Ticks on the voice referendum ballot paper will count as yes votes while crosses will be invalid, the federal court has ruled, rejecting a challenge brought by United Australia party senator Ralph Babet and Clive Palmer.
On Wednesday Justice Steven Rares ruled in favour of the Australian Electoral Commission, rejecting an argument from Babet and Palmer’s lawyers that ticks should also be invalid if crosses are not accepted as valid no votes.
Rares explained that a cross is used “both as a means of selecting one of two or more choices and as indicating a negative choice” and is therefore “inherently ambiguous”.
“Unlike a cross, which has more than one signification, either approval or disapproval … the tick approves or selects the affirmative as the voter’s answer,” he said in an oral judgment.
Rares said he would dismiss the proceedings, with Babet and Palmer to pay costs.
In August the electoral commissioner, Tom Rogers, confirmed the AEC will follow decades of precedent and count ticks as yes votes but crosses as informal because it is not sufficiently clear whether a cross indicates an intention to vote yes or no.
That sparked weeks of public controversy, including the opposition leader, Peter Dutton, suggesting that the process is “rigged” against the no vote.
Babet and Palmer’s counsel, Philip Santucci, had submitted that ticks can also have multiple meanings, including that voters might “tick the box to comply with their duty to vote” not to indicate support.
“The existence of that possibility is sufficient to mean the voter has not clearly conveyed their intention and ticks should be informal,” Santucci said.
If the test is so “stringent” that alternative meanings are “enough to defeat the formality of the cross, it’s enough to defeat the formality of the tick”.
The AEC’s counsel, Stephen Free, had submitted that given voters are asked in “affirmative terms” if they approve of the constitutional change, then ticks are “unmistakably clear” in indicating a yes vote.
Free noted that the AEC had publicly corrected “misconceptions and factual errors” in the “intense media commentary” about its treatment of ticks and crosses.
In August the AEC “completely and utterly” rejected the assertion it was acting unfairly, suggesting claims were “based on emotion rather than the reality of the law”.
The ballot paper for enshrining the Indigenous voice in the constitution will contain one square with voters clearly instructed to write either “yes” or “no” in English.
Fewer than 1% of votes recorded in the 1999 republic referendum were informal, with ballot papers including crosses and ticks forming a small portion of those.
Rares declined to make a ruling on whether Babet and Palmer had standing, after concerns were raised that Babet’s status as a senator and Palmer’s status as a voter in the referendum were insufficient to bring a case.
