Sitting as the Court of Disputed Returns in Canberra on Friday, the court ruled Culleton was disqualified from standing for election on July 2 because he had been convicted of larceny at the time.
Under the Constitution, any person who has been convicted of an offence punishable by a jail sentence of a year or longer is incapable of being chosen as a senator.
The court ruled his vacancy be filled by a special count of the ballot papers.
The most likely replacement would be the second person on the One Nation ticket, which is Culleton’s brother-in-law Peter Georgiou.
Culleton had been convicted of larceny for taking a tow truck key he claimed was worth $7.50.
But the conviction, made in his absence, was later annulled.
He subsequently pleaded guilty but no conviction was recorded.
Culleton’s lawyers had argued he was still eligible to be elected because he had not been sentenced and was not subject to a term of imprisonment, even once he pleaded guilty.
The court held that Culleton was convicted and subject to be sentenced for an offence punishable by imprisonment for one year or longer.
The subsequent annulment of the conviction had no effect on that, the court ruled.
It said it was evident the framers of the Constitution were concerned to ensure it wasn’t only people who had already been sentenced that would be disqualified.
“So, too, should a person who is able to be so sentenced.”
Since Culleton was incapable of being chosen as a senator, the votes actually cast in favour of the One Nation party of which he was an endorsed candidate should be counted in favour of the next candidate on that list, at least so far as “above the line” votes, the court ruled.
The evidence established that 96.04 per cent of the votes received by Culleton were votes for the One Nation party.
A special count would not distort the true legal intent of the voters.
The former One Nation senator had already been stripped of his West Australian Senate seat, after the Federal Court declared him bankrupt in December.
He’s appealing against that decision, with that judgment due to be handed down on Friday afternoon.
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