Palmer & Ors v Australian Electoral Commission & Ors [2019] HCATrans 88 (7 May 2019)

Last Updated: 7 May 2019

[2019] HCATrans 088

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 TUESDAY, 7 MAY 2019, AT 10.00 AM

(Continued from 6/05/19)

Copyright in the High Court of Australia

____________________

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honour. Your Honours, at the end of the hearing yesterday your Honour Justice Gageler asked me a question about the necessary inconvenient power and – in essence, is it a jurisdictional fact question or a satisfaction question. Our researches overnight suggest that the authorities do not squarely address that question but in our submission they proceed on the basis consistently with the answer I gave to your Honour, that the question is one for the Court, albeit that the authorities recognise the breadth of the power and so the standard of scrutiny is of a generous kind.

That, in my submission, is consistent with the cases that are cited in the paragraph that I mentioned yesterday from Hird which is – the citation is in the oral outline at paragraph 210, but it includes the decisions of this Court in Kathleen Investments and in Leon Fink. Having said that, we do emphasise that in our submission the question for the Court that is raised by a provision such as section 7(3) is a question as to the existence of power and that once the Court finds that power does exist it is then for the Commission here, rather than the Court, to decide how that power should be exercised in any particular case.

Kathleen Investments was about the power to acquire shares. Leon Fink was about the power to lend money. If one finds that a power of that kind exists then the way that the repository of the power exercised it is for the administrative body. There are some cases where - and Kathleen Investments was an example - the existence of the power might depend on the facts if the relevant function of the administrative body is expressed in a very broad way and there is a question whether the activity that the agency wishes to engage intersects with that broadly framed activity, there promoting uranium exploration.

No such issue arises in this case because, in our submission, if the Court accepts the submission that we made yesterday to the effect that the indication called for by section 274(2A) is an indication to the public then it must follow that publication of the results of the indicative count is part of the functions of the Commission, either under 7(1)(a), or at least publication of material on a matter relating to the functions under 7(1)(f) and on either of those views the power to publish is necessary to the performance of the function of informing the public of the result of the indicative count.

KIEFEL CJ: What about the timing of the publication?

MR DONAGHUE: Your Honour, in my submission, once the power exists that

KIEFEL CJ: The timing is a matter for the Commission as well.

MR DONAGHUE: The timing is a matter for the Commission. That is really the purpose of the submission I just made. I submitted yesterday, and we maintain, that the better view is that looking at this provision the text and context of the provision including the extrinsic materials I took your Honours to, the better view is that there is a duty to impose on a progressive basis. But even if I am wrong about that, and there is a discretion in the Commission it is a discretion for the Commission, in my submission, and there would need to be an error shown in the exercise of it.

Your Honours, that then takes me to paragraph 9 of our written outline under the heading “Ground 1 – statutory limitation argument” and can I commence there by noting that your Honours will have seen in the written submissions that there is a dispute between the parties as to the basis upon which the plaintiff contends that there is a statutory obligation on the Commission to act impartially.

I do not propose to enter into that dispute orally because and, in particular, I rely on what we have said in writing as to the difficulties with the plaintiff’s reliance on the Public Service Act as the foundation for that duty of impartiality. The reason I do not propose to go into that in detail is your Honours will have seen that we accepted in paragraph 27 of our written submissions that in accordance with ordinary administrative law principles the Commission and its officers must discharge their functions and exercise their powers without bias and that, in my submission, is just another way of saying “must act impartially”, the relationship between impartiality and bias having been expressly drawn by this Court in a case that is not in the joint book but in Ebner v The Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at paragraph 23, Chief Justice Gleeson and Justices McHugh, Gummow and Hayne said:

Bias, whether actual or apprehended, connotes the absence of impartiality.

GAGELER J: Is there not a bit more to the impartiality of the Commission than simply the absence of bias? I mean, it gets headed up by a judge or at least a person who can be a judge who is nominated by the Chief Justice of the Federal Court.

MR DONAGHUE: Yes.

GAGELER J: It then has to be populated by persons who, under the Public Service Act, must act at all times apolitically. There is an apolitical element, is there not, that goes beyond simply being unbiased within the ordinary principles?

MR DONAGHUE: Your Honour, certainly there are those statutory indications which go a distance to promoting independence from the Executive Government, in particular the appointment mechanisms that your Honour has referred to. As to the APS question, if I can call it that, and the code of conduct, that question is complicated because the Commission is comprised of some people who are APS officers with duties under the APS Act and the code of conduct, but quite a number of the senior officeholders within the Commission are not subject to that framework.

In saying that, I am not suggesting that they are entitled to act partially or politically. I am certainly not suggesting that but we do submit that there are difficulties with using the Public Service Act as the foundation for the imposition of that standard. Our submission is that the general law principles concerning bias or impartiality are sufficient for the purpose because those duties do mould themselves to the statutory framework. Obviously, they adjust as between judges and courts on the one hand and administrators on the other, so they are sufficiently flexible in their content to provide the relevant legal standard.

Certainly, as we see it, our friends have not identified any deficiency in the general law standard that would require the imposition of some different statutory test. Indeed, in paragraph 7 of their reply they appear to accept an equivalence between the statutory implication they sought and the common law principles.

So, in our submission, it is sufficient to ensure that the Commission and its officers act impartially to rely upon the general law principles, moulding their content to the statutory framework, including the provisions your Honour Justice Gageler mentioned, but also including duties specifically imposed upon those officers including the duty to select the candidates for the purpose of conducting an indicative count under 274.

We have handed to your Honour what I believe is the Court’s latest consideration of the bias principles in Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135. Can I just direct your Honours’ attention to two passages in those reasons? First, at page 146, paragraph 20, in the joint judgment of Justices Kiefel, Bell, Keane and Nettle and at paragraph 20, under the heading “How the governing principle is to be applied” your Honours consistently with the quote I just read from Ebner tie the concept of bias to impartiality:

The question whether a fairminded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts –

Your Honours, then, in the next paragraph at paragraph 21, identified two steps in applying that principle. The first, which is the one I emphasise, requiring:

the identification of what it is said might lead a decisionmaker to decide a case other than on its legal and factual merits.

There must be:

articulation of the logical connection –

That is in an interest case, sorry. But, at the end of the passage:

As Hayne J observed in Jia Legeng, essentially the fear that is expressed . . . is of a deviation from the true course of decisionmaking.

