The high court has unanimously ruled that Rodney Culleton was not eligible to run for the Senate at the time of his election because of his larceny conviction, which was later annulled.
The decision means that regardless of Culleton’s full federal court appeal against his bankruptcy, the former One Nation senator will not be able to win back his seat.
The high court ordered that the vacancy created by Culleton’s ineligibility be filled by a special recount of ballots, meaning preferences will flow to voters’ next selection after Culleton.
That process is highly likely to return the second One Nation candidate, his brother-in-law Peter Georgiou, but there is an outside possibility that votes that gave other candidates second preference could swing the sweat to another party.
Despite earlier criticism of the prospect of Georgiou taking the seat, the One Nation leader, Pauline Hanson, welcomed him to her team:
Pauline Hanson (@PaulineHansonOz)I look forward to having Peter Georgiou represent Pauline Hanson's One Nation & Western Australia. Welcome to the team Peter. #auspol pic.twitter.com/zUQ7BHcEzL
February 2, 2017
In a statement quoting only Hanson, the party leader said she had met Georgiou recently and was confident he would be an asset to the Senate despite the fact he had not confirmed if he would remain with One Nation or follow Culleton’s lead and split from the party.
“One Nation is united in our excitement at the prospect of working with Peter Georgiou and, honestly, I couldn’t be happier,” she said.
“It looks like One Nation and Western Australia will be getting a significant Senator upgrade.”
Later on Friday, Hanson released a further statement purportedly on Georgiou’s behalf, in which he said: “This is a very proud and humbling moment to be given the opportunity to represent Pauline Hanson’s One Nation ... and, if I am confirmed as a Senator, it will be my great honour to represent the people of Western Australia.”
In December the One Nation leader, Pauline Hanson, said Culleton was impossible to work with and that if Georgiou was selected and Culleton went to work for him the party would be “on the same merry-go-round”.
At the time Hanson also questioned Georgiou’s eligibility in comments to the Australian Financial Review about whether he was a guarantor for Culleton’s loan, which a spokeswoman for Culleton denied.
Hanson insisted that the seat should “come back to the party” if Culleton were ruled ineligible.
In November Culleton was referred to the high court by the Senate, with Hanson’s support, to determine his eligibility.
Under section 44(2) of the constitution, a person is ineligible for election if they have been convicted and are subject to be sentenced for an offence punishable by a term of imprisonment of one year or more.
In a joint judgment by justices Susan Kiefel, Virginia Bell, Stephen Gageler and Patrick Keane, with a separate judgment by Geoffrey Nettle, the court found at the time of the election Culleton had been convicted and was subject to be sentenced both as a matter of fact and law.
The judges said the relevant time for determining eligibility was from the time of nomination until writs were issued and returned.
Although annulment means people are to be treated “as if” they had not been convicted, that did not operate retrospectively to deny the conviction’s earlier legal effect.
They said a fresh election was not necessary, ordering that votes cast in favour of One Nation and Culleton flow to the voters’ next preference in a special recount.
Nettle agreed and added that allowing people with a current conviction to stand at the election on the basis of appeals or possible future annulment would introduce uncertainty into the electoral process.
Culleton was declared bankrupt by the federal court on 23 December, leading to Senate president, Stephen Parry, declaring his seat is vacant on 11 January.
He appealed the bankruptcy to the full federal court, and the result of that appeal was also expected on Friday. Regardless of the result, he will not return as a senator when the Senate resumes on Tuesday.
A high court hearing into Bob Day’s eligibility in a separate dispute will be held on Tuesday.
The court ordered the commonwealth to pay Culleton’s costs, except for the costs of his failed application to keep his senatorial privileges despite his bankruptcy.
The Australian Electoral Commission told Guardian Australia it would advise on the timing of the recount after a single judge of the court made any directions necessary to conduct it.
