tag:theconversation.com,2011:/fr/topics/rod-culleton-32836/articlesRod Culleton – The Conversation2017-07-07T05:42:53Ztag:theconversation.com,2011:article/806712017-07-07T05:42:53Z2017-07-07T05:42:53ZExplainer: is a High Court challenge about to bring down the Turnbull government?<figure><img src="https://images.theconversation.com/files/177257/original/file-20170707-18915-ph813w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Labor will argue David Gillespie ineligible to be an MP based on Section 44(v) of the Constitution.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Labor is set to <a href="http://www.smh.com.au/federal-politics/political-news/turnbull-government-at-threat-as-labor-plans-high-court-challenge-20170706-gx6b7q.html">launch a High Court challenge</a> over the eligibility of Assistant Health Minister David Gillespie to sit in federal parliament. The case has been brought by Peter Alley, the ALP candidate who ran against Gillespie in Lyne at the 2016 federal election.</p>
<p>The action is based on Gillespie, a Nationals MP, owning a small shopping centre in Port Macquarie that contains an Australian Post outlet. As Australia Post is a government-owned corporation, Labor claims this results in Gillespie having an indirect pecuniary interest contrary to Section 44(v) of the Constitution. </p>
<p>If the High Court agrees, Gillespie would be ineligible to sit as an MP.</p>
<h2>What does the Constitution say?</h2>
<p><a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s44.html">Section 44</a> of the Constitution sets out several grounds of disqualification from holding parliamentary office. </p>
<p>Under Section 44(v), someone “shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives” if they have:</p>
<blockquote>
<p>… any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons.</p>
</blockquote>
<p>Before this year, the High Court had only considered this section on <a href="http://eresources.hcourt.gov.au/showbyHandle/1/230248">one occasion</a>, in 1975. </p>
<p>In that case, Chief Justice Garfield Barwick took an extremely narrow interpretation of the provision, based on a finding that its historic purpose was to protect parliament’s freedom and independence from the influence of the Crown. </p>
<p>An “indirect pecuniary influence” would only be disqualifying where it involved a legal or equitable interest in a contract with ongoing obligations, and where the possibility of financial gain by the agreement’s existence or performance could conceivably allow the Crown to influence an MP in relation to parliamentary affairs.</p>
<p>Under this narrow interpretation – <a href="https://theconversation.com/explainer-what-is-the-challenge-to-bob-days-senate-seat-all-about-68046">which had been subject to considerable criticism</a> – Gillespie would not be considered ineligible based on his interest in the shopping centre.</p>
<h2>The Bob Day case</h2>
<p>The High Court revisited the meaning of “indirect pecuniary interest” <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/14">in April</a> this year. It unanimously held that former Family First Senator Bob Day had an “indirect pecuniary interest” at the time of the 2016 federal election, and was therefore ineligible to be a senator. </p>
<p>Day had already resigned from the Senate before this ruling. But the High Court’s decision was significant for two key reasons. </p>
<ul>
<li><p>The first was its immediate importance in deciding how a replacement senator <a href="https://theconversation.com/explainer-what-is-the-challenge-to-bob-days-senate-seat-all-about-68046">was to be selected</a>. </p></li>
<li><p>The second, which will now be critical when considering Gillespie’s future, was its reconsideration of what constitutes an “indirect pecuniary interest” under Section 44(v).</p></li>
</ul>
<p>The Day case concerned a lease agreement between the Commonwealth and Fullarton Investments Pty Ltd for premises Day used as his electorate office. There were a variety of ways in which Day was connected to both the company and property. However, a fact the court found to be particularly significant was that in February 2016, Fullarton Investments directed that rental payments be made into a Day-owned bank account.</p>
<p>The High Court declined to follow the 1975 precedent and adopted a broader interpretation of Section 44(v). Importantly, it found the section had a wider purpose than solely protecting parliament’s independence from executive influence. It was also intended as an anti-corruption provision, designed to protect against potential conflicts of interest by ensuring the public duties of MPs are kept separate from their personal interests.</p>
<p>Under this broader view, an individual would be disqualified where there was an expectation of financial gain if the agreement in question was performed. The court would look at the agreement’s practical effect when making this assessment. </p>
<p>High Court justice Patrick Keane <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/14">observed</a>:</p>
