Rodney Culleton is an Australian politician who was sworn in and sat as a Senator for Western Australia following the 2016 federal election. At that time he was a member of Pauline Hanson’s One Nation Party, but in December 2016 he resigned from the party to sit as an independent. A week later the Federal Court held that Culleton was bankrupt, so his seat in the Senate became vacant. As the following litigation history will show, Culleton disputed the sequestration order and claimed to still be a Senator. His appeal to the Full Bench of the Federal Court was dismissed the same day the High Court determined that Culleton had, in any case, been ineligible for election to the Senate due to a criminal matter in New South Wales.
Right from the beginning of his political career, but even more so after his ineligibility and bankruptcy, Rodney Culleton became heavily influenced with pseudo legal and constitutional myths. Many of his associates were declared vexatious litigants, such as Peter Gargan and Wayne Glew, who advised him incorrectly on the changes with the Royal Styles and Titles 1973, the Australia Act 1986, and other common constitutional myths.
The inaugural question in the Senate
In what is probably Rodney Culleton’s finest moment, he had by chance uncovered a minor inconsistency between the High Court Rules 2004 and section 33 of the High Court Act 1979, and so his first question in the Senate was regarding this inconsistency. The High Court Act 1979 contained a requirement that all writs, commissions and process issued from the High Court shall be in the name of the Queen, which was overlooked in the High Court Rules 2004. He claimed it to be a “constitutional matter” but was corrected by the Attorney General that it wasn’t.
Ironically, he had been quoted as saying prior to the inaugural question:
“Under Section 33 of the constitution, writs need to be named in the name of the Queen and that clearly hasn’t been happening.”
Section 33 of the Constitution refers to writs, but not ones from the High Court:
“Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.”
This doesn’t include any requirement that process should be in the name of the Queen. Although Culleton was referring to section 33, it wasn’t the Constitution, but the High Court of Australia Act 1979.
“All writs, commissions and process issued from the High Court shall be: (a) in the name of the Queen; (b) under the seal of the Court…; and (c) signed by… the Chief Executive and Principal Registrar…”
While there was no mention of the Queen in the High Court Rules 2004, in comparison, the previous High Court Rules 1952 provided that writs of summons, subpoenas and habeas corpus applications contain the words:
“Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.”
Senator Brandis corrected Rodney Culleton in the chamber that this matter was not a constitutional issue, but a “minor procedural error”.
The inaugural question:
Senator CULLETON: “Thank you, Mr President. One question for Senator the Hon. George Brandis QC Attorney-General and Leader of the Government in the Senate. Since Senate school, it has come to my attention that there is a discrepancy between section 33 of the High Court Act 1979—which states that all process shall, which means must, be issued in the name of the Queen—and the High Court Rules 2004. If this appears to be the case, why has the High Court felt free to defy the parliament for 12 years?”
Hansard reference: Questions without Notice – Additional Answers:
The Rules Committee of the High Court considered the issue on 12 October 2016, and proposed a number of amendments to the Rules to address the issue. They were drafted by the Office of Parliamentary Counsel and underwent consultation with professional bodies before being finalised by the Rules Committee. Subsequently, the High Court Amendment (Constitutional Writs and other matters) Rules 2018 amended the Forms of the Arrest Warrant, Committal Warrant, Subpoenas, Writ of Mandamus, Writ of Prohibition, Writ of Certiorari, Writ of Habeas Corpus, and Writ of Summons to include the words: “ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth:” across the top of the Form.
Rodney Culleton found ineligible to sit in Parliament
Rodney Culleton was found ineligible to sit as a Senator by the High Court, pursuant to Section 44 of the Constitution after the following factors…
(1) A Conviction of an Indictable Offence
Section 44 of the Constitution states that 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 or a member of the House of Representatives.”
On 11 April 2014, at his property in Guyra, NSW, Culleton confronted a tow truck driver who had come to repossess a truck. Initially Culleton removed the ignition key from the tow truck. In the ensuing scuffle the key was lost: the tow truck driver said Culleton had stolen it, and Culleton was charged with larceny. The charge was listed for hearing in the Armidale Local Court on the morning of 2 March. But a somewhat similar charge in Western Australia, also involving alleged interference with the movement of a receiver’s vehicle, was due to be heard on the previous day. Claiming that this made it impossible to attend the hearing in Armidale, Culleton telephoned the Armidale courthouse and offered to give evidence by telephone. But the offer was rejected. Culleton was convicted in his absence and a warrant was immediately issued for his arrest. Culleton appealed against the conviction, and throughout the ensuing election period that appeal was pending. But he made no attempt to respond to the warrant until after he was elected. The declaration of the poll took place on Tuesday 2 August.
