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Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 15. public awareness of election and ballot matters" and to "publish material on matters that relate to its functions"40. 48 That conclusion is consistent with both the 1990 and 1992 reports of the JSCEM and the extrinsic materials which record that the purpose of the Indicative TCP Count was to provide the public with an early indication of who was most likely to be the elected candidate41. There would be no point to the Indicative TCP Count if the count was not made public until the actual count was completed. 49 In any democratic vote, electors would expect to have information about the vote made publicly available, in the interests of transparency, in order to have confidence in the maintenance of the electoral system chosen by the Parliament in the exercise of its legislative power with respect to federal elections42, and to achieve "promptitude, certainty and finality in the declaration of the poll"43. 50 Thus, the Commission has power under the Electoral Act to publish the TCP Information. Once the Commission has the power, the issue of how it is preferable for that power to be exercised is not a matter for the Court44. It is possible that questions as to the limits to that power might arise, but they do not in this case. 40 Electoral Act, s 7(1)(c) and (f). 41 See [27]-[29] above. 42 See Smith v Oldham (1912) 15 CLR 355; [1912] HCA 61; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41; Spence v Queensland (2019) 93 ALJR 643; 367 ALR 587; [2019] HCA 15. 43 Murphy (2016) 261 CLR 28 at 89 [184]. 44 See generally Kioa v West (1985) 159 CLR 550 at 622; [1985] HCA 81; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21. See also, in different contexts, Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 188; [1982] HCA 23; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 47-48; [1986] HCA 40; Abebe v The Commonwealth (1999) 197 CLR 510 at 579-580 [195]; [1999] HCA 14; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 477-478 [14]-[15]; [2005] HCA 77.

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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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