<blockquote>
<p>It is enough that the person’s pockets were or might be affected.</p>
</blockquote>
<p>However, <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/14">it was noted</a> there will be no relevant interest:</p>
<blockquote>
<p>… if the agreement in question is one ordinarily made between government and a citizen.</p>
</blockquote>
<h2>The case against Gillespie</h2>
<p>So, is Gillespie ineligible based upon this new, broader interpretation of Section 44(v)? </p>
<p>There is no question of a direct financial interest in this case. Rather, the information currently available suggest that a company owned by Gillespie and his wife leases space in a shopping centre it owns to an Australia Post licensee. </p>
<p>The possible financial interest in this case certainly seems to be more remote than in Day’s case. However, there is still sufficient uncertainty surrounding the outer limits of section 44(v) for this case to be of real concern to the Turnbull government.</p>
<h2>What happens now?</h2>
<p>If the High Court finds Gillespie is incapable of sitting as an MP under Section 44(v) there would necessarily be a by-election in Lyne. </p>
<p>Given the Turnbull government only has a one-seat majority, the immediate stakes are as high as they could possibly be.</p>
<p>There is also a broader issue worth considering. Gillespie is the third member of the 45th parliament – after <a href="https://theconversation.com/explainer-what-is-the-challenge-to-bob-days-senate-seat-all-about-68046">Day</a> and <a href="https://theconversation.com/high-court-confirms-rod-culleton-is-not-a-senator-so-what-happens-next-72349?sa=pg1&sq=culleton&sr=2">Rod Culleton</a> – to have their constitutional eligibility challenged before the courts. In Day’s case, High Court Justice Stephen Gageler emphasised the importance of certainty in this area, so candidates and MPs know where they stand. </p>
<p>Given recent controversies, it would seem an opportune time to review Section 44 to make sure the disqualification provisions in our Constitution are clear, fair, and reflect voters’ real concerns.</p><img src="https://counter.theconversation.com/content/80671/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a member of the WA Division.</span></em></p>Given the Turnbull government only has a one-seat majority in the lower house, the immediate stakes of the challenge to David Gillespie’s eligibility are as high as they could possibly be.Lorraine Finlay, Lecturer in Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/723492017-02-03T04:09:45Z2017-02-03T04:09:45ZHigh Court confirms Rod Culleton is not a senator – so what happens next?<figure><img src="https://images.theconversation.com/files/155292/original/image-20170202-22569-e9ivn2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Questions have surrounded Rod Culleton’s eligibility to sit in the Senate since before he was even elected. </span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>The High Court on Friday put a decisive end to the debate over the eligibility of Rod Culleton to serve as a senator for Western Australia. It <a href="http://eresources.hcourt.gov.au/showCase/2017/HCA/4">held unanimously</a> that he was incapable of being chosen as a senator under Section 44(ii) of the Constitution.</p>
<p>There have been questions surrounding Culleton’s eligibility <a href="https://theconversation.com/have-western-australians-elected-an-ineligible-one-nation-senate-candidate-62266">since before he was even elected</a>. This culminated last November, when the Senate referred the question of his eligibility <a href="https://theconversation.com/explainer-why-has-rod-culleton-been-disqualified-from-the-senate-70133">to the High Court</a>, sitting as the Court of Disputed Returns. </p>
<p>Throughout all of these legal controversies Culleton has continued to insist he <a href="http://www.smh.com.au/wa-news/fallen-one-nation-politician-rod-culleton-insists-im-still-senator-20170130-gu1x95.html">remains a validly elected senator</a>.</p>
<h2>What was the court asked to decide?</h2>
<p>The Court of Disputed Returns was asked to consider the constitutional impact of Culleton’s earlier conviction in New South Wales for larceny. </p>
<p>Culleton was convicted in March 2016. However, this conviction was subsequently appealed <a href="http://www.abc.net.au/news/2016-08-08/one-nation-senator-rod-culleton-conviction-annulled/7699622">and annulled</a> – after he had been elected to the Senate. While he later pleaded guilty to the same charge, no conviction <a href="http://www.abc.net.au/news/2016-10-25/one-nation-senator-rod-culleton-pleads-guilty-to-larceny/7963148">was ultimately recorded</a>.</p>
<p>The potential constitutional impact of this conviction stems from <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/%7E/link.aspx?_id=074367F0015D42C2B005207F5642376A&_z=z%20-%20chapter-01_part-04_44">Section 44(ii)</a>. This states a person is incapable of being chosen as a senator if they have:</p>
