Babet v Electoral Commissioner

Case [2023] FCAFC 164

FEDERAL COURT OF AUSTRALIA

Babet v Electoral Commissioner [2023] FCAFC 164

Appeal from: Babet v Electoral Commissioner [2023] FCA 1126
File number: NSD 1065 of 2023
Judgment of: BESANKO, WHEELAHAN AND STEWART JJ
Date of judgment: 9 October 2023
Date of publication of reasons: 12 October 2023
Catchwords:

CONSTITUTIONAL LAW — referendum under s 128 of the Australian Constitution — where proposed law for alteration of the Constitution approved by Commonwealth Parliament — where referendum to be held regarding proposed law — where, in accordance with the Referendum (Machinery Provisions) Act 1984 (Cth) (the RMP Act), referendum ballot paper contains a single box in which elector to indicate yes or no with respect to approval of proposed law — where Electoral Commissioner published guidance that tick alone inside box will constitute formal vote and cross alone inside box will be treated as informal vote — where s 93(8) of the RMP Act also provides 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 — whether primary judge erred in finding tick written alone would demonstrate sufficient clarity of positive intention for purposes of s 93(8) and referendum question — whether, in alternative, primary judge erred in finding that a cross written alone would not demonstrate sufficient clarity of negative intention for purposes of s 93(8) and referendum question — no error by primary judge in construction and application of s 93(8).

CONSTITUTIONAL LAW — where appellants sought declaratory and injunctive relief on basis of their being electors within meaning of s 128 of Constitution — where, in alternative, first appellant sought relief in capacity as member of the Australian Senate — where primary judge deemed it unnecessary to decide whether appellants had standing, having dismissed their applications on merits — whether necessary for primary judge to determine whether appellants, or first appellant, had standing as condition precedent to exercise of federal judicial power — whether if primary judge did have to determine standing, either both appellants or first appellant had standing — primary judge had discretion not to consider standing or jurisdiction where satisfied that appellants did not succeed on merits — primary judge did not err in exercise of that discretion — given Full Court has reached same conclusion on merits as primary judge, unnecessary to determine standing or jurisdiction — appeal dismissed with costs   
Legislation:

Constitution ss 77, 83, 128

Commonwealth Electoral Act 1918 (Cth) ss 133, 217, 355

Federal Court of Australia Act 1976 (Cth) ss 21, 24, 28

Judiciary Act 1903 (Cth) ss 39B, 78B

Referendum (Machinery Provisions) Act 1984 (Cth) ss 3, 7, 11, 24, 25, 27, 35, 45, 73CA, 89, 90, 93, 100, 102, 103, 107A, 107AA, 108, 139

Electoral Act 1985 (SA) s 76

Electoral Act 2017 (NSW) s 165

Cases cited:

Ansett Australia Ground Staff Superannuation Fund Pty Ltd v Ansett Australia Ltd [2003] VSCA 117; (2003) 176 FLR 393

Australian Conservation Foundation Inc v Commonwealth

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Details
AGLC
Babet v Electoral Commissioner [2023] FCAFC 164
Case
[2023] FCAFC 164
Decision Date

CaseChat Overview and Summary

The appeal in Babet v Electoral Commissioner concerns the interpretation of the Referendum (Machinery Provisions) Act 1984 (Cth) and the validity of votes cast in a referendum on a proposed constitutional alteration. The appellants, Senator Babet and Mr Palmer, challenged the Electoral Commissioner's guidance that a tick alone in the ballot box would be considered a formal vote, while a cross alone would be treated as informal. They argued that a cross alone should be interpreted as a clear expression of disapproval, similar to a tick indicating approval. The court was required to decide whether the primary judge erred in finding that a tick alone demonstrated sufficient clarity of positive intention and whether a cross alone did not demonstrate sufficient clarity of negative intention under s 93(8) of the RMP Act.

The court found no error in the primary judge's interpretation and application of s 93(8). It concluded that while a cross could indicate a negative choice in other contexts, its use in the specific context of the referendum ballot paper was ambiguous. The ballot paper asked, "Do you approve this proposed alteration?" A cross inside the box did not clearly indicate whether the voter approved or disapproved of the proposal, thereby failing to meet the clarity requirement of s 93(8). The court emphasised that the intention of a voter who marked the ballot paper with a cross alone would not be clear, particularly given the question's wording.