Your Honour Justice Gageler at paragraph 59 analysed the principle in similar terms, particularly at the bottom of page 155, the last six or seven lines. Your Honour identified steps in the application of the principle:

three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits.

Adopting that approach in this case, in our submission, it is necessary to ask what it is that is said to indicate that the Commission might not discharge its functions under 274(2A) in conducting and then publishing the result of the TCP count, otherwise than as a result of a neutral evaluation of the merits which means here, otherwise than as a result of neutrally undertaking the statutory task imposed upon the officers under 274(2A).

The plaintiff’s offer in answer to that question, as we understand it, simply that the AEC might publish something which, taking their case at its highest, may have an effect on electoral choices by creating a bandwagon effect, that seemed to be where the oral argument reached yesterday. But, even if your Honours were to accept that the publication of the TCP count might have that effect that would not satisfy the first step of the analysis because the publication of a prediction, even if the prediction might favour one candidate, does not show that the publisher of the prediction lacks impartiality.

To make that good, one only needs to think about the publication of a news poll or an equivalent poll. The fact that that poll might report one party leading the other and that that might be of some advantage to the party that is reported as leading the other cannot reasonably be understood as conveying the news poll supports the party that is leading in the relevant poll.

So that even if the Court was satisfied that the publication of the count might cause a bandwagon effect which would, of course, have to be additional to the effect that already would exist as a result of the first preference count publication, opinion polls, exit polls, et cetera, and I will come back to this in the constitutional argument, in our submission, even being satisfied of that would not show a deviation from the true course of decisionmaking and so would not ground any concern as to lack of impartiality.

GAGELER J: Mr Solicitor, if the source of the power to publish is section 7(3), and if section 7(3) involves, from the Court’s perspective, an objective inquiry, the existence in fact of a bandwagon effect would bear on whether the timing of publication was necessary or convenient for the performance of the functions.

MR DONAGHUE: Your Honour, in the analysis that we submit is appropriate, the question for the Court under 7(3) is – well, one starts at 7(1) to identify the function. The function that is permitted or required, in our submission, is both conducting and publishing to the public the result of the count and one then asks, well where does the power to do that come from? One looks at 7(3) and says the Commission has the power to do that because it is necessary to the performance of the function.

At that point, in my submission, the Court’s task under section 7(3), and the necessary inconvenient question is exhausted. Your Honours have found that the Commission has the power to publish the result of the count. Now, it will not have that power if to do so would breach the bias principle, because that is an implied limitation on the power, but there is not a separate question independently of the legal limit from bias or the constitutional limit your Honour Justice Edelman posed yesterday, a separate freestanding question about necessity or convenience that the Court needs to answer because that would effectively shift the Court into a merits review of an administrative decisionmaking exercise and that, in my submission, is not how the power should be understood.

Your Honours, there was quite some emphasis in oral argument yesterday on the fact that the Commission selects, some weeks prior to polling day, two candidates who it thinks are the two candidates who are most likely to be elected as supportive in some way of the impartiality or the lack of impartiality case.

In our submission, the fact that that selection occurs cannot be relied upon to demonstrate impartiality because that is the performance of something that the Commission is required to do and so the bias principles must accommodate the performance of the statutory duty that is imposed.

But we note in any event that the plaintiffs have expressly accepted that publication of the results of the TCP count can occur once polls are closed throughout the country and, in our submission, once that fact is accepted, logically the complaint cannot be about the selection of the candidates because if the complaint was about the selection of the candidates, that would be a complaint that would continue both before and after polls have been closed. So the dividing line that the plaintiffs rest upon has to focus upon some difficulty with the publication, rather than with the selection process.

GORDON J: Well, that is consistent with the relief they seek.

MR DONAGHUE: Yes.

GORDON J: That is both identity rather than the selection.

MR DONAGHUE: Indeed. But it does mean, in my submission, that your Honours can disregard as a source of impartiality difficulty the fact that the Commission is involved in that selection because that does not correlate to the relief that is being claimed. There was some reliance on what I will call the imprimatur argument, the fact that publication of the identified candidates might be thought to convey some imprimatur from the Commission.

We make two responses to that argument. The first is that in our submission there is no reason why a reasonably informed observer would conclude that the identification of two candidates for the purposes of an indicative count, knowing that that is happening pursuant to a statutory requirement and that it is done in accordance with an established practice that does not vary between seats, involves any imprimatur at all to the identified candidates.

Such an observer would know that the Commission selects candidates and publishes the results of the count, irrespective of which particular parties are the participants in that count, which obviously will vary from seat to seat throughout the country. There is, in my submission, no factual basis before the Court to indicate that that selection process favours any particular party over any other and in that respect we note, as your Honours have already seen, the fact that in all 150 divisions at the last federal election in 2016, the candidate ultimately elected was included in the TCP count.

Our friends made a point both in paragraph 9 of their reply and orally yesterday that the Commonwealth had conceded that the TCP count was misleading. In our submission that is not so. The fact that very rarely – and the agreed facts, paragraphs 28 and 29, together with the agreed facts, reveal that on two occasions out of the last 300 TCP counts that have been conducted – that is, none in the 2016 election and two in the 2013 election on two occasions the candidate elected was not the candidate identified by the Commission – goes nowhere in terms of indicating a difficulty from an impartiality perspective because, as your Honours have seen, what the Commission is charged by the section to do is to engage in a prediction.

As has become notorious, sometimes electors do not vote as is predicted. The fact that the Commission’s prediction was wrong on two occasions out of the last 300 in our submission does not suggest any impartiality concern or any other legal difficulty.

The second point we make in relation to the imprimatur point is that it rests on a factual foundation that is both absent from the agreed facts and unrealistic in that it assumes that electors know that the indicative TCP count is a count between two candidates who have been selected and identified by the Commission in advance. It makes that assumption in circumstances where the publication of that information, at least to the extent that it occurs through news channels, news networks, et cetera, does not reveal an immediate link between the selection by the Commission and the source of the information.

Our submission is that it is most unlikely in the real world that anything other than a de minimis number of technical election experts are aware of the intricacies of the TCP count. I certainly am happy to confess for my own part that, having been aware of TCP counts for many, many years, the underlying mechanics by which those figures are generated were not known to me before the election case and I strongly suspect that that will be the case for very many people.