<blockquote>
<p>… been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a state by imprisonment for one year or longer. </p>
</blockquote>
<p>Although Culleton wasn’t actually sentenced to imprisonment, the charge itself attracts a maximum penalty greater than imprisonment for one year. This is enough to have potentially rendered him ineligible under Section 44(ii) at the time of the election in 2016.</p>
<p>The question before the Court of Disputed Returns was therefore a narrow one. Did Section 44(ii) disqualify somebody who is caught by the provision at the time of being elected, but whose conviction is subsequently annulled? </p>
<p>In essence, Culleton’s parliamentary career turned on the meaning of the word “annulment”.</p>
<h2>What did the court decide?</h2>
<p>The court held that Culleton was disqualified under Section 44(ii) at the date of the 2016 election, both as a matter of fact and as a matter of law. It unanimously held that the subsequent annulment of this conviction did not change that conclusion. </p>
<p>As a result, the court declared there is a vacancy in WA’s representation in the Senate for the place for which Culleton had been returned.</p>
<p>The court’s key finding was that the annulment on August 8, 2016, was only capable of operating prospectively – meaning the conviction was not avoided in its entirety by the annulment. </p>
<p>The court did note that in some contexts (for example, in family law) an annulment may have retrospective effect, but this depends ultimately on the statutory context in which the term is used. </p>
<p>In this case, the relevant legislation was the NSW <a href="http://www.legislation.nsw.gov.au/inforce/46c580ef-6c14-c5b7-bbec-8d586f2a52d3/2001-120.pdf">Crimes (Appeal and Review) Act</a>. The court held that a conviction annulled under this act is annulled only for the future, and that:</p>
<blockquote>
<p>… these provisions do not purport to operate retroactively to deny legal effect to a conviction from the time that it was recorded. </p>
</blockquote>
<h2>What happens next?</h2>
<p>The most immediate effect of this ruling is that it is now beyond doubt that Culleton is no longer a senator – and, indeed, was never eligible to be elected as a senator in the first place.</p>
<p>This does not spell the end of the legal troubles Culleton faces. He is appealing a bankruptcy order <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca1578">issued by the Federal Court</a> last December, and faces a stealing trial in Perth <a href="http://www.perthnow.com.au/news/western-australia/senator-rod-culleton-to-face-fourday-trial-over-alleged-theft-of-27000-hire-car/news-story/e9bd452b0db87c3a4d6eb690e77a08e5">later this year</a>.</p>
<p>However, following the Court of Disputed Returns’ ruling, none of these legal issues will have any further bearing on the question of whether he is able to continue as a senator. The decision on that point was decisive and final. </p>
<p>Senate President Stephen Parry has <a href="http://australianpolitics.com/2017/01/11/culleton-disqualified-from-senate.html">previously advised</a> the WA government that while there was a vacancy in the state’s representation, it would be necessary to wait for the Court of Disputed Returns’ decision before it became apparent how the vacancy should actually be filled. </p>
<p>The court has now made that clear. It has held that the vacancy should be filled by a special count of the ballot papers. The court specifically noted that it is not necessary to order a new poll, either for the vacant position itself or for all 12 of WA’s Senate positions.</p>
<p>Essentially, this means a recount of the WA Senate ballot papers from the 2016 election will occur. This means the group ticket votes received by Pauline Hanson’s One Nation that were initially allocated to Culleton will be transferred instead to the party’s second candidate, <a href="http://results.aec.gov.au/20499/Website/SenateStateFirstPrefs-20499-WA.htm">Culleton’s brother-in-law Peter Georgiou</a>. </p>
<p>The court expressly noted in its judgment that this recount process “would not distort the true legal intent of the voters”, given that 96.04% of the votes Culleton received were actually above-the-line votes for One Nation.</p>
<p>Therefore, the almost-certain outcome of the recount that has been ordered is that Georgiou will be declared elected as the new WA senator. Pauline Hanson has <a href="https://twitter.com/PaulineHansonOz/status/827304719852793856">already suggested</a> that Georgiou will take his seat as part of her One Nation team.</p>
