Tags Posts tagged with "Senate"


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Lorraine Finlay, Murdoch University

The ongoing legal controversies surrounding Western Australian senator Rod Culleton – described by 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 long saga over his eligibility to sit in the upper house.

Culleton’s disqualification comes after Parry received formal notification of Culleton’s status as an undischarged bankrupt.

Even before the 2016 election results were formally declared, questions were being asked over whether Culleton was actually eligible to be a senator. Since that time, two key constitutional issues have emerged.

The Court of Disputed Returns

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 annulled in August, meaning it “ceases to have effect”.

While Culleton later pleaded guilty at a rehearing in October, no conviction was ultimately recorded.

In November, the Senate referred 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 Section 44(ii) of the Constitution, which provides a person is incapable of being a senator if they have:

… 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.

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.

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.

At the conclusion of hearings on December 7 the court reserved its decision. It is not scheduled to sit again until January 30.

There is no guarantee that a decision will be handed down at the next sittings, or before the Senate next meets on February 7. However, the court has previously recognised the public interest in this matter being resolved expeditiously.

Culleton’s bankruptcy proceedings

The second issue concerns bankruptcy proceedings filed against Culleton.

On December 23, 2016, a Federal Court judge ordered that 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.

Culleton continues to assert 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 “no material evidence” produced to support these claims. An appeal against the sequestration order was filed on January 11, but no date has yet been set for the appeal hearing.

The effect of a sequestration order is that the debtor becomes a bankrupt. In Culleton’s case, this then enlivens sections 44 and 45 of the Constitution. These provide that an undischarged bankrupt is incapable of sitting as a senator, and their Senate position becomes vacant.

Parry’s statement 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.

What happens next?

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.

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 by the Federal Court, and a stealing charge is listed for trial in Perth in September 2017. These could each result in Culleton being constitutionally precluded from sitting as a senator.

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.

If the Court of Disputed Returns rules that Culleton was never eligible to be elected, then – based on precedent – 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, Peter Georgiou.

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 Section 15 of the Constitution. In this case, One Nation would recommend a party member to fill the vacancy, and the WA parliament would formally appoint this replacement.

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 Pauline Hanson has already tweeted that she has selected a “great person” as a replacement if a casual vacancy is declared.

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.

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.

The Conversation

Lorraine Finlay, Lecturer in Law, Murdoch University

This article was originally published on The Conversation. Read the original article.

Disclosure statement: 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.

Photo: https://commons.wikimedia.org/wiki/User:JJ_Harrison

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Jennifer Victor, George Mason University

While the world was focused on Clinton versus Trump, the balance of power in the Senate was decided. While not all the races are decided at this hour, it is clear that the Republicans will maintain a majority of the U.S. Senate.

The Democrats needed to swing five seats in their favor in order to take the majority of seats (or pick up four seats, with a Democratic White House win where the vice president acts as a tie breaker). The pre-election analysis made six states appear poised to possibly flip from Republican to Democratic: Illinois, Wisconsin, Indiana, North Carolina, Pennsylvania and New Hampshire. These races were tight and had the power to change the majority party in the chamber.

Here’s how it played out.

How the critical states fared

Illinois Republican incumbent Mark Kirk ran into trouble running against a robust Democratic challenger, Rep. Tammy Duckworth. Duckworth has already created a national image for herself as a fiery double-amputee war veteran. Then a comment Kirk made at a recent debate was received as insensitive and racist. Duckworth winning this state was a pickup for Democrats.

One of the more interesting results of the night came from Wisconsin. In 2010 Republican challenger Ron Johnson defeated Democratic incumbent Russ Feingold. Feingold ran against Johnson this year to try to win back his old seat, and his support looked relatively strong throughout the season. In the end, the Republican incumbent held the seat, perhaps because Republicans rallied for Trump in ways that were not fully detected by the polls.

In Indiana, former Republican Senator and Governor Evan Bayh ran as a Democrat in a tight race and lost to Republican Todd Young. Bayh ran somewhat ahead for much of the race, but the trajectory was not in his favor. In the end, Indiana stays in the Republican column.

North Carolina hosted a narrow race between Republican incumbent Richard Burr and Democratic challenger Deborah Ross, who has served as a state assembly representative. The race had narrowed in recent weeks, but stayed stayed within a margin of error. North Carolina stays red.

Pennsylvania saw Republican incumbent Pat Toomey challenged by Democrat Katie McGlinty. The race was close with McGlinty projected to win. McGlinty was one of the Democrats’ bright hopes this season, against a strongly conservative and fiscal hawk incumbent. Senator Toomey retaining his seat is a part of unpredicted Trump support in Pennsylvania and elsewhere.

The Senate election in New Hampshire was too close to call as of this writing. Republican incumbent Kelly Ayotte and her challenger, Gov. Maggie Hassan, were practically tied the entire election season. Democrats were optimistic about picking up this seat.

Does Senate majority matter?

The Republicans will keep the majority in the Senate, but it will be a narrow majority.

Having a majority matters because the party with the most seats gets the chair of every committee and subcommittee in the chamber, and the majority of seats on every committee and subcommittee. The majority leader gets to set the chamber’s agenda, which means controlling which legislation comes to the floor and when. Assuming Republicans control of the House, Senate and White House, this may include repeal of Obamacare or strict immigration controls.

But majority status in the Senate is not as important as it is in the House. The norms in the Senate tend more toward deliberation rather than the strong-arming used in the House. For example, the Senate uses procedures like “unanimous consent,” in which all 100 senators must agree about the rules that govern a bill before it comes to the floor. Also, the filibuster means that most bills need 60 votes, a “supermajority,” to come up for a vote on the floor.

Democrats will still hold significant power as the minority party. The minority party in the Senate is significantly more powerful than the minority party in the House, because of what political scientists call “negative agenda control,” or keeping bills you don’t like from passing. As the minority party in the Senate, the Democrats have greater power in the Senate, relative to the House, at preventing legislation to which they are oppose from coming to the floor. Because of that power, majority status means somewhat less in the Senate than it does in the House.

On the other hand, even if neither party has enough votes to “run the table” on any votes in the Senate, the Republican Party has a tremendous advantage now that it controls the Congress and White House. Republicans, for the most part, will not need many Democratic partners to achieve their policy goals.

The Conversation

Jennifer Victor, Associate Professor of Political Science, George Mason University

This article was originally published on The Conversation. Read the original article.