That is relevant, your Honours, because, as a foundation for challenge to the provision, in our submission your Honours should not proceed from a factual foundation that is not established by the agreed facts and that is contrary to ordinary experience. Looking at the publication of TCP figures, it is not obvious that they are anything other than a two party count between the leading candidates revealed by the first preference votes. Unless your Honours were prepared to proceed on the footing that this quite detailed technical understanding of what lies behind 274(2A) is known then the asserted imprimatur just does not exist.

As to discrimination, your Honours would have seen in paragraph 22 of our friends’ oral outline of argument and also in paragraph 52 of their written submissions that there was an assertion that the TCP count favours incumbents and major parties over new or independent or minor parties. That was not a submission that was developed orally by Mr Jackson, including when your Honour Justice Gageler specifically asked what factual findings are needed for the purpose not just of the constitutional case but the statutory case.

It was not put that your Honours should find discrimination against minor or new parties as an element, so to that extent we understand the argument not to be pressed. But if the argument were to be pressed, in our submission it is significant that notwithstanding the fact that these counts have occurred in every election since 1992, if there was evidence of bias of the kind suggested, that evidence should be able to be produced by reference of the long experience of counts of that kind. In that circumstance, the absence of anything going to that topic at all in the agreed facts is telling.

We do note, as I have already mentioned, that at the 2016 election the agreed facts tell your Honours that all of the candidates who were elected won. I mention that in this context – sorry, all of the candidates who were elected were included in the TCP count.

In my submission, it would be open to your Honours as a matter of judicial notice to have regard to the fact that one of those candidates who was elected at the 2016 election was Rebekha Sharkie from Mayo in South Australia. Your Honours might recall she was then disqualified under section 44 and one of the people who was reelected in a byelection.

I mention Ms Sharkie because Ms Sharkie was a Nick Xenophon Team candidate who was not an incumbent at the 2016 election. The fact that all of the identified candidates at the 2016 election were included in the count necessarily allows your Honours, if you are prepared to have judicial notice of the fact that Ms Sharkie was a candidate in that election, to conclude that she must have been one of the candidates identified in the 2016 count.

So, that is an example your Honours can note of a minor party candidate, not an incumbent, who was nevertheless identified and included in the TCP process. Now, that is one example but there is nothing that points the other way that suggests that this system discriminates against minor parties.

Finally, on the statutory argument, again in the oral outline in writing in paragraph 21, this time of the oral outline, it was urged that publication of the TCP information while the polls remain open disadvantages electors in those divisions. Again, there was no suggestion in answer to your Honour’s questions that a factual finding to that effect should be made. Again, in our submission, if the point is pressed, there is no factual foundation that would support a conclusion of disadvantage.

In that respect, we note, your Honours, that the suggested disadvantage seems to be that if an elector votes – casts their vote at a time when they know what the result is in other divisions then that is itself a disadvantage. The disadvantage is some people in Western Australia might vote in the last two hours of the day when they know who has won in other divisions.

If that is a disadvantage then it would seem to follow, on the face of it, every time electors vote in a byelection, because when they vote there they know what the results everywhere else were, but even if your Honours were to treat a byelection as a separate exercise, on any occasion when this Court declares, sitting as the Court of Disputed Returns, that an election was void and electors need to vote again, when they vote they will know the result everywhere else.

As a matter of substance it is difficult to see why their knowledge at that time is any less relevant than the result of people voting in Western Australia in the last two hours of the day but obviously your Honours could not hold that electors are disadvantaged in the exercise of their vote by knowledge of what occurred elsewhere in the country.

Similarly, the Act has provisions for the adjournment of polling in certain circumstances, which happens from time to time if there is flooding in polling stations, or matters of that kind, where voters vote after polling day, or for supplementary elections, if a candidate dies between the date of nomination and polling day there is a supplementary election after the results are known.

Those are all examples of cases where electors in various parts of the country might go to the polls knowing what has happened elsewhere and it has never been held or suggested that to vote in those circumstances disadvantages the voters who vote with the knowledge of what has occurred elsewhere.

So for all of those reasons, in our submission, your Honours should not conclude that there is any failure of impartiality established by the Commission conducting and publishing the results of the indicative TCP count while polls remain open. That is all I want to say on the statutory part of the case.

As to the constitutional argument, we make two submissions. The first is that the Court should not find that section 274(2A) imposes any burden on the mandate of direct choice by the people found in sections 7 and 24 of the Constitution. Your Honours questioned the plaintiff yesterday as to exactly what constitutional fact would need to be found to lay the foundation for the constitutional challenge. It had been put in a variety of different ways in writing by our friends, some of which were quite strong, in terms of the finding that was sought. One of those ways was repeated in paragraph 10 of the oral outline. It was put that the publication of the count has a very real:

capacity to preclude electors . . . from exercising a free, informed, genuine and unimpaired choice –

A finding of preclusion of that in that way, we submit, is not open to the Court. There is no material that would support it. But in answer again to your Honour Justice Gageler’s question, that was not the finding that your Honours were asked to make. The finding ended up being that voting may be affected by a bandwagon effect and I think your Honours Justice Gordon and Justice Gageler ended up saying is that the burden that is sought is the finding that is sought as to the burden and the answer was yes.

As to whether your Honour should make that finding, in our submission, the starting point is paragraph 39 of the agreed facts, which your Honour Justice Gordon mentioned – where the parties have agreed that:

There is no practicable means, in the time available before the election, to quantify the extent or likelihood of any effect on the electoral choices –

and, in our submission, in light of the agreement of that fact, being an agreement that there may not be any effect, it is very difficult for the Court to infer that there is an effect of that kind to be affirmatively satisfied of the existence of the bandwagon burden.

Now, of course, your Honours are not confined to the agreed facts to the extent that constitutional facts are in issue. But in order to go beyond them, in our submission, your Honours still need to have material that is sufficiently probative of the fact that your Honours are being asked to find. I lift that language from Justice Heydon’s judgment in Thomas v Mowbray, and also from your Honour Justice Gageler’s judgment in Maloney v The Queen, which are cited in the submissions.

If one asks what is the material here that is sufficiently probative of the existence of the bandwagon effect that would allow your Honours to find it, in our submission there is no material that would allow such a finding. It is certainly outside the realms of judicial notice. It is not selfevidence or a matter of general knowledge or experience that the publication of the TCP results and, being results of a different election, the election in a different division in the eastern States or the Senate in the eastern States, but, realistically – sorry, I should not have mentioned the Senate – we are not concerned with that – being publication of the results of the election in the division in the eastern States it is far from selfevident or clear that that has any effect on voters for different candidates, possibly involving different parties in a western State.

