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 →