As Anthony Albanese prepares for a referendum date announcement on Wednesday, universally expected to be for October 14, the no campaign has been on the rampage over the Australian Electoral Commission’s long-established practice of counting ticks on referendum ballots as formal yes votes while treating crosses as informal. The AEC explained in a media release yesterday that its determinations on formality are guided by “legal advice from the Australian Government Solicitor, provided on multiple occasions during the previous three decades”. Such advice must split the difference between two provisions of the Referendum (Machinery Provisions) Act: section 24, which has been on the books since 1965 and requires that voting be conducted by writing yes or no in the box provided, and section 93(8), a creation of the Hawke government in 1984 providing 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” (UPDATE: Someone who would know notes in comments that the provision had actually existed since 1906) (historian Andre Brett offers a useful summation of the evolution of the act).
The closest the finer points of the matter have come to being tested in court was in the case of Benwell v Gray, in which monarchists sought a Federal Court injunction to block the AEC’s guidance to those at the coal face a few days out from the 1999 republic referendum. This was dismissed on the grounds that the issue at hand lacked an urgency commensurate with the relief sought. However, the judge explicitly rejected the applicant’s contention that section 24 demanded that section 93(8) be limited to “an incompletely realised intention to write the words ‘YES’ or ‘NO’”. This being so, it is plainly appropriate for the AEC to allow markings other than yes or no, and to be guided beyond that point by its legal advice. Even so, Electoral Commissioner Tom Rogers undoubtedly regrets not having batted the issue of savings provisions away when posed a seemingly innocent question on the subject on Thursday.
Whatever the merits of arguments about savings provisions, this has prompted some irresponsible nonsense from the rightward end of the media, and doubtless much worse on social media. Peter Dutton has joined in to the extent of telling 2GB that the infinitesimal number of votes involved amounts to a “very, very strong advantage to the Yes case”, while Liberal deputy Sussan Ley deflected a question about the Coalition’s past failure to act on the matter by charging the current government with responsibility for leaning on the AEC.
Can we please keep this thread for discussion about the Indigenous Voice referendum. The open thread for general discussion is here.
Thankyou for your info.
I think what some people don’t understand is why a tick is deemed valid but a cross isn’t. Isn’t a cross the exact opposite of a tick? Who uses a cross to indicate something else? A cross screams nyet, nein, non and no way!
Personally, I’d make everyone write either yes or no, with no alternatives.
Right already setting up “rigged election” narrative like they do for every election now.
A tick is a symbol of approval. A cross is a symbol of rejection! It’s impossible to know if a cross is for or against the answer it’s next to.
Not hard to figure out.
https://chaser.com.au/national/retired-aussie-couple-voting-no-on-the-voice-we-cant-stand-that-show/
https://kevinbonham.blogspot.com/2023/08/voice-referendum-ticks-and-crosses.html
Did the tick/cross debate happen at the last referendum? Or is it a special edition of FUD for this one? (I was absent during the Republic referendum.)
As pointed out elsewhere this tactic is simple, an avoidance of the true question, whether to vote YES or NO. And I have to wonder if it will in the end disadvantage the NO case.
I don’t know why they can’t have two boxes that you number 1 and 2 like other elections. With a 50% rotation to remove any bias.
It will make zero difference its just the now standard right wing attempt to establish themselves as victims and undermine the legitimacy of election results that don’t favour them.
Frankly “no” voters should be insulted that Dutton thinks they are too stupid to even write “no”.
The left will do anything it can to win this referendum, still won’t be enough though.
@Jeremy C Browne
In some cultures a X is a symbol of affirmation, and for many illiterate people it’s used as a sign (which could indicate assent). Additionally when filling out forms we often put an X to indicate the option we are choosing.
I don’t think this is some big conspiracy, and is unlikely to manifestly assist the Yes. I can also kind of understand why a cross might not be as clear in intention as a tick, but I think for the sake of things being *seen* to be fair (as well as being actually fair), if crosses don’t count then ticks shouldn’t either. To my mind only the words Yes and No should count.
Frankly I don’t know why they don’t change it to having a Yes and a No box and get the voter to mark those.
What’s the response? Unfortunately, there always has to be one.
– If you reckon it’s too hard? You’re just whining like a loser.
– Maybe you’ve given up already and you’re looking for excuses.
– “BOO! Look over there!” is what you do when you’re afraid of responsibility.