On the following Monday, 8 August, Culleton presented himself at the Armidale courthouse and the warrant was executed. Later that day the magistrate, Mr Michael Holmes, annulled the conviction to clear the decks so that the original charge could finally proceed to trial.
At a final hearing on 25 October, Culleton pleaded guilty. He was ordered to pay compensation of $322.85 for the theft of the key, but otherwise the charge was dismissed without proceeding to a conviction. Culleton appears to have thought that his actions after the election were sufficient to dispose of any constitutional problem. Yet the fact remained that, throughout the election period, he remained subject to the conviction imposed on 2 March. Almost immediately after the election, the question arose whether this meant that he was “incapable of being chosen” by virtue of section 44(ii) of the Constitution, which ascribes such incapacity to any person who:
“…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.”
On the morning of Friday 3 February, a High Court bench of five judges unanimously confirmed in Re Culleton [No 2] [2017] HCA 4 that, by virtue of s 44(ii) of the Constitution, Culleton had never been validly elected to the Senate, since throughout the election period he was “incapable of being chosen”. Four members of the Court gave a joint judgment; in a separate judgment Nettle J concurred. Culleton had argued that the annulment on 8 August had solved the problem. But that would only have been the case if the annulment was fully retrospective, wiping out the legal effect of the conviction as if it had never happened.
(2) Bankruptcy proceedings
Section 44 of the Constitution states that any person who:
(iii) “…is an undischarged bankrupt or insolvent… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
Although the sequestration order was made on 23 December in Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578 it was determined that Culleton had been bankrupt (and therefore incapable of sitting) since 30 August 2016 – ironically, the very day when he first took his seat in the Senate.
The underlying debt dated from 24 October 2013, when Culleton and his wife Joanna were ordered in Dakin Farms Pty Ltd v Elite Grains Pty Lld [No 2] [2013] WADC 160 to pay damages of $205,536.50 (plus interest) for repudiation of a leasing agreement.
In the intervening years Mrs Culleton had twice appealed unsuccessfully to the Western Australian Court of Appeal. In a final application for injunctive relief against further action on the bankruptcy notice, heard on 5 October 2016, in Culleton [2016] FCA 1193, Culleton relied primarily on the claim that, since 2005, no courts in Western Australia have been constitutionally valid, since their judges are no longer required to swear allegiance to the Crown. That argument, reflecting a misconception now apparently widespread in that State, is based on the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), which deleted references to the Crown and the Queen from a number of relevant statutes.
“All previous attempts to raise this issue have equally been rejected as without any legal merit. See Shaw v Jim McGinty in his capacity as Attorney General & Anor [2006] WASCA 231 upholding Shaw v Attorney General for the State of Western Australia & Anor [2005] WASC 149; Glew & Anor v Shire of Greenough [2006] WASCA 260; Glew v The Governor of Western Australia (2009) 222 FLR 416; [2009] WASC 14. In Glew v Shire of Greenough, Wheeler JA (with whom Pullin and Buss JJA agreed) observed, at [17] and [18], that 2003 State legislation bringing about the change in terminology did not effect any change to constitutional reality. It did not attempt to alter the relationship between the Crown and the various bodies contained within the Acts amended. Her Honour said: “There is no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to her Majesty. Further, the changes of terminology contained within the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 are consistent with constitutional reality.”.
