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Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 2. Parliament" contrary to the constitutional mandate for direct and popular choice in ss 7 and 24 of the Constitution. 4 The plaintiffs' application for a constitutional or other writ, which was referred to a Full Court for hearing, proceeded on a statement of agreed facts. The defendants − the Commission, the Electoral Commissioner and the Australian Electoral Officers for each State, the Northern Territory and the Australian Capital Territory − filed submitting appearances. The Attorney-General of the Commonwealth intervened and made written and oral submissions. 5 At the conclusion of the hearing before the Full Court on 7 May 2019, the plaintiffs' application was dismissed with reasons to be published at a later date. These are our reasons for joining in that order. 6 Publication of the TCP Information relating to a Division after the polls in that Division had closed, but before the polls had closed elsewhere in the nation, is authorised by s 7(3) of the Electoral Act. The factual foundation for the plaintiffs' statutory challenge was not established – for example, it was not shown that publication suggested "imprimatur" or appeared to favour one or more of the candidates. Moreover, there was no factual foundation for the contention that the publication of the TCP Information after the polls in a Division had closed, but before the polls had closed elsewhere in the nation, had any effect on the requirement for direct and popular choice in ss 7 and 24 of the Constitution. 7 There were three central difficulties with the plaintiffs' case: first, there were no facts showing that publication of the TCP Information had any effect on the electoral choices of voters in Divisions where the polls had not closed; second, the plaintiffs did not say that the Commission could not publish the results of the counting of the first preference votes after the polls had closed, even if other polls across the nation remained open; and, third, the Indicative TCP Count was based on votes cast and was a prediction of the candidate most likely to be elected – not an expression of any opinion by the Commission about whether that prediction pointed to a desirable or undesirable outcome. The Constitution and the Electoral Act 8 Subject to the express and implied limitations with respect to federal elections, it is the Constitution that provides Parliament with the power, and responsibility, for establishing an electoral system which balances

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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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