Palmer & Ors v Australian Electoral Commission & Ors [2019] HCATrans 87 (6 May 2019)

Last Updated: 7 May 2019

[2019] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B19 of 2019

B e t w e e n -

CLIVE FREDERICK PALMER

First Plaintiff

JAMES WILLIAM McDONALD

Second Plaintiff

ROBERT JAMES FORSTER

Third Plaintiff

DANIEL ISAAC HODGSON

Fourth Plaintiff

and

AUSTRALIAN ELECTORAL COMMISSION

First Defendant

ELECTORAL COMMISSIONER

Second Defendant

AUSTRALIAN ELECTORAL OFFICER FOR QUEENSLAND

Third Defendant

AUSTRALIAN ELECTORAL OFFICER FOR NEW SOUTH WALES

Fourth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR VICTORIA

Fifth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR TASMANIA

Sixth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE AUSTRALIAN CAPITAL TERRITORY

Seventh Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE NORTHERN TERRITORY

Eighth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR SOUTH AUSTRALIA

Ninth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR WESTERN AUSTRALIA

Tenth Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 6 MAY 2019, AT 2.15 PM

Copyright in the High Court of Australia

____________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR L.T. LIVINGSTON and MS S.J. CHORDIA, for the plaintiffs. (instructed by Alexander Law)

MR S.P. DONAGHUE, QC, SolicitorGeneral of the Commonwealth: If the Court pleases, I appear with my learned friends, MR G.J.D. DEL VILLAR and MS S. ZELEZNIKOW for the Commonwealth AttorneyGeneral intervening. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours will have a copy of our submissions. Could I just say the matter turns on the resolution of three issues. They are, first, whether the conduct of the defendants in publishing what, to put it shortly for immediate purposes, may be described as the indicative two candidate preferred count or TCP count before the close of all polls in Australia is authorised by the provisions of the Commonwealth Electoral Act 1918; secondly, if so, is that Act valid to that extent; and, thirdly, if the plaintiffs are successful on one of the first two questions, what relief should be granted and I propose to deal with those issues so far as possible in that order.

Your Honours, may I deal first, by way of introduction, with a number of matters that arise overall and I will do so as briefly as I can. Your Honours, section 220(c) of the Electoral Act says – which your Honours will find in volume 1, tab 4, page 211 in relation to federal elections that:

The doors of the polling booth shall be closed at 6 o’clock in the afternoon -

but, as Dorothea Mackellar reminded us, Australia is a land of sweeping plains and somewhat far horizons, so far and so sweeping that notwithstanding section 220(c) the doors of the parts of the schools, town halls, et cetera, used throughout the nation as polling booths, do not close simultaneously and that is because section 37 of the Acts Interpretation Act 1901 – your Honours will find that in volume 1 of the materials, tab 5, page 406 – provides that references to time in Commonwealth statutes are deemed to be references to time according to the legal time in the relevant State or part of the Commonwealth in question.

This has a practical effect. It is set out, your Honours, in the agreed facts at pages 38 to 39 of the application book and your Honours will see there, paragraph 34. It means that there are significant differences in the time at which polls actually close in the several States and Territories. Your Honours, as is there apparent, in the eastern States and the Australian Capital Territory the polls close at 6.00 pm Australian Eastern Standard Time, subject of course to there not being daylight saving provisions. It is half an hour later in South Australia and the Northern Territory. Very importantly, it is two hours later than Australian Eastern Standard Time in Western Australia.

Your Honours, if I could just say, I said, very importantly, 16 seats in a House which is to consist of 151 members, governments have taken office with much smaller majorities, and six senators in the accompanying halfSenate election. Christmas Island and the Cocos (Keeling) Islands are three and three and a half hours respectively. Your Honours, we are conscious of course that the populations of those territories are small but, as appears from paragraph 35 of the agreed facts, page 39, their votes count, both for the House and for the Senate.

The differences, your Honours, are potentially significant for reasons to which we shall come – potentially significant for the United Australia Party which, as appears from paragraph 30 of the agreed facts at page 38, is standing candidates nationwide for the divisions of the House and for the halfSenate elections. Your Honours, as is apparent from paragraph 4 of the agreed facts at page 30, the second to fourth plaintiffs are UAPendorsed candidates for seats in the House for Perth in Western Australia and for the Senate for Western Australia and for the seat of Lingiari.

Could I come then, your Honours, to the legislative provisions of central importance? Your Honours, section 274(2A) – I will come to that directly in a moment – is, of course, the critical provision but it has to be borne in mind that the defendants are the bodies forming part of the - persons or bodies forming part of the electoral structure provided by government in implementation of sections 7 and 24 of the Constitution. If I could go then to section 274 - your Honours will see that at page 262 behind tab 4 in volume 1.

KIEFEL CJ: Mr Jackson, if it assists, I think you could take it that we are all working from pamphlets so you do not need to give us the page numbers.

MR JACKSON: All right, thank you, your Honour. Your Honours, could I just say then, if one goes to section 274, your Honours will see that it deals with the scrutiny of votes for an election to the House of Representatives. Section 274(2) deals with the opening of the ballot boxes and, in particular, your Honours will see that section 274(2)(b) deals with the counting of first preference votes and the rejection of informal votes. That is to be followed by the steps set out in 274(2)(c) to (h) – I do not think I need to go into the detail of those, your Honours.

The provision, as I submitted earlier, of present importance is section 274(2A). As its terms indicate, it applies when there are three or more candidates in a division – that is, where the final result may not be first past the post. Where that is so, the relevant Australian Electoral Office officer must give a written direction to the returning officers for the division to conduct a count of preference votes, other than first preference votes, on the ballot paper.

Now, the returning officers will be, your Honours, the divisional returning officer for that division and each of the assistant returning officers at the several polling stations. Your Honours will see that from sections 32 and 33. I do not think I need to take your Honours to those. One looks then to see what is the statutory purpose of this and the statutory purpose for engaging in that course is, as is set out in the express terms of 274(2A), to arrive at what will, in the opinion of the Australian Electoral Officer for the State, provide an indication of the candidate most likely to be elected for that division.

Your Honours, if I could just pause to say that one can readily understand that an indication of that kind may assist in expediting the counting of votes where they are to be counted. But in our submission there is an element of incongruity in an officer conducting the elections, a national election not yet over, telling the public yet to vote what his or her preferred choices are and how they are going. Perhaps I will come to how it works out.

NETTLE J: Mr Jackson, how would the TCP assist the officer to count preferences?

MR JACKSON: Your Honour, there is nothing to stop, in the case of polling at a particular booth, for example, just to take it at the lowest level, the counting of first preference votes and then to the extent thought appropriate the counting of second and third preferences. To select two people, the two people that the Australian Electoral Officer thinks are the most likely, as it were, and then to say we will deal only with them and not change it at least until the next day and to make public what we are doing, your Honour

NETTLE J: I understand your concern about making it public but you said one could well understand that it would be of use to the officer to know what the TCP is in order to assist him in actually counting the preferences. I fail to see why.

MR JACKSON: Perhaps I overstated it, your Honour, but it could only be in the sense of saying these are the ones that we think are most likely to win. To take a particular example, there are the same two candidates as there were last election - one is ALP; one is Liberal National. They are the ones most likely to win. Do them first and see how it goes.

NETTLE J: I see.

MR JACKSON: That is all it takes

NETTLE J: Thank you.

MR JACKSON: Your Honours, if I could just return for a moment to subsections (2B) and (2C). They deal with the functions of assistant returning officers and divisional returning officers respectively. Under section 274(2B), the assistant returning officer is to carry out a count of nonfirst preference votes in accordance with the written directions and to transmit the results to the divisional returning officer.

If I could just stop at that point, your Honours. The terms of section 274(2A) do not require - necessarily require a count of all votes which are other than first preference votes. Rather, the returning officer is to conduct the count on those ballot papers which, in the Australian Electoral Officer’s opinion, will best provide vindication of the candidate most likely to be elected. The divisional returning officer is to do the same thing at the times referred to in the two paragraphs of subsection (2C). Could I just say, your Honours, the declaration votes as referred to in that provision are, to put it shortly, postal, prepoll declaration, absent votes, provisional votes - there is a definition at section 4(1).

