongful payments began, i.e. when if ever Culleton became a Senator. The government's view of that will have to reflect what it understands to be the legal position. The government cannot itself determine the legal position—although the view that it takes will presumably be based upon top-level legal advice, as well perhaps as advice from the clerks of the two houses. Whether any or all of the repayment will be waived will be a subsequent matter. Wikiain (talk) 00:06, 8 February 2017 (UTC)

The discussion of Senate voting and Culleton needing to repay his salary indicates that he was, in fact, never s senator. I don't necessarily think websites are going to be updated, because they will want to record him in some way, and the distinction is somewhat pedantic. What should they call him — a "former putative senator"?--Jack Upland (talk) 01:35, 8 February 2017 (UTC)

Again, people are making shit up. "Void" is the word they use when they invalidate any MPs election, which in all parliamentary sources, state and federal, is always dealt with in the same way, which you've been provided tons of examples of. It does not mean that you can ignore all parliamentary sources and add your own WP:OR interpretation. What Parry does about his salary or about your personal take on the specific words he used to describe Culleton is completely irrelevant: there is not the slightest hint of evidence that they're going to break with 150 years of handling this situation in the same way. The Drover's Wife (talk) 02:01, 8 February 2017 (UTC)

The HCA in the Culleton decision of 3 February cites its own unanimous decision in In re Wood (1988), although only about the Court's jurisdiction as a Court of Disputed Returns. However, the Wood judgment also states that, if a candidate was not qualified for nomination, their "election and return could not create the legal capacity to be a senator": para . I'm not sure whether my citing that passage is WP:OR, so I have desisted from it thus far. But I do think it answers the question: Culleton was never a Senator.

Parry states clearly that what should be done about Culleton's salary is a decision for the government and not for the Senate, and he has asked the government what he should do. What Parry may do about the Parliamentary Handbook or the Parliament's website, if anything, is an entirely different matter. Frickeg, I don't have a source for the idea that referring to a never-qualified Senator as a "former Senator" is a "fiction" (though I won't claim that my idea is original), which is why I am not proposing to include it in the article. But I'm content to leave the "never was" issue, as mainly an issue of the infobox, until we hear from the government or from Parry about the salary. Wikiain (talk) 03:16, 8 February 2017 (UTC)

I've updated the article with wording that is intended not to prejudge this issue. Wikiain (talk) 04:26, 8 February 2017 (UTC)

Ironic that were are debating the extent to which a court decision has retrospective effect, given the debate on that topic before the High Court. The High Court has determined that he was incapable of being chosen or of sitting as a senator, none of which changes the fact that Culleton was sworn in as a Senator & sat as a Senator, nor does it invalidate the proceedings in the senate - he was a Senator de facto, but not de jure - Vardon v O'Loghlin HCA 69, (1907) 5 CLR 201. Pretty much the same as being convicted of an offence & then the conviction was set aside. The Constitution expressly contemplates a person sitting in such circumstances and provides for the penalty - see Constitution (Cth) s 46 & Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) s 3. A little known aspect of parliamentary privilege is that no one outside of parliament can challenge the validity of proceedings in Parliament as ordinarily constituted - see for example Victoria v Commonwealth HCA 39 per Gibbs J at . Hence I agree with The Drover's Wife & for as long as the Senate describes him as former Senator, so should wikipedia.

I suggest a compromise, adopting the same methodology as the Senate in relation to O'Loughlin, Wood & others, which is to put a note at the end of the dates in the info box, something along the lines of "Vacated due to bankruptcy 11 January 2017, Held to be incapable of sitting as a senator under the provisions of Constitution (Cth) s 46 3 February 2017" Find bruce (talk) 02:08, 10 February 2017 (UTC)

Find bruce, in Vardon the plurality judgment speaks of de facto (in obiter BTW) regarding the position where someone has been declared elected but a challenge to the election has yet to be determined. As to the position after a challenge has succeeded, both judgments agree that invalidity of the election means that the person was never "chosen by the people" (Constitution sections 7 and 24) and consequently never was a member of the parliament. They do not find room in the Constitutional meaning of "senator" for a distinction between de facto and de jure. Isaacs does say that "The validity of his public acts as a senator prior to the declaration is, of course, unaffected". But I think this must be read as meaning "as a senator", because shortly afterwards he explicitly rejects the description "former senator" for someone who had not been validly elected.

Constitution section 46 penalises someone who sits although is "incapable of sitting", i.e. constitutionally disqualified from sitting, but says nothing about their status while sitting.

