The High Court has published its reasons for dismissing an application challenging the Australian Electoral Commission’s practice of publishing information about indicative two-candidate preferred counts for divisions of the House of Representatives. The Electoral Act 1918 (Cth) requires the scrutiny of votes in divisions to include an Indicative TCP Count. This count takes place after first preference votes are counted, and it is a ‘count … that, in the opinion of the Australian Electoral Officer, will best provide an indication of the candidate most likely to be elected for the Division’. The process involves the AEC revealing one or two candidates selected by the Commission as the TCP Candidates (the two most likely to be elected), and the progressive results of the indicative counts leading to the final count are called the TCP Information.

The plaintiffs were candidates for the United Australia Party for House and Senate seats in the 18 May 2019 election. In April 2019, the plaintiffs filed an application for a constitutional writ challenging the AEC’s practice of releasing Indicative TCP counts for divisions where polls had closed and the counts had begun while other the polls for other divisions still remained open. The plaintiffs contended that the AEC could not do so for two reasons: first, publishing that information before the close of all polls was not authorised by the Electoral Act, or in the alternative, publishing TCP counts will polls were open in other seats would ‘impermissibly distort the voting system’ and ‘compromise the representative nature of a future Parliament’ contrary to the constitutional requirement for direct and popular choice in ss 7 and 24 of the Constitution.

On 7 May 2019, after the conclusion of the Full Court hearing, the High Court dismissed the application. On 14 August 2019 the Court published its reasons for that decision, which was unanimous. Continue reading →

The High Court has allowed an appeal in a cause removed from the Federal Court appealing an Administrative Appeals Tribunal decision on whether provisions of the Public Service Act 1999 (Cth) on terminating a public servant’s employment contravene the implied freedom of political communication in the Commonwealth Constitution. The provisions under challenge here are ss 13(11), 10(1) and 15. Section 13(11) requires that APS employees ‘at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’. Section 10(1) states that the APS Values include that the APS is ‘apolitical, performing its functions in an impartial and professional manner’. Section 15(1) empowers an Agency Head to sanction an APS employee who is in breach of the code, including by terminating their employment.

In 2006, the respondent accepted a position at the Ombudsman and Human Rights and Equal Opportunity Commission, which later became part of the Department of Immigration and Citizenship. In 2012, the respondent began to use an anonymous Twitter account @LaLegale partly to criticise DIC, its employees and policies, as well as the immigration policies of both major parties. After a series of DIC investigations into the account that discovered the respondent’s identity, in October 2012 a delegate of the DIC Secretary determined that the respondent had breached the APS Code of Conduct and recommended the sanction of termination of employment. The respondent sought an injunction to prevent the Department from terminating her employment, which was rejected by the Federal Circuit Court, and in September 2013 the delegate finalised the termination of employment.

The Department then rejected the respondent’s claim for compensation for a workplace injury for depression and anxiety following the termination, on the basis that the termination was a reasonable administrative action. Section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) defines injury as including an aggravation of a mental injury that arose out of, or in the course of, employment, but excludes any aggravation caused by ‘reasonable administrative action taken in a reasonable manner’ about an employee’s employment. The respondent appealed that decision to the AAT, where the central issue was whether or not the respondent’s termination fell outside the exclusion in s 5A. The respondent contended that the exclusion did not cover the Department’s actions because the provisions contravened the implied freedom of political communication. After the cause was removed to the High Court for determination of the implied freedom question, the respondent contended before the Court that the provisions could not apply to ‘anonymous’ communication about the APS, and that, if the provisions did apply to anonymous communications, they were an unjustifiable burden on the implied freedom.

The High Court unanimously allowed the appeal, rejecting the respondent’s arguments. Continue reading →