The government must pull the AEC into line
In this article, Morgan Begg contextualises and disseminates the findings of the IPA’s research into the Australian constitution, conducted as part of the IPA’s analysis of the Voice to Parliament.
The IPA has been researching the consequences a potential Voice to Parliament would have to the political freedom, liberty, and equality of Australians since the Uluru Statement of the Heart was first being drafted.
The Australian Electoral Commissioner’s bizarre claims about the validity of ticks and not crosses on a referendum ballot paper have thrown fresh doubt on the government’s ability to hold a free and fair vote.
During a Sky News Australia broadcast on 23 August, AEC Commissioner Tom Rogers made the extraordinary claims that when looking at a filled referendum ballot, ‘it is likely that a tick will be accepted as a formal vote for Yes, but a cross will not be accepted as a formal vote’.
This statement is completely unsupported by the law.
The central Act of parliament that defines a lawful referendum process is the Referendum (Machinery Provisions) Act 1984 (RMP Act). This has been amended several times over the years, most recently this year when the federal government attempted to scrap the long-standing democratic tradition of the Yes/No referendum pamphlet.
As a starting point, it must be said that the RMP Act does not refer at all to ticks and crosses. Instead, section 24 of the Act gives an explicit definition of a valid ballot. Under section 24, the elector indicates their vote by marking a ‘Yes’ to give approval to a proposed constitutional change, and a ‘No’ to express their disapproval.
It is also worth noting, that while the RMP Act confers a variety of rulemaking powers on the commissioner, it does not give the commissioner the power to amend or vary the definition of a valid ballot.
Following Rogers’ appearance on Sky News, the AEC and other ‘experts’ have chimed in to refer to the ‘saving provisions’ as the catch-all that justifies the AEC’s claims.
It is worth considering what a ‘saving provision’ is. The purpose of the saving provision in electoral law is to save votes from being excluded from the count where the ballots do not exactly comply with the instructions.
The High Court has spoken on the significance of the saving provisions in relation to parliamentary elections. In the Lange case heard in 1996 the court noted how they are necessary to give effect to section 24 of the Australian constitution, which itself provides that members of the House of Representatives are ‘chosen by the people’, and by saving ballots, the maximum number of people are able to exercise their choice.
Section 93 of the RMP Act includes two key saving provisions: The first is that ‘effect shall be given to a ballot paper of a voter according to the voter’s intention, so far as that intention is clear’. And the second provision gives two examples of how an intention can be clear, with reference to ‘Y’ being presumed to mean ‘Yes’, and ‘N’ being presumed to mean ‘No’.
The assumption the AEC makes is that a tick is a clear expression of a voter’s intention, but a cross is not. In a press statement on 24 August, the AEC claimed:
‘The issue with a cross is that on many forms people in Australia use in daily life… [a cross] represents a “check mark” indicating yes – it therefore leaves it open to interpretation or challenge by a scrutineer’.
This is a staggering comparison. It simply cannot be said that some multiple-choice forms – where a person is directed to answer with a cross – is comparable to a referendum ballot where voters are directed to answer Yes or No.
A referendum question is in every case a Yes or No proposition. A cross can only be interpreted to mean a negative response. No alternative interpretation is available.
To the extent that the legislation allows symbols of any kind to be a valid ballot –which may be in doubt – the saving provisions do not give the AEC the power to treat inconsistently clear expressions of intention.
In other words, the saving provisions must operate to put crosses into the ‘No’ column.
Despite the clear position of the written law, this has been a practice of the AEC going back decades.
At the 1999 Republic referendum, Phillip Benwell, of the Australian Monarchist League, attempted to challenge the instructions the AEC had given to scrutineers that they should treat ticks and crosses inconsistently. The case was dismissed for being too close to the referendum. A case on this question deserves to be heard and definitively answered.
Some of the ‘electoral experts’ who should know better have not covered themselves in glory during this episode. The ABC’s Antony Green, initially claimed:
‘Nothing new here… the AEC’s ruling is based on case law on the intent of marks on a form. This also came up at a NSW election in the 1980s on whether under optional preferential voting, a tick or a cross could be formal.’
There are a few obvious problems: the case relating to a NSW parliamentary election is irrelevant. Under optional preferential voting, the ballot is a bit like a multiple-choice question, which is fundamentally different from a Yes/No question on a referendum ballot.
Though it is of interest that the NSW parliament considered symbols on ballots such a problem that it made it a criminal offence in the Electoral Act 2017 to encourage people to ‘place a tick or a cross in a square on a ballot paper’. Green’s defence of the AEC could almost be a crime if he were saying it is OK to use a tick at a state election rather than a referendum.
Anyway, the legislation is unambiguous, leaving no scope for a court to make this interpretation. Any court suggesting it is lawful to treat ticks and crosses inconsistently is plainly wrong, and it is deeply concerning that – apparently based on flimsy case law – the AEC has been engaged in this practice for decades.
The AEC is wrong in principle and wrong in the law, and has been for a long time. The federal government must intervene and clarify the lawful position of ballot papers prior to the referendum so that Australians can have confidence in the fairness of the process and the validity of its outcome.