Key issues

  • The ballot paper for the “Voice Referendum” directs voters to write “YES” or “NO” in the box for the ballot paper to be a formal vote.
  • The Referendum Act says that if the voter writes the abbreviation “Y” they intend to vote “YES” and if they write “N” they intend to vote “NO”, and it is a formal vote.
  • But the Referendum Act does not say how the voter intends to vote if they mark the ballot paper with a tick “√” or a cross “X”. Is it a formal vote of “YES” or “NO”, or an informal vote?
  • That is what the Federal Court of Australia had to decide in Babet v Electoral Commissioner [2023] FCA 1126 (Rares J) (20 September 2023).

This is an analysis of the Federal Court’s judgment.

The Voice Referendum ballot paper

This is the ballot paper for the Constitutional Referendum to be held on 14 October 2023, officially known as the Australian Referendum on the proposed Constitutional alteration to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice:

The DIRECTIONS TO VOTER given at the top of the ballot paper are:

  • Write “YES” or “NO” in the space provided opposite the question set out below.

The space provided is a box, underneath which the direction is repeated:

  • WRITE “YES” OR “NO”

No other directions are given about how the voter might mark the ballot paper.

The Application to the Federal Court

Senator Ralph Babet and former senator Clive Palmer made an application to the Federal Court of Australia that the Court make declarations as to the way that the Australian Electoral Commission should direct its returning officers to treat a ballot paper marked with a tick or a cross.

The senator and former senator oppose the alteration to the Constitution and encourage the public to vote “NO”. Aware of the danger that if the ballot paper has a cross it might be treated as an informal vote instead of a “NO” vote, they submitted in their application that:

  1. A cross marked on the ballot paper should be counted as a clear indication that the voter intended to vote “no” and should be counted as a formal “no” vote. They conceded that in this situation, a tick marked on the ballot paper should be counted as a “yes” vote.
  2. But if a cross marked on the ballot paper is not counted as a “no” vote, and is therefore an informal vote, then so should a tick marked on the ballot paper be counted as an informal vote.

The political purpose served by the Federal Court application was to neutralise the “yes” votes by either having ballot papers marked with a cross counted as valid “no” votes, or having the ballot papers marked with a cross and the ballot papers marked with a tick both counted as informal (i.e. not valid).

The Law concerning marking of ballot papers in a Referendum

The law that applies is the Referendum (Machinery Provisions) Act 1984 (Cth) (the “Referendum Act”).

Section 24 provides for marking the ballot paper.

24       Manner of voting

The voting at a referendum shall be by ballot and each elector shall indicate his or her vote:

(a)      if the elector approves the proposed law—by writing the word “Yes” in the space provided on the ballot paper; or

(b)      if the elector does not approve the proposed law—by writing the word “No” in the space so provided.

Section 90 provides for scrutiny – i.e. counting the votes.

90      Conduct of scrutiny

(1)      The scrutiny of votes at a referendum shall be conducted in accordance with the following provisions:

…

(e)      each Assistant Returning Officer shall, in the presence of a polling official and any scrutineers who attend, do the following:

…

(iv)     count the number of ballot papers with votes given in favour of the proposed law, the number of ballot papers with votes given not in favour of the proposed law, and the number of informal ballot papers;

And once the ballot papers are counted, they are placed into 3 separate containers: votes in favour; votes not in favour; informal.

Section 93 provides guidance upon what is and what is not an informal ballot paper. The key phrase is ‘voter’s intention’ - is it clear or not clear?

93      Informal ballot papers

(1)     A ballot paper is informal if:

...

 (b)      it has no vote marked on it or the voter’s intention is not clear;

…

(8)      Effect shall be given to a ballot paper of a voter according to the voter’s intention, so far as that intention is clear.

(9)      For the purposes of subsection (8):

(a)      a voter who writes the letter “Y” in the space provided on the ballot paper is presumed to have intended to approve the proposed law; and

(b)      a voter who writes the letter “N” in the space provided on the ballot paper is presumed to have intended to not approve the proposed law.

Section 93(9) gives the illustration that the voter’s intention is clear if they mark the ballot paper with “Y” or “N”.

Section 93 leaves open other ways in which the ballot paper could be marked to produce a formal vote.

Consideration

The Court approved these judicial statements of principle:

  • A ballot paper is to be “given effect to according to the voter’s intention so far as his intention is clear”; the voter satisfies this requirement “by a clear, that is unmistakeable, indication of the voter’s intention”; “the intention must be indicated so that it is not left to interference, still less conjecture, that it is expressed or indicated in a way that leaves it indisputable”; a “shrewd guess” is insufficient. See Kane v McClelland (1962) 111 CLR 518 (High Court of Australia – Dixon CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ)
  • Two cardinal principles are identified by Gummow J in Langer v Commonwealth (1996) 186 CLR 302 namely “that the ballot, being a means of protecting the franchise, should not be made an instrument to defeat it and that, in particular, doubtful questions of form should be resolved in favour of the franchise where there is no real doubt as to the real intention of the voter.” Quoted by Tracey J in Mitchell v Bailey (No 2) (2008) 169 FCR 529.

Decision

The Court decided:

  • Whether a cross manifests a clear intention to vote ‘no’

‘The use of a cross placed in the answer to the single question on the ballot paper for the referendum (namely, “Do you approve this proposed alteration?”) is inherently ambiguous as to the intention that the voter is intending to convey as to the proposal. One must guess whether it means, 

  1. , as the applicants reasonably assert, that the elector indicates that he or she is voting ‘no’ or, 
  2. , whether he or she is intending to vote ‘yes’ because that is one alternative in the question and the voter, carelessly, is responding as he or she is used to doing with other forms that he or she has had to complete, by placing a cross there to signify approval or, 
  3. , whether the voter is intending the cross to mean that he or she does not want to engage with or answer the question at all.”
  • Whether a tick manifests a clear intention to vote ‘yes’

“I reject the applicants’ submission that this characterisation for the use of a cross in answering the ballot paper question applies equally when the voter uses a tick instead.”

“The context for the evaluation, under s 93(8), of whether a tick manifests a clear intention is that it will be placed by the voter against the open question “Do you approve this proposed alteration?”. Unlike a cross, which has more than one signification as either a disapproval or a selection of an answer, being approval, the tick both approves or selects the affirmative as the voter’s answer.”

“A tick signifies assent or approval. It is not a symbol that conveys a negative response.” 

Conclusions

Ballot papers marked with a tick are formal votes for “YES”.

Ballot papers marked with a cross are informal votes.

The Application was dismissed with costs.

This decision is likely to be appealed to the High Court of Australia. The appeal must be lodged by 27 September 2023. Watch this space!