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:
- if the elector approves the proposed law – by writing the word "Yes" in the space provided on the ballot paper; or
- 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."
This article is an edited version of a submission which the writer has made to the Australian Senate’s Legal and Constitutional References Committee.
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