The reference of his eligibility to remain in the Senate to the High Court will give Western Australian debtor and One Nation Senator Rod Culleton the opportunity to grandstand on a bizarre, discredited monarchist legal argument peddled by vexatious litigants and conspiracy theorists.

The argument revolves around a claim that the Australia Act 1986 — a set of laws passed jointly by the Commonwealth and the states severing the last remaining legal ties between the UK and Australia — and subsequent changes to the terms used in legislation have somehow voided the authority of all courts that have implemented the changes. It appears Culleton has recently discovered the argument, as he has begun deploying it in his extensive litigation to avoid paying his many creditors, despite it being rejected and ridiculed by state supreme courts and the Federal Court.

The argument first appeared in 2005 in a case by conspiracy theorist Brian Shaw, who devoted a vast legal effort to exposing what he believed was a massive cabal of Freemasons in multiple jurisdictions. In an attempt to have his richly deserved status as a vexatious litigant overturned, Shaw argued that the removal of references to the Crown and the Queen in legislation, replaced by references to “the state”, rendered the entire Western Australian legal system void.

This led to — by jurisprudential standards — some hilarious attacks on Shaw by WA Supreme Court Justice John McKechnie, who began his judgment by saying “these proceedings seemed to be characterised by zelotypia, a condition that often afflicts litigants pro se.” Noting that Shaw had made virtually exactly the same pleadings to the previous judge as he had to the appeal court, McKechnie noted “the only relevant difference between this application and the matters argued before the Commissioner is that Braddock C now appears, in the applicant’s eyes, to have embraced the dark side of the force”. Dismissing Shaw’s appeal, the judge observed that the case was “a blend of a little but dangerous and ill-informed legal knowledge, coupled with an unreasoning irrationality bordering on obsession in relation to Freemasonry. Added to the blend is a belief that somehow the alteration of the form of an oath from requiring allegiance to the Queen to requiring allegiance to the State by the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 somehow effected a cataclysmic constitutional upheaval. It did not.”

Next to run the same argument was Geraldton figure Wayne Glew, who objected to paying council rates. In more sober terms, another WA Supreme Court judge ruled “a change in terminology does not necessarily amount to a change in the substantive realities underlying the Constitution and the exercise of governmental powers. The consequence is that s 73(2)(g) of the Constitution Act concerning a referendum does not apply to the AARCLP Act because the latter did not, in a substantive manner, alter the constitutional structure of the State.” Glew eventually tried to appeal to the High Court, only to be told his claim was “entirely lacking in legal merit”.

Culleton appeared to have only read the Shaw and Glew pleadings, rather than the judgment, when just four weeks ago, he tried the same stunt in the Federal Court. Culleton tried to forestall a successful court action against him by his creditor Richard Lester in the WA Supreme Court via a Federal Court injunction by arguing “judges in the courts in Western Australia have not since 2005 been taking an Oath of Allegiance to Her Majesty Elizabeth the Second and as such their judgments, sentences of imprisonment, possession orders in favour of mortgagees, and allegations of contempt of court are at least voidable, if not void”. Culleton also threw in something about a UN treaty, but we’ll stick with the one conspiracy theory for the moment.

Federal Court Justice Neil McKerracher knocked him back, pointing out “Culleton may not be aware that this issue has been raised before in the Supreme Court of Western Australia and, in particular, a number of attempts have been made to advance the same argument and the contention has been rejected as being unarguable or dismissed with even stronger criticism” and yet again pointed out “the legislation changes the terminology only, not the constitutional reality”.

By that stage, Culleton had already flagged he wanted to apply the same conspiracy theory to the High Court. His first question as a senator in September was on this issue, claiming the High Court had been acting illegally by not issuing writs in the name of the Queen. Eager to cultivate One Nation, who are crucial to the government’s chances of passing legislation, Attorney-General George Brandis lauded Culleton’s legal acuity when the High Court registry made a pro forma commitment to provide advice. “It is very, very unusual, if not unprecedented, for a senator’s question to find its way onto the agenda of the Rules Committee of the High Court of Australia,” Brandis said. “And I am sure it is utterly unprecedented for a senator’s inaugural question to do so. Thank you, Senator Culleton.”

Culleton has said he intends to represent himself before the High Court on the matter of his eligibility. The High Court may prove less inclined to lavish praise on Culleton than the Attorney-General.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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