The Full Court upheld the primary judge's decision, dismissing the appeal and ordering the appellants to pay the respondent's costs. It noted that the primary judge had discretion not to consider the issue of standing or jurisdiction if satisfied that the appellants did not succeed on the merits, and found no error in the exercise of that discretion. As the Full Court agreed with the primary judge on the merits, it deemed it unnecessary to determine the issue of standing or jurisdiction.

ORDERS:
1. The appeal be dismissed.
2. The appellants pay the respondent’s costs, to be taxed in default of agreement.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the respondent’s costs, to be taxed in default of agreement.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The hearing of this appeal from final orders of a judge of the Court that were made on 20 September 2023 was expedited and heard on 9 October 2023. After the conclusion of argument, the Court ordered that the appeal be dismissed and that the appellants pay the respondent’s costs of the appeal, with reasons to be published as quickly as the Court was able. These are the Court’s reasons.Background A writ was issued by the Governor-General to the Australian Electoral Commissioner appointing 14 October 2023 for the taking of votes in relation to a proposed law for the alteration of the Australian Constitution titled Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. Under s 128 of the Constitution, voting is to be taken in such manner as the Parliament prescribes. For this purpose, the Parliament has enacted the Referendum (Machinery Provisions) Act 1984 (Cth) (the RMP Act). The form of ballot paper to be used in a referendum is prescribed by s 25 of the RMP Act, and must be in accordance with Form B of Schedule 1. The ballot paper for the upcoming referendum is in the following form: Section 24 of the RMP Act provides that each elector shall indicate his or her vote in the following way:24 Manner of votingThe voting at a referendum shall be by ballot and each elector shall indicate his or her vote:(a)if the elector approves the proposed law—by writing the word “Yes” in the space provided on the ballot paper; or(b)if the elector does not approve the proposed law—by writing the word “No” in the space so provided. The results of a referendum are to be ascertained by scrutiny in accordance with Pt VI of the RMP Act. Section 90(1)(e)(iv) of the Act requires each Assisting Returning Officer to count the number of ballot papers with votes given in favour of the proposed law, the number of ballot papers with votes given not in favour of the proposed law, and the number of informal ballot papers. Central to the arguments presented by the parties is s 93(1)(b) of the Act, which provides that “[a] ballot paper is informal if … it has no vote marked on it or the voter’s intention is not clear.” Complementing s 93(1)(b) are s 93(8) and (9), which provide:(8)Effect shall be given to a ballot paper of a voter according to the voter’s intention, so far as that intention is clear.(9)For the purposes of subsection (8):(a)a voter who writes the letter “Y” in the space provided on the ballot paper is presumed to have intended to approve the proposed law; and(b)a voter who writes the letter “N” in the space provided on the ballot paper is presumed to have intended to not approve the proposed law.The appeal The appellants, Senator Babet and Mr Palmer, are Australian citizens whose names appear on a roll of electors maintained under the Commonwealth Electoral Act 1918 (Cth), and each is entitled to vote in the referendum as an “elector” for the purposes of s 128 of the Constitution. In addition, Senator Babet, is a member of the Australian Senate who was elected for the State of Victoria in 2022, and was a member of the Senate when it passed the proposed law.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We agree with the primary judge at J [39] that beyond the voting context, a cross may be used to select one of two or more choices and may also indicate a negative choice. It is also a matter of common experience that a cross inside a box is commonly used in daily life to indicate a positive selection or approval in the same way as a tick. The decisive point against the appellants is the significance of a cross inside the box in the context of the written inflexion of the question on the ballot paper, “Do you approve this proposed alteration?” There is real ambiguity as to whether a cross inside the box is a favourable or unfavourable response to this question. This has the consequence that the intention of a voter who completed the ballot paper in this way would not be clear, and would certainly not be clear to the degree required by s 93(8) of the RMP Act construed consistently with Kane v McClelland.Conclusion For the above reasons, the appeal was dismissed with costs.

Ratio Decidendi

Legal Principle Established

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