But even if it might be thought, as a matter of inference, that some conclusion there could be drawn, your Honours would need to differentiate the effect of the publication of the TCP count from the other matters I have already mentioned – the first preference votes, the exit polls, the opinion polls. There is no basis, as a matter of general knowledge or common experience or in any other way to differentiate those two effects.

If it were thought to be or said to be obvious that there was such an effect, we simply observe that it does not appear to have been noted at any previous election. It is difficult to see why, and here we pick up some language of your Honour Justice Keane in Murphy, but if the argument is right it is difficult to see why it does not have the unattractive conclusion of casting doubt upon all of the previous elections that have occurred under this system where the same publications that are now said to mean that there has been no direct choice by the people under sections 7 and 24 would have been equally applicable now. The argument does seem to have that unattractive consequence.

In effect, the plaintiff has asked your Honours to adopt a kind of constitutional precautionary principle where they say if there is any risk at all then the risk needs to be justified and that is not an approach that your Honours have adopted. Even in Rowe and Roach, the only two cases where laws have been invalidated by reference to these principles, your Honours had a considerable body of evidence as to the existence of the burden.

So there was evidence in Roach of, perhaps, 10,000 persons, many of them indigenous, being disenfranchised. There was evidence in Rowe of, perhaps, 100,000 people who had made claims for enrolment who would not be able to vote. There is nothing equivalent in this case. In Murphy, by contrast, your Honours all found, I think, that there was no burden, that the case failed – certainly a majority of the Court found that there was no burden imposed and that is the finding that we urge here.

Your Honours have been referred to the academic articles that are attached to the agreed facts. I do not want to dwell on them at any length, but can I make some brief submissions about them. First – and, obviously, they all concern jurisdictions where there is no compulsory voting and they are heavily concerned with turnout. So, to that extent, they immediately lose force in that the concerns that are identified have no resonance in an Australian context.

Second, the articles concern respectively, in the case of the article concerning the position in France in the European Economic Review exit polls, in respect of the article concerning Denmark opinion polls, and in respect of the article concerning the United States, the effect of intervals between primary voting for US presidential candidates over time, and in particular the informational effects of the significant periods between primaries.

None of those three things have been either shown or agreed to be equivalent to the publication of a TCP count. They are more equivalent to publication of the first preference counts. To the extent that they concern opinion polls, they concern something that happens in Australia and is not challenged. But unless your Honours were able to find equivalents between the subject matters of those articles and the publication of the TCP counts, there is no rational connection between the analysis in those articles and the conclusion that your Honours are asked to draw. They are talking about the effects of something different and, indeed, they are talking about the effects of something that can happen in Australia and has not been challenged. So they do not provide a basis for factual finding about the effect of publication of the TCP count.

Further and just as a matter of detail, if your Honours could turn to page 48 of the application book in the article concerning France in the European Economic Review. This is the exit poll article. At about line 29 it is noted that:

Despite the growing tendency for voters to learn exit poll results while an election is ongoing, previous observational databased research on the effects of such information on voting behaviour is limited and inconclusive.

There is discussion of the socalled “West Coast effect in the U.S.”, which is an equivalent effect to the kind of effect that is being described here. The discussion there, which I will not read, reveals mixed results. So at the top line of the next page, studies have produced:

mixed results . . . some evidence that media coverage –

particularly in relation to reduced turnout.

KIEFEL CJ: Which page are you on, Mr Solicitor?

MR DONAGHUE: I am sorry, I was up to the top of 49, your Honour.

KIEFEL CJ: Thank you.

MR DONAGHUE: Really from about line 29 on 48 through to the top of 49. Over the page, on to page 50, in the middle of the page, even in the context of the French presidential election involving only two candidates and a firstpastthepost system in relation to the second round runoff, there was difficulty in identifying the results, although the article does suggest that there is some evidence there of bandwagontype votes. But, interestingly, your Honours, if you go on to page 53, at about line 35, the authors note:

In order to conduct robustness checks, we use similar data from French parliamentary elections . . . and span a period from 1997 to 2012. In parliamentary elections unlike presidential elections voters elect representatives in their local constituencies, independent from the results of mainland voting. Although the overall outcome of the parliamentary elections is in most cases decided on mainland France –

I should pause there to say the focus of this article was on voting in French overseas territories versus within the mainland the overseas territories being in different time zones, and it was analysing the relationship between knowing the result of the mainland result on votes in the territories and what it said in the context of the parliamentary elections:

is in most cases decided on mainland France, the uncertainty about the identity of the local MP has not yet been resolved when voters in the OST vote . . . In fact we do not find any significant effect on turnout in parliamentary elections, which increases confidence that we actually identify the causal parameter of interest –

there in relation to the presidential elections. So, unlike the presidential case, in parliamentary cases the authors did not find evidence of the phenomenon that they were examining. The Denmark article at page 81 is concerned with opinion polls halfway down page 82 about line 26 it is noted that:

much of the existing empirical literature investigating whether and how election polls affect voting behaviour is limited: it is often dated and/or conducted with quite small convenience samples, and almost all of it is conducted in countries with a few large parties and that use the firstpastthepost system -

At the top of the next page 83:

previous literature has struggled to find consistent results -

As your Honour Justice Nettle, I think, mentioned yesterday at 88, it is noted that there is no statistically significant effect in relation to negative effects rather than positive ones. Then at page 90, about line 35 - this is all based on laboratorytype experiments: –

We cannot be sure whether voters will react in the same way when presented with poll stories in the real world. Actual voters are exposed to several polls. They may be exposed to the same poll several times and interpret it in different ways.

So, that is reflective of the more extreme problem that I have already identified in Australia – that one would need to separate the effect of the TCP count from all of the other influences – potential influences on electoral choices that exist and that are not said to be invalid.

Factually, in our submission, the articles do not assist your Honours in reaching any conclusion as to the existence of the asserted bandwagon effect and in the circumstances your Honours should not be satisfied that it exists. If your Honours accept that submission then that is the end of the constitutional case. If you do not accept that submission, our second point on the constitutional case is that what is involved in the argument is an attempt to greatly expand the work that the Court has previously held that sections 7 and 24 of the Constitution do.

