Babet v Electoral Commissioner [2023] FCA 1126

Babet v Electoral Commissioner [2023] FCA 1126

Under s 93(8) of the Referendum (Machinery Provisions) Act 1984 (Cth), the relevant question is whether the mark on the ballot paper clearly and unmistakably conveys the voter's intention. A cross on the single-question referendum ballot paper is inherently ambiguous because it may signify a negative response, selection of an answer, or refusal to engage with the question. A tick, in that context, signifies assent or approval and does not convey a negative response. The Commissioner's treatment of a cross as informal and a tick as formal was therefore not shown to be wrong, and the application was dismissed.

Jurisdiction
Australia
Judgment Date
20 September 2023
Procedural Posture
Application for Declarations Concerning How Referendum Ballot Papers Marked With a Cross or Tick Should Be Counted as Formal or Informal / Final Hearing; Application Dismissed
Outcome
Application dismissed with costs; time for filing any notice of appeal abridged.
Legal Topics
['formality of Referendum Ballot Papers' 'voter Intention' 'use of Cross or Tick on Ballot Paper' 'standing' 'abridgment of Time to Appeal']
['referendums' 'constitutional Law' 'administrative Law' 'electoral Law'] ['formality of Referendum Ballot Papers' 'voter Intention' 'use of Cross or Tick on Ballot Paper' 'standing' 'abridgment of Time to Appeal']

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Procedural Posture

Application for Declarations Concerning How Referendum Ballot Papers Marked With a Cross or Tick Should Be Counted as Formal or Informal / Final Hearing; Application Dismissed

Legal Issues

  1. 1 ['Whether a voter who marks a cross on a referendum ballot paper clearly expresses an intention not to approve the proposed law for the purposes of s 93(8) of the Referendum (Machinery Provisions) Act 1984 (Cth).' 'Whether a voter who marks a tick on a referendum ballot paper clearly expresses an intention to approve the proposed law for the purposes of s 93(8) of the Referendum (Machinery Provisions) Act 1984 (Cth).' 'Whether it was necessary to decide whether the applicants had standing to seek relief.']

Ratio Decidendi

Under s 93(8) of the Referendum (Machinery Provisions) Act 1984 (Cth), the relevant question is whether the mark on the ballot paper clearly and unmistakably conveys the voter's intention. A cross on the single-question referendum ballot paper is inherently ambiguous because it may signify a negative response, selection of an answer, or refusal to engage with the question. A tick, in that context, signifies assent or approval and does not convey a negative response. The Commissioner's treatment of a cross as informal and a tick as formal was therefore not shown to be wrong, and the application was dismissed.

Court Disposition

Application dismissed with costs; time for filing any notice of appeal abridged.

Orders

  • ['The application be dismissed.' "The applicants pay the respondent's costs." 'The time within which a notice of appeal from these orders must be filed as provided in r 36.03 of the Federal Court Rules 2011 be abridged from 28 days to 27 September 2023.' 'The respondent file and serve an affidavit containing the...