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Mining magnate Clive Palmer and United Australia Party senator Ralph Babet have lost a Federal Court bid to force the Australian Electoral Commission to count crosses on Voice referendum ballot papers as a vote against the proposal.
In a judgment delivered late on Wednesday night after an urgent court hearing, Federal Court Justice Steven Rares said an “X” was “inherently ambiguous” and could not be counted as a No vote in the historic referendum on October 14.
Clive Palmer’s Federal Court case against the Electoral Commission was dismissed on Wednesday.Credit: James Brickwood
Voters will be instructed to write “Yes” or “No” on the Voice referendum ballot paper. However, under so-called “savings provisions”, a referendum vote may be counted where a voter’s intention is clear, even when they have not followed the formal instructions.
“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.”
Babet and Palmer – the founder of the United Australia Party – sought 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”.
Alternatively, the men sought 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.
Rares said that “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 … this was an early form of voting after Federation,” he said.
“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”.
Sample ballot papers for Yes and No.Credit:
Rares said a tick was unambiguous.
“Unlike a cross, which has more than one signification as either a disapproval or a selection of an answer, being approval, the tick both approves or selects the affirmative as the voter’s answer,” he said.
“A tick signifies assent or approval. It is not a symbol that conveys a negative response.”
Palmer and Babet were ordered to pay the Electoral Commission’s costs.
Rares shortened the timeframe for filing any notice of appeal from 28 days to a week.
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