Gageler J 11. 41 The matter in respect of which the jurisdiction has been invoked by the existing reference from the Senate is relevantly limited to whether there is 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 by reason of s 44(ii) of the Constitution having operated in light of his conviction on 2 March 2016 to render him incapable of being chosen or of sitting and, if so, what are the consequences of s 44(ii) having so operated. Whether, by reason of the operation of s 44(iii) of the Constitution, a vacancy occurred on 23 December 2016 in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned is a question which falls outside the matter in respect of which the jurisdiction of the High Court has been invoked in the proceeding in which the summons has been filed. 42 I am not satisfied that the orders sought by Senator Culleton are necessary to be made in the reference proceeding to protect the efficacy of any determination or order which might be made in the exercise of the jurisdiction of the High Court that has been invoked by the reference from the Senate. If the Full Court were to determine that, by reason of s 44(ii) of the Constitution, Senator Culleton was disqualified from election at the time he was returned as a Senator on 2 August 2016, the subsequent events would be irrelevant. If the Full Court were to determine that, by reason of s 44(ii) of the Constitution, Senator Culleton was not disqualified from election when so returned as a Senator, nothing that has been done by Senator Parry by reference to subsequent events would affect the efficacy of that determination. 43 In the result, the summons must be dismissed. 44 That gives rise to a question as to costs. In submissions before the Full Court, the Attorney-General submitted that the appropriate answer to the last of the questions referred by the Senate is that the Commonwealth should pay Senator Culleton's costs. The Attorney-General submitted before me, and I accept, that the costs of the summons are not within the scope of that submission to the Full Court. 45 Senator Culleton having been wholly unsuccessful on the summons, I do not think it an appropriate exercise of discretion that he should have his costs. There will be no order as to costs. 46 The orders I make are as follows: (1) The summons filed by Senator Culleton on 12 January 2017 is dismissed. (2) The costs of the summons are excluded from such order as may be made to the effect that Senator Culleton's costs of the proceeding on the reference be paid by the Commonwealth.