Previous 11 / 27 Next

Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 5. and the scrutineers appointed by the candidates, but also that the publication of the progressive first preference counts has the capacity to affect electoral choices. The plaintiffs did not suggest that the release or publication of the first preference count was not authorised by the Electoral Act or that it infringed the Constitution. 14 If, in an election for the House of Representatives, there are more than two candidates for a Division, an Indicative TCP Count is conducted. That count is addressed in s 274(2A)-(2C) of the Electoral Act. The process starts well before polling day. Given the limited nature of the plaintiffs' complaint, it is not necessary to describe the process of the Indicative TCP Count in elaborate detail. The ultimate purpose of the process is described in s 274(2A) as requiring returning officers "to conduct a count of preference votes (other than first preference votes) ... that, in the opinion of the Australian Electoral Officer, will best provide an indication of the candidate most likely to be elected for the Division" (emphasis added). 15 Section 274(2A)-(2C) does not prescribe the procedure by which the Australian Electoral Officer is to reach their opinion as to the identity of the TCP Candidates or how the Indicative TCP Count is to be conducted. The Commission's established practice for preparing for, and carrying out, the Indicative TCP Count in each Division comprised part of the agreed facts and is summarised below. Commission's established practice 16 After nominations close, and before the polling day, the Commission's Election Management System selects a default set of TCP Candidates, based on the results of the previous election. The Australian Electoral Officer for each State and Territory reviews the default TCP Candidates for each Division in their State or Territory and either endorses the default selection or advises of any changes that should be made. Once the Australian Electoral Officer has identified the TCP Candidates, they are submitted to the National Election Manager for endorsement, who informs the Deputy Electoral Commissioner and the Electoral Commissioner as required. The Commission's identification of the TCP Candidates is finalised in the second week before polling day to enable the information to be entered into the Commission's Election Management System. Further changes cannot be made prior to election night. 17 Once the TCP Candidates have been entered into the Election Management System, a written direction with the names of the TCP Candidates

Select target paragraph3

● ● ●

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
Download View

Election Judgments - IFES

Select target paragraph3

Palmer v. Australian Electoral Commission (AEC)

Primary Documents

Notifications