Previous 12 / 27 Next

Kiefel CJ Bell J Keane J Nettle J Gordon J Edelman J 6. in a Division is produced to the Assistant Returning Officer in that Division19 and placed in a sealed envelope. In the lead up to election night, Australian Electoral Officers actively monitor potential issues to be alert to potential deviations from the identified TCP Candidates. 18 At each polling place in every Division, after the close of polling (at 6.00 pm on polling day in the applicable time zone) and in view of the scrutineers, the Assistant Returning Officer opens the sealed envelope containing the names of the TCP Candidates and announces those names to everyone present (including the scrutineers). 19 Then, after the first preference count20, the ballot papers for the TCP Candidates for that Division are removed to a secure area and the ballot papers for the remaining candidates are notionally allocated to the TCP Candidate for whom a higher preference has been expressed on the ballot paper. The result of the allocation of ballot papers to the TCP Candidates – the Indicative TCP Count – for each polling place is telephoned to the Divisional Returning Officer for the Division. The Divisional Returning Officer progressively enters the Indicative TCP Count for each polling place into the Commission's Election Management System. The Election Management System updates a webpage on the Commission's website, "The Tally Room". 20 From the close of polls in the principal time zone of a Division, or shortly thereafter, the Tally Room displays the identity of the TCP Candidates in respect of whom the Indicative TCP Count will be undertaken and, once information about the Indicative TCP Count for each polling place begins to be received into the Election Management System, the Commission uses a "matched polling place method" to calculate a "matched polling place projection" in each Division. 21 The matched polling place projection is a prediction of the Indicative TCP Count in the Division, expressed as a "swing" in the Division since the last election. It is calculated by comparing the Indicative TCP Count in a polling place with the votes received at the same polling place in the previous election. The Commission explained, in a publication regarding the electoral process, that the "matched polling place method relies on the empirical fact that swings to or from political parties or candidates tend not to vary greatly within electoral 19 Pursuant to Electoral Act, s 274(2A). 20 See [13] above.

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