Your Honours, pausing at that point, it seems prima facie that the legislature has provided for a situation where the Australian Electoral Office officer is to direct his or her staff as to the manner in which they should carry out the tasks referred to in subsection (2A). There is nothing in subsection (2A) or any provision which might be regarded as related to it which authorises or, indeed, is directed to the Australian Electoral Officer providing authority to make available to the public in those parts of Australia yet to vote what that officer thinks will best provide an indication of the candidate most likely to succeed in the divisions of the eastern States or a little later in South Australia and the Northern Territory.

KIEFEL CJ: Mr Jackson, do I take it from your submissions that no issue is taken with the process undertaken pursuant to subsection (2A) except for the timing of publication?

MR JACKSON: Your Honour, that is so but there is a little more to it than that, with respect. What you have is a situation where – I am sorry, may I just say first of all, your Honour, what your Honour put to me is right as to the ultimate result. Our complaint is making this material public before the close of polls throughout the nation. The second feature about it, however, is that if one looks at subsection (2A) what is one looking at and it is a direction given to do particular things. Where one gets publication from that in the time when publication – or at least publication in the time when the polls are still open is a question of considerable difficulty, in our submission. Could I, in that regard say, your Honours

KIEFEL CJ: But you have to go so far as to say or make out that it is unauthorised which is to say unlawful for it to be published ahead of close of polls in Australia more generally as distinct from saying it would be preferable if that were not undertaken in that way. It is a “cannot or should not” question.

MR JACKSON: Yes. Your Honour, I accept it is not a question of saying the wrong legislative choice had been made where two choices are available, but the position, however, in our submission, is that one is looking at a body and a number of officers who are appointed to conduct elections which satisfy sections 7 and 24 of the Constitution. It is a body which, we would submit, is not a – I am sorry – it is a body, the functions of which are those provided for by the statute.

So, if one is looking to see what is the power to do – what they actually do in performance of 274(2A) – one has to look to see what provisions of section 274(2A) might justify that course. Your Honours, in that regard, if one is looking at 274(2A) for words directly authorising the publication of that information while polls remain open, in our submission the cupboard is bare.

GAGELER J: Or at all, you would say, presumably. It is very hard to see any power to publish in this provision.

MR JACKSON: Indeed, your Honour.

GAGELER J: One has to go somewhere else.

MR JACKSON: Yes, yes, your Honour. Our learned friends suggest, in that regard, that there is provided both contextual and textual support for such publications. May I come to those matters in just a moment? If one is looking for provisions which might indirectly authorise such publication, the only possible provision is section 7(3) and that is the only, in our submission, potentially relevant source of power. If one is looking, your Honours, at that provision, it becomes necessary to identify two things. Your Honours will see that section 7(3) says that:

The Commission may do all things necessary or convenient to be done for or in connection with the performance of its functions.

It becomes necessary to identify, first, what is the function to which section 7(3) is suggested to be related and, secondly, why is it necessary or convenient to make the publication in question at a time when polls remain open – to take the narrower view of things.

KIEFEL CJ: But you would not take issue, would you, with the fact that it would be part of the functions of the Commission to make public the information?

MR JACKSON: It depends on what your Honour describes as the information. If the information is

KIEFEL CJ: The opinion referred to in subsection (2A).

MR JACKSON: Yes, we do, your Honour.

GORDON J: So, just so I am clear, Mr Jackson, is your proposition that at no time – I thought it was a timing question rather than nondisclosure at all.

MR JACKSON: It is a timing question, your Honour, but if

GORDON J: So, if it is, then the Chief Justice’s question is the right question, that is, you would not suggest that it is not part of the functions of the Commission to disclose the information.

MR JACKSON: Well, your Honour, what the Commissioner is entitled to disclose is the results of the counting it carries on. Now, there is no difficulty in it doing that, at least once the poll has come to an end - it discloses the results of the counting it has carried on. But this is a different proposition, your Honour. What the Commissioner is doing is saying - and I will come to this in just a moment - a couple of weeks before the election, these are the ones we think are the two most likely candidates and these are the ones on whom we will base our predictions.

Your Honours, I was going to say – I think I should go, your Honours, to how it works in practice. That can be seen from the agreed facts. If I could start at paragraph 10, page 31. As is apparent from that and succeeding paragraphs, the Commission has an established practice in this area. The established practice is set out in paragraphs 13 and following. Your Honours, may I deal with it very shortly, giving the references as I go through.

It involves a number of principal steps – and if your Honours look at paragraph 13a, b and c, they involve selecting a default set of TCP candidates based on the results of the previous election as varied in light of the sources in b, particularly b(iii) “major betting markets” included, one sees. The two preferred names are placed in a sealed envelope. I am sorry, I should have said, your Honours, 13d – that has to be done “in the second week before polling day” and cannot be changed before the election - 13d, the two preferred names are placed in a sealed envelope and g to h, “approved participants” are given confidential access to the TCP information on the Thursday before the election – that is the identity of the two candidates.

If one goes then to paragraph 14, it deals with the position on the closure of the polls and then, as you will see from subparagraph a, a sealed envelope is opened and the identity of the two candidates announced publicly. Then if one goes to subparagraph b

GORDON J: I will just stop you there for a moment, Mr Jackson. You do not complain about the disclosure to the scrutineers, do you?

MR JACKSON: No.

GORDON J: You do not seek any restraint against the scrutineers?

MR JACKSON: I am sorry, your Honour. I did not hear the last part of what your Honour said.

GORDON J: You do not seek any restraint against what the scrutineers do with the information?

MR JACKSON: No. Your Honours, if one goes to paragraphs b to f, the first preference votes of the two selected candidates are removed to a secured area, then preferences of others are allocated. The divisional returning officer is informed of the result in each polling place, and that goes into the electoral management system. Paragraph g, it goes into a website which displays the names of the two candidates and displays the progressive results in relation to those two candidates in the tally room. If your Honours go to subparagraphs h to q sorry to give your Honours such a block of them - there is provision for change, but it does not occur until the day after voting ceases.

GORDON J: Is that right? I thought it was a twostage process. There is an ability to mask it, is there not?

MR JACKSON: I am sorry, your Honour, yes. I was speaking about change in the idea but there is an ability to mask, as your Honour has said, and that is, I think, referred to in paragraph 14. Actual changes, your Honours, will see in 14o.

GAGELER J: Mr Jackson, you introduced this by referring to “an established practice”. Are we to take paragraphs 13 and 14 as referring to a practice that was, in fact, followed for the 2013 and 2016 elections?

MR JACKSON: I think the answer is yes, your Honour.

GAGELER J: Thank you.

MR JACKSON: Your Honours, as we submitted earlier, the Commonwealth suggested there are both contextual and textual reasons why section 274(2A) should be construed as authorising publication before the close of polling in each State. The contextual reasons are said to derive from the steps leading to the enactment of section 274(2A). We have referred to those, your Honours, in written submissions – further amended written submissions, your Honours, in paragraphs 25 and 26. I will take your Honours to the actual document in just a moment, but if one goes to the submission for the moment, you will see that the report of the – which is referred to in footnote 8 – was:

indicated that the Parliament was motivated by “serious concerns” to ensure that the publication or public release of the Indicative TCP Count would not undermine the impartiality of the Commission by creating an appearance that the Commission was giving its imprimatur to the two selected TCP candidates -

Your Honours will see the particular passage that is in italics in the quotation in paragraph 25. You will see in paragraph 26 that the Committee elaborated upon those concerns and said:

The choice of the two candidates . . . could be seen to imply the AEC’s imprimatur for these candidates – which would be inconsistent with the AEC’s impartiality -

but went on to say in the paragraph being quoted in paragraph 27:

The AEC has responded to these reservations by agreeing to adopt procedures which would keep confidential the identity of the two candidates to receive preference sin the polling night count.

Your Honours will see the reference to the sealed envelope and then:

to be opened after the close of votes -

Your Honours, the relevant provisions of the report - I should take your Honours to those for a moment - can be seen in volume 6 behind tab 45, pages 2430 and 2431. Your Honours will see in the left column on page 2430 the reference to the concerns and paragraph 2.3.1 going over to the top of the next page, particularly the reference to the “two most likely”, and then if one goes to 2.3.4 at the bottom of that page and 2.3.5 and 2.3.6, the views that the Commission expressed about it.

