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.