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Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 12. Not sufficient that voting "may be affected" 37 More loosely, the plaintiffs contended that it was sufficient that voting "may be affected" by release of the TCP Information before the close of polls nationally to render the publication invalid. Not only was there no factual foundation for such a contention36, but the parties agreed that other sources of information have the capacity to affect the electoral choices of voters, including the progressive first preference counts for candidates released by the Commission and scrutineers; the results of opinion polls published in close proximity to the election; other media reporting on the election, including reporting of the results of exit polls; the presence of party officials and/or candidates near polling booths; the offer of, and prevalence of, "how to vote" cards at polling booths; and the number of parties and candidates listed on the ballot for Senate elections in that State or Territory, and the order in which those parties and candidates are listed on the ballot paper. How, if at all, publication of the TCP Information about one Division might interact with these matters, which it was agreed may affect choices of voters in another Division, was not explained. Selection of TCP Candidates not inaccurate or misleading 38 The plaintiffs also sought to rely on the idea that the selection of candidates for the Indicative TCP Count was inaccurate or misleading. Again, there was no factual foundation for that contention. 39 The process adopted by the Commission has been addressed. It is a predictive exercise and the identification of the TCP Candidates is generally accurate. Indeed, the matter proceeded on agreed facts that in relation to the Commission's identification of the TCP Candidates in the two preceding federal elections, only two Divisions in the 2013 election, and none in the 2016 election, did not include the eventual winner. Moreover, it must be recalled that any imprecision in the identification of the TCP Candidates is addressed by masking the matched polling place projection and the results of the Indicative TCP Count from public view on the Tally Room when it appears that one or both of the TCP Candidates in a Division should no longer be included. And after the polls have closed in that Division and the TCP Candidates are announced, that masking can occur at any time. 36 See [31]-[36] above.

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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
English
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Election Judgments - IFES

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Palmer v. Australian Electoral Commission (AEC)

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