<p>This means that, after all of the legal controversies of the past year, we have ended up in essentially the same position – the Senate will include a One Nation senator from WA. The only difference is that it won’t be Rod Culleton.</p><img src="https://counter.theconversation.com/content/72349/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a member of the WA Division and a candidate for the South Metropolitan Region at the upcoming WA State Election.</span></em></p>After all of the legal controversies of the past year we have ended up in essentially the same position – the Senate will include a One Nation senator from Western Australia, but not Rod Culleton.Lorraine Finlay, Lecturer in Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/701332017-01-11T23:47:31Z2017-01-11T23:47:31ZExplainer: why has Rod Culleton been disqualified from the Senate?<figure><img src="https://images.theconversation.com/files/149738/original/image-20161212-26048-vaa7td.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rod Culleton's Senate seat has been declared vacant following formal notification of his bankruptcy.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The ongoing legal controversies surrounding Western Australian senator Rod Culleton – <a href="http://media.wix.com/ugd/1f511f_cc01bc6ac0a14bf28aa5a3ad9d463606.pdf">described by</a> a Federal Court judge as “something approaching a carnival, if not a circus” – took a new turn on Wednesday. Senate President Stephen Parry made the constitutional step of notifying the WA government of a Senate vacancy due to Culleton’s disqualification following a <a href="https://theconversation.com/second-crossbencher-to-be-referred-to-the-high-court-68074">long saga</a> over his eligibility to sit in the upper house.</p>
<p>Culleton’s disqualification comes after Parry received formal notification of Culleton’s status <a href="http://australianpolitics.com/2017/01/11/culleton-disqualified-from-senate.html">as an undischarged bankrupt</a>. </p>
<p>Even before the 2016 election results were formally declared, questions were being asked over whether Culleton was <a href="https://theconversation.com/have-western-australians-elected-an-ineligible-one-nation-senate-candidate-62266">actually eligible to be a senator</a>. Since that time, two key constitutional issues have emerged.</p>
<h2>The Court of Disputed Returns</h2>
<p>The first issue relates to a larceny charge in New South Wales concerning a A$7.50 tow truck key. Culleton was convicted in March 2016. However, the conviction was <a href="http://www.abc.net.au/news/2016-08-08/one-nation-senator-rod-culleton-conviction-annulled/7699622">annulled in August</a>, meaning it <a href="http://www.legislation.nsw.gov.au/#/view/act/2001/120/part2/sec10">“ceases to have effect”</a>. </p>
<p>While Culleton later pleaded guilty at a rehearing in October, no conviction was <a href="http://www.abc.net.au/news/2016-10-25/one-nation-senator-rod-culleton-pleads-guilty-to-larceny/7963148">ultimately recorded</a>.</p>
<p>In November, the <a href="https://theconversation.com/hanson-backs-sending-her-senator-to-the-high-court-68352">Senate referred</a> this conviction’s constitutional impact to the High Court, sitting as the Court of Disputed Returns. The issue is whether Culleton’s election was valid under <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/%7E/link.aspx?_id=074367F0015D42C2B005207F5642376A&_z=z#chapter-01_part-04_44">Section 44(ii) of the Constitution</a>, which provides a person is incapable of being a senator if they have:</p>
<blockquote>
<p>… been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a state by imprisonment for one year or longer. </p>
</blockquote>
<p>The larceny conviction falls squarely within this section’s scope. The critical question is whether Culleton had actually been convicted at the time of his election (and was therefore ineligible), given this was subsequently annulled. </p>
<p>The central issue concerns the word “annulment”. If the Court of Disputed Returns holds that the conviction never existed then this issue falls away. If, however, the effect of an annulment is not retrospective then Culleton was never eligible to be elected. </p>
<p>At the conclusion of hearings on December 7 the court reserved its decision. It is not scheduled to sit again until January 30. </p>
<p>There is no guarantee that a decision will be handed down at the next sittings, or before the Senate <a href="http://www.aph.gov.au/About_Parliament/Sitting_Calendar">next meets on February 7</a>. However, the court has previously recognised the public interest in this matter being <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCATrans/2016/289.html?stem=0&synonyms=0&query=culleton">resolved expeditiously</a>.</p>
<h2>Culleton’s bankruptcy proceedings</h2>
<p>The second issue concerns bankruptcy proceedings filed against Culleton. </p>
<p>On December 23, 2016, a Federal Court judge <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca1578">ordered that</a> Culleton’s estate be sequestrated (or seized to pay his debts). All proceedings under the order were stayed for 21 days; this stay was due to be lifted on January 13.</p>
