The just announced federal election on 18th May 2019 doesn’t directly affect the High Court of Australia (as opposed to the other two branches of the federal government) but it indirectly affects it in several ways. First, elections are often preceded by election-related challenges, as occurred in three of the last four elections:
- in 2007, the Court struck down legislation barring all prisoners from voting.
- in 2010, the Court struck down legislation removing the 7 day ‘statutory grace period’ allowing people to enrol after an election is called.
- in 2016, the Court rejected an argument that the 7 day statutory grace period should extend until election day and also rejected a challenge to the new Senate voting rules aimed at stopping preference harvesting.
Consistently with this trend, a directions hearing last week explored a narrow pre-election challenge concerning the 2019 election, specifically when the Australian Electoral Commission can release who it predicts are the two most likely candidates to win in each House of Representatives seats. A past lower house MP, Clive Palmer – you may have seen an ad or two by him recently – wants to bar such information from being released in some east coast seats when polls close there, because of the possibility that the AEC’s predictions could influence voting on the west coast where polls would remain open for two hours more. Justice Gordon tentatively scheduled a full court hearing for 6 May, under two weeks before the election but enough time for a speedy instruction to the AEC. However, whether the case will actually go ahead depends on whether the parties can agree on the facts and, as the Commonwealth Solicitor-General foreshadowed, whether Palmer himself or a lesser known person will be nominating for an east coast lower house seat.
However, the greatest impact of the federal election on the High Court is likely to come after the poll, when the Court sits as the Court of Disputed Returns to hear challenges to the announced election result. Continue reading