Rod Culleton

Time in the Senate

Culleton was elected as a Senator for Western Australia on 2 July 2016 as the lead candidate on the Pauline Hanson's One Nation ticket during the 2016 election. At the time he had been convicted in absentia on a larceny charge over a vehicle key in New South Wales, but had not yet been sentenced.

On 18 December 2016 Culleton announced on Twitter that he had resigned from One Nation, citing a lack of party support and "un-Australian behaviour". Party leader Pauline Hanson responded that Culleton was a "pain in the backside" and that she was "glad to see the back of him".

The President of the Senate declared his seat vacant on 11 January 2017, but at that time was unable to advise which mechanism should be applied to fill the vacancy. This was due to a pending action in the High Court, as the Court of Disputed Returns, regarding whether Culleton had been eligible to be elected.

Criminal charges, bankruptcy and Senate ineligibility

Under Constitution section 44(ii), 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" shall (section 44 continues) "be incapable of being chosen or of sitting as a senator or a member of the House of Representatives". Culleton was charged with larceny on two counts.

In New South Wales, he was convicted in absentia of larceny in March 2016, concerning theft of a key during a dispute with a tow truck operator. He appealed against the conviction, which was annulled on 8 August 2016. He then pleaded guilty to the offence, but a conviction was not recorded.

The finding of guilt was still in place at the time of Culleton's election to the Senate on 2 July 2016. A former colleague lodged a petition with the High Court (sitting as the Court of Disputed Returns), claiming that Culleton was not able to nominate for the election as he was convicted and awaiting sentence in New South Wales at the time of the election. Subsequently, the Australian Government asked the Senate to also refer the matter to the High Court; the reference included a request to determine what should be done if Culleton's seat were found to be vacant. The Court delivered its decision on 3 February 2017 (see below).

A second larceny charge, relating to a hire car in Western Australia, has not yet been heard in a court. It is expected to be heard in the Perth Magistrates Court over a four-day period, but no court dates have been available in the short term. On 20 December 2016, new trial dates in September 2017 were set.

Separately from the criminal cases, on 23 December 2016 (after a tumultuous hearing) the Federal Court ordered sequestration of Culleton's assets, with the effect of declaring him bankrupt. Constitution section 44(iii) disqualifies any member of the Parliament who is bankrupt or insolvent and section 45 requires that the person's seat then be declared vacant. The court granted a 21-day stay on the order of sequestration, with Culleton announcing that he would appeal the decision. Culleton's appeal was dismissed by a full court of the Federal Court on 3 February 2017 (see below).

After receiving an official copy of the trial judgment from the Federal Court as well as documentation from the Inspector-General in Bankruptcy, on 11 January the President of the Senate, Stephen Parry, wrote to the Governor of Western Australia, Kerry Sanderson, to notify her that Culleton's seat had become vacant due to his having become an undischarged bankrupt on 23 December 2016. Parry added that, since the matter of initial ineligibility was still before the Court of Disputed Returns (i.e. the High Court), he was currently unable to advise that the ordinary procedure for filling a casual vacancy (Constitution section 15) applied and he would provide further advice following the Court's decision, expected "in the near future". Culleton immediately announced that he would lodge a High Court challenge to the President's ruling as "premature" since the 21-day stay was to run until 13 January. On 12 January the Federal Court extended the stay of its sequestration order by one week. Culleton maintained that this was also a stay of the declaration of bankruptcy, so that he continued to be a Senator. However, he was already listed on the Parliament website as a "former Senator". On 19 January it was reported that Culleton's lawyer had received a letter from Parry's office which warned that, in continuing to identify himself as a Senator, Culleton could be committing the serious offence of impersonating a public official, and that in response Culleton had amended his parliamentary Facebook page to read "Rod Culleton – 'Senator' for WA – Gone Fishin'" and changed the signature on his parliamentary emails to "Rod Culleton | Federal Senator for Western Australia (Gone Fishin')". On 31 January 2017, Justice Gageler in the High Court rejected challenges by Culleton to the Court's jurisdiction and to Parry's decision.

On 3 February 2017, the High Court determined the Senate reference, unanimously finding that Culleton had been ineligible for election to the Senate. At the time of the 2016 election he was subject to being sentenced to imprisonment for up to two years, which under Constitution section 44(ii) rendered him ineligible for election. This had not been affected by the subsequent annulment of the finding of guilt; the annulment had operated only from the time of the annulment. 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. However, the Court anticipated that a simple recount, as if Culleton had not been a candidate, would make the votes cast for him (so far as they were "above the line", which was 96% of them) would flow through to the next One Nation candidate. The Court ordered, as the Commonwealth had previously agreed, that most (with specific exceptions) of Culleton's costs of the action would be borne by the Commonwealth (Culleton had initially represented himself, but eventually he had been provided with counsel).

The majority stated, in an introductory summary of their judgment (with which Nettle J differed only as to reasoning):

Senator Culleton was a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer at the date of the 2016 election. That was so, both as a matter of fact and as a matter of law. The subsequent annulment of the conviction had no effect on that state of affairs. It follows from s 44(ii) that Senator Culleton was "incapable of being chosen" as a Senator. In the result, there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned.

The beneficiary of the recount, as determined by the High Court on 10 March 2017, was Culleton's brother-in-law, Peter Georgiou.

Also on 3 February 2017, a full court of the Federal Court unanimously dismissed Culleton's appeal against the sequestration order. It rejected Culleton's claim that the trial judge had treated him unfairly, finding that the judge had dealt properly with his "unfocused and erratic" submissions. It also rejected his argument that a sequestration order does not necessarily involve a finding of bankruptcy, confirming that "insolvency, not judgment execution or debt collection, is the essence of an application for a sequestration order".

When the Senate resumed on 7 February, the President of the Senate, Stephen Parry, informed the house of the High Court's decision that Culleton had been ineligible to nominate and that consequently his election was void and he was not a Senator. Parry stated that this did not invalidate any Senate proceedings in which Culleton had taken part; that salary paid to Culleton as a Senator had been paid without authority and accordingly was now a debt due to the Commonwealth; and that whether any of that debt should be waived was a decision for the government, on which Parry had sought advice from the finance minister.

Personal life

Culleton's wife Ioanna (née Georgiou) is of Greek heritage; the family came to Australia in the 1970s when she was 5 years old. While a member of the One Nation Party, he did not support the party position that multiculturalism had failed. He became an advocate for farmers after his own farm at Williams was foreclosed in 2013. Culleton is linked to at least three companies, including "Elite Grains", that were under liquidation in 2016.