The complaint made by our learned friends about our references to these provisions appears in our learned friends’ submissions, paragraph 17, and that is a submission that we are referring to the original proposal and the – it is true that the references to the original plans relating to the release of TCF information are correct but, your Honours, there were two grounds raised – one, the possibility of the Commission getting it wrong and the other that the Commission might be seen to have given its approval imprimatur – I do not want to overdo the use of the word - to the two candidates selected by it.

Your Honours, our submission is that neither recommendation referred to in these provisions which was ultimately adopted was adopted in a manner which ameliorates the concerns which were identified in that report. The Commission now relies on speculative as opposed to objective sources to select the two candidates for the count.

You will see that referred to in our written submissions, paragraph 35, and the Commission also keeps the identity of the two candidates confidential only until polling closes in the division for which those candidates have been selected, leaving open the possibility of the Commission being seen by electors in other divisions to give its approval, imprimatur in that sense, to those candidates and their parties. Your Honours, the changes reflect the nature of the concern but not the geographical extent to which it applies.

Could we also say, your Honours, if I could go for a moment to our learned friends’ written submissions, paragraph 18, your Honours will see it is said, in effect, to be the result of the legislative history of subsection (2A). If one looks, your Honours, at the November 1992 report, whilst it is true that the report observed that it was desirable that the public and candidates know the result of the count as it becomes available, the next line in the passage – I will take your Honours to it in a moment – makes it apparent, in our submission, that the reference was being made to the first preference count, not to the indicative TCP concept. Could I take your Honours to that? It is in volume 6, page 2434. Your Honours will see that in paragraph 4.3.1 it says:

It is, of course, highly desirable that the public and candidates know the result of the count as it becomes available. The result of the first preference count is a significant step in finalising the result, and it should be transmitted to the National Tally Room without delay.

The first preference result, your Honours

BELL J: Mr Jackson, you make no challenge to the publication of the first preference results as they become due, with the consequence that people in Western Australia and the Cocos (Keeling) Islands are able to see the results of the first preference in the eastern States.

MR JACKSON: Yes.

BELL J: Your argument in terms of the risk of prejudicing the minds of voters is because there is a suggestion with the two candidate preferred of the imprimatur of the AEC. That is your strong point, is it?

MR JACKSON: Yes.

BELL J: Because one has to consider, albeit in the absence, as you concede, of any evidence that a voter’s electoral choice will not be relevantly affected by knowing the first preference results but might be by seeing the two candidate preferred.

MR JACKSON: Yes, and those being the ones that the Electoral Commission and the officers of the Commonwealth – they are the ones they have selected as the most likely winners.

BELL J: So that, one accepts, the voter in Western Australia may be influenced by knowing that a particular candidate is way ahead on the first preferences, but the concern is that the same voter may take into account a view that the AEC has put its thumb on the scales by reason of the two candidate preferred.

MR JACKSON: Yes, your Honour, yes. Your Honour, one has to bear in mind that many people – people vote at different times of the day. It depends on many things. If you have ballot papers for the House, on the one hand, and the Senate, on the other, you need to have a spare pocket or receptacle, mostly, to keep the Senate paper in your pocket while filling out the other one – it is so large. If one knows that the election has effectively been won in terms of votes for the House, votes for majority and effectively been won, it is likely to have the effect that people say why should I bother trying to work out my own preferences when I know that is the likely situation. They might equally say “I’m going to do whatever I like, whatever the situation”.

But at the same time it is likely to have an effect in relation to the Senate because one does have, as the Court saw in Day, above the line and below the line voting and they can be quite complicated things. If one knows that the election has been, in effect, won or probably will be won by one party, then the result is that many people will say, “Well, look, I won’t be bothered going through all the trouble of doing a lengthy Senate vote”.

KIEFEL CJ: Mr Jackson, does the plaintiff’s case accept that on election night the average person would appreciate that the figures coming out through the course of the evening are indicative only and subject to many vagaries – even what appears to be a final figure would be subject to matters such as absentee votes and the like. Does the plaintiff’s case accept that? The reason I ask is, to what extent does the plaintiff’s case rely on the fact that the figures put forward on the second preference count is made by the AEC itself? Is that really the linchpin of the plaintiff’s argument?

MR JACKSON: It is a very important factor, your Honour. It is important, I suppose, in two respects. One is that you have a body which is regarded as an independent body – a rightly so one, I think – an independent body, a government body conducting the election. What you have is a situation where officers of that body make up their minds two weeks before the election as to who they think are the most likely winners in each of the

KIEFEL CJ: But no one knows that. So, we are only talking about what they say – what is said on election night. That is really what you are focused on.

MR JACKSON: Yes, your Honour.

KIEFEL CJ: Does the plaintiff’s case accept that the figures which are presented during the course of the evening in relation to that count would be indicative only?

MR JACKSON: Of course they are indicative, your Honour.

KIEFEL CJ: Well, does that not rather undercut the fact that it is an opinion put forward by the AEC about who they think was going to win?

MR JACKSON: Well, your Honour, they have the advantage over other sources of information – not being the work of, for example, journalists, psephologists and betting shops – I am sorry, I will start again. They have the advantage of being figures which are generated by a government body whereas if one looks at – and the government body in charge of elections based on predictions that are a fortnight old.

KIEFEL CJ: But what do you say it conveys? I mean, it obviously conveys that votes have been counted, and that is the function of the AEC.

MR JACKSON: Of course.

KIEFEL CJ: How much further do you take it than that? It is the opinion of the AEC that this person is likely to win, will win

MR JACKSON: Well, that is what it says, your Honour. That is what the provision says. The provision speaks of a view as to the

KIEFEL CJ: An indication of the candidate most likely to be elected, I think, is the full

MR JACKSON: Yes.

KIEFEL CJ: It is indicative. I mean, what I am concerned to understand is, the argument that you are putting about it being the opinion of the AEC, how far can you really take it, what it would mean to people receiving this information on election night.

MR JACKSON: Well, your Honour, people receive the information. Also, no doubt, estimates being given by the people who are speaking in public about the conduct of the election and how it is proceeding base themselves on what is shown in the tally room and that is a reflection of, essentially, that two persons have been selected and remain the two persons selected. They refer, one might expect, to what is on the board, to use an older expression, in the tally room and saying this is what the AEC two counts, or twoparty preferred is showing. Your Honour, that is giving a kind of – approval may be the wrong word, but it is saying this is coming from the government body that runs the election.

KIEFEL CJ: But can you encapsulate for me just what it is that is the plaintiff’s case about what it conveys to the average person in the western States and beyond.

MR JACKSON: Well, it conveys, your Honour, a supposedly authoritative view of what is happening in relation to the election of candidates in the various seats in the House of Representatives of course, in the eastern States, if I can put it shortly.

GORDON J: Why is that any worse than the first preference count?

MR JACKSON: I am sorry, your Honour, why?

GORDON J: Why is that in a worse position than the first preference count which is an actual count telling them precisely what is happening in the division in the eastern States.

MR JACKSON: Your Honour, if that was what it was it would reflect what is happening as things go on. What you see, however, with the TCP count is a count which reflects not what is actually happening with the first preference votes for all the candidates, but something which reflects the view of the Australian Electoral Commission or the officers in relation to who is most likely to win. That is done, the two are identified beforehand. Then you have the count following those two, but not being published in relation to the others.

KIEFEL CJ: Is the TCP count given with the qualifications that it is subject, of course, to postal votes and absentee votes and all the rest or does the plaintiff’s case accept that that would be understood?

MR JACKSON: Your Honour, it is not in the agreed facts, I think. I really – I just do not think I can assist your Honour except that, of course, one does see the statutory provision in, I think, (2C) for the later count of those things.

KIEFEL CJ: Yes.

GAGELER J: When you come to the agreed facts I do want to ask about paragraphs 37 and 39, Mr Jackson, but I will wait until the appropriate time in your argument if you are going to them.

MR JACKSON: I am happy to deal with that now, your Honour.