This Court has tended to reject arguments asserting limits on the electoral system arising from 7 and 24 of the Constitution because it has recognised that the Constitution as a matter of deliberate design accords the Commonwealth Parliament a considerable measure of freedom in the design of the system.

Even in relation to the provisions that the Constitution initially specified in some detail, it was often done in a form “Until the Parliament otherwise provides”, and the existence of that deliberate design and parliamentary flexibility was noted – has been noted many times, but it was noted in particular in Murphy by your Honour Justice Keane at 156 and 184, your Honour Justice Nettle at 243, your Honour Justice Gordon at 263, among many possible references.

Similarly, the Court including in Murphy has emphasised that that freedom of choice is not limited to minor matters. It extends to fundamental features of our electoral system including compulsory voting, preferential voting in the House of Representatives, proportional voting in the Senate and universal franchise.

I note all of that, your Honours, because given that Parliament has choices as to all of those quite fundamental measures, it has choices in the identification of electoral divisions where the Court has held that sections 7 and 24 do not operate to confirm equality of voting power meaning the divisions do not have to be exactly the same sizes.

If all of those matters are matters for parliamentary choice it would, in our submission, be very surprising if the modest step of providing for an indicative count on election night to provide an indication of the result was outside the realm of available parliamentary choices. That is a matter of a kind far less fundamental to the system than matters that your Honours have accepted as within the zone of parliamentary choice without any suggestion that those choices are valid only if they can be justified to the satisfaction of the Court.

There are no cases where a majority of the Court – except Rowe and Roach - where a majority of the Court has required Parliament to justify the electoral choices and what is required to be justified in those cases are exclusions from the franchise, legal or practical exclusions from the franchise and in that context the Court has explained in those cases why, if Parliament is to take the serious step of excluding people from the franchise, it needs to justify that so as not to violate the constitutional mandate on direct choice by the people.

But, to extend that to a provision such as 274(2A), which obviously is not preventing anyone from voting, would be an extension of a kind quite inconsistent with the way that the Court has approached challenges of this kind in other matters. I am not going to take your Honours through all of the cases. I am just going to go to one.

Can I ask your Honours to go to Day v Australian Electoral Office for the State of South Australia. It is in volume 2, tab 16. It is a (2016) 261 CLR 1. This case, your Honours will recall, was a challenge to the recent reforms for above the line voting in the Senate. If your Honours could turn to page 12, paragraph 19, this passage in the judgment of all seven members of the Court.

It is dealing with Mulholland which, as your Honours will recall, concerned a challenge to provisions that required as a condition of registration for political parties who did not have a member in Parliament at least 500 members and no overlap between those members and the members of another party. The argument in Mulholland had been that that requirement infringed sections 7 and 24 and it is not difficult to see how a provision that prevented a party from being identified above the line in a Senate election had the capacity to effect electoral choice. It obviously did have the capacity to effect electoral choice in a system where voting above the line in Senate elections was common.

The Court in Mulholland, with the exception of Justice Kirby, did not require any justification for that measure. Its validity was not tested against a justification standard. Instead, it was recognised, as the quote from Justice Gleeson early in paragraph 19 records, that notwithstanding that effect on electoral choices the Parliament remained one “directly chosen by the people”:

“Here, the rules in question preserve a full and free choice between the competing candidates for election. The electors are presented with a true choice . . .

McHugh J in the same case pointed to the extent to which the Constitution leaves it to the Parliament to determine the matter of electoral systems, including specification of particular voting methods . . . In a similar vein, Gummow and Hayne JJ observed that care is called for in elevating a “direct choice” principle to a broad restraint on legislative development of the federal system –

That passage is a recent endorsement of the approach that the Court has always taken to section 7 and 24 challenges. In the discussion over the pages that follow, there is reference to the dismissal of provisions concerning group ticket voting above the line, which was held valid in McKenzie. That is paragraph 23, your Honours see that discussed. Then on page 14 in paragraph 23, all seven members of the Court refer to Justice Stephen’s judgment in McKinlay, endorsing the observation:

“[I]t is not for this Court to intervene so long as what is enacted is consistent with the existence of representative democracy as the chosen mode of government and is within the power conferred by s 51 (xxxvi) [of the Constitution].”

Gibbs CJ concluded that:

“[I]t cannot be said that any disadvantage caused by the [impugned provisions] to candidates who are not members of parties or groups so offends democratic principles as to render the sections beyond the power of the Parliament to enact.”

In my submission, applying that approach here, it plainly cannot be said that the publication of the indicative TCP count takes the electoral process - so offends democratic provisions as to render the provision beyond power. It would only be if your Honours applied the more stringent approach to exclusions from the franchise that there would be any foundation for the argument that is being advanced against us.

I will not take your Honours through your Honours’ judgments in Murphy. But, in my submission, all members of the Court in that case emphasised that the applicable principle requiring justification there was concerned with legal or practical exclusions from the franchise.

EDELMAN J: Is that not because the core of the principle is not concerned with whether choice is affected; it is concerned with whether choice is impeded or impaired. There is a significant impediment or impairment to choice if you are excluded from the franchise. But even if there is a real bandwagon effect it must be questionable whether a bandwagon effect is something that impedes or impairs choice.

MR DONAGHUE: I would agree with that, your Honour, but perhaps go further. It is certainly not about things that affect electoral choices and that is really the case - the constitutional fact that your Honours were asked to find was that it may have an effect on electoral choices and even if you found that fact, in my submission it would not lead to invalidity for the reason your Honour identifies.

Exclusions from the franchise have the consequence that it becomes possible to say that the choice is not by the people, that it is not a direct choice by the people because the people include people who are being prevented from casting their vote in the election and that, in my submission, is the essential foundation for the restriction of the principle and Rowe and Roach to limitations on the franchise.

Without taking your Honours through many relevant passages in Murphy, the judgments in that case, in my submission, emphasise that the principle relied upon in that case has the potential to cut across the recognition in Day and the other cases I have mentioned of the wide parliamentary choice.

The Constitution allows the Parliament very considerable discretion. The Court has accepted that that exists. Any broadening of the Rowe/Roach principle necessarily limits the range of parliamentary choices and that is part of the reason why in Murphy your Honours identified and restricted that principle quite precisely. So, to take one example, your Honour Justice Gageler said at paragraph 96:

Roach and Rowe illustrate the judiciary’s role in safeguarding against . . . restrictions on the franchise . . . Those cases do not point to some broader judicial mandate.

