ALMOST two weeks after Rod Culleton’s formal disqualification from the federal Senate, the seemingly straight-forward vote-count to determine his anticipated replacement and brother-in-law Peter Georgiou remains unresolved.
And talks are still continuing within the Coalition government amid high level legal advice to decide whether Mr Culleton must repay salaries and work-related expenses incurred by taxpayers during his brief but controversial stint in office.
Mr Culleton was elected for One Nation at last year’s federal election on a pledge to stand up for debt-laden farmers and push for a Royal Commission to be held into banking to attack the sale of the Landmark rural loans book to ANZ that he’s also blamed for his own business and financial woes and various legal fights.
He quit One Nation late last year to become independent after a brutal falling-out with party leader and founder Pauline Hanson - but a High Court ruling on February 3 deemed he was actually ineligible to stand for election, as per constitutional rules.
That same day, he also had an appeal rejected on a bankruptcy ruling handed down on December 23 in the Federal Court, for a debt-claim launched in 2010 by his one-time farm neighbour and former Wesfarmers director Dick Lester over a farm-land sale and lease agreement and deal to sell oats.
Despite his disqualification, Mr Culleton has spent most of the past, first two sitting weeks of the 2017 parliamentary year in Canberra, accessing private Parliament House areas through Queensland rural independent MP Bob Katter.
In its February 3 judgment, the High Court unanimously ruled Mr Culleton was “a person who was convicted and subject to be sentenced for an offence punishable by imprisonment for one year or longer at the time of the 2016 federal election, and therefore was incapable of being chosen as a Senator under s 44(ii) of the Constitution”.
The subsequent annulment of that conviction had no effect on that state of affairs,” the judgement said.
The ruling also ordered that the resulting vacancy in Western Australia’s representation be filled by way of a special count of the ballot papers.
A holding statement on the Australian Electoral Commission (AEC) website said it noted that the High Court’s decision required further directions by a Justice (of the High Court) for the conduct of the special count.
“Upon receiving these directions the AEC will conduct the special count,” it said.
But calls to Fairfax Agricultural Media from sources close to the case - that have also made ongoing inquiries with the relevant jurisdictions - raised concerns about a stand-off between the High Court and the AEC, with each waiting for the other to act first in making applications, to resolve the vacancy.
A High Court spokesperson said they would not comment on the largely unprecedented legal matter, other than to say there had been some movement and a listing was expected in the near future, to resolve future directions on how to conduct the vote, if an approach was made by either of the parties central to the matter.
The AEC said it had no updates this week and any inquiries should be referred to the Court, while the office of Senate President Stephen Parry was also waiting to hear how the two jurisdictions were moving forward, to resolve the WA Senate vacancy.
The High Court judgment said it wasn’t necessary to order the taking of a further poll, whether for the unfilled place in the Senate or for all 12 Senators for Western Australia.
“There is no suggestion that the presence of Senator Culleton's name on the ballot paper has falsified the declared choice of the people of the State for any of the other 11 candidates who were declared to be elected,” it said.
“Since Senator Culleton was incapable of being chosen as a Senator for Western Australia, the votes actually cast in favour of the party of which he was an endorsed candidate should be counted in favour of the next candidate on that list, at least so far as votes “above the line” for Pauline Hanson's One Nation party are concerned.
“There is no reason to suppose that the votes cast “above the line” in favour of that group were not intended to flow to the next individual nominee of Pauline Hanson's One Nation party in the event that Senator Culleton was not capable of being elected.
“The evidence established that 96.04 per cent of the votes received by Senator Culleton were votes for Pauline Hanson's One Nation party.
“A special count would not distort the true legal intent of the voters. “
Senator Parry updated the Upper House on Mr Culleton’s various legal affairs when parliament resumed on February 7, saying he’d written to the finance minister seeking further advice on questions about whether the disqualified Senator would be forced to repay any salaries eared.
“I am advised that in previous cases opinions were provided by attorneys-general that those whose elections were declared void were not entitled to retain salary payments made to them,” he said.
“Currently the Remuneration Tribunal Act 1973 provides for the payment of salaries to senators
“Under section 16A of that act any such benefit paid without authority becomes a debt due to the Commonwealth.
“In earlier cases such debts have in effect been waived.
“However, I am advised that the decision whether to waive such debts is a decision for the government and not the Senate.
“I have written to the finance minister seeking further advice on this matter.”
This week, Special Minister of State Scott Ryan said the government was currently receiving legal advice from the Australian Government Solicitor following the High Court’s decision and what impact it may or may not have on Mr Culleton’s eligibility to access salary and work expenses during his time in the Senate.
The Victorian Liberal Senator said this process would also determine the issue of whether any debts became payable.
“Should a debt become payable, it is up to that individual to determine whether they wish to apply for a waiver of debt,” he said.
“I will not pre-empt this process.”
It’s understood the debt could be about $100,000 and Mr Culleton can’t appeal the High Court’s decision on his eligibility.
However, he has made an application for special leave to appeal his bankruptcy ruling in the judgment made on February 3 that ruled in favour of Mr Lester and his company Balwyn Nominees.
The document stamped February 9 says the grounds for the application are that the Full Court “erred in holding that the primary judge correctly held the petition was proved under Bankruptcy Act 1966 section 52(1) when: the petition filed was not in the prescribed form and the respondent filed no affidavit at any time verifying the petition under section 47(1); it did not, as admitted by the respondent to the Full Court, personally serve the petition.”
Mr Lester said he understood an application for special leave to appeal had been made by Mr Culleton to the High Court but it was “highly unlikely” to be granted.
The application was filed “on behalf of Senator Rodney Norman Culleton” by Maitland Lawyers.
Complaints have also been lodged about Mr Culleton’s Twitter account continuing to claim that he’s a federal Senator, despite being disqualified.
“I trust that the government is doing what it can to stop this man impersonating to be a Senator,” a source who asked not to be named, said in an email to Senator Parry’s office.
Fears have also been raised about Mr Culleton potentially working in Mr Georgiou’s office, once his appointment is ratified - but the disqualified Senator has said he intends to give his brother-in-law distance, to do his own thing, for One Nation.
However, it’s also understood Mr Culleton may be unable to work for One Nation due to rules covering staff employment, which prevent immediate family members working for members of parliament.
The AEC said a second vacancy also exists following the resignation of Bob Day as a South Australian Senator on November 1, 2016.
“This matter is currently the subject of consideration by the High Court of Australia sitting as the Court of Disputed Returns - the Court's consideration of this matter is ongoing,” it said.