Re Culleton (No 2)

Culleton was declared one of the elected Senator for Western Australia as the lead candidate on the Pauline Hanson's One Nation ticket during the 2016 federal election, which was held on 2 July 2016. At that 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.[3]

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).[1][11][12]

The majority stated, in an introductory summary of their judgment (with which Nettle J differed only as to reasoning):[13]

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.

Culleton had been found ineligible for election to the Senate. His vacancy was filled by a countback of the ballot papers in Western Australia, on the basis that Culleton's name was not on the paper. As had been anticipated, the recount resulted in votes cast for him, including the "above the line" votes (which were 96% of his vote) flowed through to the next One Nation candidate, which was Peter Georgiou, Culleton's brother-in-law. Georgiou's election was confirmed on 10 March[14] and he was sworn in on 27 March 2017.[15]

The government has demanded repayment by Culleton, as "a debt to the Commonwealth", of payments he had received while disqualified, and indicated it might also seek repayment of superannuation payments, other entitlements and staff payments.