The Senate footnotes that you refer to (and thank you for doing so) might indeed be a way to go. They are not consistently formulated, but they do not have force of law and we are free to formulate a suitable equivalent.

However, the High Court's decision on the election of Bob Day should be handed down soon and may well assist us in this matter. The Culleton and Day articles will have to note both cases anyway.

Note to non-lawyers (intended for at least some consolation): as can be seen in the High Court's Culleton judgments, (even) lawyers find this issue extremely difficult in several spheres. Wikiain (talk) 05:19, 10 February 2017 (UTC)

_____________ I emailed the Senate and got the following reply this morning so I think this page needs to reflect this:

Clements, Quinton (Sen S. Parry) <Quinton.Clements@aph.gov.au> 4:59 AM (3 hours ago)

to me Dear Mr XXXXX Thank you for your correspondence to the President of the Senate, Senator the Hon Stephen Parry. The President has asked me to reply on his behalf. The Court of Disputed Returns ruled on questions about the eligibility of Rodney Norman Culleton to sit as a senator on 3 February 2017. The Court unanimously held that Mr Culleton “was a person who was convicted and subject to be sentenced for an offence punishable by imprisonment for one year or longer at the time of the 2016 federal election, and therefore was incapable of being chosen as a Senator under s 44(ii) of the Constitution”.

Separately to this Mr Culleton became subject to disqualification under sections 44 and 45 of the Constitution. In a proceeding in the Federal Court under the Bankruptcy Act 1966 FCA 1578], a sequestration order was made against the estate of Rodney Norman Culleton on 23 December 2016. The bankruptcy was entered on the National Personal Insolvency Index on the same day.

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, that senator or member’s place “shall thereupon become vacant”.

Regarding the consequences of Mr Culleton sitting in the Senate despite being ineligible to do so, especially what effect his disqualification has on Senate proceedings in which he took part, Odgers’ Australian Senate Practice notes:

The presence in the Senate of a senator found not to have been validly elected or to be disqualified does not invalidate the proceedings of the Senate in which the senator participated.

This matter was determined by the High Court in the 1907 case Vardon v O’Loghlin , and restated by the Court in the 1988 case involving Robert Wood .

In relation to your specific questions:

1. As Mr Culleton was never eligible to have been elected a Senator, he is not entitled to be referred to as a “former Senator” and does not receive any of the privileges extended to former Senators such as a pass to enter Parliament House. 2. The President made a statement to the Senate on 7 February 2017 regarding Mr Culleton. This is publicly available via Hansard and has been reported extensively in the media.

So, Drover's dog, go f--k yourself.

Financial Difficulty

I see no reason why this section has been removed by Drover's dog when Culleton has been in significant financial difficulty with hoards of people lining up to get their money back off him. This is an important point and should never have been deleted. The financial difficulties of many "celebs" and public figures have been cited on wiki all of the time.

Drover's dog is being an idiot in removing this important feature of the Culleton story.— Preceding unsigned comment added by Faroutyouaregood1 (talk • contribs) 05:04, 14 February 2017 (UTC)

Faroutyouaregood1 your edits were removed by two different editors, first by WWGB then by The Drover's Wife, in accordance with Misplaced Pages policy for biographies of living persons which requires that contentious material about living persons that is unsourced or poorly sourced to be removed immediately and without waiting for discussion. As well as being poorly referenced, your edits were not written in a neutral point of view, particularly the use of emotive language. They also impacted on the senator or not issue which is currently being discussed. In discussing this matter, please remain civil & refrain from personal attacks. It also assists if you sign your talk page posts with four tildes, ~~~~ (the software will automatically convert that into a dated signature).Find bruce (talk) 23:28, 14 February 2017 (UTC)

Conspiracy claims

Culleton is on the record saying there are vast conspiracies and SWAT teams arrayed against him. He is also conspires (in an open letter) to say that Australia as a country does not exist as we're still under the Queen's total control. This is complete BS and must be reported. If Australia does not exist as it's own country then it hardly deserves its own Senate, let alone a "Senator Culleton."

Another open letter saw Culleton threatening a Queensland Magistrate as a Senator on a Senator's letterhead. This is highly dubious behavior and also needs to be recorded in history.

Drover's dog is just whitewashing history, I wouldn't be surprised if it were "Senator" Culleton himself.— Preceding unsigned comment added by Faroutyouaregood1 (talk • contribs) 05:04, 14 February 2017 (UTC)

The issue is not the content, but rather the way in which it was expressed & the poor referencing. See my comments above. Find bruce (talk) 23:28, 14 February 2017 (UTC)

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