Gageler
J
10.
the Information Services Division at Parliament House about information
technology services provided to outgoing parliamentarians.
37
By reason of those events, all of which can be inferred to flow from
Senator Parry having taken the view that ss 44(iii) and 45 of the Constitution
have operated in light of the sequestration order made by Barker J on
23 December 2016 to cause Senator Culleton's place to be vacated
notwithstanding that the order is the subject of an appeal to the Full Court of the
Federal Court and that all proceedings under the sequestration order have been
stayed pending the determination of that appeal, Senator Culleton seeks by the
summons a number of orders. First, he seeks an order that Senator Parry be
joined as a party to the reference proceeding. Next, he seeks orders restraining
Senator Parry by his servants and agents from taking steps to oust him from the
Senate or deny him his privileges or allowances as a Senator pending
determination of whether his seat has become vacant either by the Senate or by
the Court of Disputed Returns.
38
What Senator Culleton argues, in substance, is that the question of the
operation of ss 44(iii) and 45 of the Constitution in the circumstances which have
occurred is a question which s 47 of the Constitution commits exclusively to the
Senate subject to any reference by the Senate to the Court of Disputed Returns
under Div 2 of Pt XXII of the Commonwealth Electoral Act. Senator Parry, he
argues, has no jurisdiction to give effect to his own view of the answer to that
question. For the purpose of determining whether Senator Culleton is entitled to
the orders which he seeks in the summons, I do not find it necessary to form a
view on that argument.
39
The jurisdiction of the High Court within which Senator Culleton seeks
the orders is the original jurisdiction conferred on it as the Court of Disputed
Returns by Div 2 of Pt XXII of the Commonwealth Electoral Act. The matter in
respect of which the original jurisdiction of the Court is invoked on any referral
is defined by reference to the question or questions referred to the Court by the
Senate, interpreted as a matter of substance.
40
Senator Culleton submits that the matter in respect of which the original
jurisdiction of the Court has been invoked by the referral of questions on
8 November 2016 encompasses whether or not there is currently on any basis a
vacancy in the representation of Western Australia in the Senate for the place for
which Senator Culleton was returned as elected on 2 August 2016 and, if so,
what are the consequences. He relies in part for that argument on the form of
Question (a) as transmitted to the Court by Senator Parry on 8 November 2016. I
do not accept that submission. Construed against the background of the
accompanying statement of facts transmitted to the Court with the questions, the
scope of Question (a) as asked by the Senate was, in my opinion, confined to that
identified in the order made by French CJ on 21 November 2016.