Legal Analysis Of The Validity Of Marking Ticks And Crosses On Referendum Ballot Papers

Written by:
6 October 2023
Legal Analysis Of The Validity Of Marking Ticks And Crosses On Referendum Ballot Papers - Featured image

This analysis has been prepared following the Federal Court of Australia’s decision in Babet v Electoral Commissioner [2023] FCA 1126 handed down on 20 September 2023. The court dismissed an application brought by Senator Ralph Babet and Mr Clive Palmer (the applicants) seeking a declaration on how the Australian Electoral Commission (AEC) should instruct election officials (known as returning officers) to treat the formality of referendum ballot papers featuring ticks and crosses.

This analysis finds that:

  • The Federal Court was in error to dismiss this application.
  • Neither the relevant legislation or the High Court precedent support the AEC’s position that ticks and crosses on a referendum ballot can or should be treated inconsistently.
  • The proper application of the law would arrive at only one conclusion: that the AEC’s instructions to mark ticks on referendum ballots as a valid yes vote, and crosses on referendum ballots as an informal vote, are unlawful.

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