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

"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.)