by DAVID FLINT – THE Electoral Commissioner is correct when he says there can only be one space in which to write “Yes” or “No”.
He is also correct when he says the law saves a ballot paper where the voter’s intention is clear.
The law specifically saves those where the voter merely writes “Y” or “N” (Referendum Machinery Act s.93)
On all this, the Commissioner must of course observe the law.
The Electoral Commission has long acted, as it did in the 1999 republic referendum, on legal opinion that a tick is a clear “Yes” but a cross is not a clear “No”.
Hence the AEC will normally rule a tick to be a valid “Yes” vote, but a cross to be informal. I disagree with that.
I think that in the circumstances the cross indicates an intention to vote “No”. That is, of course, no more than my opinion.
The AEC view essentially relies on the fact that in some documents, a cross can indicate approval.
There is probably no need to get too worried about this. The law offers a solution.
This is that a scrutineer disagreeing with a ruling on this should ask that the ballot paper be reserved for decision by the Australian Electoral Officer and if there is a legal challenge, the High Court. ( s. 96)
It is unlikely the government will agree to a change in the law before the referendum. They will no doubt point out these provisions have long been in place and under both sides.
The problem in this instance is that in terms of bias, the behaviour of the Albanese Government is the worst in the history of referendums.
First, they tried to suppress the Yes/No booklet and to grant tax deductibility only to the “Yes” case. Then they rigged the question so that it suggests it is about recognition.
The result is that the electors are understandably very suspicious.
When the Electoral Commissioner went into detail about the Commission’s powers in fulfilling his obligation to save votes from being declared informal, this was seen as part of the government’s attempts to fix the result.
In 1999 we only became aware of the opinion the Commissioner had in relation to crosses when the scrutineers’ manual was released.
This is not widely read but when we looked at it, a strong supporter interested in electoral matters, Dr Amy McGrath, proposed that Australians for Constitutional Monarchy should appeal.
But we thought we would probably lose the case. It would tie up resources, and worse, a loss would be extremely demoralising.
We had good advice that the result overall would not be close and that informal votes would probably not matter.
The actual number could be quite small. We calculated that the scrutineering provision, section 96, offered the answer.
So we concluded that it would be a mistake to appeal. Instead, we ensured our scrutineers would have each specific ruling in any electorate that a ballot paper was informal because the voter used a cross be reserved for any potential appeal.
We concentrated on having an army of scrutineers reaching into every electorate. We proved far more effective in this than the republican movement which easily outspent us.
If the number turned out to be crucial in any State, we could appeal to the High Court sitting as the Court of Disputed Returns. That, we thought, would be the right time to raise it.
We were concentrating on ensuring we would have scrutineers in every electorate.
I understand Amy McGrath then persuaded one of the other monarchist groups, the Australian Monarchist League, to appeal.
If they had asked ACM, we would have warned them not to undertake it as they would probably lose and that they should wait for the final results.
In any event, they appealed and predictably lost.
It was initiated by an injunction, the court was clearly irritated by the somewhat leisurely way the action had been brought days before the vote.
They then launched an appeal among monarchists to cover the costs awarded against them. Some of our people contributed substantially to help them.
The ACM strategy proved correct. The number of votes declared informal was small, only 0.86 per cent of the total.
That was all sorts of votes, not just crosses. Many informal votes are deliberately informal.
The only close vote was in Victoria, 1,489,536 (49.84 per cent) “Yes” votes against 1,499,138 (50.16 per cent) votes.
The total number of informals in the State was only 28,063. Even if all related to crosses, and all were reversed into “No” votes, it would have made no difference.
Meanwhile, the national result was 5,273,024 (45.13 per cent) “Yes” votes against 6,410,787 (54.87 per cent) with 101,189 (0.86 per cent) informal votes.
This was a landslide. The “No” strategy proved correct.PC