The Australian Electoral Commission, in declaring candidates for the 2025 Federal general election, states
The Australian Electoral Officer for Western Australia today declared all candidates for the election of Senators for Western Australia in the 2025 federal election in accordance with the Commonwealth Electoral Act 1918.
Mr Rodney Culleton was among those candidates declared. This follows his lodgement of a fully completed nomination form and mandatory qualification checklist, together with the requisite $2,000 fee, before the close of nominations 12 midday on Thursday 10 April 2025. Mr Culleton’s nomination declared that he was not an undischarged bankrupt or insolvent.
The provisions of the Electoral Act do not give the AEC or any AEC officer the power to reject a fully completed candidate nomination, regardless of whether any answer to a question of the qualification checklist is incorrect, false or inadequate (see section 170A, Electoral Act). This means the AEC cannot reject a nomination even if it contains a false declaration as to the eligibility of that person to stand for election.
The AEC notes Mr Culleton is listed on the National Personal Insolvency Index as an undischarged bankrupt. It appears therefore that he may have made a false declaration as part of his nomination process. The AEC has referred this matter to the Australian Federal Police for their consideration.
Under section 44(iii) of the Constitution: “Any person who is an undischarged bankrupt or insolvent, shall be incapable of being chosen or of sitting as a senator or a member of the House of Representative.”
Following Mr Culleton’s nomination as a candidate under the same circumstances at the 2022 federal election, the AEC referred the matter to the Australian Federal Police. A prosecution relating to this matter is ongoing.
Mr Culleton’s name will appear on the WA Senate ballot paper in the 2025 federal election.
If the AEC is presented with compelling evidence that other candidates in the 2025 federal election may have also signed a false declaration we will consider whether similar referrals to the AFP are warranted to ascertain if the candidate has committed an offence.
Editor’s notes: Intending candidates must make themselves aware of the operation of section 44 of the Constitution which includes the following.
The AEC separately notes
s44 Disqualification: “Any person who: (iii) is an undischarged bankrupt or insolvent; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
44 Disqualification
Any person who: is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or is attainted of treason, or has 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; or is an undischarged bankrupt or insolvent; or holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or has 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 twenty‑five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth. ...
Section 44 of the Constitution - grounds for disqualification
A person is disqualified from nominating as a candidate or sitting in the Parliament where the person becomes subject to any of the five conditions listed in this section:
Section 44(i)
Section 44(i) of the Constitution applies to two categories of persons: a person who is “under any acknowledgement of allegiance, obedience or adherence to a foreign power”; and a person who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.” In the 1988 case of Nile v Wood [1988] 140 CLR 133, the Court clarified that the first category of disqualification under section 44(i) captures any “person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgement”.
The second category of disqualification under section 44(i) captures a state of affairs involving the existence of a status or of rights under the law of a foreign power. It applies to persons who have certain rights because of a formal citizenship link with a foreign power, and therefore to any person who holds dual or plural citizenship.
In the 1992 case of Sykes v Cleary [1992] HCA 60, the Court found that candidates are disqualified from election to Parliament if they do not take "all reasonable steps" to renounce their other citizenship before nomination.
In the more recent matters of Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45, Re Gallagher [2018] 17 the Court upheld the approach taken by the majority of Justices in Sykes v Cleary. That is, to give section 44(i) its ordinary and natural meaning, subject only to the implicit qualification in section 44(i) that the foreign law conferring for foreign citizenship must be consistent with the Constitutional purpose of the provision.
The Court has made it clear that whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status. Accordingly, it is essential that candidates rigorously check their ancestry and to obtain their own legal advice on whether they may be a citizen of a foreign power.
The Court has also held that an Australian citizen who is also a citizen of a foreign power will not be prevented from participating in the representative form of government ordained by the Constitution by reason of a foreign law which would render an Australian citizen irremediably incapable of being elected to either house of the Commonwealth Parliament. As is apparent, to rely upon this approach is conditional on both an analysis of the action taken by the intending candidate and the effect of the overseas law. Intending candidates will need to obtain clear legal advice on whether their circumstances are able to fit within this aspect of section 44(i) of the Constitution.
The cases make it clear that if the issue of overseas citizenship is not resolved by the close of candidates’ nominations, then it is likely that the candidate will not be qualified to stand for election due to the operation of section 44 of the Constitution.
Section 44(ii)
Section 44(ii) of the Constitution applies to two categories of persons: a person “attainted by treason”; and a person who “has been convicted and is under sentence or subject to be sentenced”.
The first category of disqualification would probably only apply where the person has been convicted of the offence of “treason” contained in section 80.1 of the Criminal Code Act 1995.
The second category of disqualification is that the person is under sentence or is subject to be sentenced for any offence against the law of the Commonwealth or a State that carries a sentence of 12 months imprisonment or longer. As an example, in the matter of Re Culleton [No. 2] [2017] HCA 4 the Court was asked to consider whether Senator Culleton may have at the time of nomination as a candidate, been “convicted and under sentence or subject to be sentenced for an offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer” contrary to subsection 44(ii) of the Constitution.
The Court held that despite the subsequent annulment of the conviction, at the time of the nomination as a candidate Senator Culleton was to be sentenced for the offence of larceny, a crime involving property theft in NSW. This offence was punishable by imprisonment for a period of up to five years; but where the value of the property involved in the offence does not exceed $5,000, the maximum term of imprisonment that the Local Court may impose is two years. Senator Culleton's offence concerned property of a value less than $2,000. Accordingly, he was liable for imprisonment for a maximum term of two years. Therefore, the Court concluded that he was disqualified under section 44(ii) of the Constitution and his election was invalid, making his place vacant under section 45 of the Constitution. The Court ordered a special recount of Senate ballot papers in Western Australia, the state where Senator Culleton was elected.
Section 44(iii)
Section 44(iii) of the Constitution disqualifies a person if they are “an undischarged bankrupt or insolvent”. While there have been no specific decisions on the scope of section 44(iii), this appears to established by a question of fact as to whether a person has been made a bankrupt and whether the period of bankruptcy has concluded or been discharged.
The Full Federal Court decisions in Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8 contains a brief discussion of section 44(iii) and section 45 of the Constitution.
The AEC notes that the Australian Financial Security Authority (AFSA) is required to maintain the Bankruptcy Register and The National Personal Insolvency Index (NPII) which contain a publicly available and permanent electronic record of all personal insolvency proceedings in Australia.
