Apparently, there are many ways to say 'yes' at a referendum - but not 'no'

In June 2003 the Senate asked its Legal and Constitutional References Committee to conduct an inquiry into an Australian republic. In December 2003 the Committee issued a discussion paper intended to facilitate and focus debate, and invited public submissions. Lodgement of submissions closed on 31 March 2004, and the Committee commenced public hearings on 13 April 2004. As any move towards a republic must involve a referendum held under section 128 of the Constitution and in accordance with the provisions of the Referendum (Machinery Provisions) Act 1948, the 1999 Constitutional Referendum provides a worrying example of the way in which the Australian Electoral Commission interprets and administers the legislation dealing with the holding of referendums and the handling and counting of ballot papers cast by voters at a referendum.

Section 128 of the Australian Constitution sets out the method by which the Constitution may be altered by the people of Australia. The Referendum (Machinery Provisions) Act 1984 (Cth.) sets out the procedures for the holding of referendums to ask the Australian electors whether they approve of proposals to alter the Constitution. The last such referendum was held in 1999, when Australian electors were asked whether they wished to amend the Constitution to change Australia’s system of government from a constitutional monarchy to a republic. Shortly before polling day the Australian Electoral Commission issued a booklet called Guidelines to Scrutineers containing certain instructions to officials responsible for the conduct of the ballot and the counting of ballot papers. Some of these instructions to scrutineers may have been inconsistent with or contrary to the provisions in the legislation.

Section 24 of the Referendum (Machinery Provisions) Act 1984 reads:

"24. Manner of voting The voting at a referendum shall be by ballot and each elector shall indicate his or her vote:

1. if the elector approves the proposed law – by writing the word "Yes" in the space provided on the ballot paper; or
2. if the elector does not approve the proposed law – by writing the word "No" in the space provided."

Schedule 1 to the Referendum (Machinery Provisions) Act 1984 contains the forms to be used. Form B, the ballot paper to be used in a referendum on proposed Constitution alteration, contains the following:

"Directions to voter Write "YES" or "NO" in the space provided opposite the question set out below."

The Australian Electoral Commission’s web site, in a document entitled "Electoral Backgrounder 10", includes the following items of information about referendums:

"3. Voting in referendums is compulsory for all eligible electors, and voters are required to write either "Yes" or "No" in the box opposite the question on the ballot paper."

"20. At national referendums to amend the Constitution, voters generally rely on official AEC referendum advertising for guidance on how to fill out their ballot papers correctly. Official AEC advertising is directed to ensuring that voters know when and where to go to cast a vote, and that voters understand that they are required to write "Yes" or "No" in the boxes printed on the ballot paper next to the questions asked of the voter."

"29. Informal voting is not an offence under the Referendum Act, and it is not illegal to advocate an informal vote. Any referendum ballot paper that does not show either a "Yes" or a "No" vote against the question(s) provided is categorised as informal (under section 93 of the Referendum Act, read with section 24). That is, such ballot papers are put aside and do not count towards the final referendum result."

"30. Any referendum ballot paper that contains slogans or symbols, but does not show either a "Yes" or a "No" vote against the question(s) provided, is also categorised as informal, and does not count towards the final referendum result. On the other hand, any referendum ballot paper that contains slogans and symbols, but also clearly and separately shows either a "Yes" or a "No" vote against the question(s) provided, is categorised as a formal vote."

Subsection (1) of section 41 of the Referendum (Machinery Provisions) Act 1984 reads:

"41 Spoilt ballot-papers (1) If a person voting at a referendum, before depositing a ballot-paper in a ballot-box, satisfies the presiding officer at a polling booth at which the person is voting that the person has spoilt the ballot-paper by mistake or accident, the presiding officer shall provide the person with a new ballot-paper and shall cancel the spoilt ballot-paper."

The legislation, the direction on the ballot paper, and the information on the AEC web site are clear enough, and require the voter to make one of two very simple alternative responses to a referendum question by writing either the word "YES" or the word "NO" on the ballot paper. As the AEC’s explanatory paragraphs quoted above make clear, a voter may place slogans and symbols on the ballot paper as well as, but not instead of, writing the words "Yes" or "No", which must be shown "clearly and separately" against the question(s) provided.

In short, in order to cast a valid vote, the voter is required to use one of two quite specific words, and the legislation has put them in quotation marks – there can be no mistake as to what the voter is required to do. The legislation is also quite specific about the action to be taken if the voter spoils a ballot paper. It requires the cancellation of a spoilt ballot paper and the issue of a new ballot paper.

One would think that all of the above-mentioned provisions are simple enough to follow and to apply. But that would be to underestimate the inventiveness of Australian voters, as well as that of the Australian Electoral Commission.