<p>Culleton <a href="https://www.facebook.com/RodCulleton/photos/a.476298519246376.1073741828.467093450166883/577800532429507/?type=3&theater">continues to assert</a> he is not bankrupt, and is able to pay his debts. However, the Federal Court judge dismissed this. He noted that, despite assertions made before the court, there was <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca1578">“no material evidence”</a> produced to support these claims. An appeal against the sequestration order was <a href="https://www.comcourts.gov.au/file/Federal/P/WAD2/2017/actions">filed on January 11</a>, but no date has yet been set for the appeal hearing.</p>
<p>The effect of a sequestration order is that the debtor becomes a bankrupt. In Culleton’s case, this then enlivens <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/%7E/link.aspx?_id=074367F0015D42C2B005207F5642376A&_z=z#chapter-01_part-04_44">sections 44 and 45 of the Constitution</a>. These provide that an undischarged bankrupt is incapable of sitting as a senator, and their Senate position becomes vacant. </p>
<p><a href="http://australianpolitics.com/2017/01/11/culleton-disqualified-from-senate.html">Parry’s statement</a> indicated he has received from the inspector-general in bankruptcy and the Federal Court registry documents recording Culleton’s status as an undischarged bankrupt. The necessary constitutional implication is that Culleton’s Senate position is vacant.</p>
<h2>What happens next?</h2>
<p>This saga still has some way to go before its conclusion. But it is almost certain that Culleton will not be able to continue as a senator. </p>
<p>Even if he successfully appeals the sequestration order and the Court of Disputed Returns rules in his favour, Culleton still faces further constitutional hurdles. Another creditor’s petition is yet to be heard <a href="https://www.comcourts.gov.au/file/Federal/P/WAD591/2016/actions">by the Federal Court</a>, and a stealing charge is <a href="http://www.perthnow.com.au/news/western-australia/senator-rod-culleton-to-face-fourday-trial-over-alleged-theft-of-27000-hire-car/news-story/e9bd452b0db87c3a4d6eb690e77a08e5">listed for trial</a> in Perth in September 2017. These could each result in Culleton being constitutionally precluded from sitting as a senator.</p>
<p>From a constitutional perspective, however, it is critical that the correct grounds for disqualification are established. This will affect how a replacement senator is chosen. </p>
<p>If the Court of Disputed Returns rules that Culleton was never eligible to be elected, then – <a href="http://eresources.hcourt.gov.au/showbyHandle/1/233245">based on precedent</a> – the most-likely outcome is that the second-listed One Nation candidate from the 2016 election will be declared elected. This happens to be Culleton’s brother-in-law, <a href="http://results.aec.gov.au/20499/Website/SenateStateFirstPrefs-20499-WA.htm">Peter Georgiou</a>. </p>
<p>If, however, Culleton was initially eligible but is subsequently disqualified as an undischarged bankrupt, then a casual vacancy would arise to be dealt with under <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter1/Part_II_-_The_Senate">Section 15 of the Constitution</a>. In this case, One Nation would recommend a party member to fill the vacancy, and the WA parliament would formally appoint this replacement. </p>
<p>If the WA parliament is not in session – which is a distinct possibility given a state election will be held on March 11 – then the WA governor will make the appointment, which must then be confirmed at the next state parliamentary sittings. One Nation leader <a href="https://mobile.twitter.com/PaulineHansonOz?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor">Pauline Hanson</a> has already tweeted that she has selected a “great person” as a replacement if a casual vacancy is declared. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"819099335199571969"}"></div></p>
<p>Given these possibilities, it would be prudent to wait until both the existing bankruptcy appeal and the Court of Disputed Returns’ decision are finalised before taking any steps to fill the vacancy. This is far from ideal given both the close numbers in the Senate and that WA will be under-represented in the “states’ house” for as long as the position remains unfilled. </p>
<p>However, the removal of a senator who was duly elected by the people only six months ago is not something to be done lightly. And it is certainly not something to be done on anything other than conclusively determined constitutional grounds.</p><img src="https://counter.theconversation.com/content/70133/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a member of the WA Division and a candidate for the South Metropolitan Region at the upcoming WA State Election.</span></em></p>The Rod Culleton saga still has some way to go before its conclusion. But it is almost certain that he will not be able to continue as a senator.Lorraine Finlay, Lecturer in Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/694052016-11-25T00:52:14Z2016-11-25T00:52:14ZVIDEO: Michelle Grattan on One Nation’s troubles<figure>
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</figure>
