The federal government will ask the Senate to refer a challenge to the eligibility of One Nation senator Rod Culleton to the high court, the second such referral in as many days after the referral of Bob Day after his resignation.
On Wednesday Culleton suggested he might not vote in the Senate until the challenge was resolved and would represent himself in proceedings because constitutional law was “right up [his] veggie patch”.
Culleton faces a high court challenge to his eligibility from former associate Ian Bruce Bell based on a larceny conviction that was recorded before the July election, and pleading in the alternative that a recent court judgment could make him bankrupt or insolvent.
On Wednesday the attorney general said in a statement that the federal government would ask the Senate to refer the Culleton matter to the high court over the larceny conviction.
George Brandis said he had sought advice from the solicitor general on 13 October “in view of issues raised in proceedings commenced in the high court against Senator Culleton by Mr Bruce Bell”.
Brandis received the advice on 28 October, and wrote to the president of the Senate, Stephen Parry, and Culleton to alert them to the advice.
“It appears that the proceedings brought by Mr Bell are based on an allegation that, at the time of the last election, Senator Culleton had been convicted of an offence punishable by a sentence of imprisonment for one year or longer, and was therefore ‘incapable of being chosen’ as a senator under section 44(ii) of the constitution,” he said.
Brandis said that Parry had now written to him to advise he proposed to raise the matter in the Senate on 7 November, when the government would refer the matter to the high court.
Culleton was convicted in his absence earlier this year for stealing a tow truck key from a driver who was trying to repossess one of his company cars in 2014.
The West Australian senator’s conviction was annulled in August, after the July election and declaration of the polls.
As reported by Guardian Australia in August, the annulment may not fix his eligibility problem because, as senior legal academic Tony Blackshield explained, “at the declaration of the polls … he was incapable of being chosen”.
He said a recount would probably result in One Nation’s number two candidate being elected but it would require a recount.
Culleton said in a statement: “While I have a dark cloud over me I have to remain honourable not only to myself, but to the Senate and to parliament.”
Culleton said he made no admissions in relation to the purported claim, and was prepared to represent himself. “This is a constitutional matter, and boy am I sharp on the constitution (the real law of Australia) so this is right up my veggie patch,” he said.
“This is no surprise because it has been a contentious issue from the start but to date I have only received an opinion from the solicitor general which I did not seek – this is an opinion and not a fact and is not final.”
A spokeswoman for Culleton noted the advice concluded his ineligibility was “by no means certain”.
Culleton said he may have to postpone any votes on bills in parliament while the matter is being investigated. Bills tabled in parliament and the “entire nation” could be stopped by a single legal action over a $7.50 key, he said.
At a press conference in Perth, Culleton suggested there was a “dark cloud” over the high court because there was no writ for his vacancy. “Until that answer comes back, I’m not sure whether I’m going to participate in any high court jurisdiction,” he said.
Prof George Williams and Anne Twomey told Guardian Australia senators were entitled to sit and vote until the high court declares otherwise or a court finding triggers a vacancy.
Williams said it may be possible to seek an injunction to prevent a senator sitting but “I’m not aware that any such injunction has been granted in the past”.
Twomey said “I don’t think a court would give an injunction stopping a person from sitting, as that would involve interfering with the parliament’s internal processes”.
On 14 October the solicitor general, Justin Gleeson, revealed in a Senate committee that on 13 October the attorney general’s office asked him, through the Australian government solicitor, for urgent advice on the composition of the Senate.
On Tuesday the government announced it would refer Bob Day’s eligibility to the high court on the point of whether he had an indirect pecuniary interest with the commonwealth.
Day resigned earlier on Tuesday but his eligibility will determine whether the Family First senator’s vacancy is filled automatically by a member of his party or requires votes to be recounted.
The finance minister, Mathias Cormann, told ABC Radio National that Gleeson’s advice did not refer to Day, which fuelled speculation that Culleton was the possible subject.
A spokesman for the high court registry told Guardian Australia the court was waiting for the complainants in the existing Culleton challenge to lodge a summons for directions to progress the cases.
When the larceny charge returned to the court last week, Culleton pleaded guilty and avoided a conviction being recorded.