GAGELER J: What is paragraph 37? Is it a currently agreed fact or is it a reference to what might have been?

MR JACKSON: Well, it is both. I am sorry to put it that way, your Honour, but your Honour will appreciate the negotiations about these matters and when Mr Palmer was – what appears is that when Mr Palmer was a candidate for the House or proposed candidate for the House, his notoriety and the position that he holds as leader of the UAP, any publication of either or both of the identity of the candidates, your Honour, that is a situation then why it would not remain the situation or suitably amended to take care of the fact that he was no longer to be seeking office in the House but rather in the Senate.

GAGELER J: It really comes to the question, what fact do you ask us to find – be satisfied of for the purpose of your administrative law case and for the purpose of your constitutional case?

MR JACKSON: Your Honour, there are a number of facts, of course. I leave aside the steps involved for the moment.

GAGELER J: Is it the ultimate fact?

MR JACKSON: The ultimate fact, your Honour, is that the publication by a body of the nature of the Australian Electoral Commission, of its view and views as to the progress of the election in the places where the polling has closed prior to the publication – prior to the closure of polls in other parts of the nation is something which is not authorised by the Act, first place; secondly, if it were, it is something that does not fall within section 7 or section 24 or provisions that hinge upon them.

GAGELER J: Mr Jackson, I take that to be the proposition for which – the ultimate proposition for which you contend. To the extent that it has a factual foundation, what fact do we need to find?

MR JACKSON: Is your Honour – perhaps I am at crosspurposes with your Honour but is your Honour talking about – do we need further material to indicate that that is likely to be the case, that voters are likely to be affected by it?

GAGELER J: Is it part of your case – is it necessary as a step to the ultimate conclusion to which you have already drawn our attention for us to find that voters are likely to be affected by the publication?

MR JACKSON: We would say, your Honour, that “may be affected” is sufficient. “Likely” would be better. I will come to the “may be affected” in a few moments, if I may.

GAGELER J: In any particular way?

MR JACKSON: To vote either in favour of a party which has secured a majority – which is securing a majority or doing better in the polls indicated by the use of this mechanism than the other relevant parties. That is one thing.

GORDON J: So what you would describe as “bandwagon”?

MR JACKSON: Bandwagon, yes. The bandwagon effect is referred to in the three articles that are attached to the agreed facts. It is the effect, your Honour, of making it on the one hand less likely the party would exercise a free choice in voting if the person knows that there is less point in doing so because the election has been either – because of the votes in other States either won or close to being won by another party.

NETTLE J: Why is that not a free choice, even if they are affected to that extent?

MR JACKSON: Your Honour, it is a choice, but it is a choice which has a number of aspects to it. Those sections, of course, say that it should be freely chosen by the voters, et cetera, but, your Honour, there are elements and degrees of freedom. If one starts at the highest and worst end, you can have what Prime Ministers have described as banana republics, you can have places where candidates regularly achieve 99.9 per cent of the vote, and you can have places where the cemeteries give up their dead to vote.

Having said all that, your Honours, one does have a situation where the choice is one to be made not by a dictate of government or government bodies or by what really amounts in this case to government bodies having a go at who they think are the most likely winners and telling you these are the ones we think are the most likely winners. That is not a free choice, your Honours.

GORDON J: Can I just test this proposition – the factual matter that Justice Gageler raised with you – I have described as “bandwagon”, only because that is a label that has been applied to it. Is that factual matter made out given paragraph 39 of the agreed facts?

MR JACKSON: I am sorry, your Honour, page 39?

GORDON J: No, page 41 of the book.

MR JACKSON: Yes, paragraph 39.

GORDON J: It is paragraph 39. My proposition, or my question is this. Given the way in which you have described what I have labelled as “bandwagon”, is that factual matter now made out given the content of paragraph 39?

MR JACKSON: In our submission, it is, your Honour, because if one looks at what paragraph 39 says, it says that to quantify the extent or likelihood of the effect on the electoral choices – and your Honours will see that, in addition to that, there are set out the three articles that are at the end of the document

GORDON J: It is really the language in the second line, that is, there is nothing before us, as I read it:

to quantify the extent or likelihood of any effect –

if any.

MR JACKSON: Your Honour, one cannot go beyond that, of course, but what one does have is a situation where, as we have said in, I think, our reply

EDELMAN J: Are you really just saying in paragraph 39 that there is no sufficient time to do a statistical study?

MR JACKSON: Yes. Your Honour, could I just say, if one goes to our reply, in paragraph 20 – I am sorry, paragraphs 12 and 13 – what your Honour just said is in paragraph 13.

GAGELER J: The bandwagon effect is the constitutional fact upon which you base your argument about sections 7 and 24?

MR JACKSON: Yes.

GAGELER J: Is it also critical to your argument that the conduct of the Commission is not necessary or convenient to the performance of its functions?

MR JACKSON: Yes, your Honour, because one does have to look at the functions to see what is necessary or convenient and one does not find this within the functions.

EDELMAN J: But you would accept, would you not, that it may be necessary or convenient for publication of the method by which the counting of first preferences was taken?

MR JACKSON: Your Honour, so far as the – we have no objection, your Honour, to publication of the method of counting first preferences.

EDELMAN J: So if that is the case, then why would it not also be necessary or convenient to disclose the way in which that method was chosen under (2A)?

MR JACKSON: Well, your Honour, if one is looking at (2A), all that it provides for is to conduct a count of preference votes on the ballot paper. Now, if one is doing that, it is a question of count of preference votes to what end?

NETTLE J: To best provide an indication of who will win.

MR JACKSON: Indeed, your Honour, and if what is being done is simply to say well, these are the ones we think will win, at a time when the – I am sorry, these are the ones we think will win at a time when the polling has not closed in other places, your Honours, one can understand why one could do it in relation to polls that have closed but in relation to polls that have not.

EDELMAN J: I think the questions that were put to you right at the start, then, as to whether or not it is just a question of timing, it does then just come back to a question of timing because publication of that information could be necessary or convenient after the polls had closed. It is just your case really depends upon it not being so before the polls have closed in all the States and Territories.

MR JACKSON: Yes. Your Honour, that is so.

BELL J: Coming back to the bandwagon effect, and appreciating that it is for the Court to find constitutional fact as best it can, the three articles reporting the results of overseas research have nothing to do with a system of voting such as ours. It is one thing, perhaps, to talk of a bandwagon effect in a place where, amongst other things, people may be disinclined to bother to vote if they think the result is overwhelming or the like. I mean, these just do not seem to necessarily translate to our conditions.

MR JACKSON: Well, your Honour, I do not suggest for a moment that in every respect they do. If you look at the opening words at page 47, and the introduction of the Californian who plans to vote after work, that would probably be on a weekday, for a start. It would also be noncompulsory.

BELL J: Yes.

MR JACKSON: Yes. But what we would say is, if you go to – your Honours, first of all you will see the reference to bandwagon voting, about line 9.

GAGELER J: What page, Mr Jackson? I am sorry.

MR JACKSON: Page 47, your Honour.

GAGELER J: Thank you. If one goes to page 60, about line 40, we find also empirical support for bandwagon voting, in which later voters, if they participate, are more likely to vote for the expected winner.

GORDON J: You accept, of course, that would extend to first preferences here?

MR JACKSON: I am sorry, your Honour, I am having difficulty

GORDON J: You would accept that that bandwagon argument would apply to first preference voting in Australia?

MR JACKSON: It could, yes, and, your Honours, if one goes to the article commencing at page 81, you will see in the abstract at the start – the fifth line:

When voters are exposed to a news story describing either an upwards or downwards movement for either a small or large party, they tend to move their voting intentions in the according direction. The effect is strongest in the positive direction – that is, when a party experiences increased support, more follows.

NETTLE J: It was statistically insignificant on the negative effect, was it not? It was statistically insignificant for the negative effect.

MR JACKSON: Yes.

NETTLE J: So there would be no adverse reaction, only a positive reaction.

MR JACKSON: Yes. The positive reaction seems to be the one that is good, but that may be in circumstances where the voting is not compulsory of course, and if you have compulsory voting a vote for A means you have not voted for B. Your Honours will see page 83, lines 29 to about 43, and the discussion at page 89, line 41 at the bottom to page 90 about line 30 and then, your Honours, page 91 about line 14 to about 23.