<p>Tensions between Pauline Hanson and her beleaguered One Nation senator Rod Culleton have been on open display this week, raising the question of whether the party will be able to hold it all together. </p>
<p>Michelle Grattan tells University of Canberra vice-chancellor Deep Saini that it’s going to be quite hard for Hanson to keep her senators well disciplined.</p>
<p>“At the same time it’s obvious that both sides of politics are now really fearing Pauline Hanson’s electoral power. We heard George Brandis caught on an open mic telling the Victorian Liberal president that One Nation really was going to be quite significant at the next state election [in Queensland] and I think that both sides of politics feel that,” Grattan says. </p>
<p>“You have this paradox in a sense – rising importance of One Nation electorally but difficulties in keeping the show together in Canberra, in the Senate, where of course it’s also powerful.”</p><img src="https://counter.theconversation.com/content/69405/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Tensions between Pauline Hanson and her beleaguered One Nation senator Rod Culleton have been on open display this week, raising the question of whether the party will be able to hold it all together.Michelle Grattan, Professorial Fellow, University of CanberraPaddy Nixon, Vice-Chancellor and President, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/693092016-11-23T11:49:20Z2016-11-23T11:49:20ZOne Nation chaos causes government to lose departure tax vote<p>When microparties that include politicians we might charitably call “characters” suddenly get clout, things are likely to go badly.</p>
<p>This week’s dispute between One Nation senator Rod Culleton and his leader carries overtones of the past which would be alarming for the newly empowered Pauline Hanson.</p>
<p>The public squabbling, with Hanson trying to assert her authority and Culleton his independence, brought to mind both the experience of the Palmer United Party and the splintering of One Nation after it won 11 seats at the 1998 Queensland election.</p>
<p>Hanson’s immediate issue with the free-wheeling Culleton was his writing to a Queensland magistrate seeking to have a court case adjourned.</p>
<p>“We are watching with interest the conduct of all judicial officers Australia-wide after discovering the High Court has not been conducting its business in the name of the Queen,” he wrote. “As a safeguard against a possible injustice, could I respectfully ask that you adjourn the matter until the constitutional position of all courts is clarified.”</p>
<p>The Queensland government has asked police to investigate whether this could amount to an attempt to pervert the course of justice.</p>
<p>Culleton’s non-attendance at her office when summoned for a please explain led Hanson to issue a blunt call to heel. “Rod, excuse me, I’m party leader, I expect you to come to my office, right. And, you know, it’s about being a team player,” she said.</p>
<p>But Rod is not a “team player”, and won’t become one.</p>
<p>Finally, after farcical scenes that were candy for the cameras, he and Hanson met early Wednesday afternoon. But soon after he was on Sky saying they’d talked about why she as party leader had allowed him “to go up the cattle race” – a reference to her backing the Senate’s referring to the High Court the question of his eligibility to be elected in July.</p>
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<p>Culleton said he would now go to party leaders in the Senate to try to have this referral revoked and the matter reconsidered by the Senate. Good luck with that.</p>
<p>One Nation in the Senate is less a team and more a loose collection of individuals.</p>
<p>The party is, however, now a powerful political force, and one that both sides of politics fear into the future.</p>
<p>In his frank comments last weekend – when he <a href="https://theconversation.com/brandis-says-queensland-liberal-national-party-merger-could-be-revisited-69149">didn’t realise the mic was on</a> – Attorney-General George Brandis confided to Victorian Liberal Party president Michael Kroger his view that One Nation was likely to win “quite a few seats” in the Queensland election, due in 2018.</p>
<p>Brandis noted that One Nation’s Queensland vote had spiked to about 16%, with its strength in heartland areas of both Nationals and ALP.</p>
<p>Former Queensland Liberal National Party premier Campbell Newman argues One Nation’s vote is understated, and predicts it will win six to 11 state seats and be in a balance-of-power position.</p>
<p>More immediately, attention will be focused on One Nation’s performance at the election early next year in Culleton’s home state of Western Australia.</p>
<p>A poll commissioned by the Chamber of Minerals and Energy of Western Australia <a href="http://www.abc.net.au/news/2016-11-23/national-party-faces-existential-threat-from-one-nation-polling/8049538">has One Nation on 16%</a> in the Pilbara electorate of Nationals leader Brendon Grylls, who has alienated the mining industry with a proposed tax slug on Rio Tinto and BHP Billiton.</p>