The 1999 Guidelines to Scrutineers contained instructions as to what would constitute a formal vote. Examples of formal "Yes" votes, apart from the word "Yes", included the letter "Y" and the words "OK", "Sure", and "Definitely". Examples of formal "No" votes, apart from the word “No”, included the letter "N" and the words "Never" and "Definitely not". In addition, scrutineers were instructed that a tick would be accepted as a valid "Yes" vote but that a cross would not be treated as a valid "No" vote and would be treated as an informal vote.

When Parliament legislated in specific terms for the use of the words "Yes" or "No", did it contemplate that the bureaucracy would interpret this as allowing also the use of a variety of other words or even single letters or symbols such as ticks? If that is the case, then the possibilities for linguistic adventurism are boundless. Why limit it to the few words and letters and symbols selected by the Electoral Commission?

Had the Parliament intended to leave the choice of responses wide open to the imagination of the voter, or that of an electoral official, section 24 would merely have required the voter to indicate whether or not he or she approved the proposed law. But Parliament didn’t stop there – it went on to stipulate precisely how the voter should indicate his or her vote, and specified the two words that were to be used.

To compound its extraordinary ruling on the use of language, the Electoral Commission told scrutineers that the word "No" crossed out and "Yes" or a tick written above it would constitute a formal "Yes" vote, and the word "Yes" crossed out and "No" written above it would constitute a formal "No" vote. Of course, scrutineers would have no way of knowing whether the alteration had occurred while the ballot paper was still in the hands of the voter or afterwards.

To guard against the fraudulent alteration of a ballot paper by another person, Parliament specifically legislated that a spoilt ballot paper was to be cancelled and a new one issued. The Act contains no provision for a spoilt ballot paper to be re-used by allowing a mistake to be crossed out and over-written. By what authority does the Electoral Commission over-rule the clear and precise provisions which Parliament made, and invent a new procedure which Parliament clearly did not contemplate?

Having identified seven ways of saying "Yes" without using the word, and four ways of saying "No" without using the word, the Electoral Commission then gave the following instruction to scrutineers: "To be a formal vote, the answer to the question need only clearly express the voter’s support for or opposition to that question’s proposed constitutional change, in a language or symbol the person conducting the scrutiny understands." (Emphasis added.)

In other words, the validity of a particular vote could be dependent upon the linguistic skills, or the imagination, of each individual electoral official who is conducting a scrutiny. Voters using exactly the same language or symbols could have their votes counted in one place because they were fortunate enough to have a scrutineer who understood that particular language or symbol, and could have an identical vote declared informal and not counted in another place because there was no scrutineer present who understood that same particular language or symbol. Furthermore, voters would have no knowledge of the language skills of the various scrutineers, and would thus have no way of knowing whether or not they had lodged a valid vote.

These instructions must surely represent the most adventurous administrative interpretation one could ever hope to see of the simple legislative requirement to write "Yes" or "No" on a ballot paper. Was the Electoral Commission conducting a referendum or a lottery?

Subsection (8) of section 93 of the Referendum (Machinery Provisions) Act 1984 reads:

"93 Informal ballot-papers (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."

The question that needs to be answered is whether this particular sub-section relates back to the earlier sections of the Act that require the words "Yes" or "No", and where a determination might need to be made by an official in certain cases as to which of these two words the voter intended to write; or whether section 24 of the Act can be given whatever interpretation the Electoral Commission chooses to give it.

Indeed, paragraph 29 (quoted above) from the information on the Electoral Commission’s web site suggests that the first of these two propositions is the correct one, that is, did the voter write, or intend to write, either the word "Yes" or the word "No"? It seems most unlikely that Parliament intended to give officials carte blanche to invent their own weird and wonderful ways for voters to indicate their vote; and even less likely that Parliament intended that the validity of a vote would depend upon the linguistic skills or the imagination of an individual scrutineer.

As there was no organisation with legal standing that would have enabled it to challenge the rulings by the Electoral Commission, as contained in the Guidelines to Scrutineers, an individual did so in his own name. When the case came before the Federal Court, the Judge ruled against the application "on the balance of convenience", that is, the convenience of the Electoral Commission and its Divisional Returning Officers, and awarded costs to the Commission. The lawfulness of the Commission’s interpretation of the legislation and of its instructions to scrutineers was simply not tested by the Court.

The Parliament now needs to examine the extent to which the provisions of the Referendum (Machinery Provisions) Act 1984 were complied with during the 1999 constitutional referendum, and, more particularly, whether the Australian Electoral Commission’s Guidelines to Scrutineers were consistent with the quite specific provisions of the legislation.

If the Commission does indeed have wide discretion in interpreting the legislation, the Parliament may wish to amend the Referendum (Machinery Provisions) Act 1984 to ensure that, in relation to future referendums, decisions as to just what does constitute a formal vote, and the procedure to be followed with spoilt ballot papers, are made, not by unelected officials but by the Parliament.