Rodney Culleton

CULLETON

Even a few Australian members of parliament have fallen for OPCA theories…

Anne Bressington, who was elected to the South Australian Legislative Council at the 2006 South Australian election as Nick Xenophon’s running mate, was once reported to have followed One Peoples Public Trust, and was later involved with UN Swissindo, another OPCA scam. Malcolm Roberts is an Australian Senator for the Pauline Hanson One Nation party who was elected in the 2016 Australian election.

In August 2016, a number of media outlets identified documents Malcolm Roberts wrote to Julia Gillard 1 that uses David Wynn Miller‘s syntax, and several other sovereign citizen motifs. These documents included syntax such as

“Malcolm-Ieuan: Roberts., the living soul” for himself” and “The Woman, Julia-Eileen: Gillard., acting as The Honourable JULIA EILEEN GILLARD” for the former Prime Minister of Australia Julia Gillard.” 2

Of course, Malcolm Roberts denies any link to the Sovereign Citizens but fails to realise that by using their ideology, anyone would reasonably assume he has some connection to the group. 4

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Senator Rod Culleton’s inaugural question in parliament

Senator Rod Culleton had by chance uncovered an inconsistency between the High Court rules and section 33 of the High Court Act 1979, and his first question in the Senate was regarding this inconsistency. He claimed it to be a “constitutional matter” but was corrected by the Attorney General that it wasn’t.

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.”

Interesting that s. 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.” 5

This doesn’t include any requirement that process should be in the name of the Queen. It is likely that Senator Culleton was actually referring to s. 33, not of the Constitution, but s. 33 of 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…” 6

While there was no mention of the Queen in the current 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.” 7

Senator Brandis corrected Rod Culleton in the chamber that this matter was not a constitutional issue, but a “minor procedural error”.

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?”

Senator BRANDIS: “Thank you, Senator Culleton. Congratulations on your inaugural question in this chamber. I must confess, Senator Culleton, I was not expecting to be asked about the High Court rules, an object of some fascination to me, I might say. I will have a look at section 33 of the High Court Act and whether or not it is apparent that there is an inconsistency, as you say, between section 33 of the act and the rules made under the High Court Act.

As you would be aware, Senator Culleton, the rules of the court are procedural rules. They attach forms, usually, that are used in the process of the court and the various procedural steps in proceedings before the court. I must confess it has never been drawn to my attention before that there may be an issue about the consistency between the High Court rules and section 33 of the act, but, as I say, I will look at the matter.”

Additional Answers:

An exposure draft of the High Court Rules 2004 was circulated in April 2004. The exposure draft was the subject of detailed comments by the Law Council of Australia, the Australian Bar Association and the Special Committee of Solicitors-General. After considering those comments, the Justices made the High Court Rules 2004 on 5 October 2004. They were tabled in the Parliament on 16 November 2004 and came into effect on 1 January 2005.

No issue was raised in the process of drafting or consultation concerning the consistency of the Rules with s 33 of the High Court of Australia Act 1979 (Cth).

The Rules Committee of the High Court considered that issue on 12 October 2016. The Committee proposes a number of amendments to the Rules to address the issue. The proposed amendments will be drafted by the Office of Parliamentary Counsel and will be the subject of consultation with professional bodies before being finalised by the Court.” 8


Rod Culleton found ineligible to sit in Parliament

Rod Culleton was found ineligible to sit as a Senator by the High Court, pursuant to Section 44 of the Commonwealth Constitution after the following factors… 9 

A Conviction of an Indictable Offence

Section 44 of the Commonwealth 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 s 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’. 10 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.

Click to access re-culleton-no-2-2017-hca-4-3-february-2017.pdf


Bankruptcy proceedings

Section 44 of the Commonwealth 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 11 it 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.

Click to access balwyn-nominees-pty-ltd-v-culleton-2016-fca-1578.pdf

The Judicial Oaths argument… “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.”.

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 12 to pay damages of $205,536.50 (plus interest) for repudiation of a leasing agreement.

Click to access dakin-farms-pty-ltd-v-elite-grains-pty-ltd-no-2-2013-wadc-160.pdf

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 13 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, appears to be based on the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), 14 which deleted references to the Crown and the Queen from a number of relevant statutes.

Click to access culleton-2016-fca-1193.pdf

“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 15

Click to access culleton-v-macquarie-leasing-pty-ltd-2015-fca-188.pdf

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 16 issued on 21 December 2015, recording the orders made by consent on 4 December, dealt only with the question of costs.

Click to access culleton-v-macquarie-leasing-pty-ltd-no-2-2015-fca-1478.pdf

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 17 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.

Click to access culleton-v-balwyn-nominees-pty-ltd-2017-fcafc-8.pdf

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), 18 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.

Culleton’s vaunted litigious strategies had finally failed. 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.”


Media reports

All aboard the Culleton reality trip, the contrabulous phantasmagorica of Senator Rod Culleton 19

“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.”

Rod Culleton and the associates who claim 50 years of Australian laws are invalid, 20

A vexatious litigant disrupts the hearing. 21

This is an analysis of Rod Culleton’s submissions to the High Court, 22 

Click to access analysis-of-culleton-submission-2016-11-21.pdf

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Rod 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 23 Rod Culleton alleged that the Senate was inquorate when it resolved to refer him to the Court of Disputed Returns.

Click to access re-culleton-2018-hcatrans-136.pdf

A “quorum” is the minimum number of senators. Section 22 – Quorum: 24

“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. Section 39 – Quorum 25

“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. 26 Guide to Procedures: 27

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. 28 Chapter 8, Orders, Australian Senate Practice Eleventh Edition: 29

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: 30

“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.”

Click to access re-culleton-c15-2016-2018-hca-33.pdf


Section 47 – Court of Disputed Returns

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Rumor has it that Rod 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 Commonwealth 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.” 31

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It is alleged that the case manager in the UK Supreme Court referred the Rod 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.” 32

Unfortunately for this conclusion, section 47 of the Commonwealth 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. 33

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.” 34

So ultimately, the High Court sitting as the Court of Disputed Returns is completely lawful, regardless of the UK maxim Rod Culleton is implying reinstates him as Senator.

But regardless of facts, Rod Culleton intends to appeal to the courts of a foreign nation.

Click to access culleton-prayer-to-house-of-lords.pdf

Click to access culleton-letter-to-queen-elizabeth.pdf

To those who were supporting 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, Rod 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. 35

“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, especially because he’s up on charges for refusing to provide information under section 267B of the Bankruptcy Act 1966. 36

Read more in the chapter on Appeals to the UK Privy Council


The Great Australia Party

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Rod Culleton and Wayne Glew teamed up as candidates for the right-wing “Great Australia Party” (GAP) in the 2019 Federal Election. Based in an ideology of constitutional conspiracy and popularism, they ran on the platform that they were going to “restore the Commonwealth” 37

Read more in the chapter on the Great Australia Party

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Rod Culleton had more cases before the courts after this, such as Culleton v McAlpine [2020] WASC 243, and Culleton v Elliott [2019] WASC 407 where he challenges the jurisdiction of the courts and refuses to leave the public gallery in hearings.

Read more in the chapter Rodney Culleton’s cases

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