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An Interesting Error of Law By Ian Wilson LL.B
Recall how our High court was striking down pollies on the foreign allegiance issue based on section 44? Now it seems things have got a wee bit more complicated as Rod Culleton has taken the matter to the UK supreme court for a ruling:
“Culleton advised by UK Supreme Court his senate expulsion was wrong at law leaving the way open for other expelled senators to reclaim their seats. The Supreme Court of the United Kingdom has advised Western Australia Senator-in-exile Rod Culleton the High Court of Australia has erred by removing him from the senate. In January Culleton filed an appeal, contrary to legal advice, against his senate expulsion in the Supreme Court(Privy Council) citing s47 of the Commonwealth Constitution of Australia, which had been ignored by the High Court. This section states: ‘Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.’ The High Court, sitting as the Court of Disputed Returns, expelled him from the senate in 2017 on a referral from then Attorney General, Senator George Brandis. “Preliminary guidance from my case manager in the UK Supreme Court referred me to a legal maxim from a case precedent, Hilary Term  UKSC 3.”
The case precedent cites “….. Blackstone (Commentaries on the Laws of England) says that the whole of the law and custom of Parliament has its original from this one maxim: ‘that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.’ “The senate now has no choice but to remove all of those candidates who filled casual vacancies created by the High Court and reinstate me, because a legal maxim is the final say, there is no law above it,” Culleton said. “This includes Jacquie Lambie and Bob Day who have indicated to me they will now contest their expulsions by the High Court under s44 of the Constitution. “The senate will have to decide on my eligibility to sit as a senator.” Tomorrow Culleton intends to inform the Clerk of the senate of this legal maxim leaving the Clerk no choice but to ask the senate to reinstate any senator expelled by the High Court.
“The Parliament is compelled and bound by this maxim. The senate cannot abuse its powers and must immediately ask the surrogate senators to remove themselves from the House as they are only filling a vacancy,” he said. “Furthermore, I believe those unelected surrogate Senators are now impersonating a Commonwealth Public Official and putting the Senate in disrepute through their unlawful representations and I quote Odgers Australian Senate Practice, 13th Edition, 2012 page 160:
“Presumably if a conviction is quashed on appeal the vacancy which was taken to have occurred upon conviction and sentence is taken not to have occurred. If such a presumed vacancy has been filled the filling of the vacancy would then also be void.”
This is all very interesting from a jurisprudential perspective. Clearly, the High Court of Australia was in error. But, the High Court is the final court in the Australian jurisdiction now that appeals to the Privy Council have been abolished. Thus, the only way this matter could be reviewed is if the original decision was not made by the full Bench of the High Court, so that an appeal to the Full Bench remains. I am not sure if this was the case, so all of this could be for nothing, except perhaps for showing up our High Court.