IPA research note: Legal analysis of the validity of marking ticks and crosses on referendum ballot papers unlawful

Section 24 Manner of voting The voting at a referendum shall be by ballot and each elector shall indicate his or her vote: (a) if the elector approves the proposed law—by writing the word “Yes” in the space provided on the ballot paper; or (b) if the elector does not approve the proposed law—by writing the word “No” in the space so provided. [...] (9) For the purposes of subsection (8): (a) a voter who writes the letter “Y” in the space provided on the ballot paper is presumed to have intended to approve the proposed law; and (b) a voter who writes the letter “N” in the space provided on the ballot paper is presumed to have intended to not approve the proposed law. [...] On the ballot were 25 candidates, and under the relevant provisions and schedules contained in the Commonwealth Electoral Act 1918-1961 in force at the time of the election, electors were required to mark the square next to the name of each individual candidate in order of the electors’ preference. [...] The High Court rejected the complainant’s argument on the basis that not only were the incorrectly marked ballots not compliant with the requirements of the Act, the intention of the electors were not unambiguous. [...] The AEC’s position is incompatible with the principle established by the High Court The relevant principle in the legislation and the case law is that effect should be given to a ballot where the intention of the elector is clear, but that the intention must be expressed or indicated in a way that leaves it beyond dispute.