<p>It’s unclear how the Culleton affair will play into the party’s standing in WA.</p>
<p>In general, the times suit One Nation. It can tap into the cynicism and discontent in a sour electorate, and capitalise on the stress being felt by many people in regional areas. It has been given a boost by Trumpism.</p>
<p>Having four senators – which means that when the government needs the non-Green crossbench One Nation has to be a key player – delivers substantial clout to Hanson, who is also politically savvier than when she was in the House of Representatives two decades ago.</p>
<p>But she has to be able to keep her bloc together. Clive Palmer’s PUP – which began the last parliamentary term with three senators and an alliance with a fourth – started out with the ability to make or break government measures and extract concessions.</p>
<p>As senators peeled off, PUP’s influence disintegrated. The senators operated as individuals; by the end of the term there was a single PUP in the Senate (Palmer himself was in the House of Representatives).</p>
<p>Having been the “big new thing” of the 2013 election, PUP was a nothing at the 2016 poll.</p>
<p>Hanson’s One Nation was the biggest new thing of the last election, bigger in the Senate than the Nick Xenophon Team, which won three Senate spots.</p>
<p>To retain her momentum Hanson needs the internal glue to stick. If her Senate team fell apart, her ability to run strongly in the Queensland election would come into question.</p>
<p>From the Coalition’s viewpoint, long- and short-term interests potentially collide. Any splintering of the Hanson Senate group would, by weakening the party, be electorally beneficial to both sides of politics. On the other hand, in the Senate the government finds dealing with blocs less complicated than negotiating with individuals.</p>
<p>The Hanson bloc has mainly buttressed the government – but on Wednesday things fell apart. The government’s planned A$5 rise in the departure tax – part of its backpacker compromise package – was defeated 31-30 when it received only two of the four One Nation votes.</p>
<p>The result was a surprise to government and opposition – both had thought the Coalition had the numbers. But Hanson and her NSW senator Brian Burston were missing.</p>
<p>The government said the vote would have been carried if the two senators had made it to the chamber on time and so it would seek to have the tax hike brought back for another vote on Thursday morning.</p>
<p>For Hanson, the missed vote capped a very bad day at the office.</p>
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When micro parties that include politicians we might charitably call “characters” suddenly get clout, things are likely to go badly.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/682322016-11-04T03:26:30Z2016-11-04T03:26:30ZVIDEO: Michelle Grattan on the Senate crossbench<figure>
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<p>The departure of up to two crossbench senators and the uncertainty over who might replace them has provided the government with fresh obstacles in their efforts to pass legislation. </p>
<p>Michelle Grattan and University of Canberra deputy vice-chancellor (education) Nick Klomp discuss how Bob Day’s resignation and the legal problems confronting One Nation’s Rod Culleton will impact the numbers in the Senate. </p>
<p>“It means that we have one less senator because Bob Day is gone. It’s not clear whether the One Nation senator is going to vote on bills - or not vote on bills. He’s given signals both ways and there’s also the complication that the government is clearly having a lot of trouble with its negotiations on the industrial legislation which it’s particularly anxious to get through,” Grattan says.</p><img src="https://counter.theconversation.com/content/68232/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The departure of up to two crossbench senators and the uncertainty over who might replace them is giving the government fresh obstacles in their efforts to pass legislation.Michelle Grattan, Professorial Fellow, University of CanberraNicholas Klomp, Deputy Vice-Chancellor, Education, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/681872016-11-03T12:28:42Z2016-11-03T12:28:42ZGrattan on Friday: Industrial bills test Turnbull’s negotiating skills – and backbone<p>Malcolm Turnbull laughs off the suggestion that this week’s extraordinary developments mean the Senate is in chaos. Okay, let’s humour the Prime Minister. The upper house looks a teeny bit messy and the future composition of the crossbench a tad uncertain, right?</p>
<p>To strip this down to its essentials – here’s the situation.</p>
<p>Family First’s Bob Day, from South Australia, is gone, exiting amid the financial disaster of his business, which turned out not to be his only problem.</p>
