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Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 14. functions"38 are functions that include publishing election results which, as s 274(2A) provides, include both the first preference count and the TCP Information. 44 Section 7(3) then gives the Commission power to do all things necessary or convenient to be done for or in connection with the performance of those and its other functions. The language of s 7(3) is broad39 and it is for the Commission, in its discretion, to determine how that power is exercised. 45 The plaintiffs did not say that the Commission could not publish the results of the progressive first preference count in a Division after the polls in that Division closed even if other polls were still open. That is unsurprising: the Commission's power to publish the first preference count under s 7(3) existed before s 274(2A)-(2C) was enacted. 46 The plaintiffs did not say that the Commission could not publish the TCP Information. The plaintiffs did not dispute that it was necessary or convenient for the Commission to publish the TCP Information. The plaintiffs' complaint was limited to the timing and mode of publication of the TCP Information in circumstances where there were no facts showing that publication of the TCP Information had any effect on voters in other Divisions where the polls had not closed. 47 Having regard to the statutory framework and the legislative history, s 7(3) empowered the Commission to publish the TCP Information as soon as the polls closed in a Division. It was open to the Commission to decide that publication of that information was both necessary and convenient for or in connection with the performance of the Commission's functions to "promote 38 Electoral Act, s 7(1)(c) and (f). 39 See, eg, Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410; [1951] HCA 42; Kathleen Investments (Aust) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 at 143, 145, 153-155; [1977] HCA 55; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679; [1979] HCA 26; Anthony Lagoon Station Pty Ltd v Aboriginal Land Commissioner (1987) 15 FCR 565 at 585, 590; Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 462; [1992] HCA 52.

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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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