A bid to have an ‘X’ counted as a ‘no’ vote in the upcoming Indigenous voice referendum has been dismissed by a judge.
United Australia Party senator Ralph Babet and the party’s chairman, mining magnate Clive Palmer, sought the Federal Court’s assistance with the referendum less than four weeks away, seeking to have ballot papers containing a cross or ‘X’ marking to be counted as a vote against the voice.
There was debate about whether they had standing to bring the matter at all, given the party was deregistered in September 2022. However, Justice Steven Rares chose not to engage in that “somewhat vexed issue”, deeming it unnecessary after rejecting the application on Wednesday.
The Australian Electoral Commission has distributed advice telling people to make their vote count by writing in English either ‘yes” or ‘no’ in the box provided to indicate whether they approve the proposed alteration detailed on the ballot paper.
However, it has also stated a tick in the box will count as “yes”, backed by decades of legal precedent across six referendums.
“The legal advice provides that for a single referendum question, a clear ‘tick’ should be counted as formal and a ‘cross’ should not,” the commission said in August.
Ballot papers marked with an ‘X’ would be considered informal and not be counted due to ambiguity about what the marking can mean.
The case came before the Federal Court urgently with the vote less than four weeks away.
Philip Santucci, mounting the ultimately dismissed application, said a court ruling would provide clarity and voters would have good reason to accept the eventual referendum outcome knowing that “not only their vote was counted, but how it was counted compared to all those others in the electorate”.
“The question of what a voter intended by the use of ticks and crosses must be dealt with in context,” he said.
If vote-counters begin with the assumption voters intended to cast a formal ballot, a cross is conclusively a disapproval of the proposition, Mr Santucci said.
Similarly, a tick could not be regarded to be unambiguous if a cross was in the context of mandatory voting on a single question where some could view voting itself as an exercise in “ticking a box”, Mr Santucci argued.
Justice Rares dismissed the application.
A cross could indicate agreement, disapproval or an unwillingness to answer the question at all, he said, while a tick was not similarly ambiguous, either indicating approval or an affirmative response.
“It does not convey a negative response,” he said.
In order to pass, the referendum needs more than half of all voters and four of the six states to vote in favour of the proposal on October 14.