I don’t know. The desperate distraction, which this is, could be used to shift focus onto the self-admitted weakness of the NO case. The NO case is so weak that even those supporting NO don’t understand why they support NO and need something, anything, to hide behind.
This is the stupidest nonsense I have ever heard from Coalition politicians. Of course many people – at least boomers like me and older – use an x as a way of marking a box, so – if not paying enough attention – could do this in an endeavour to vote Yes.
The AEC is quite right to rule out all x votes. Ironically, it could even end up helping the No case.
Also, if the Yes case is doing as poorly as the polling suggests, who cares?
Or does the Coalition know something the rest of us don’t?
Is Dutton worried that his bad faith ‘No’ position is going to lose? Seems such a massive over reaction to something so small.
Seems that he is a very worried man that a partisan Yes vote could get up against history. He has more riding on No than Albo on Yes and it seems to be showing.
parkySP, I reckon you are right, Dutton has backed a loser.
I also can’t see how a sane person couldn’t understand that when asked to write yes or no, that’s what you should do, and in the absence of a box to tick or cross, why would you do that?
Just like at the marriage equality plebiscite, I am confident that the right wing religious loons will miss out again.
Jeremy C Brownesays:
Saturday, August 26, 2023 at 6:45 am
Thankyou for your info.
I think what some people don’t understand is why a tick is deemed valid but a cross isn’t. Isn’t a cross the exact opposite of a tick? Who uses a cross to indicate something else? A cross screams nyet, nein, non and no way!
Personally, I’d make everyone write either yes or no, with no alternatives.
——————–
Crossing out a ballot paper is a way of voting informally and informal votes are excluded from the yes/no count.
It is a simple truth that governments always want the YES vote to get up in referenda.
Otherwise the referendum would not be happening in the first place.
So if they can find a way to give the YES vote a leg-up they will take it.
Under our electoral laws, a voter is required to vote by writing the word YES or the word NO on the ballot paper. I think that is fair enough.
A small percentage of the population fall into a cohort that might be described variously as the disinterested, ignorant, ill-informed, and/or barely literate. It is reasonable that these people should be helped to vote if the above requirement is too much for them. That is why we have the saving provision which enables a vote to be validated if the intent of the voter is clear.
Such an arrangement however, needs to be transparent, fair and equitable.
For the vast majority of folk who fall into the “need help” category, a tick means YES and a cross means NO. It is disingenuous to argue that a tick clearly means YES and a cross could mean anything.
Such an interpretation is just a cynical bid to game the system in favour of the YES vote.
It is my view that ticks and crosses should be accepted as YES and NO votes respectively.
If crosses can not be counted, then neither should ticks.
No wonder Australian politicians are held in such contempt.
Stop the bullshit and respect everyone’s votes.
e.g.w.
“ It is a simple truth that governments always want the YES vote to get up in referenda.”
That’s obviously false – the last referendum we had was for the republic, while avowed monarchist John Howard was the PM.
“Otherwise the referendum would not be happening in the first place.”
Except for Brexit. Or the republic referendum. One intended to fail miserable and kill the far-right influence over UK politics, the other sabotaged from the start by a monarchist arse kisser who didn’t want a fair election on the issue.
The savings clause in section 93(8) of the Referendum (Machinery Provisions) Act 1984 wasn’t really a creation of the Hawke government. It was basically lifted from subsection 21(2C) of the Referendum (Constitution Alteration) Act 1906, which the Referendum (Machinery Provisions) Act replaced. That subsection 21(2C) read as follows when it was inserted in the 1906 Act (in 1919, by the Act at https://www.legislation.gov.au/Details/C1919A00014):
“A ballot-paper shall not be informal for any reason other than the reasons specified in this section, or, in the case of an absent voter’s ballot-paper or a postal ballot-paper, or a ballot-paper used for voting in pursuance of section one hundred and twenty-one of the Commonwealth Electoral Act 1918–1919, the grounds prescribed by the regulations, but shall be given effect to according to the voter’s intention, so far as his intention is clear.”
The reference to the regulations is irrelevant for present purposes, as in those days provision for declaration voting was made by regulation. So in substance the current savings clause has applied for more than a century.
… and was spiked accordingly. :-/
>It is disingenuous to argue that a tick clearly means YES and a cross could mean anything.
https://www.ato.gov.au/Forms/TFN-application-or-enquiry-for-individuals—instructions/?=top_10_forms
Sample form for TFN has the X meaning Yes.
To keep it consistent with this goverment form a X must therefore mean affirmitive.