That, in my submission, is reflected in all of the judgments. So even if your Honours find a constitutional fact, or are urged to find – consistently with Day or Murphy – you should not find that there is an applicable constitutional principle that requires justification for anything that might affect electoral choices.

Your Honours, really, by way of aside – interesting, historical aside – a further impediment to the implication sought is that at the time of Federation, both in the United Kingdom and in Western Australia, it was common for elections to take place over wide periods of time. So, in the three United Kingdom elections that preceded federations, they were spread over a period of about three weeks. But, in any particular borough or county, the election result had to be counted and declared as soon as it had occurred.

So, the prevailing electoral practices in the United Kingdom at the time were practices where the fact that there had been results recorded in some other seats, and declared in other seats before the elections took place, was matter of commonplace in United Kingdom parliamentary practice.

It had been similar in the Australian colonies which progressively phased out that practice from the mid1850s. But in Western Australia it was still the case at Federation that elections took place over a period of many days – in 1890, over six days; in 1894, over nine days; in 1897, over eight days – in each case with legislative requirements to count and declare the result as soon as practicable.

We have given your Honours the material references in footnotes – the materials in the joint book of authorities if your Honours want to pursue it. But that practice, in our submission, does point rather strongly against the idea that there is something constitutionally suspect about voters knowing the result in other divisions at the time when they cast their votes. Your Honours, we rely on what we have said in writing by way of justification. If your Honours get to that limb of the case

KIEFEL CJ: What do you say about the relief now sought by way of declaration?

MR DONAGHUE: Your Honours, our only point in relation to relief is that in circumstances where our friends have accepted that the count can occur and have accepted that the publication of the count can occur after polls close, the relief should be confined in a way that does not cut across those things, that does not make it difficult for the AEC actually to conduct the count. The way that the relief was framed in the application book refers to the defendants making available to the public – causing or permitting to be published.

There is real scope for uncertainty as to whether if a polling officer opens the envelope and announces the identity of the TCP candidates, for example, in a context where there are scrutineers present, whether or not it would be said that the Commission has breached a declaration or injunction in those terms – framed in terms of making available to the public.

So, our submission which we have also made in writing, is that in the event that your Honours did grant relief, it should be expressly limited to preventing publication to the extent that it occurs through the Commission’s realtime media feed or the Commission’s website. If your Honours specified making available to the public in those two ways that would cut off the two ways that the material goes to the outside world allowing the Commission to continue with the existing procedures in terms of the conduct of the count, scrutineers, et cetera, and then thereby allowing publication to occur once polls have closed throughout the country.

That would be consistent, in our submission, with the fact that our friends have accepted that publication to scrutineers would be okay but, in our submission, the relief should be framed in a way that does not create uncertainty for the Commission as to what it is entitled to do. Unless your Honours have any further questions, those are our submissions.

KIEFEL CJ: Thank you, Mr Solicitor. Any submissions in reply, Mr Jackson?

MR JACKSON: Your Honours, may I deal first with the question of relief and I can do so briefly. Your Honours will see that our learned friends’ written submissions in paragraph 46 suggest, as my learned friend has indicated, some amendments to the form of a declaration. We would be content with those. That is the first thing, your Honours.

Could I turn then to the question of the construction of the relevant provisions and then after that to the constitutional question? Your Honours, so far as the question of construction is concerned I want to deal with two aspects of it: first, section 274; and, secondly, section 7.

Dealing with section 274, your Honours will recall that some time was spent by our learned friends in examination of the detail of section 274 and going through the process – or processes – provided by the several provisions of section 274. But in the end, so far as the present case is concerned, one has to go back to subsection (2A). Your Honours, one actually has to look at the wording of that provision and, in our submission, there is nothing in the wording of that provision - and may I ask your Honours to go to it – which relates in terms to the transmission of the result of the count or the timing of any such transmission to the public.

The best that can be done, so far as the argument for our learned friends is concerned, is to rely on two things. One is section 274(2B) and the other is the words “provide an indication” in 274(2A). Your Honours, I think I used inchief the expression “the cupboard is bare” in that regard. But if your Honours look at 274(2A), it does not say very much.

Your Honours, the first thing we would say about it is that the words of section 274(2B), if one goes to them, suggest that the transmission of information is to be a transmission internally, that is, the transmission contemplated by 274(2B). As to the suggestion of urgency, the wording of section 274(2C) does not itself suggest urgency because you will see that (2C) requires that the divisional returning officer is to count the preference votes in accordance with the direction at the time of the fresh scrutiny provided for by subsection (7).

Your Honours, if I could go back to the actual words used in 274(2A), the words “provide an indication” are used to describe the nature and content of the opinion to be formed by the Australian Electoral Officer.

Dealing with section 274, your Honours will recall that some time was spent by our learned friends in examination of the detail of section 274 and going through the process – or processes – provided by the several provisions of section 274. But in the end, so far as the present case is concerned, one has to go back to subsection (2A). Your Honours, one actually has to look at the wording of that provision and, in our submission, there is nothing in the wording of that provision - and may I ask your Honours to go to it – which relates in terms to the transmission of the result of the count or the timing of any such transmission to the public.

The best that can be done, so far as the argument for our learned friends is concerned, is to rely on two things. One is section 274(2B) and the other is the words “provide an indication” in 274(2A). Your Honours, I think I used inchief the expression “the cupboard is bare” in that regard. But if your Honours look at 274(2A), it does not say very much. Your Honours, the first thing we would say about it is that the words of section 274(2B), if one goes to them, suggest that the transmission of information is to be a transmission internally; that is, the transmission contemplated by 274(2B).

As to the suggestion of urgency, the wording of section 274(2C) does not itself suggest urgency because you will see that (2C) requires that the Divisional Returning Officer is to count the preference votes in accordance with the direction at the time of the fresh scrutiny provided for by subsection (7). Your Honours, if I could go back to the actual words used in 274(2A), the words “provide an indication” are used to describe the nature and content of the opinion to be formed by the Australian Electoral Officer.

KIEFEL CJ: But the question is provide to whom?

MR JACKSON: Yes, your Honour. Your Honours will see it will provide, and then one sees the next stage is (2B) and that is what is required.

KIEFEL CJ: Is that not the preceding stage?