Your Honours, could I move on to the constitutional aspects of the matter. The provisions of the Constitution relating to the Parliament are, of course, at the heart of the constitutional provisions for government of the nation. As is apparent from section 1 of the Constitution, the Parliament holds the legislative power of the Commonwealth, and while the GovernorGeneral has wide powers in relation to the sittings of Parliament, those powers are limited by the second paragraph of section 5 and also by section 6 and each of sections 7 and 24 provides that the relevant House shall be composed of members directly chosen by the people.

It is no doubt correct to say, as your Honour Justice Keane did, I think, in Murphy v Electoral Commissioner (2016) 261 CLR 28 at 86, paragraph 177, that one cannot say that sections 7 and 24 allow one to import one’s own idea of representative democracy into the Constitution and then require courts to implement it. Your Honour was referring to a somewhat similar observation by Chief Justice Brennan in McGinty at page 169 – McGinty is behind tab 23, paragraph 1215.

But in our submission, your Honours, one cannot take that qualification too far. When sections 7 and 24 are speaking of the composition of the House, they are speaking of bodies which are to be elected. That is plain from, and, your Honours, I think I could simply take your Honours – give your Honours the numbers of the sections - sections 5, 8, 10, the second paragraph of section 13, section 30, and sections 32 and 33. But not only are the members of the Houses to be elected, they are to be directly chosen by the people.

Your Honours, could we just say that the observation in McGinty by Chief Justice Brennan, which is relied on, in our submission is – one sees in volume 3, tab 23, page 1215, page 169, in the secondlast paragraph on the page, his Honour acknowledged in the same passage that the concept of representative democracy could be used to illuminate the text of the Constitution even if it could not be used to alter or add to the text itself.

Since McGinty the Court has illuminated the meaning of “directly chosen by the people” in a manner relevant to the present case. Your Honours, we have referred to that in our written submissions, in paragraphs 30, 34 and 49. Your Honours, also we would submit that the observation made by his Honour was in the context of a submission that a concept of representative democracy provided a broad constraint on the electoral system provided for by legislation.

Your Honours, here there is no enactment of the Parliament which requires the Commission to publish TCP information while the polls remain open. They are simply silent on the matter. There may be many machinery ways of satisfying the requirement that the members be directly chosen by the people, but it would not include direction by government as to how a person, whether government employee or not, is to vote. It would not include, in our submission, involvement by the government body conducting the election in telling people how it thinks the election will go, something chosen some time beforehand and continuing on through the evening of the election.

Your Honours, can I go on to deal with some matters arising from our learned friends’ submissions, and in particular from paragraphs 30 and 30.1. We would submit first of all that what appears is that the established practice of the Commission is to preselect prior to polling day the two candidates in each division that in the opinion of the Australian Electoral Officer are the most likely to be elected for the division.

The publication of the TCP Information, including the identity of the candidates preselected by the Commission, inherently in our submission favours or appears to favour the candidates selected by the Commission, and their parties over others. We refer to this in paragraph 8 of the reply. Could I go to paragraph 30.2. The submission there made that:

The publication of the TCP Information has not been shown to be anything other than an accurate reflection of electoral choices in almost all cases –

your Honours, is a concession, we would submit, that the TCP information is not or may not be an accurate reflection of electoral choices in at least some cases. We refer to that in paragraph 9 of the reply.

GAGELER J: How does that matter to your argument?

MR JACKSON: Well, your Honour, what it does do, it simply adds one feature to it, your Honour, in this respect. What you have is, we would say, a government body appointed to conduct the elections. It says, “These are the ones we think will win” and the fact that it gets it wrong, in circumstances where the correction or the error is not likely to take place until the next day, but in the interim there will be the publication of the results on that basis – on the basis of the selection of those two – is something which is inherently capable of misleading potential voters yet to vote.

EDELMAN J: If you did not have that - if that submission you describe as a concession were not present, would it not just amount to whether the publication of true information could affect electoral choice in a way contrary to sections 7 or 24?

MR JACKSON: Well, it would have at least that effect, yes, your Honour.

EDELMAN J: Would your submission then be that even publication of true information would amount to adversely affecting electoral choice contrary to sections 7 and 24?

MR JACKSON: Well, it would be capable of doing so, your Honour. If what was being published was information simply indicating basic facts - for example, who won last time, perhaps how they are going this time, who
else is doing well in the first preference votes and so on, that may not offend the provision, but if you have a situation where you get an electoral officer saying these are the ones that, with the best will in the world, I think will win, one of these two and that information then being given out, that, in our submission, adds to the contention we make.

Your Honour, let us say in that regard, if one looks at our learned friends’ submissions in paragraph 30.3, in our submission, the Commission does more than make public the results of the indicative TCP count pursuant to the performance of duties under 274(2A). What it does do is make public the speculation on its own part as to the candidates most likely to be elected in each division and does so, as we have said in reply 10, while the polls remain open in other parts of the nation.

Your Honours, could I turn then to the relief, the third matter, the relief that we say would be appropriate? We are content with a declaration in the terms referred to in paragraph 62 of our written submissions. Could I add one matter concerning our learned friends’ submissions in paragraph 45? Your Honours will see the Commonwealth has not explained how the relief sought by us including a delay in publication by three and a half hours could possibly endanger the security of the nation or affect the promptitude, certainty and finality in the declaration of the poll to any significant extent.

Your Honour, governments remain in office after the election until the Ministers of the Crown are replaced by the new government, section 64 of the Constitution. Your Honours, those are the submissions I want to make so that we also rely upon our written submissions and in reply.

KIEFEL CJ: Thank you, Mr Jackson. Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, the Commonwealth Electoral Act makes detailed provision for the electoral system that the Commonwealth Parliament has identified as the system that should be adopted in order to give effect to the direct choice of the people identified in sections 7 and 24. It is a system that, to borrow words of your Honour Justice Gordon in Murphy’s Case, which I will not take your Honours to, provides a detailed coherent structure including the practical and logical steps directed to the orderly and efficient conduct of elections.

There are obviously a great many matters in that Act, almost all of them, given the character of the Act, that are capable of having an effect on electoral choices, that is, that may have an effect on electoral choices and that, as I understood the submissions just made by Mr Jackson, was the constitutional fact for which he contended that there may be an effect on electoral choices in order to enliven the constitutional inquiry. That must be true not just of the form of voting, compulsory voting, but the selection of preferential voting and the adoption of proportional representation in the Senate, the layout of ballot papers, the registration of political parties and the determination of electoral divisions.

None of those are matters that this Court has ever previously held are to be subjected to a test against sections 7 and 24 that means that they are invalid unless substantially justified. Your Honours have held that only in relation to laws that, as a matter of legal or practical effect, burden the franchise, and that is part of the way that we answer the constitutional case.

In this proceeding, of the many matters in the Electoral Act that are capable of affecting electoral choice, the plaintiff picks just one, being a subsection that has operated with respect to every election since 1993, and contends that the effect of that provision either is that steps that have been taken under and since its enactment are not authorised or that the provision is unconstitutional.

It does so notwithstanding the fact that the section obviously does not, as a matter of legal or practical effect, exclude anyone from the franchise, so we are not in the territory of Rowe or Roach, and also in circumstances where it is an agreed fact, to which I will come later, that the publication of the count may not affect voting at all.

In our submission, neither the statutory construction nor the constitutional arguments should be accepted. I propose to address them in that order, starting with the statute. Can I ask your Honours to go back to the Electoral Act in volume 1, tab 4, and to return to section 274, which takes its place within Part XVIII of the Act, which is the detailed part concerning the conduct of the scrutiny. If your Honours go back to 274, you will see in subsection (1) that it provides:

In a House of Representatives election the scrutiny shall, subject to section 266, be conducted in the manner set out in this section.

Section 266 is about preliminary scrutinies, and your Honours do not need to be concerned with that. Subsection (2) concerns the count of first preference votes. My learned friends mentioned some aspects of that section, but if your Honours could just note in particular subsection (2)(c) providing for the count of first preference votes given for each candidate on all of the unrejected ballot papers, and then (d) the assistant returning officer who is conducting this count must:

make out and sign a statement . . . setting out the number of first preference votes given for each candidate, and the number of informal ballot papers:

(f) transmit the following information, in an expeditious manner –

so there is a reference to timing – supposed to do it quickly – the results of that first preference count to the divisional returning officer.

