The constitutionality of unrepresentative swill

One Nation's senators-elect and their brushes with the law ... Queensland Court of Appeal avoided getting too close to the facts in the Hanson fraud case ... One Nation candidate from WA up before the court for car theft ... Ineligibility and the Constitution  

Pauline Hanson will be returning to the Senate to represent Queensland – along with a second seat for her party in Queensland and possibly a third in New South Wales and a fourth in WA.

Many voters have a number of questions. How could this happen ... wasn't Pauline Hanson jailed for electoral fraud ... is WA really about to elect to the senate Rodney Culleton, a former bankrupt who was convicted in his absence of stealing with a further charge pending? Aren't such people disqualified from parliamentary office by s.44 of the Constitution?

The short answer is - only people who are "under sentence, or subject to be sentenced" for an offence punishable by one or more years' imprisonment are disqualified under s.44(ii) and s.44(iii) deals with undischarged bankrupts.

Hanson and Culleton are capable of "being chosen or of sitting" so long as they have done their time or have been acquitted on appeal. So the High Court found in upholding the election of Robert Wood in 1987, although he was later discovered to be a non-citizen and was removed.

On August 20, 2003, Hanson was found guilty by a jury of dishonestly inducing the Electoral Commissioner to register One Nation as a political party under the Electoral Act 1992 (Qld). This was an offence contrary to s.408C(1)(f) of the Criminal Code (Qld), a generic fraud provision.

She was also found guilty of a second offence that involved dishonestly obtaining about $500,000 in electoral funding by the same deceit. Hanson was sentenced to three years' imprisonment.

The background to the prosecution emerged from a parliamentary speech given by well-known warrior against the far right, Anthony John Abbott, on July 2, 1998, shortly before establishing Australians for Honest Politics, a shadowy trust established to channel money into litigation against One Nation. 

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Describing Hanson and her two male confederates as an "unstable political ménage à trois", Abbott explained:

"Pauline Hanson's One Nation ... is not One Nation Ltd, which has three directors and just five members, but the unincorporated association registered under the Queensland Act, about which I tabled information in parliament earlier this week. This unincorporated association has three classes of membership: it has management committee members, it has committee members and it has affiliate members who, I submit, are not really members at all because the management committee has complete and total control over this party."

This "submission" was advanced by Terry Sharples, a disendorsed One Nation candidate whose court costs Tony Abbott promised to pay, in a successful application for judicial review of the commissioner's decision to register the party.

The trial judge found that the application for registration in Queensland was submitted by the One Nation entity, which was already registered as a federal political party.

Under the federal party's constitution, Hanson, Ettridge and Oldfield (the committee) had the exclusive power to admit members. The trial judge found that they intended to exercise that power to restrict membership to themselves and perhaps other elected members of parliament (when that occurred).

By seeking registration in Queensland, Hanson claimed that the federal party had more than 500 members when she knew that to be false. The commissioner's decision was set aside for fraud and the judgment was upheld by the Court of Appeal.

This prompted the fraud prosecution. After a five-week trial, the jury found Hanson and Ettridge guilty of fraud, a finding viewed very differently by a reconstituted Court of Appeal, which set aside the conviction and entered an acquittal.

In both cases, the issue was essentially the same: did Hanson submit a false application for the federal party to be registered, knowing that it did not have 500 members under its constitution?

In both trials, the 500 individuals were found not to be members of the federal party. That was consistent with Hanson's public statements and the trial judge's findings in the civil case about how the committee intended to exercise its exclusive power to admit members to the federal party under its constitution.

Yet in the criminal trial, there was no evidence as to what the committee actually did [17], and the committee's out-of-court statements were not admissible [27]. Jones v Dunkel inferences could not be drawn from the accused's silence [26], and a witness who claimed that Ettridge had said "they are only public servants. They just want to see a list of names, they wouldn't check it out", was not called [24].

The DPP had wasted much of the five-week criminal trial leading evidence of the subjective understandings of the 500 individuals who thought they had joined the federal party, which was irrelevant because the question of membership should be answered by "orthodox contract theory" [15], i.e. Codelfa [21].

The conviction was quashed because the evidence at trial could not negate [50]:

"the inference reasonably open that those on the list given to the Electoral Commissioner were members of the [Federal Party] and that the statements made by Hanson and Ettridge to the opposite effect were simply misinformation intended to confuse the membership and to entrench the management committee's grip on power under the party's constitution."

de Jersey CJ also thought the possibility that the 500 individuals were members of a "related political party", as permitted by the Electoral Act, should have been left to the jury [34]. So, Hanson was released from custody and from the shackles of s.44 of the Constitution. And they say that criminal trials are all about the facts! 

Culleton: likely to end up in the Court of Disputed Returns

What of WA candidate Rodney Culleton? Judge Altobelli made a sequestration order against him in October 2014, after four adjournments at Culleton's request and one hearing at which he failed to appear.

The sole question was whether the bankruptcy notice was duly served on Culleton by leaving it in a sealed envelope affixed to a padlocked gate. After a detailed review of the evidence the judge found that service was adequate, and that Culleton had come "nowhere near" discharging the onus of proving that he was solvent [25], [32].

However, the order was set aside by the Federal Court in December. Counsel on the appeal advanced an apparently cogent argument that was not disclosed in the appellant's case or the judgment, but led to the respondent conceding the appeal.

However, the order was set aside by the Federal Court in December. Counsel at the hearing of the appeal advanced an apparently cogent argument that was not disclosed in the appellant's written submissions – or in the judgment, because Culleton's creditors conceded the appeal.

Despite the Worst Australian reporting that he remains to be sentenced for a NSW theft charge, the Oz believes that a further conviction "would not render him ineligible to sit in the Senate".

Culleton is sitting on 0.48 quotas now, but could easily get over the line once the Australian Liberty Alliance, Rise Up Australia and other associated right-wing fringe groups are eliminated. A trip to the Court of Disputed Returns seems inevitable.