One Nation: What is the High Court case involving senator Rod Culleton about?
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The High Court will hear the challenge to the election of One Nation senator Rod Culleton in Canberra today.
It is all going to come down to some tricky legal argument about the meaning of certain words in the Constitution.
What is it about?
The case hangs on whether Senator Culleton was eligible to contest the July 2 poll and be elected to the Senate.
Why would he be disqualified?
Disqualification under Section 44(ii) of the Constitution can occur if a person:
"… 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…"
At the time of the election, Senator Culleton had been convicted of stealing the keys to a tow truck, which carried such a jail term, and a warrant was issued for his arrest.
The conviction had been handed down without Senator Culleton appearing in a regional New South Wales court, but was annulled (or quashed) after the election.
What is Senator Culleton's argument?
He argues that under NSW criminal law, the quashing of his conviction means it never existed.
Senator Culleton's lawyers also argue he cannot be considered as being "under sentence, or subject to be sentenced".
That is because NSW criminal law prevents someone being sentenced if they have not appeared in court at the time they are convicted.
What is the Federal Government's argument?
Even if the quashing of Senator Culleton's conviction means it never existed under criminal law, the Commonwealth argues that does not change how the Constitution should be applied to his circumstances.
Lawyers for the Attorney-General argue the sections of the NSW criminal law that Senator Culleton is relying on are written in such a way that they do not apply retrospectively.
The Commonwealth is relying on the conviction having existed at the time of his nomination, the election, and the declaration of the results.
Has this ever been discussed before?
The Commonwealth uses a case from the early 1990s, where a person was still employed as a public servant at the time of the election but resigned before the results were declared.
Being a public servant is another grounds for disqualification.
The High Court found the person should not have been elected.
What happens if the High Court kicks Senator Culleton out?
The Commonwealth said there should be a recount of the WA senate vote, redistributing the votes as if Senator Culleton had not contested the election.
It looks likely the second One Nation candidate, his brother-in-law, would take his spot.
If the High Court finds in favour of the Senator, it is business as usual.
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- Senator Culleton avoids conviction being recorded against him after pleading guilty to larceny
- Rod Culleton to face court over stealing charges in October
- One Nation's Rod Culleton faces court challenge over eligibility for Senate seat
- Rod Culleton has larceny conviction annulled in New South Wales
- 'I'm an intelligent fellow': One Nation candidate says criminal charges will not ruin Senate seat chance
Topics: government-and-politics, federal-government, courts-and-trials, law-crime-and-justice, one-nation, australia, nsw
