Palmer & Ors v Australian Electoral Commission & Ors

The proceeding was brought in the High Court of Australia by Clive Frederick Palmer and James William McDonald against the Australian Electoral Commission and various Electoral Officers. The dispute concerned the publication of information by the Australian Electoral Commission, specifically the "two party indicative count," and its alleged impact on electoral choice. The parties were engaged in discussions regarding a statement of agreed facts to underpin their arguments.

The central legal issue before the Court was whether the publication of the two party indicative count, which identifies candidates for the purpose of this calculation, places a burden on the constitutional mandate for direct or popular choice. This involved determining the factual basis for the proposition that such publication could influence electoral choice, and whether this influence was constitutionally relevant, particularly in relation to candidates with a national profile. The Court also considered the statutory basis for the publication of this information, noting that while the indicative count itself has a statutory foundation, the specific timing and manner of publication of candidate identities and results appeared to be a matter of practice rather than express statutory prescription.

The Court's reasoning focused on the need for a clear factual basis to support the plaintiffs' constitutional argument. The Solicitor-General for the defendants raised concerns about the framing of a key fact concerning the capacity of the publication to influence electoral choice, suggesting it might need to be narrowed to specific individuals. The Court acknowledged that the plaintiffs' argument hinged on the factual capacity of the publication to affect electoral choice and that the precise nature of this fact was a point of negotiation. The Court also noted that the Australian Electoral Commission's general power to do what is necessary to discharge its functions, as per section 7(3) of the relevant Act, likely underpinned the practice of publication.

The Court made orders for the filing and service of a statement of agreed facts by midday on 10 April 2019. If this statement was not filed, the matter would be listed for further directions on 11 April 2019. If filed, the proceeding was referred to a Full Court for further hearing on 6 May 2019, with specific timelines set for the filing and service of an Application Book and written submissions by the parties and any interveners.