EGW, politicians never decided that a tick meant yes and a cross meant no. They decided that a ballot should be formal if the voter’s intention was clear. Australian Government Solicitors have taken a tick to be clear and a cross to be ambiguous, and have done so not because they are “disingenuous”, but because they anticipate that such would be the ruling of a court. If I as a male am given a form that asks me to identify my sex by presenting me with male and female boxes and directing me to cross the appropriate box (see question 6 on the ATO form just linked to by Catprog), I most certainly do not put a cross in the female box by way of asserting that that’s not what I am. So whereas a tick is indeed unambiguous, a cross is not.
Clearly a X in the YES box means -yes, and a X in the NO box means yes.
There is only one box on the ballot paper. Next to it is a question “DO YOU APPROVE OF THIS PROPOSED ALTERATION” that refers to the proposed change to the constitution. Under the box on the ballot paper is written WRITE “YES” OR “NO”
It’s not that difficult.
And from the AEC website;
If you need assistance to vote at a polling place, you can ask someone to help you. Polling place staff are trained to assist you or you can nominate any person (other than a candidate) to assist. This could be a friend, relative or another person. If you do not nominate someone, then the polling official in charge may provide assistance.
The real reasons for the Right opposing the Voice aren’t all that clear. It has been suggested that they fear the Treaty more. That might have consequences for some powerful interests in mining and agribusiness, so they want to nip Reconciliation in the bud. That plus an assimilationist attitude to First Nations people, a desire to deny the Albanese Government a victory, small Government ideology and a desire to defend Settler and especially British Settler heritage.
So who are the natural constituency for the “No” vote? I can think of a few:
1. racists: ~10-15% of the electorate
2. assimilationists. Hard to estimate. Maybe most of those aligned to the L/NP Right (e.g. Howard, Abbott, Dutton, the IPA, Newscorp) plus some others ~15-25%
3. people whose economic interests would actually be harmed by the Voice ~0%.
4. others who want a different approach, don’t think it will help, want to do Treaty first, etc (e.g. Lidia Thorpe, some Greens). Hard to estimate, maybe ~5-10%.
5. People who don’t know or don’t understand, who are inclined to vote “No” out of “an abundance of caution”.
It’s not enough. The “No” proponents apparently don’t think they can make their case honestly so they’re out to sow maximum fear and confusion. Maximise groups (3) and (5). “Ticks and crosses” is just the latest salvo.
Steve777 at 10:35 pm
I suspect there’s another group: people for whom the message that nobody should get special treatment or recognition resonates. I don’t think they fall into the category of assimilationists, as their thinking isn’t really based on the situation of Indigenous Australians per se, but rather on a more general sense they have of what’s fair. I don’t agree with their perspective, but I think its potency has been underestimated, not least because it gives people in your category 5 a sense that they aren’t doing the wrong thing by voting No.
A tick in the Yes box and a cross in the No box, or vice-versa, would be instructive. You’d have to say the tick was positive and the cross negative in those cases.
The Toorak Toff at 11:16 pm
“A tick in the Yes box and a cross in the No box, or vice-versa, would be instructive. You’d have to say the tick was positive and the cross negative in those cases.”
Fortunately, that won’t arise in the coming vote, as federal referendum ballot papers haven’t had Yes and No boxes since 1965.
When my dad used to do the pools or spot the ball he always out a X in the box for “no publicity” because the instructions were to put an X in the box.
In most UK elections we are told to put an X in the box for our preferred candidates.
JCB: “ Who uses a cross to indicate something else?”
Voters in hundreds of countries and states around the world.
The UK, for one (birthplace of millions of Australian voters):
“At a general or local election, voters put a cross (X) next to their preferred candidate on a ballot paper.”
https://www.parliament.uk/about/how/elections-and-voting/voting-systems/
ChrisC: snap!
https://www.pollbludger.net/2023/08/26/ticked-off-and-very-cross/#comment-4152480
Fear, uncertainty, doubt … or more subtly embrace CtG, extend the one page, extinguish a VTP&E let alone a TRC or undoing ‘1788 foreign investment’, treaty/ sovereignty/ reparations?
Still not sure some pigs more equal than others though, selective diversity, benevolent racism, affirmative action … is the way to go.
The ‘yes’ has work to do, be it ‘undecideds’ or ‘no’, given numbers requiring majority of voters, and states/ territories seem to be.
CtG/ NIAA/ etc alone don’t appear to be cutting it.
