September 10, 2023

Palmer launches court bid to force AEC to count ‘X’ as ‘No’ in Voice vote

By Michaela Whitbourn
Updated September 10, 2023 — 9.44amfirst published September 9, 2023 — 10.48pm
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Mining magnate Clive Palmer and United Australia Party Senator Ralph Babet have launched a Federal Court bid to force the Australian Electoral Commission to count crosses on Voice referendum ballot papers as a vote against the proposal.

The urgent court challenge comes just five weeks before the historic Voice to parliament referendum on October 14.

Mining magnate Clive Palmer has launched a Federal Court action over the Voice referendum.Credit: Alex Ellinghausen

The Electoral Commission has made clear that a tick will be counted as a Yes vote but a cross, which may be ambiguous, will not be counted as a No vote on Voice referendum ballot papers, consistent with legal advice that has been provided for decades.

Opposition leader Peter Dutton has previously claimed this would give the Yes campaign an advantage.

Babet and Palmer – the founder of the United Australia Party – are seeking a Federal Court declaration that “effect shall be given to any ballot papers containing a cross (“X”) written alone in the space provided, by treating such ballot papers as clearly demonstrating the voter’s intention that he or she does not approve the proposed law”.

They are also seeking an order restraining the AEC from “instructing scrutineers or any other officer” to count ballots “other than in accordance with” that declaration.

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Alternatively, the men seek a declaration that any ballot papers containing a tick alone “do not clearly demonstrate the voter’s intention” to be counted as a Yes vote, and are to be treated as informal votes. They also seek a related order restraining the AEC from instructing scrutineers or other officers to count those votes other than in accordance with that declaration.

Federal Court Justice Steven Rares made orders on Friday listing the challenge for a hearing on Wednesday, September 20.

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The AEC said in a statement on Sunday: “As the matter is before the courts we’re unable to comment. However, it is important to note that one of the strengths of the Australian electoral system is that it’s open to challenge. It is not owned by the AEC – it’s owned by all of us.”

The commission has previously made clear that “the formal voting instructions for the referendum are to clearly write either ‘yes’ or ‘no’, in full, in English”.

“It is that easy: given the simplicity, the AEC expects the vast, vast majority of Australian voters to follow those instructions and cast a formal vote,” the commission said.

It took aim at misinformation surrounding the vote count and noted that “more than 99 per cent of votes cast at the 1999 federal referendum [on an Australian republic] were formal”.

“Even of the 0.86 per cent of informal votes, many would have had no relevance to the use of ticks or crosses.”

Australians will cast their vote on October 14 on whether to enshrine recognition of the nation’s First Peoples in the Constitution by creating a body that would advise the parliament and executive government on matters relating to Indigenous Australians.

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Under so-called “savings provisions”, a vote may be counted where a voter’s intention is clear, even when they have not followed the instructions to write either “Yes” or “No” on the ballot paper.

“The longstanding legal advice provides that a cross can be open to interpretation as to whether it denotes approval or disapproval: many people use it daily to indicate approval in checkboxes on forms,” the AEC said in a statement last month.

“The legal advice provides that for a single referendum question, a clear ‘tick’ should be counted as formal and a ‘cross’ should not.”

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Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.Connect via Twitter.
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