Gageler
J
5.
Local Court of New South Wales of an offence for which he was liable when
brought before that Court to be sentenced to imprisonment for up to two years, a
conviction which the Local Court later annulled by order made on 8 August 2016
under s 8 of the Crimes (Appeal and Review) Act 2001 (NSW).
15
At the conclusion of the hearing, the Full Court reserved its decision. In
the ordinary course, it might reasonably be expected that the Full Court would
deliver its decision by making an order in open court which answers each of the
questions referred, and that the Full Court would endeavour to do so before
7 February 2017, the next date on which the Senate is scheduled to meet.
16
On 12 January 2017, Senator Culleton filed a summons in the reference
proceeding. In accordance with a timetable set by directions made on 19 January
2017, that summons has been heard by me this morning. As on the hearing by
the Full Court of the questions referred, Senator Culleton was represented on the
hearing of the summons by Mr Peter King with Mr Peter Lithgow. The
Attorney-General was represented by Mr Neil Williams SC with Mr Brendan
Lim.
17
The Attorney-General argued for dismissal of the summons. Senator
Culleton argued that some of the orders sought by the summons should be made
today. He sought directions designed to facilitate the hearing of argument about
the making of other orders at a later date.
18
The orders which Senator Culleton seeks by the summons can be divided
substantially into two categories. Those two categories are best identified and
dealt with separately.
19
The first category of orders is concerned to raise a belated challenge to the
jurisdiction of the High Court sitting as the Court of Disputed Returns to hear
and determine the questions referred. Senator Culleton seeks a declaration that
Div 2 of Pt XXII of the Commonwealth Electoral Act is invalid either in whole or
to the extent it authorised the referral of the questions which were the subject of
the Senate resolution of 7 November 2016. He also seeks an order staying the
further conduct of the reference proceeding.
20
By seeking that first category of orders, Senator Culleton in effect applies
to reopen the hearing which was concluded before the Full Court on 7 December
2016 to raise a wholly new argument. Reopening to raise a new argument is
something not lightly to be done even if the new argument sought to be raised on
reopening is constitutional.