<p>Depending on how the High Court rules on whether he was eligible to be elected on July 2, his party could get to choose Day’s successor (then likely be Rikki Lambert, Day’s former staffer, or Robert Brokenshire, a SA MP); the second candidate on the Family First ticket (Lucy Gichuhi) could be installed; or the seat could go to Labor.</p>
<p>The first scenario is if Day wins the case; the latter two are if he is found to have been ineligible. ABC electoral analyst Antony Green predicts the most likely outcome is the elevation of Gichuhi, a Kenyan-born lawyer.</p>
<p>If One Nation’s West Australian senator Rod Culleton doesn’t survive the judgement the High Court will make on his eligibility, his place will go on the recount to the next candidate on the party’s ticket, Peter Georgiou, who is Culleton’s brother-in-law, neatly keeping the seat in the family.</p>
<p>When the Senate resumes on Monday, Family First will have no one there. To pass bills opposed by Labor and the Greens the government will need eight of ten crossbenchers, where previously it required nine of 11.</p>
<p>The government is putting to the Senate next week its legislation for the same-sex marriage plebiscite, destined to go down. But unless it has a change of heart, the industrial bills – to restore the Australian Building and Construction Commission and toughen union governance – would be waiting until the final sitting fortnight, starting November 21. That is, if they are to be considered this year.</p>
<p>Turnbull on Thursday left up in the air whether the bills would come to a vote before the parliament gets up for the summer recess. “It will depend on our discussions with the crossbench. The reality is, as John Howard always said, politics is governed by the iron law of arithmetic,” he said.</p>
<p>The government would present the industrial legislation “when we believe there is a majority that will support it and on terms that we will accept”, he said. “It is important that we commit to a vote that we can win in the Senate.”</p>
<p>There is another important consideration in politics and that’s demonstrating leadership and resoluteness. The government made these bills triggers for a double dissolution. It has previously been very hopeful of getting them through. Turnbull’s own credibility surely requires that the bills go to a Senate vote before Christmas, whatever the outcome.</p>
<p>At worst the government suffers a defeat, which admittedly would be a blow for Turnbull. But at least he would be making a gesture on the legislation he argued is so critical.</p>
<p>As double dissolution bills, they are eligible to go to a joint sitting, but the government believes they would fare worse there than in the Senate.</p>
<p>Turnbull desperately needs some policy achievements by year’s end, and these bills are the obvious candidates. If they are pushed to a vote, this would concentrate the minds of the crossbenchers, who otherwise might just procrastinate endlessly.</p>
<p>The prospect of success is not likely to be much improved by delay and there is the outside risk that, if things turn out badly for the government, the ALP might pick up an extra number in the Day replacement.</p>
<p>The negotiations underway on the bills will be watched closely after the revelation of the horse trading on migration legislation that Abbott government ministers did with Liberal Democrat David Leyonhjelm, giving him a sunset clause on the Adler import ban (which the government later got around, to Leyonhjelm’s anger).</p>
<p>The government has made it clear it is willing to be flexible on amendments. It knows that is its only chance.</p>
<p>As matters stand on the ABCC legislation, which is the more difficult part of the industrial relations package to get through, One Nation is mostly on side, although there is confusion about whether and how Culleton (who has been critical) would vote. At the other end of the spectrum, Tasmanian independent Jacqui Lambert won’t support it.</p>
<p>Nick Xenophon has a plethora or amendments. Leyonhjelm, still smarting over his “dudding” on the Adler, had discussions with Turnbull on Thursday. “I could go either way at the moment,” he said afterwards. He is looking for a trade off on some other issue on his economic or social agenda. Derryn Hinch, who has concerns, will have amendments and demands.</p>
<p>Labor is also busy lobbying the crossbenchers, trying to prevent them being swayed.</p>
<p>Turnbull on Thursday was again attacking the Construction, Forestry, Mining and Energy Union, describing it as “a union whose lawlessness is one of the great scandals, one of the great handbrakes on economic development around Australia”. If, after all the talk, he didn’t stand up and let the numbers be counted on these bills by year’s end, it would surely be seen as a lack of backbone.</p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Malcolm Turnbull laughs off the suggestion that this week’s extraordinary developments mean the Senate is in chaos. Okay, let’s humour the Prime Minister.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.