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Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 7. divisions" – that is, "swings within divisions tend to be consistent across polling places in a particular electoral division"21. The matched polling place projection is progressively updated as information from the Indicative TCP Count becomes available from each polling place. From approximately 2.00 am AEST the following day, the results of the Indicative TCP Count are displayed on the Tally Room. 22 There are two situations where the Commission adopts a different approach. The first is where one of the identified TCP Candidates for the Division did not contest the previous election or is endorsed by a party which did not endorse a candidate in that Division in the previous election. In that situation, the Tally Room displays the results of the Indicative TCP Count on a progressive basis, rather than a matched polling place projection. 23 The second is where, on election night, it becomes apparent that one or both of the TCP Candidates in a Division should no longer be included in the Indicative TCP Count – for example, because a candidate polling first or second on first preferences was not one of the TCP Candidates identified by the Commission. In that situation, the matched polling place projection and the results of the Indicative TCP Count in that Division are masked from public view on the Tally Room ("TCP Exception") to avoid incorrect consideration of the eventual winner. A TCP Exception does not stop the counting or entry of the results of the Indicative TCP Count. However, because changes to TCP Candidates can only occur from the Sunday after polling day, the TCP Exception remains in place until the new TCP Candidates are recorded in the Election Management System. 24 After the polls close, the Commission also maintains a "real-time" media feed that provides to media organisations and interested third parties the identity of the TCP Candidates in each Division as well as the Indicative TCP Count for each Division, updated by the Commission every 90 seconds on election night. 25 Thus, after the polls close in each Division, the TCP Information is made available in different ways to different people and organisations. The TCP Candidates are identified to scrutineers in a Division, to the public via the Tally Room and to media organisations and interested third parties via the media feed. 21 Australian Electoral Commission, "Election 96: the votes and the count" (1996) 55 Electoral Newsfile 1 at 3.

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Palmer v. Australian Electoral Commission (AEC)

Judgment

Question Presented: Whether the practice of disclosing the indicative two-candidate preferred count (“Indicative TCP”) prior to the closing of all polling sites in the country by the Australian Election Commission (AEC) influenced the voters’ choice and undermined the impartiality or perception of impartiality of the Commission, therefore violating the election law and the Constitution.

Alleged Acts: The plaintiffs allege that the AEC contravened the Electoral Act by illegally disclosing polling count information before all polls across the country had closed, thereby abandoning its impartiality or its appearance of impartiality and seemingly endorsing specific candidates. The plaintiffs also allege that the AEC’s practice of disclosing polling count information before all polls had closed contravenes Sections 7 and 24 of the Constitution and “impermissibly distort[s] the voting system in a manner that would compromise the representative nature of a future Parliament” by improperly influencing voters who had not yet cast their ballots.

Procedural history: Plaintiffs applied for a constitutional or other writ. Multiple hearings occurred before one justice of the High Court in Melbourne. The Attorney-General of the Commonwealth made annotated submissions to the High Court. A hearing occurred before the High Court sitting in plenary in Canberra.

Summary: Plaintiffs were nominated by the United Australia Party (UAP) as candidates for divisions of the Parliament in 2019. Prior to the election, the plaintiffs filed an application for a constitutional writ seeking an order to prevent the AEC from publishing, as per its usual practice, information about an indicative TCP count. Plaintiffs argued that the AEC’s practice of publishing the Indicative TCP count after the polls of each Division of the House of Representatives closed (but before all the polling sites across Australia closed) was in violation of the Electoral Act. They claimed that this practice undermined the AEC’s impartiality or appearance of impartiality and would distort the voting system to the point of undermining the representative nature of Parliament, which is protected by Sections 7 and 24 of the Constitution. The High Court of Australia found for the AEC (as respondent), holding that the plaintiffs did not ground their statutory or constitutional challenges in any factual foundation. According to the High Court, the plaintiffs did not show how an early Indicative TCP count had influenced people who had not yet voted and simply claiming voting “may be affected” was not enough to sway the High Court. Additionally, the High Court held that the AEC’s selection of candidates for the Indicative TCP count did not favor any one candidate and was not inaccurate or misleading. The AEC’s specific process was a “predictive exercise” and “generally accurate” and the act of publishing the results did not constitute an opinion on the part of the AEC or represent its preference for any one candidate. In light of these findings, the High Court ruled in favor of the AEC, holding that the plaintiffs did not provide enough facts to prove that the AEC practice contravened the Constitution.

Conclusion: The High Court dismissed the case.

Legal Issue(s)

Electoral Administration Irregularities
EMB Operation

Applicable Law(s): s 7(3) of the Commonwealth Electoral Act 1918 (Cth) (“the Electoral Act”); s 274(2A)-(2C) of the Commonwealth Electoral Act 1918 (Cth) (“the Electoral Act”); ss 7 and 24 of the Australian Constitution

Region: Asia-Pacific

Country: Australia

Language of Decision

English

Court: Supreme Court

Election Type: Parliamentary

Date of decision: Aug 14, 2019

Geolocation

Latitude: -35.29924283388032

Longitude: 149.107819190348

: Geolocation

Primary Documents

Palmer v. AEC - Full Judgment.pdf
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Election Judgments - IFES

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Palmer v. Australian Electoral Commission (AEC)

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