Mitigate the old normal, adapt today’s normal, transform to the next normal. I do wish we’d focus on cosmopolitan, multi-cultural rather than white or black.
bobsays:
Saturday, August 26, 2023 at 5:23 pm
“Otherwise the referendum would not be happening in the first place.”
Except for Brexit. Or the republic referendum. One intended to fail miserable and kill the far-right influence over UK politics, the other sabotaged from the start by a monarchist arse kisser who didn’t want a fair election on the issue.
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There has never been a Brexit referendum in Australia (so irrelevant).
The republic referendum was an anomaly. Momentum for the republic referendum was building from the early nineties. Under Prime Minister, Paul Keating, it was put forward that a Constitutional Convention should be held to shape the proposal for a republic. If approved by the Convention a referendum would then be conducted to enable the republic to come into being for the Centenary (1 Jan 2001).
The proposal had popular support. The Lib/Nats opposition under Downer agreed to the process and to support the convention, although not committed to supporting a republic. By the time Howard became Prime Minister, the momentum and commitment for a Constitutional Convention was too advanced for him to kill it outright.
To Howard’s disappointment the Convention strongly supported a referendum on the issue and he felt bound to proceed. So he staged the referendum and worked assiduously from the start at sabotaging the proposal.
A strong candidate for most divisive and destructive Prime Minister we ever had to suffer.
Some will remember that the 1999 referendum also had a question to insert a preamble into the Constitution. At the booth I was scrutineering at, someone had written on their ballot paper “STICK IT UP JOHN HOWARD’S A***”. The returning officer ruled that this was a valid ‘No’ vote because the voter’s intent was clear (while all the scrutineers were laughing their heads off).
I’m sure we all remember Alice Tinker from ‘The Vicar Of Dibley’.
“I didn’t know who to vote for, so I just put a big cross next to the Conservative candidate’s name to make sure they didn’t win.”
Despite NO campaign’s claims, there are several comparable bodies to The Voice globally , including the Sami parliament in Norway. https://www.thesaturdaypaper.com.au/life/2023/08/24/voices-harmony
I’ve added some Hansard research to my article at https://kevinbonham.blogspot.com/2023/08/voice-referendum-ticks-and-crosses.html
This includes:
* Labor in 1988 tried to amend the legislation to get rid of ticks and crosses before the referendum following a 1986 JSCEM finding. They were stopped by the Democrats and Coalition wanting a more stringent amendment, then there was a parliamentary blow-up about the matter about a week and a half out from polling day, then after the election in December 1989 Labor’s attempt to get rid of ticks and crosses again failed because the Democrats wanted a more stringent restriction.
* There are a couple of citations after that. In 2009 Julian Leeser was present when Michael Maley discussed the asymmetry and Leeser said he’d like to get rid of “the tick provisions” – showing that at least one serving MP today has long been aware of it.
* In 2015 current Senator Linda Reynolds was present when the AEC’s Paul Pirani gave a summary of Benwell v Gray. Unfortunately the summary given was quite inaccurate and didn’t refer to the asymmetry, in fact giving the incorrect impression that the 1999 formality guidelines allowed for crosses to be formal (explicitly the opposite)
Littleproud is trying to lean on the AEC to allow “X”.
“X” (formerly known as Twitter)
citizen at 11:25 am
So Mr Littleproud wants the AEC to act in defiance of explicit legal advice. That worked really well with robodebt, didn’t it?
I added more fun to my page: in 2005 there was a JSCEM hearing where Sir David Smith argued that referendum votes should be confined to Yes and No and none other than George Brandis made comments explaining the standard that a tick was clearcut and a cross was ambiguous. Despite this issue occupying pretty much all of Smith’s appearance, it is not even mentioned in the 2005 JSCEM report.
(PS Leeser was not yet an MP at the time of his comments noted above).
@Tman
“Frankly I don’t know why they don’t change it to having a Yes and a No box and get the voter to mark those.”
By far the most sensible comment on this thread.
14th October is referendum date – just announced by PM.
Oliver Sutton says:
Sunday, August 27, 2023 at 7:31 am
JCB: “ Who uses a cross to indicate something else?”
………………………………………………………………………………………
Lotto players !
Mark with a cross the numbers you want to play with.
Yes, I want to play with the numbers I’ve crossed.
You don’t mark with a cross the numbers you don’t want to play with.
X can be very confusing.
Therefore it can’t be accepted.