Your Honours might note, if you could stay with 274 but also turning up the agreed facts, on page 33 of the application book, paragraph 14c, that the indicative TCP count with which this case is concerned does not take place until the completion of the count of first preferences. So what happens first is that the assistant returning officer does that count of first preferences and is required expeditiously to transmit the results of that to the divisional returning officer, and then the count moves on to the indicative TCP count.

While your Honours have the agreed statement of facts, if you could go also to page 41, paragraph 41. It is an agreed fact that sources of information available to voters at the time of voting – this is in the same periods when voting remains open in some parts of the country - that also have the capacity or that have the capacity to affect electoral choices include:

1. the progressive first preference counts for candidates released by the Commission and scrutineers -

So that is the count that has taken place under 274(2); and in addition:

2. the results of opinion polls published in close proximity to the election -

and the results of exit polls. I mention those two matters because, taking all of them in combination, it is clear that a voter in Western Australia who has not voted until the last two hours of the day, in addition to any effect that may or may not arise from the TCP count challenge in this proceeding, has access to the progressive results of the first preference count, to opinion polls and to exit poll data.

That means, in our submission, that the position in Australia is very different from the position that was considered in the overseas articles to which I will come about bandwagon voting, not just because we have compulsory voting and they do not, but because those articles are concerned with some combination of the effects of early release of electoral results - that is first preference count equivalent here - or the effects of opinion polls, or the effects of exit polls – and we have all of them.

So to the extent that there is a bandwagon effect that is being identified in those articles, it already exists pursuant to unchallenged measures in Australia and what your Honours are being asked to do, and what your Honours would need to do, in our submission, as a matter of constitutional fact finding, is to conclude that there is some effect of the TCP count additional to those unchallenged measures.

In our submission, you just cannot do that. There is no material before the Court that would enable a finding of any incremental effect of that kind to occur. It means, for example, and to try to make it practical, that if in some division on the eastern seaboard there is a seat where a UAP candidate is polling, say, five or 10 per cent in the primary vote but there are other candidates polling in the 30s or 40s, in our submission, it would be plain just from that data that the UAP candidate has not been elected.

If that is right, then the publication of the two party candidate figure as between the two parties who are a long way in front, in our submission, cannot be inferred to have any effect at all on electoral choices. Now, notwithstanding all of those other possible sources of effect on choice, our friends focus their attention on 274(2A), and the indicative

KIEFEL CJ: Just before you go there, Mr Solicitor, what you have said would affect the question of the extent to which there would be an effect or influence. Do you deny the possibility of an effect on the choice of voting? I know the distinction that you draw between the vote itself, but

MR DONAGHUE: We say it is impossible to tell, on the material, whether there is any effect at all.

KIEFEL CJ: That there would be any effect?

MR DONAGHUE: Even in the academic materials in the United States, for example, concerning bandwagon voting, there are divisions of view about whether there is a bandwagon effect or not, and there we are talking about publication of effectively first preference votes where everyone in the whole country is choosing between the same candidates, so a presidential election where - so the nation is a single electorate and, in that circumstance, some people say there is a bandwagon effect and some say there is not.

Here, obviously we are talking about different candidates in different seats. So your Honours are being asked to infer that because a particular candidate has won or lost on the eastern seaboard, a different candidate in Western Australia will have their electoral – there will be an effect on electoral choices on that different candidate. That is more remote, obviously, than the presidential effect. So it is possible that there might be such an effect and, in our submission, paragraph 39 of the agreed facts accurately states the position; you cannot tell if there is an effect at all.

EDELMAN J: But why would a bandwagon effect be contrary to sections 7 and 24?

MR DONAGHUE: Your Honour, I will come to that. In my submission, it would not. Certainly, in the scenario that your Honour put to my friend where what is being published is accurate information or information that is not able to be shown to be partial, there would be no effect, even if it generated the bandwagon effect. That will be my submission.

On the indicative TCP count, your Honours, you have been taken to (2A), but can I note a few points. First, in the third line of (2A), the word “must” is used. This is a provision by which the Parliament has imposed an obligation on the Australian Electoral Officer to identify a way that in the opinion of that officer:

will best provide an indication of the candidate most likely to be elected for the Division.

So, the officer has no choice about making a prediction of one kind or another. That is what Parliament has required the officer to do. So, to the extent that there is a complaint made about the fact that the impartial Electoral Commission is making predictions of that kind, it is a complaint that cannot stand in the face of the statutory obligation to do just that.

In fact, the plaintiff’s case does not go so far as to say that the methodology adopted by the Commission - or by the individual Australian Electoral Officers, as set out in paragraphs 13 and 14 of the agreed facts – does not comply with the statute, because your Honours have in questioning clarified that the complaint is one of timing. So it is not said that the count is defective in some way in achieving the result that Parliament has mandated; it is just that it said that there is some prohibition on publication.

In our submission, when one has regard both to the text and the extrinsic materials concerning (2A), the better view is that the section itself calls for the publication of the result of the count, but if we are wrong about that then, in our submission, the section read together with section 7(1)(a) and (f) and 7(3) is a sufficient source of authority.

Can I start with why we say the section itself conveys that message? There are, in my submission, two key phrases that point to that result. The first is the use of the phrase “most likely to be elected”. In our submission, those words – that phrase – plainly, call for a prediction. When one asks, who is likely to be elected, necessarily you do not know. So, there is a necessary requirement that the count that is to be conducted is one that is to be predictive. In other words – and one thing that follows from that is that the count logically must occur at a time when the result is not known because once the result of the count is known, it ceases to be meaningful to talk about a candidate likely to be elected, as the section does.

Your Honour the Chief Justice asked some questions about what exactly should be taken from the fact that the electoral officer has formed an opinion about who the two candidates are and, in our submission, one certainly cannot take from the identification any inference about who the Commission’s preferred candidate is.

I think at one point it was suggested that that might be what is taken from it, but the Commission is not expressing an opinion about who should win the election; it is expressing a predictive view, an indicative predictive view about who will win. That is a difference of substance when one asks what influence might that have on voters because, even if particular voters were thought to be particularly susceptible to official views, an official view that is purely predictive rather than normative is one that, in our submission, is intrinsically less likely to influence electoral choices.

The other key phrase is the phrase “provide an indication”, and your Honours will have noted there was a debate in writing about the difference between “indicate” and “indication”. Our friends said in paragraph 4 of their reply:

“indication” is used as a noun relevantly meaning a piece of information that “suggests” or “point[s] out” –

rather than as a verb indicating to “make known”. It may be that our friends are right about that. In our submission, it makes no relevant difference because the phrase “provide an indication” contains the verb “provide” and that phrase as a whole, in our submission, clearly conveys that an indication is to be given to someone.

Taking those two phrases together - “provide an indication who is likely to be elected” - in our submission, what one sees is a provision that says that the TCP count is to be conducted in order to suggest or to make known to the intended audience at a time when the result is still being predicted who is likely to succeed, that is, it imports both a temporal requirement as to both when the count should be conducted, at a time when it is still being predicted, and also as to the timing of the publication because in order to suggest or make known to the intended audience the result of the count there has to be that publication of the view in order to give an indication at a time when it is still predictive.

So, taking those two phrases together, in our submission, what Parliament was contemplating here is the conduct of a count and the publication of the result of that count in order to indicate, in our submission to the public - and I will develop that in a moment - who is likely to win. That, in our submission, entirely accords with the purpose of the provision, and your Honours are of course required by section 15AA of the Acts Interpretation Act to adopt the interpretation that best achieves that purpose. Our friends in paragraph 17 of their primary submission identified the purpose of section 274(2A) in this way. They said:

to assist in the speedier identification, on election night, of the party or parties likely to command a majority in the House of Representatives and thus to form government.

There is a footnote to that sentence to the various JSCEM reports that I am going to come to.

