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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