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22 May 2023
Referendum ballot paper formality issues
1.
The Australian Electoral Commission (AEC) has requested advice about issues
relating to the formality of ballot papers under the
Referendum (Machinery
Provisions) Act 1984 (RMPA).
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Referendum ballot paper formality issues
Your ref: LEX4039 Our ref: 23002977
1
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
Q3
Are ticks in relation to one question (as opposed to the four that were considered in
the ’88 advice) formal?
Q4
Are crosses in relation to one question (as opposed to the four that were considered
in the ’88 advice) formal?
4.
A referendum ballot paper posing only one question:
• marked with a tick should be treated as formal, and
• marked with a cross should be treated as informal.
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(h) where there is an ‘X’ in the box, but with an affirmative statement elsewhere on
the paper
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Referendum ballot paper formality issues
22 May 2023
2
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
s 22
10.
As for (h), the content of the affirmative statement and its juxtaposition to the ‘X’ in
the box would be significant to determining the formality of the ballot paper. If the
affirmative statement made it clear that the ‘X’ in the box was intended to convey
approval for the constitutional alteration, the ballot would likely be formal.
s 22
Referendum ballot paper formality issues
22 May 2023
3
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
s 22
Referendum ballot paper formality issues
22 May 2023
4
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
s 22
Referendum ballot paper formality issues
22 May 2023
5
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
Q3
Are ticks in relation to one question (as opposed to the four that were considered in
the ’88 advice) formal?
Q4
Are crosses in relation to one question (as opposed to the four that were considered
in the ’88 advice) are formal?
23.
We address Questions 3 and 4 together.
24.
A referendum ballot paper posing only one question marked with a tick should be
treated as formal. This is because it is equivalent to a ballot paper marked 'Yes'.
However, a ballot paper posing only one question marked with a cross should be
treated as informal because it provides no clear indication of the voter's intention.
This is because a cross may be used, by itself, variously to denote approval or
disapproval. We note that AGS has advised in the past that a cross wil not be
informal where used in juxtaposition to a tick on a multi-question ballot paper.
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Referendum ballot paper formality issues
22 May 2023
6
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
s 22
(h) where there is an ‘X’ in the box, but with an affirmative statement elsewhere on
the paper
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Referendum ballot paper formality issues
22 May 2023
7
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
s 22
36.
For (h), and assuming that the ballot paper was only asking 1 question, we think that
the content of the affirmative statement and its juxtaposition to the ‘X’ in the box
would be significant to determining the formality of the ballot paper. If the affirmative
statement made it clear that the ‘X’ in the box was intended to convey approval for
the constitutional alteration, the ballot would be formal.
s 22
22 May 2023
8
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
s 22
Referendum ballot paper formality issues
22 May 2023
9
Legal-Privilege
OFFICIAL: SENSITIVE
OFFICIAL: SENSITIVE
Legal-Privilege
s 22
