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Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 4. 11 The Electoral Act, among other things, provides for Divisions for the House of Representatives7; the roll of electors for each State and Territory and each Division8; the qualifications and disqualifications for enrolment and voting9; the registration of political parties10; the procedures by which candidates are nominated and required qualifications11; the regulation of polling and compulsory voting12; the appointment and role of scrutineers appointed by candidates13; and the scrutiny of votes in an election14. 12 This matter is concerned with the scrutiny of votes in an election for a Division of the House of Representatives. The scrutiny is conducted in the manner set out in s 27415. 13 First preference votes are counted16 and then, after that count is recorded17, that information is transmitted in an expeditious manner to the Divisional Returning Officer for the Division18. It was an agreed fact not only that the progressive results of the first preference counts are released by the Commission 7 Electoral Act, Pt IV. 8 Electoral Act, Pt VI. 9 Electoral Act, Pt VII. 10 Electoral Act, Pt XI. 11 Electoral Act, Pt XIV. 12 Electoral Act, Pt XVI. 13 Electoral Act, Pt XVI; see, in particular, ss 217 and 218. 14 Electoral Act, Pt XVIII. 15 Electoral Act, s 274(1). The scrutiny is subject to s 266, which is not relevant to the present matter. 16 Electoral Act, s 274(2)(b)(i). 17 Electoral Act, s 274(2)(d). 18 Electoral Act, s 274(2)(f)(i).

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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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