In our submission, our friends were exactly right in identifying the purpose of the section in that way in their primary submissions. But in paragraph 5 of their reply, there is a change of tack and the purpose is instead being suggested not to provide that speedier identification on election night, but to assist the Commission in declaring the result of the election as soon as possible.

Your Honour Justice Nettle asked how it could do that and, in our respectful submission, your Honour was right to do so because it is impossible, having regard to the way that election results are declared for the indicative count, to have that effect. I say that because if your Honours still have section 274 before you if you turn to subsection (7), you see the provision where the scrutiny moves from its initial stages, counting the first preference votes and the indicative TCP count, to what is referred to as the “fresh scrutiny”, and the Act uses those words in (7)(b).

The “fresh scrutiny” is conducted, not by the assistant returning officers, but by the divisional returning officer who opens all the parcels of ballot papers sent from the various assisting returning officers and makes a fresh scrutiny of those ballot papers. Relevantly, what that calls for – and it gets a little complicated, but if your Honours turn to subsection (7)(ca) one can find, by linking up some of these sections, what we submit are three different methods of getting a result from the fresh scrutiny. So, under (ca), the divisional returning officer:

must then proceed with the scrutiny and the counting of the votes as follows:

(i) if, after ascertaining the first preference votes given for each candidate, no candidate has an absolute majority –

Then you go to (7AA) can we just leave that aside for a moment:

(ii) if, after ascertaining the first preference votes given for each candidate, a candidate has an absolute majority of votes, that candidate is elected -

So, the first way one can get an elected candidate at the fresh scrutiny is if, on the count of first preferences someone has an absolute majority, that person wins, and that is the end of the fresh scrutiny. If we are not in that category, then (ca)(i) directs you to (7AA) and this is the second method:

If, after ascertaining the total number of first preference votes . . . no candidate has an absolute majority of votes, the Divisional Returning Officer must take the following steps:

(a) rank the candidates consecutively in order . . .

(b) then:

(i) if the total number of first preference votes for all the candidates, other than the first and second ranked candidates, is equal to or more than the number of first preference votes for the second ranked candidate – proceed with the scrutiny as set out in paragraph (7)(d)

So, that is effectively to conduct a full distribution of preference counts. But, if the total number of first preference votes for all the candidates other than the first and second is less than the number of first preference votes for the second ranked candidate - in other words, if you add up everyone other than one and two and it is still less than the total first preference votes for number two, then you exclude everyone else because no matter how the preference flows between those other candidates, it could never take them ahead of the second candidate. You exclude everyone else and you conduct what is, in effect, equivalent to the TCP count distributing the votes of all of those remaining candidates between one and two and at the end of all of that, whoever emerges is elected and one sees that from (7AC) – the candidate with the absolute majority of votes is declared elected.

GAGELER J: Well, it just says “is elected”. Where do you get the word “declared”?

MR DONAGHUE: No, I misspoke, your Honour, “is elected”. It is the same as (ca)(ii) “is elected”. So, the fresh scrutiny is resulting in people being elected by following the detailed provisions under (ca), under (7AA) taking one to (7AC), or the third method is the full distribution of preferences under subsection (7)(d) and that finishes at the end of (iii) with the words “shall be elected”, not clear why that is different from “is elected” but, in substance, it is the same outcome.

So, in our submission, the way that you get an elected candidate is and is only by going through the fresh scrutiny process identified in those provisions and knowing the result of the indicative TCP count affects not at all the obligations of the electoral officers who go through that process which is, of course, a process that includes all of the votes that are not counted in the indicative TCP count. So, it includes all of what are called “declaration” votes under the Act.

So, it cannot be the case that Parliament in calling for or in requiring the conduct of an indicative TCP count under (7)(2A) is trying, in some way, to speed up the result of the fresh scrutiny. Parliament must have been doing something else. What it was doing is clear from the extrinsic materials and we say from the words I have already emphasised, it was providing a mechanism to tell the public, provide the public with an early indication of the result.

If your Honours could turn to the second reading speech which is in volume 5 of the joint book at tab 39 your Honours will see there the relevant Bill was the Electoral and Referendum Amendment Bill. It did a number of different things – only one of which is relevant here. If your Honours turn to page 1904, you will see at the bottom of the lefthand column, the last paragraph, a reference to the:
6

report on the 1990 . . . Joint Standing Committee on Electoral Matters –

that I will come to in a moment – which had made a recommendation:

that scrutineers be permitted to examine a ‘twocandidate preferred vote’ in order to ascertain the likely outcome of the election on polling night.

That recommendation that scrutineers be allowed to examine was not pursued. Your Honours see there:

For various reasons relating to the integrity and efficiency of the scrutiny process . . . the Electoral Commission concluded, and the Government agrees, that it is more appropriate for Electoral Commission –

to do the count itself. So that was a departure from the 1990 recommendation. Then, from the fourth line down, in the righthand column:

This will provide the public on that night with an early indication of the twocandidate preferred result in most electorates.

That is consistent, we say, with the text but a very clear indication of the purpose.

Now, we also rely on the Joint Standing Committee reports and perhaps I will deal with them now. So, could I ask your Honours to go first to volume 6, tab 44? This is the 1990 report that was mentioned in the second reading speech, the passage that I just read. If your Honours then turn to Chapter 4 which is on page 32. I am sorry, I do not have the joint book page and number – page 2361 in the joint book. You should see the beginning of Chapter 4 headed, “Knowing the Election Result on Election Night”. This is the chapter that ultimately led to the enactment of subsection (2A) and the heading is obviously probative of the purpose of the recommendation.

If your Honours go back to the foreword of the report, there are some roman numbered - 2321. Your Honours can see this is in the section of the report dealing with the key findings. In the key findings at the top of that page, in the second paragraph down – well, it is said in the first paragraph:

A major failing of the AEC’S management of the election was that the result was not known until four days afterward.

Australian electors were kept waiting for their results –

So it is again suggestive that the focus of attention was on the public and the recommendation was, two paragraphs further down:

To prevent this recurring it has been recommended that a new formal step be added to the House of Representatives scrutiny –

which is what was done, obviously, with (2A). If your Honours could then go back to 2361, you will see in paragraph 4.3 there is some – sorry, I will start at 4.1:

Another major issue of complaint concerning the 1990 election was that the public did not know the result of the election until Thursday . . . after close of polls. The result was not even a cliffhanger – the Government was returned with a majority of eight seats.

There had been a suggestion, you see described in 4.3, that in advance of the election that it had been foreseen that the election result might:

be close, with minor parties and independent candidates getting up to 20% –

of the results, so that the distribution of their preferences might be important. It is said in the middle of that paragraph that it had been suggested that:

an early indication of the election result may be known by the public on election night as under normal counting procedures it would be unclear who had actually won.

The Commission at that time refused to change its procedures so as to provide the early indication because, as you can see at the top of the next page, it took the view that the:

Act made it quite clear that counting of other than first preference votes on election night was not contemplated –

The Committee was critical of that approach and, for that reason, recommended the insertion of the new formal step in the scrutiny that you see referred to in paragraph 4.7. That resulted in a formal recommendation made at paragraph 4.21 on page 35, page 2364 in the joint books. The formal recommendation was:

that the Commonwealth Electoral Act 1918 be amended to add a new step to the House of Representatives scrutiny process to guarantee that scrutineers would have the opportunity to readily observe a ‘twocandidate preferred vote’ –

So that is the reference to scrutineers that I mentioned which was not proceeded with when the Commission said it was better if it did it itself.

KIEFEL CJ: Mr Solicitor, are we to understand the reports and the second reading speeches to be addressed to a notion of a public demand for information or is it a recognition of transparency of process or a combination of the two?

MR DONAGHUE: It seems perhaps to be a combination but I think more the former, a public demand for information as to who had won the election, and in circumstances where the background seems to have been that prior to the 1990 election there had not been a major role for minor parties or independents in House of Representatives elections, so it was up to that point fairly easy to tell who was being elected. But as more primary or first preference votes were being directed to minor parties or independents, the result of the election was harder to ascertain, and this was responsive to that notion.

Before the Bill was passed after it had been introduced into the Senate but before it was passed – there was a second JSCEM report, which is in volume 6 still but this time behind tab 45. This is the report that Mr Jackson took your Honours briefly to.

