Babet v Electoral Commissioner

Case [2023] FCA 1126

FEDERAL COURT OF AUSTRALIA

Babet v Electoral Commissioner [2023] FCA 1126

File number: NSD 978 of 2023
Judgment of: RARES J
Date of judgment: 20 September 2023
Catchwords:

REFERENDUMS – where Electoral Commissioner issued guidelines to returning officers to count ballot papers on referendum as to question whether voter approved proposed alteration under s 128 of Constitution as informal where voter marked a cross and formal where voter marked a tick – where s 93(8) of the Referendum (Machinery Provisions) Act 1984 (Cth) required marking on ballot paper to be given effect, as formal if “according to the voter’s intention, so far as that intention is clear” – whether voter’s intention in placing cross on ballot paper clearly expresses intention not to approve proposed law – whether voter’s intention in placing tick on ballot paper clearly expresses intention to approve proposed law – held: use of cross ambiguous; use of tick unambiguous.

CONSTITUTION – whether necessary to decide constitutional issue of standing.

Legislation:

Constitution s 128

Commonwealth Electoral Act 1918 (Cth) s 135

Commonwealth Electoral Act 1902 (Cth) ss 151 and 199

Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Cth)

Judiciary Act 1903 (Cth) s 78B

Referendum (Machinery Provisions) Act 1984 (Cth) ss 24, 25, 27, 33, 35, 45, 89, 90, 91, 92, 93, 96, 100, 102, 103, 107A, 107AA, 108, 139

Federal Court Rules 2011 r 36.03

Electoral Act 1927 (NZ) s 136
Cases cited:

Ansett Australia Ground Staff Superannuation Fund Pty Ltd v Ansett Australia Ltd (2003) 176 FLR 393

Benwell v Gray, Electoral Commissioner [1999] FCA 1532

Chanter v Blackwood (No 1) (1904) 1 CLR 39

Combet v Commonwealth (2005) 224 CLR 494

Evans v Crichton-Browne (1981) 147 CLR 169

In re Raglan Election Petition (No 4) [1948] NZLR 65

Kane v McClelland (1962) 111 CLR 518

Mitchell v Bailey (No 2) (2008) 169 FCR 529

Phong v Attorney-General(Cth) (2001) 114 FCR 75

Wilkie v Commonwealth (2017) 263 CLR 487

Woodward v Sarsons (1875) LR 10 CP 733

Wybrow v Chief Electoral Officer [1980] 1 NZLR 147
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 49
Date of hearing: 20 September 2023
Counsel for the applicants: Mr P Santucci and Mr H Cooper
Solicitor for the applicants: Alexander Law
Counsel for the respondent:  Mr S Free SC, Mr B Lim and Ms H Ryan
Solicitor for the respondent: Australian Government Solicitor  

ORDERS

NSD 978 of 2023
BETWEEN:

SENATOR RALPH BABET

First Applicant

CLIVE FREDERICK PALMER

Second Applicant
AND:

ELECTORAL COMMISSIONER

Respondent

ORDER MADE BY:

RARES J

DATE OF ORDER:

20 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the respondent’s costs.

3.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.

4.The respondent file and serve an affidavit containing the responses of the…

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AGLC
Babet v Electoral Commissioner [2023] FCA 1126
Case
[2023] FCA 1126
Decision Date

CaseChat Overview and Summary

The applicants, Senator Babet and the United Australia Party, sought an injunction preventing the Electoral Commissioner from counting certain votes in the upcoming referendum on the proposed constitutional amendment. The applicants argued that ballot papers marked with a cross should be considered informal, as the cross is ambiguous and does not clearly express the voter's intention. They also argued that ballot papers marked with a tick should be considered formal, as the tick unambiguously expresses the voter's intention to approve the proposed law. The Commissioner questioned the applicants' standing to seek relief, and no Attorney-General sought to intervene in the matter.

The legal issues before the court were whether a cross on a ballot paper clearly expresses the voter's intention not to approve the proposed law, whether a tick on a ballot paper clearly expresses the voter's intention to approve the proposed law, and whether it was necessary to decide the constitutional issue of standing. The court considered the principles applicable to determining whether a mark on a ballot paper indicates the voter's intention, as well as the relevant statutory provisions.

The court found that a cross on a ballot paper is inherently ambiguous as to the voter's intention, and therefore does not clearly express the voter's intention not to approve the proposed law. The court also found that a tick on a ballot paper unambiguously expresses the voter's intention to approve the proposed law. The court held that it was not necessary to decide the constitutional issue of standing, as the applicants had not satisfied the court that they had standing to bring the proceedings.

The application was dismissed, and the applicants were ordered to pay the respondent's costs. The time within which a notice of appeal from these orders must be filed was abridged to 27 September 2023. The respondent was also ordered to file and serve an affidavit containing the responses of the Attorneys-General to his notice of a constitutional matter on or before 21 September 2023.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the respondent’s costs.

3. 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.

4. The respondent file and serve an affidavit containing the responses of the Attorneys-General to his notice of a constitutional matter filed under s 78B of the Judiciary Act 1903 (Cth) on or before 21 September 2023.