“Mr Culleton then makes the point that the executive government of the Commonwealth ‘adopted the UNIDROIT Treaty with Rome’ in 1973. (I will take this as a reference to the Convention providing a Uniform Law on the Form of an International Will. Opened for signature 26 October 1973. Which entered into force for Australia on 10 March 2015.) In reliance on that ‘Treaty’, he refers to the allegiance to the United Nations, and says that by taking the oath of allegiance, every judge is likewise bound, as is the Queen, by the ‘Holy Gospels’. He also says that, by reference to s 15AB of the Acts Interpretation Act 1901 (Cth), the words of the Holy Bible must be taken into consideration in finding the true meaning of a provision of an Act. One example of a biblical passage that Mr Culleton says is relevant is from ‘the King James version of the Holy Bible bearing the royal seal of [the Queen] … in the chapter of Matthew 7, verse 1’, which reads ‘Judge not that thou shalt not be judged.’ Then, coming to the crux of the matter, Mr Culleton says that: “Judges in the courts in Western Australia have not since 2005 been taking an Oath of Allegiance to Her Majesty Elizabeth the Second and as such their judgments, sentences of imprisonment, possession orders in favour of mortgagees, and allegations of contempt of court are at least voidable, if not void.”
Although Culleton had lodged an appeal against the sequestration order made in October 2014, he failed to comply with directions for the lodgment of documents, and failed to turn up at the hearing. On 9 March 2015 his appeal was dismissed in Culleton v Macquarie Leasing Pty Ltd [2015] FCA 188.
Yet nine months later, on 4 December 2015, that order of 9 March 2015 was itself set aside. In lieu of that order the original appeal was allowed; the orders made in October 2014 were also set aside; and the creditor’s petition was dismissed. Culleton had been allowed to present new grounds of appeal; the creditors had conceded that the new grounds were arguable, and had therefore agreed to bring the case to an end without proceeding to a hearing on whether the new grounds were established. What the new grounds were is not known: the judgment in Culleton v Macquarie Leasing Pty Ltd (No 2) [2015] FCA 1478 issued on 21 December 2015, recording the orders made by consent on 4 December, dealt only with the question of costs.
The final chapter in this protracted saga was the judgment of a Full Bench of the Federal Court unanimously dismissed in Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8 his final appeal against a sequestration order which, by virtue of s 44(iii) of the Constitution, had rendered him incapable of sitting in the Senate. As on the constitutional issue, his final arguments were unavailing. The hearing before the primary judge (Barker J) had originally been scheduled for 8 December, but had been adjourned to 19 December because on 7 December Culleton was in Canberra for the hearing of the High Court case. On 19 December Barker J had refused a further adjournment, and Culleton complained that this was unfair.
He also claimed that he had adduced material which should have been sufficient to negate any finding of insolvency; and in any event that the entire proceedings were an abuse of process – in part because the creditor company was said to be exploiting the judgment debt as a way of pressuring Culleton to yield to an unrelated claim concerning intellectual property, and in part on the ground “that the ANZ Bank and the creditor were somehow working together to bankrupt him to stifle his work in Parliament investigating the banks”. There was also an argument that under s 30(3) of the Bankruptcy Act 1966 (Cth), that Culleton should have been allowed a trial by jury. Finally, there were said to be technical defects in the proof of service of the bankruptcy notice (effected in Armidale when Culleton arrived there on 8 August to submit to the warrant relating to the theft of the key), and also in the proof of service of the creditor’s petition (by email in October 2016). Most of these issues had not been raised at any earlier hearing, and the Full Court rejected all of them. The Full Court summarised his various arguments (“without intended personal disrespect”) in scathing terms:
“The submissions barely touched the issues to be considered on the application, at least directly. They reveal a degree of unfocused and erratic content expressed with not a little assertiveness that deflected attention from whatever might have been his real defences.”
But Culleton wasn’t finished there. He then applied for special leave to the High Court to appeal the Full Court’s decision, seeking an extension of a stay that had been made by Barker J at the time the sequestration order was made, and which had been extended on a number of occasions due to further litigation in the Federal Court, the last of which lapsed on 8 February 2017. Culleton sought that the stay be extended until such time as the special leave application was determined. In Culleton v Balwyn Nominees Pty Ltd [2017] HCATrans 41 the High Court dismissed his application for an extension of the stay, and Culleton subsequently discontinued his application for special leave.
Finally, Culleton commenced fresh proceedings in the Federal Court in Culleton v Balwyn Nominees Pty Ltd [2018] FCA 313, seeking, amongst other things, an order ‘setting aside and annulling’ the sequestration order. The proceedings were dismissed summarily.
On 3 April 2019 Rodney Culleton was convicted of an offence against s 54(1) of the Bankruptcy Act 1966 (Cth), that he:
“…being a person against whose estate a sequestration order had been made, did fail, within fourteen days from the day on which he was notified of the bankruptcy, to make out and file with the official receiver for the district in which the sequestration order was made, a statement of his affairs and furnish a copy of the statement to the trustee”.
