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  • Culleton discovers High Court's lack of jurisdiction through failed 1984 referendum
  • By Rod Culleton
  • 09/03/2017
  • Contributed by: Richo ( 1 article in 2017 )
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In the wake of the Australian Electoral Commission conducting a recount of ballots to replace the position of Rod Culleton in the Senate, Mr Culleton has fired another shot back at the High Court, reminding them that the matter can only be addressed by Senate as required by the Australian Constitution. He also wants the High Court to reveal to the public and voters of Western Australia that they do not have the jurisdiction to remove a Senator.

“In relation to appealing the decision to the full bench of the High Court’s, it has come to my attention, that not only was there a discrepancy in the High Court rules which I raised in my inaugural question to the Senate, resulting in the amendment of the rules, but I believe that there is another serious discrepancy in the High Court, and of a greater magnitude.”

Mr Culleton has said that it appears that the High Court does not have the jurisdiction, under the Australian Constitution, to remove him or any other member of Parliament, from the Senate.

“The implementation of the Australia Act 1986, which was to separate the United Kingdom from legislating for Australia, failed at the 1984 referendum; the people voted a resounding “no,” so if the Australia Act is ultimately invalid, then how could it be invoked to be the foundation of the judiciary laws operating in Australia today at both Commonwealth and state levels?”

Sir Harry Gibbs, the High Court Chief Justice at the time of the referendum, has also previously echoed these concerns in a letter he sent in 1995. He said that

“the Constitution cannot be altered under Section 128 to remove the Crown from the Commonwealth” and that “the Commonwealth was established not by the Constitution but by the Constitution Act…. The British Parliament has by the Australia Act 1986 terminated its power to legislate for Australia. In practice, if all the Parliaments concerned did legislate to amend the Australia Act they would be effective although it would amount legally to a revolution. Like many other legal questions this one is not altogether free from doubt but my opinion which I have expressed above is shared by a number of other lawyers. The opinion has been expressed in public but it has received little media attention.” [Read letter]

Mr Culleton has said that it is hypocritical of the Government to expect others to follow the Constitution and rules, when they do not do so themselves and said it was one rule for them and another for ordinary Australians.

“Why then did the government at the time ignore the will of the people, and potentially mislead the House of Lords into instructing the Queen of England to assent the Australia Act in 1985? Our government enforced the Australia Act in 1986 and now due to this revelation, a big question mark now looms over not only the High Court, but also filters to the state courts too. I believe the courts are circumnavigating the Australian Constitution, using the fraudulent Australia Act, and it now looks like they are writing their own laws which are not in sync with the Constitution. Is this the reason why people are losing their properties to banks and why they cannot get a fair go in the courts?”

Mr Culleton has said that the genie is now out of the bottle and has said that the only body that lawfully and constitutionally has the power to put him on trial over his eligibility as a Senator, is the Senate itself, under Section 47 of the Australian Constitution.

It reads: 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.

“When the Senators voted to send my case to the High Court, the only thing the High Court delivered was it’s opinion and advice – there was never any stamped court order to remove me from the Senate, yet Senator Parry, in tow with Senator Brandis, took it upon themselves to usurp powers to remove me and therefore jumped the gun. The Constitution clearly indicates that the question of eligibility is to be decided by the Senate.”

“I find it incomprehensible that Senator Brandis, the Attorney General, appears to not know the laws of the Australian Constitution. Has he consequently misled the Senate? I call for his sacking immediately.”

Mr Culleton’s barrister, Peter King, was in the High Court on behalf of his client on the 2nd of March when Justice Patrick Keane brought down his judgement to order a recount of the ballots. Justice Keane said that Mr King’s argument, regarding the decision being referred back to the Senate under Section 47 of the Australian Constitution, was “hopeless” but Mr Culleton revealed on his Facebook page that Justice Keane had ignored his Barrister’s written submissions in court, writing his judgement prior to attending the 2nd March hearing. Justice Keane did not take note of Mr King’s oral submissions either.

The Australian Electoral Commission would not declare whether the recount would result in Mr Culleton’s brother-in-law, Peter Georgiou, claiming the vacant Senate seat but rather, the result would be provided to the High Court for their consideration and for Justice Keane to deliver a decision.

“I am appalled at the conduct and judgement of the High Court, as my conviction in absentia over a $7.50 key, which was annulled, never had any chance of imposing or being subject to a sentence of imprisonment under Section 25 of the Crimes (Sentencing and Procedure) Act 1999. Therefore, I was never ineligible as a Senator under Section 44 of the Constitution.”

Mr Culleton claims that the High Court got it wrong and that there was never a trial and he is not alone in that opinion with Melbourne University Law School professor, Jeremy Gans, saying: “Re Culleton [No 2] is a fine example of much that is wrong with Australia’s apex court these days” and “I think a minor case like this – well, a major minor one – is a good opportunity to ponder a major question about the High Court: why do smart people write bad judgements?” [Read blog]

Mr Culleton has said that his appeals have been about clearing his name and setting things right.

“This ordeal has branded me as a criminal and a bankrupt when I am clearly solvent. I did not steal a key, it was lost as I tried to protect my property and I have spent a vast amount of money and my time trying to fight these charges. The High Court and other courts have dealt with my cases in haste which gave poor outcomes by the senior courts. I have done my legal homework and I will not accept them removing me from the Senate without jurisdiction.”

“I will be informing my legal team over the next few days, of my findings regarding the Australia Act and I will be delivering a Show Cause letter to put the Governor General on notice.”



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