Can I start by asking your Honours to note page 2438, and this is to respond to a criticism that was made of our reliance on paragraph 4.21, but your Honours do not need to go back to that at this stage. In effect, it was said we relied on a sentence in 4.21 to suggest that publication was necessary as soon as possible and that that sentence was directed to the first preference count, not to the two party count. If your Honours look at recommendation 5 on page 22, the recommendation is that:

The result of the provisional twocandidate preferred distribution should be transmitted as soon as possible from each polling place, and transmitted in at least three batches from the Divisional Office to the National Tally Room with information about the polling places included when approximately 10%, approximately 40% and the final count for the night –

So, in our submission, it is clear that the Commission was not confining itself to rapid transmission of first preference votes. It wanted the two candidate vote to be transmitted as soon as possible and it wanted it to occur in batches. Now, it is difficult to see, in our submission, why one would refer to 10 per cent, 40 per cent and the final vote if it is not being contemplated that there will be progressive release to the public throughout election night of the result of the count.

GAGELER J: Where do we find the power of the Commission to establish and make public the National Tally Room?

MR DONAGHUE: Your Honour, I do not think you do find that express in our submission, you adequately find it in paragraphs 7 - (a) and (f) – (a) is the power to do things necessary to the functions of the Commission and (f) 7(1)(f), specifically confers a power to publish things relating to the functions of the Commission, and then the function of the Commission in question is 274 to conduct the scrutiny in accordance with the obligations one sees there. So that the tally room is the – the tally room is now electronic. The tally room is now the electronic manifestation of what used to be an actual room where the functions were carried out.

GAGELER J: When the Commission publishes the first preference counts, what power is it exercising? That 7(1)(f) is

MR DONAGHUE: Well, it is publishing material on matters relating to its functions under 7(1)(f) and 7(3) then gives it the power to do all things necessarily convenient to the performance of its functions.

GAGELER J: I suppose you can see where I am going.

MR DONAGHUE: Yes.

GAGELER J: Why is not the power that authorises the publication of the first preference votes the same

MR DONAGHUE: The same as – yes. I understand that is what your Honour is – where your Honour is going. It may be that that is right. The difference is that in the text of (2A), with the provision calling for the count that provides the indication in that way, that it seems to convey, consistent with its history and purpose the notion that what is being done is being done really for the sole reason of telling people on election night what has been happening.

GORDON J: If that is right, then surely the same argument applies to subsection (2)(f) in relation to first preferences?

MR DONAGHUE: That may be so and, in the end, in my submission it makes no difference as a matter of legal analysis whether one situates the power to publish in 7(1) and 7(3) in combination with 274 or whether one goes directly to 274. In either case, as your Honour the Chief Justice put it to Mr Jackson, one needs to find a prohibition on doing this and an absence of power to do this. It is not enough to say it might be prudentially desirable not to publish at any particular time.

If these provisions that I am referring to do not authorise publication they should not authorise publication after polls close. It is hard to draw a line in the power to publish between the opening and the closing of the polls, but our friends seem to say or seem to accept that there is power after the polls have closed. That acceptance is correct, in our submission, because there is power either way.

EDELMAN J: But it is really the constitutional and the statutory arguments merge in a way in that the constitutional restraint might be implied into the statute, and if it is not then it becomes imposed upon the statute.

MR DONAGHUE: Your Honour, I accept that. If we lose on the constitutional point then I do not suggest it would be impossible to confine these powers by a Wottontype analysis. But if we do not lose on the constitutional point then in our submission the power is adequately revealed by that set of provisions.

GAGELER J: Would it be open to the Commission, on your submission, to be persuaded by Mr Jackson’s argument and choose to delay publication until 9.30 Eastern Standard Time? Do you go so far as to say it is not open to the Commission to take that approach?

MR DONAGHUE: Your Honour, I think the answer to that is yes, that I do go so far. In our submission in order to accord with the purposes I have just taken your Honours through, to provide the early indication of the result, the references to progressive publication, the Commission would not properly discharge the function or duty that is imposed on it under (2)(a) if it just delayed. If I am wrong about that I do not lose the case, but that is my submission.

EDELMAN J: That is because you read the extrinsic materials as effectively giving rise to an implication in either 274 or section 7 of expedition?

MR DONAGHUE: I situate it first in the text and then I confirm it by the extrinsic materials. So, I get the temporal element partly from the fact that once the count is complete, in our submission we are no longer talking about a candidate “likely to be elected” – we are no longer in the territory of prediction. So partly that is the reason that we say it is earlier. Also, it is indicative – it is not intended to be final or authoritative. It is an indicative process. So I rely on that and then I confirm it by the extrinsic material.

Your Honours, if you still have the 1992 JSCEM report, I would just flag a few other provisions in it. If your Honours note that at paragraph 2.1 there is a reference in the report to the – if your Honours could go to 2.3.1, there is a reference there to:

serious concerns about the AEC’s original plans for identifying the two candidates who were to receive the provisional distribution –

and there is reference that our friends have relied on about the:

AEC getting it wrong and jeopardising an early –

count and the publication of the “two most likely”. Those are concerns expressed by reference to the original plans. The original plan is then identified at 2.3.2. It was a plan which was just going to predict based on:

the results in the previous election –

The Committee disapproved of that, at 2.3.4, indicating:

the AEC should take into account all relevant objective data to maximise the chances of identifying the correct candidates –

As your Honours have seen, the AEC does now go much beyond the result of the previous election. Then there was a reference to the concern about the AEC selecting the two most likely candidates and the AEC responded at 2.3.6 by:

agreeing to adopt procedures which would keep confidential the identity of the two candidates to receive preferences in the polling night count . . . A sealed envelope containing the names of the two candidates, will be made available to the Officer in Charge of the Polling Booth, to be opened after the close of votes –

In our submission, that recommendation which, as is reflected in the practices understood by the Commission as directed to the close of polling in the division to which the indicative count relates, is consistent with the fact that the proposal is to send the envelopes to the officers in charge of each individual booth. So, it contemplates, in our submission what, in fact, occurs, which is voting closes in the booth, then the officer opens the envelope, identifies the candidates and the voting then – the counting then continues in accordance with the procedures your Honours have seen.

I have said, I think, what I need to say in relation to the alternative that we make by reference to the source of authority to publish being in section 7(3). The principles concerning powers of that kind would be well known to your Honours, and I will just give your Honours a reference to a convenient summary of them, which is in the Federal Court’s judgment in Hird v Chief Executive Officer of ASADA [2015] FCAFC 7; (2015) 227 FCR 95 at 157, paragraph 210, where there is an encapsulation of the principles, but, in essence, the principles are that a power of the kind your Honours see in 7(3) is ordinarily to be construed broadly, particularly where the functions to which the powers pertain are themselves expressed broadly, which we submit is the position here.

GAGELER J: Mr Solicitor, reading it broadly, is the question for a court whether the court is satisfied that something is necessary or convenient, or is it a question of whether the Commission could consider the thing to be necessary or convenient? Is it an objective jurisdictional facttype question or is it a question of power?

MR DONAGHUE: Your Honour, I believe the answer is the former, that it is - reading the section broadly, that it is not a question whether it is open to the Commission to consider it necessary. It is whether it is necessary. I will check that overnight, if I might.

GAGELER J: Thank you.

GORDON J: The reason why that may be important is because in paragraph 5.2.1 of the second Joint Standing Committee report it makes it clear that it is left to the AEC:

it is the responsibility of the AEC to determine the best method of ensuring an early and accurate result.

MR DONAGHUE: Absolutely, your Honour. One of the points that we do seek to make about that report is that while the JSCEM identified some concerns, it clearly did not mandate or even recommend any amendments to the provision in order to fix in place the answers that the Commission had given.

GORDON J: It makes it clear at 5.2.1.

MR DONAGHUE: I accept that, your Honour, and indeed we rely upon it. Your Honours, I note the time

KIEFEL CJ: If you are moving to the next topic, yes, we might adjourn at that point, Mr Solicitor.

MR DONAGHUE: If the Court pleases.

KIEFEL CJ: The Court will adjourn until 10.00 am tomorrow.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 7 MAY 2019