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Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 8. The progressive results of the Indicative TCP Count in a Division are provided to the scrutineers, and to media organisations and interested third parties via the media feed. The matched polling place projection for a Division or the progressive results of the Indicative TCP Count in a Division are published to the public via the Tally Room. 26 Before saying something more about the plaintiffs' complaints, it is necessary to record why s 274 of the Electoral Act was amended to include the Indicative TCP Count. Legislative history 27 In the 1990 election, there was a delay of some days in determining election results despite the fact that the government was returned with a majority of eight seats22. As a result, the Joint Standing Committee on Electoral Matters ("the JSCEM") in 1990 recommended the addition of "a new step to the House of Representatives scrutiny process to guarantee that scrutineers would have the opportunity to readily observe a 'two-candidate preferred vote' in each polling place on election night"23. 28 After the amendment to give effect to that recommendation was introduced in the Senate in 199224, the JSCEM in 1992 expressed two concerns about the Commission's original method of identifying the TCP Candidates, namely, the possibility of the Commission "getting it wrong and jeopardising an early result on election night" and "the effect on the electoral system of two candidates appearing to be the 'two most likely' in the judgment" of the Commission25. The JSCEM in 1992 identified two measures to address those 22 Joint Standing Committee on Electoral Matters, 1990 Federal Election: Report from the Joint Standing Committee on Electoral Matters (1990) at 32 [4.1]. 23 JSCEM, 1990 Federal Election: Report from the Joint Standing Committee on Electoral Matters (1990) at xviii (Recommendation 4). 24 See JSCEM, Conduct of the 1990 Federal Election Part II and Preparations for the Next Federal Election, Interim Report: Counting the Vote on Election Night (1992) at 1. 25 JSCEM, Conduct of the 1990 Federal Election Part II and Preparations for the Next Federal Election, Interim Report: Counting the Vote on Election Night (1992) at 6-7 [2.3.1].

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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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