MR JACKSON: Well, no, your Honour. One sees in (2A)

KIEFEL CJ: I am sorry, yes, it is the carrying out of the count itself.

MR JACKSON: Yes, and the last few lines of (2A). Your Honour, they relate to the tasks or the work which the returning officers are given. Our learned friends have

KEANE J: Mr Jackson, there is no suggestion that the activities that are described in (2B) and (2C) occur in private.

MR JACKSON: Well, your Honour, there is no

KEANE J: When one is talking about scrutiny, why would not one start with the assumption that it should be as public as possible?

MR JACKSON: Your Honour, could I just say this, that if one is looking first of all at the statutory provision, subsection (2A) requires a direction in writing to an officer. The direction in writing is to conduct a count which will arrive at a certain result. One looks to see then where one goes from that and that is in subsection (2B), and subsection (2B) says that the assistant returning officer is to transmit the information to the divisional returning officer.

Now, your Honours, if one is looking to see and you will see also the requirements of (2C) and (7) - if one is looking to see what is actually being done, what is actually being done is to provide an opinion of the Australian Electoral Officer which will best provide an indication of the candidate most likely to be elected. In doing that, your Honour, one is doing that with a view, in our submission, to apply subsection (2B) and then to apply subsection (7).

KIEFEL CJ: But to what end? What is the purpose of it? Is it for the benefit of the scrutineers?

MR JACKSON: Your Honour, it is endeavouring to arrive at a conclusion as to the persons who are most likely to be elected. But it does not involve, your Honours, the publication of a calculation, if I can put it that way, but is carried out in the way in which the calculation is carried out in the actual practice.

GORDON J: I am a bit lost, Mr Jackson. Why else would you undertake the TCP count except to make it public? What is the purpose of it if it is not made public, for the purpose of the system?

MR JACKSON: The purpose of it, your Honour, is, in our submission, to arrive at a quick - a quick as possible calculation of who are the relevant persons most likely to be elected – most likely to be elected in the opinion of the Australian Electoral Officer.

KEANE J: So they can keep it to themselves?

MR JACKSON: No, your Honour, not necessarily. But what has to be done, you will see there has to be carrying out the work that is in subsection (7) and, having carried that out, your Honour, one looks to see where is there any statement in the Act, in section 274, saying that the officers nominated in it are ones who are to make that public, and public while voting is being carried on in other electorates.

KIEFEL CJ: Your submission is that this is just an aid to efficient counting towards the final result and that is consistent with the initial purpose of these provisions because of the problem with the 1990 election?

MR JACKSON: Yes, one is trying to arrive at a quicker, ultimate result.

NETTLE J: But it does not, as was explained yesterday. There has to be a fresh count under subsection (7), which is in no way informed by the TCP count.

MR JACKSON: Yes, your Honour. The fresh count under subsection

NETTLE J: It is no use returning officers or divisional officers or anybody else in the Commission having the TCP count. They still have to carry out a subsection (7) fresh count.

MR JACKSON: Well, your Honour, that really indicates, too, there is a question of some difficulty with the enthusiasm for the timing – if I can put it that way – that appears in the other side’s argument.

GORDON J: It creates a problem for you, Mr Jackson, because what else do you do with the TCP count? As Justice Keane put to you, what is it there for – for the people in the polling booth to know the result?

MR JACKSON: Well, your Honours will see, if one looks at section 274, one is looking at a limited and specific procedure. There is nothing in section 274 itself which, unless you get it from the direction, is something which authorises the practices actually carried on by the office.

GORDON J: This argument is directed to the fact that, as I understand your submission, section 274, whether it is (2A), (2B), (2C) or otherwise, does not expressly authorise the publication. Is this also the same argument that is directed to section 7?

MR JACKSON: Yes, your Honour. Your Honours, could I just say one other thing. Our learned friends’ submissions have sought to suggest that the function is predictive and that in consequence the information should be made public as soon as possible. That has its limitations, your Honours, particularly because of the need for the fresh scrutiny which is referred to in subsection (7).

Could I go to section 7 of the Act itself? Your Honours will see, in our submission, that the position is not enhanced by the provisions to which our learned friends refer. If one goes in particular to a provision referred to this morning, section 7(1)(a)(i), what your Honours will see is that the functions of the Commission do not include those permitted or required under the Act where a specified person is required or permitted to carry them out. Here, sections 274(2A) and (2B) identify what is to be done and who is to do it.

Your Honours, the terms of section 7(1)(a)(i) take out from the functions of the Commission the provisions of 274(2A) and (2B) and, your Honours, reliance - if one goes to reliance on the terms of 7(1)(c) and 7(1)(f), it is difficult, in our submission, to rely on those provisions as somehow putting back into the functions of the Commission those that are specifically taken out by 7(1)(a)(i) and, in particular, your Honours, one would expect matters of the nature of 274(2A) to be the subject of specific provision at least if it involved publication while voting was in progress.

Your Honours, the need for something specific is apparent from the existence of section 274(2A). The problem is that that provision does not go far enough. Your Honours, reliance was placed on section 7(3) but it depends on there being a relevant function and, your Honours, if the argument that we have advanced concerning the operation of 7(1)(a)(i) is correct, there is no such relevant function.

GAGELER J: Does this prove too much, Mr Jackson?

MR JACKSON: I am sorry, I am not quite sure what your Honour means.

GAGELER J: Well, the consequence of this argument, as I understand it, is that the Commission has no power to publish at any time any of the scrutiny. All that can happen, presumably on this argument, is that there can be a public declaration of the poll under section 284 and nothing else can be made public until that time.

MR JACKSON: Your Honour, one of the difficulties that is brought about by the legislation is the legislation does confer specific powers on specific people and in doing so, your Honours, one should, prima facie, give effect to what it says. It may be that one can read down bits of it to allow the further information to be given before the actual declaration of all the polls.

But, your Honours, if one is looking to maintain an argument based on the terms of 7, be it (1) or (3), there are some difficulties, in our submission because of the terms of (1)(a)(i). Also, your Honours will note that 7(2) speaks only of the powers in (b) to (f) as distinct from those in (1) and in the concluding paragraph, (g).

BELL J: Mr Jackson, a little while ago, in developing this argument, you put it as an absence of authority to publish the information while voting is in progress. Perhaps it is just to take up Justice Gageler’s point, I have difficulty understanding that limitation that you place on the power on your argument respecting the limited assistance that the Commonwealth gets from section 7.