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

Background

Background to the litigation

The Commissioner has questioned the applicants’ standing to seek relief and, on 13 September 2023, lodged a notice under s 78B of the Judiciary Act 1903 (Cth) which, on acceptance by the Registrar of the Court, he immediately served on 14 September 2023. No Attorney-General has sought to intervene under s 78B.AGREED FACTS The parties agreed the following facts:·each applicant is an Australian citizen, is enrolled on the Electoral Roll made under the Commonwealth Electoral Act 1918 (Cth) and is an elector for the purposes of the RMP Act and s 128 of the Constitution;·Senator Babet was elected to the Senate for Victoria at the 2022 general election, has held office since then and was a member of the Senate at the time it passed the Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Cth);·the United Australia Party is not a registered political party for the purposes of the Electoral Act or the RMP Act and, on 8 September 2022, was deregistered as a political party under s 135(1) of the Electoral Act; and·on 11 September 2023, his Excellency the Governor-General issued a writ for the submission of the proposed constitutional amendment to the electors pursuant to s 7 of the RMP Act and appointed 14 October 2023 as the date for the referendum.THE LEGISLATIVE SCHEME Relevantly, the RMP Act provides: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.Note: See also subsection 93(9) for when votes are formal. Under s 27, each of the Governor-General, the Governor of each State, the Chief Minister of the Australian Capital Territory, the Administrator of the Northern Territory, or a person authorised by him or her, may appoint one person to act as a scrutineer during voting at a referendum at each voting place in respectively the Commonwealth, State or Territory, and the registered officer of a registered political party may appoint persons to act as scrutineers at each polling place. A person voting at a polling booth at a referendum must be given a ballot paper by the presiding officer under s 33(1), and unless otherwise prescribed, shall on receiving a ballot paper retire alone to a voting compartment there “and mark, in private, his or her vote on the ballot paper”, fold the paper to conceal the vote and place it in the ballot box (s 35). Every elector has a duty to vote at a referendum by force of s 45(1). Part VI of the RMP Act is headed ‘Scrutiny of a referendum’. Importantly, s 89(1) provides: The result of a referendum shall be ascertained by scrutiny. Mirroring s 27, under s 89(2)-(4A), each of the Governor-General, Governors of the States, Chief Minister and Administrator or a person authorised by him or her and the registered officer of a registered political party may appoint, in the approved form, persons to act as scrutineers at each counting centre.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Mitchell 169 FCR at 545-550 [44]-[55], Tracey J examined the principles applicable to determining whether a mark on a ballot paper indicated the voter’s intention. He said (at 549 [52]): In my view the two cardinal principles are those identified by Gummow J in Langer v Commonwealth 186 CLR 302 namely “that the ballot, being a means of protecting the franchise, should not be made an instrument to defeat it and that, in particular, doubtful questions of form should be resolved in favour of the franchise where there is no doubt as to the real intention of the voter.” These principles are given statutory force by s 268(3) of the [Commonwealth Electoral Act]. Other, subordinate, principles may be identified which assist in giving effect to the two cardinal principles. These are:•When seeking to determine the voter’s intention resort must be had, exclusively, to what the voter has written on the ballot-paper.•The ballot-paper should be read and construed as whole.•A voter’s intention will not be expressed with the necessary clarity unless the intention is unmistakeable and can be ascertained with certainty. A Court of Disputed Returns must not resort to conjecture or the drawing of inferences in order to ascertain a voter’s intention.CONSIDERATION I reject the applicants’ submission that the Commissioner’s statement of principles 1 and 3 in the Electoral Procedures Handbook and other publications, set out at [21] above, are inconsistent. The first principle reflects what Tracey J said in Mitchell 169 FCR at 550 [53]. That principle is correct. It does no more than require the officer to approach the task of ruling on whether a mark on a ballot paper expresses the voter’s intention clearly, that is, unmistakeably, by assuming that this was his or her intention in placing that mark as it appears. Of course, the nature of the marking might reveal immediately that it was not a vote at all but a rejection of the elector’s obligation to cast his or her vote. But, once the officer uses principle 1 to guide the approach, principles 2 to 5 require him or her to discern whether something that at least, at first blush, appears to be the elector’s attempt to exercise the franchise succeeded in creating a formal vote. Principle 3 does no more than require an objective evaluation of whether or not the mark is a clear communication of the voter’s intention, in conformity with Griffith CJ’s reasoning in Chanter 1 CLR at 55 that, where possible, a mere technicality should be resolved in favour of the franchise rather than against it, but not so as to allow the returning officer to draw an inference where there is not a manifestly clear statement of intention. Whether a cross manifests a clear intention to vote ‘no’ A cross is used in daily life both as a means of selecting one of two or more choices and as indicating a negative choice. Often one is asked to select a choice with a cross and, as I have noted, this was an early form of voting after Federation. The use of a cross placed in the answer to the single question on the ballot paper for the referendum (namely, “Do you approve this proposed alteration?”) is inherently ambiguous as to the intention that the voter is intending to convey as to the proposal. One must guess whether it means, first, as the applicants reasonably assert, that the elector indicates that he or she is voting ‘no’ or, secondly, whether he or she is intending to vote ‘yes’ because that is one alternative in the question and the voter, carelessly, is responding as he or she is used to doing with other forms that he or she has had to complete, by placing a cross there to signify approval or, thirdly, whether the voter is intending the cross to mean that he or she does not want to engage with or answer the question at all. Whether a tick manifests a clear intention to vote ‘yes’