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

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.