MR JACKSON: Yes. Your Honour, we do not seek to invalidate – I use the term slightly loosely - we do not seek to challenge more than we need to challenge, in effect. The point that we seek to make is that so far as the operation of section 274(2A), (2B) and (2C) is concerned, what you see is that there are limited powers given by those provisions. One sees also, however, that the limited powers that have been given are used in particular ways that are set out in the statement of facts and described with the enthusiasm of the words “established practice”.

The established practice, your Honours, is something that in the end we are saying is not justified in relevant respects by the terms of the enactment, the relevant respects being that, so far as we need to attack them, the publication of this material is made available before the polls close around Australia.

BELL J: But that is because there is an absence of power to publish the material.

MR JACKSON: Yes. Yes, quite, your Honour. Your Honours, if I could just say this, that as to extrinsic material my learned friends have relied on, the context in which the material was prepared was one where the result did not become available or had not become available, or the results had not become available, until days after the close of the polls. Here one is talking about publishing results while the election is proceeding in a significant part of the nation.

Your Honours, could I just pause to deal with one aspect and that concerns something raised by your Honour Justice Gageler yesterday and mentioned by our learned friend this morning. We would agree, I think, although there may be shades of difference, about the fact that the test is objective in terms of section 7(3). The absence of any legislative requirement that the Commission consider that a state of satisfaction has been arrived, or reach a state of satisfaction that a matter is necessary or convenient suggests that Parliament intended the words to convey an objective test.

Your Honours, could I move then to the constitutional issues. Your Honours, this is not, if I could use an expression which may not be entirely original, a case like Isbester about a dog Act. This is a case about the Constitution and sections

KIEFEL CJ: Yes, but there is still quite an important point involved, Mr Jackson.

MR JACKSON: I am sorry, your Honour?

KIEFEL CJ: Albeit that it affected a dog, there was still an important question.

MR JACKSON: Your Honour, I understand that and such modest attempt at levity as I made, I will not attempt to go further. Your Honours, could I just say that sections 7 and 24 reflect an important constitutional value. It has been formulated in a variety of ways. A number of the formulations are collected in our written submissions in paragraph 34 drawn from authorities such as Mulholland, and they include that there be a direct, free, informed and genuine choice by the people.

Your Honours, may I refer to Mulholland, and perhaps if I could just give reference where your Honours will find this Justice McHugh in volume 4 of the materials at page 1461 and in Roach, Justices Gummow, Kirby and Crennan in volume 4 at page 1780.

Your Honours, it is the ballot box by which the elected representatives are to be chosen and it is necessary, of course, if one has provisions like sections 7 and 24, for some lines to be drawn. We say that a line is crossed and that the choice ceases to be direct, free, informed and genuine here and that is because of a combination of five elements.

First, the body giving out the information is the very government body charged with conducting the national election. Secondly, that government body is publicly identifying its own predictive opinion about the two candidates most likely to be elected in every division in the eastern States and how they are going. Thirdly, the prediction was formed by the Commission on the second week before polling day, paragraph 13(d) of the agreed facts. It is a prediction which, of its nature, may be wrong and occasionally has been wrong in the past. Fourthly, the Commission is publicly announcing its opinion and how its two preselected candidates are performing at a time when the people in a substantial part of the Commonwealth are yet to vote. Fifthly, there is no good reason for the Commission to be publishing this information at a time when they are still being cast. A delay of three and a half hours maximum does not jeopardise the speedy identification of the party or parties who are to perform government.

Your Honours, we would submit that sections 7 and 24 are not satisfied by a choice which is distorted or influenced or misled by the public expression of an opinion formed prior to polling day by the government officials conducting the election – or are to conduct the election.

Your Honours, the Commission’s own published materials recognise the potential harm. If I could take your Honours to the application book at page 44. In the righthand column at about line 28 and following, your Honours will see that the Commission itself recognises that:

The identification of the two nominated candidates is not made public prior to polling day so as to ensure that the AEC is not seen to be giving any public endorsement to the perceived popularity of any candidate contesting the election.

Your Honours will see the next paragraph there set out. The loss of impartiality, actual or apprehended, on the part of the government body conducting the national election and for no very good reason, in our submission, is offensive to the value that is set out in sections 7 and 24.

If the Court were to accept that impartiality or the appearance of impartiality of the Commission is compromised by doing so, we would submit that that is sufficient for us to succeed on both the statutory and the constitutional arguments. Acceptance of that case does not require the Court to go on to make any particular factual finding about bandwagon effect or about the practical effect on electoral choice of premature publication of the TCP information. We say that can be made by reference to the primary facts referred to in our reply at paragraphs 12 and 13 but is not essential to our success.

Our learned friends referred to footnote 69 of their submissions, referring to the polling practices in Britain and in Western Australia at Federation. Your Honours, elections there might go on for days. But section 24, dealing with the position of the House, goes more to Article 1, section 2 of the United States Constitution than to the British system - a British system, of course, that had its imperfections.

One was that the Upper House, for example, was not elected at all. In Australia we chose a directly elected Senate, not one chosen by State legislatures, as in the US and, your Honours, the terms of sections 7 and 24 do reflect, in our submission, the underlying constitutional value, which are being affected. Your Honours, those I think are our submissions.

KIEFEL CJ: The Court will adjourn to consider the course that it will take.

AT 11.24 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.27 AM:

KIEFEL CJ: The Court is unanimous in its view that the application should be dismissed. What is the position with respect to costs, Mr Solicitor? They have not been sought in the written submissions.

MR DONAGHUE: Your Honour, the short answer is I do not have instructions. The defendant, the Commission, and the various officers of the Commission submitted but not as to costs.

KIEFEL CJ: Yes.

MR DONAGHUE: I am not appearing for them today; I am appearing for the Attorney today. I do not have specific submissions but I would imagine the position would be as it ordinarily is. Might we have a day or two to submit a note on costs?

KIEFEL CJ: Yes, very well.

The order of the Court will be that the application is dismissed and it reserves its decision on the question of costs.

MR DONAGHUE: If the Court pleases.

KIEFEL CJ: The Court will publish reasons in due course. There will of course be a response to any note on costs, within seven days Mr Jackson.

The Court will now adjourn until 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 11.29 AM THE MATTER WAS ADJOURNED