He sought to appeal against his conviction in Culleton v Australian Financial Security Authority [2021] WASC 274, on grounds that the court had no jurisdiction and by several other grounds the sequestration order was invalid, including that any order and/or decision made under the Queen of Australia is void and unlawful. Leave to appeal on each ground was refused and the appeal was dismissed.
Rodney Culleton still insists that he is completely solvent, and due to this many of his followers likewise insist he is not actually bankrupt. This is an extract from the National Personal Insolvency Index (dated 8 April 2022) that confirms he is an undischarged bankrupt, and is therefore ineligible to be elected under section 44 of the Constitution:
The Australian: “All aboard the Culleton reality trip, the contrabulous phantasmagorica of Senator Rodney Culleton“:
“I’m going to miss the man, he has painted a vision of a libertarian Australia where our laws and indeed our entire legal system can be casually brushed off with a badly spelt submission.”
Crikey: “Rod Culleton’s bizarre conspiracy theory about the High Court“:
Guardian: “Rod Culleton and the associates who claim 50 years of Australian laws are invalid“:
Guardian: “A vexatious litigant disrupts the hearing.“:
An analysis of Rodney Culleton’s submissions to the High Court:
Rodney Culleton, who was still referring to himself as “Senator” (and using his official letterheads and email etc, despite the added “Gone Fishin” in the title) had to be told by Senate President Stephen Parry to bite the bullet, deal with his loss in the courts, and stop impersonating a Commonwealth Officer.
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All in a quorum
In Re Culleton [2018] HCATrans 136 Rodney Culleton alleged that the Senate was inquorate when it resolved to refer him to the Court of Disputed Returns.
A “quorum” is the minimum number of senators. Section 22 – Quorum:
“Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.”
A similar provision exists for the House of Representatives, in section 39 of the Constitution – Quorum:
“Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.”
In the House of Representatives, the quorum was amended down to one-fifth by the House of Representatives (Quorum) Act 1989. This means the quorum of the current House of 150 MPs is 30 MPs. Guide to Procedures:
In the senate, the quorum was amended down to one-quarter by the Senate (Quorum) Act 1991 so 19 senators is a quorum. The quorum includes the occupant of the Chair and is not reduced by the death or resignation of a member or senator. Chapter 8, Orders, Australian Senate Practice Eleventh Edition.
If at the beginning of a sitting the quorum is not met, the bells are rung for five minutes and a count is then taken; if the quorum is still not met the sitting is adjourned until the next sitting day. During the sitting, any MP or senator may draw attention to the lack of quorum in which the bells are rung for four minutes, and if a quorum is still not met the sitting is adjourned. Although quorum-busting is virtually unheard of in Australia, it is not unknown for parties to deliberately use quorum counts as a disruptive tactic and there have been some suggestions to enact rules to restrict this practice; however, this is very difficult due to the explicit mention of a quorum in the constitution. It is considered disorderly to call attention to quorum when one exists and members or senators who do so can be punished.
The decision was made in Re Culleton [2018] HCA 33:
“On 4 July 2018 Mr Culleton filed a summons in this Court in which he seeks declarations and orders including that the reference was invalid and that the orders of the Court be set aside. Mr Culleton’s contentions are that the Senate was not quorate on 7 November 2016 when the resolution was put and as a result this Court had no jurisdiction with respect to his matter. He seeks in effect to reopen the matter which has been determined by the Court and which is the subject of perfected orders. If he is able to do so he will seek to put on evidence of the fact that there was no quorum as required by s 22 of the Constitution.
It was conceded on the hearing of this summons that Mr Culleton and his legal advisors were at all relevant times aware of the fact they now allege, namely that the Senate was inquorate. In these circumstances it is not obvious why the jurisidictional argument now sought to be put was not put to the Court on the hearing of the reference.
The inference that it was then considered to be an available argument which would have been pursued but for the terms of the ruling on the application for adjournment cannot be drawn. Counsel for Mr Culleton conceded that no evidence had been placed before the Court at that time on the question whether the Senate was quorate. There was therefore no evidentiary basis for such an argument.
