THE HON PETER DUTTON MP
LEADER OF THE OPPOSITION
Mr Tom Rogers
Electoral Commissioner
Australian Electoral Commission
10 Mort St
CANBERRA ACT 2600
via email: s 47F
Dear Commissioner,
We are writing to express our serious concerns in relation to how the Australian
Electoral Commission intends to assess the formality of votes at the upcoming
referendum.
In the referendum, Australians will be asked to write ‘yes’ or ‘no’ on the ballot paper.
A ballot paper will also be counted as a formal vote if the voter’s intention is clear –
for example, s 93(9) of the
Referendum (Machinery Provisions) Act 1984 makes
clear that a “Y” will count as a yes and a “N” will be accepted as a no.
However, the
Scrutineers Handbook published in July 2023 goes much further than
the example provided above. The handbook indicates that while a tick will likely be
treated by the AEC as a ‘yes’ vote, a cross on its own is considered by the AEC to
be ambiguous, and therefore will be treated as informal.
With the greatest of respect, this approach is fundamentally lopsided. It risks
distorting the national vote.
Australians expect the AEC to act fairly and impartially in the execution of its duties.
Counting a tick as a formal vote while simultaneously excluding a cross as informal
could artificially skew the count towards the yes vote, and fail to accurately reflect the
will of the Australian people.
We understand that the AEC’s current approach is broadly consistent with the
approach that it has adopted in previous referendums. However, just because the
AEC has adopted this approach before, does not mean that it is appropriate or
legally correct.
Given the AEC’s purported reliance on legal advice from the Attorney-General’s
Department in reaching this view, the AEC should release this advice so the
Australian public can properly consider the AEC’s position. We note that any legal
professional privilege that existed in the legal advice has clearly been waived by the
AEC through its public statements about the advice over many years.
More importantly, we call on you to reconsider the AEC’s approach. If a tick counts
for yes, a cross should count for no. To do otherwise gives the yes case an unfair
advantage, and has the potential to undermine the impartiality and fairness of the
referendum.
It is, after all, in the interests of every Australian to ensure that this basic standard of
fairness is applied.
Yours sincerely
s 47F
PETER DUTTON
MICHAELIA CASH
24 August 2023