Palmer v Australian Electoral Commission - [2019] HCA 24

HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
CLIVE FREDERICK PALMER & ORS PLAINTIFFS
AND
AUSTRALIAN ELECTORAL COMMISSION & ORS DEFENDANTS
Palmer v Australian Electoral Commission
[2019] HCA 24
Date of Order: 7 May 2019
Date of Publication of Reasons and Further Order: 14 August 2019
B19/2019
ORDER
Made on 7 May 2019:

The application is dismissed.

Made on 14 August 2019:

The plaintiffs pay the defendants' costs, being the costs that the defendants incurred up to and including the date that they filed their submitting appearance.
Representation
D F Jackson QC with L T Livingston and S J Chordia for the plaintiffs (instructed by Alexander Law)
Submitting appearance for the defendants
S P Donaghue QC, Solicitor-General of the Commonwealth, with G J D del Villar and S Zeleznikow for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Parliamentary elections (Cth) – House of Representatives – Counting of votes – Where s 274(2A)-(2C) of Commonwealth Electoral Act 1918 (Cth) provides for indicative two-candidate preferred count in each Division – Where s 7(3) of Commonwealth Electoral Act confers power on Australian Electoral Commission to do all things necessary or convenient for or in connection with performance of its functions – Where practice of Australian Electoral Commission to publish information about indicative two‑candidate preferred count for a Division after close of polls in that Division – Whether publication of information for a Division before polls closed in all parts of nation has any demonstrated effect on electoral choices – Whether information inaccurate or misleading – Whether publication constitutes imprimatur to any particular candidate or outcome – Whether publication authorised by s 7(3).
Constitutional law (Cth) – Parliament – Elections – Whether publication of information about indicative two-candidate preferred count prior to close of polls nationally contrary to ss 7 and 24 of Constitution – Whether factual foundation of challenge established.
Words and phrases – "direct and popular choice", "effect on electoral choices", "factual foundation", "imprimatur", "indicative two-candidate preferred count", "necessary or convenient", "partiality", "scrutiny of votes".
Constitution, ss 7, 24.
Commonwealth Electoral Act 1918 (Cth), ss 7, 274.

KIEFEL CJ, BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ. Since 1992, the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") has required the scrutiny of votes in an election for each Division[1] of the House of Representatives to include an indicative two‑candidate preferred count ("the Indicative TCP Count")[2]. The Indicative TCP Count takes place, in a Division, after counting of first preference votes. It is a "count of preference votes (other than first preference votes) on the ballot papers 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"[3].
[1]Defined to mean "an Electoral Division for the election of a member of the House of Representatives":

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] HCA 24
Decision Date: 14 August 2019

CaseChat Overview and Summary

In *Palmer v Australian Electoral Commission*, the High Court of Australia considered a challenge brought by Clive Palmer and others against the Australian Electoral Commission (AEC). The dispute concerned the AEC's practice of publishing information about the indicative two-candidate preferred count for a Division after the close of polls in that Division, even when polls remained open in other parts of the nation. The plaintiffs alleged this practice was unlawful and contrary to the Constitution.

The central legal issues before the Court were whether the AEC's publication of indicative two-candidate preferred count information prior to the close of polls nationally was authorised by section 7(3) of the *Commonwealth Electoral Act 1918* (Cth), and whether such publication was contrary to sections 7 and 24 of the Constitution. The plaintiffs contended that the publication was inaccurate, misleading, conferred an imprimatur on particular candidates, and had a demonstrable effect on electoral choices, thereby undermining the constitutional requirement for a "direct and popular choice" of the House of Representatives.

The High Court dismissed the application. The Court found that the AEC's publication of the indicative two-candidate preferred count was a lawful exercise of its power under section 7(3) of the Act, which permits the AEC to do all things necessary or convenient for the performance of its functions. The Court held that the plaintiffs had failed to establish a factual foundation for their claims that the publication was inaccurate, misleading, or had any demonstrable effect on electoral choices. Furthermore, the Court concluded that the publication did not constitute an imprimatur or demonstrate partiality, nor was it contrary to the constitutional principles of a direct and popular choice.

The application was dismissed, and the plaintiffs were ordered to pay the defendants' costs.

Orders

Orders of the court

Made on 7 May 2019:

The application is dismissed.

Made on 14 August 2019:

The plaintiffs pay the defendants' costs, being the costs that the defendants incurred up to and including the date that they filed their submitting appearance.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ GAGELER J

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ, GAGELER J

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