Further, the jurisdictional argument now sought to be raised differs from that on which the Court ruled. This argument is said not to be subject to the prohibition in s 16(3) of the Parliamentary Privileges Act for reasons which did not apply to the question ruled upon. In relation to the argument now in question it is said that all that is relied upon is the mere fact that the Senate was not quorate, as the Constitution requires it to be.”
Section 47 – Court of Disputed Returns
Rumor has it that Rodney Culleton was advised by the UK Supreme Court that his senate expulsion by the High Court in 2017, was “wrong at law” citing section 47 of the Constitution which states:
“Disputed elections – 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.”
It is alleged that the case manager in the UK Supreme Court referred the Culleton team to a legal maxim cited in Hilary Term [2014] UKSC 3, from William Blackstone’s Commentaries on the Laws of England, which says: “…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.”
Unfortunately for this conclusion, section 47 of the Constitution clearly states in the start of the section: “Until the Parliament otherwise provides…”
This is a phrase which also appears in many other sections of the Constitution, allowing the Parliament to legislate on the particular matter. The section specifically empowers the Parliament to provide that questions of members’ qualifications, of vacancies in either house and of disputed elections may be determined “otherwise” than by the house in which they have arisen, which was the position inherited from the UK Parliament.
In 1902 the Parliament provided that the High Court would be the Federal Court of Disputed Returns, in Part XVI of the Commonwealth Electoral Act 1902. This jurisdiction is now provided in Part XXII of the Commonwealth Electoral Act 1918.
It’s also important to note the Court of Disputed Returns does not have an avenue for appeal, either to the High Court or the Privy Council. Section 368 of the Electoral Act states:
“All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.”
So ultimately, the High Court sitting as the Court of Disputed Returns is completely lawful, regardless of the UK maxim Culleton is implying reinstates him as Senator.
AUSPUBLAW: “‘Incapable of being chosen’“:
But regardless of these facts, Rodney Culleton intended to appeal to the courts of a foreign nation. See Rodney Culleton’s Prayer to the UK House of Lords 7 November 2018 see also Rodney Culleton’s letter to Queen Elizabeth II 18 January 2019:
None of these letters achieved anything, so eventually the Culleton team filed an application to the UK High Court in Rodney Culleton and Ors v Peter Quinlan and Ors CO/588/2020 to request a judicial review of the validity of the Australia Act 1986 and the Royal Styles and Titles Act 1973, among other assertions . I explore these arguments and its inevitable rejection in a separate article, “The UK High Court application by the Great Australia Party“.
To those who supported Rodney Culleton in his planned trip to England to speak to the House of Lords, I hope you didn’t donate too much money to pay for his plane ticket. As a bankrupt, Rodney Culleton is not permitted to leave Australia without the consent of his trustee, and just booking a fight could land him in jail for 3 years under section 272 subsection 1(c) of the Bankruptcy Act 1966.
“A person who after he or she has become a bankrupt and before he or she is discharged from the bankruptcy, without the consent in writing of the trustee of his or her estate, leaves Australia, or does an act preparatory to leaving Australia; commits an offence and is punishable, on conviction, by imprisonment for a period not exceeding 3 years.”
Any such consent to travel would never be approved, as he’s consistently failed to provide his initial statement of affairs within two weeks of notification as required by section 54(1) of the Bankruptcy Act 1966.
As provided by section 149 of the Bankruptcy Act 1966, the standard period of 3 years of bankruptcy only begins when the statement of affairs is furnished. When he was convicted of this failure in April 2021, four and half years had already passed since he was supposed to lodge his statement of affairs. The longer he neglects it the longer until the three year period can begin before it expires and he is finally discharged.
The Great Australia Party
Rodney Culleton and Wayne Glew teamed up as candidates for the right-wing “Great Australian Party” (GAP) in the 2019 Federal Election, and the party campaigned in the run up to the 2022 Federal Election. Based in an ideology of constitutional conspiracy and popularism, they ran on the platform that they were going to “restore the Commonwealth”
There are numerous contentions to explore regarding the subsequent events, which I will detail in a separate article on the “Great Australian Party“.
Rodney Culleton also had more cases before the courts after this, where he challenged the jurisdiction of the court and refused to leave the public gallery in hearings. I will explore these cases, and several criminal charges, in the separate article “More Rodney Culleton’s cases“.
See also the articles: