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Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 16. 51 As the plaintiffs have not established their factual contention that publication of the TCP Information conveys "imprimatur"45, it is unnecessary to address the plaintiffs' written submission that the Commission's conduct contravened an implied statutory limitation against partiality. A deviation from a statutorily prescribed course might say something about the validity of the exercise of a statutory power46, but that does not arise here. Constitutional challenge 52 What has been said earlier about the factual bases on which the case proceeded is reason enough to reject the plaintiffs' arguments that publication of the TCP Information in relation to a Division, after the polls in that Division had closed but before the polls had closed throughout the nation, is unconstitutional. 53 There is no factual foundation for the plaintiffs' contention that the publication of the TCP Information, while the polls remained open in any part of the nation, "would impermissibly distort the voting system in a manner that would compromise the representative nature of a future Parliament", contrary to the constitutional mandate for direct and popular choice in ss 7 and 24 of the Constitution47. 54 In particular, the agreed fact that there was no practicable means, in the time available before the 2019 election, to quantify the extent or likelihood of the effect, if any, on the electoral choices of voters who became aware of the identity of the TCP Candidates in any Division or the results of the matched polling place projection or the Indicative TCP Count in any Division – if they had not already voted and when polls were still open in the Division in which they were electors – means that there is no basis for the plaintiffs' complaint. 55 Moreover, the Indicative TCP Count and the publication of the TCP Information prior to the polls closing across the nation do not imply the 45 See [40]-[41] above. 46 See Isbester v Knox City Council (2015) 255 CLR 135 at 146 [21], 153 [49]; [2015] HCA 20. 47 See generally Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280 at 292; [1959] HCA 11; Breen v Sneddon (1961) 106 CLR 406 at 411; [1961] HCA 67.

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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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