[Editorial note: This paper by William Church* discusses the question whether informal votes should be taken into account when determining whether a referendum has been approved by a majority of electors voting. The Electoral Commission takes the view they should not be taken into account. Of the eight referendums approved, only the 1946 Social Services referendum would have failed if informal votes had been taken into account.
In the recent Inquiry into the Machinery of Referendums ACM submitted that the correct method of counting the votes should be to include the informal votes.
Since the 1999 referendum delivered a landslide victory to the No case, referendums in St. Vincent and the Grenadines and in Tuvalu have also rejected proposals for a politicians republic.]
Section 128 of the Australian Constitution, which requires amendments to its text to be approved by the electors at a referendum, includes the following:
"And if in a majority of the States a majority of the electors voting approve the proposed law, and a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent."
….how to count informal votes?…
The 1999 referendum, which attempted to make Australia a republic, was rejected in all States, and the overall majority for the No case was 1,137,763. There were also 101,189 informal votes which the Electoral Office did not count in calculating whether a majority of the electors "voting" had approved the proposed law. This made no difference in 1999, but could make a difference on a future occasion, and might help to deter would-be republicans from trying again. Including the informal votes in the total would have increased the overall majority that was not in favour of the referendum by nearly 9%.
…Justice Handley’s research…
Mr Justice Handley raised the point with Professor Flint shortly before the 1999 referendum. Professor Flint agreed with the point and raised it with the Commonwealth Electoral Office which did not agree. The matter could be taken no further at that stage but was the subject of a paper presented by Mr Justice Handley to the Samuel Griffith Society in June 2002[i].
The Judge considered that electors who had placed ballot papers in a ballot box had voted, although their ballot papers did not indicate a sufficiently clear preference for either a Yes or a No vote. The very expression "informal ‘vote’" shows that it is a vote. Thus section 128 (“a majority … approve”) requires returning officers to count all the votes and determine whether each voter has approved the proposed law. It does not required them to determine whether a voter who did not approve disapproved. Thus informal votes must be included in the count because the relevant voters did not approve.
The Judge was only able to find one court decision on the point: Latham v Glasgow Corporation  SC 694. The case arose under the provisions of the Temperance (Scotland) Act 1913 which enabled the electors in a local government district to vote on a resolution to prevent or restrict the liquor licences in their district if certain percentages of "the votes recorded" were in favour of the resolution.
The Lord President, the equivalent of our Chief Justice, giving the judgment of the appellate court, said at pp 712-3:
"I think a voter records his vote when he puts his ballot-paper into the ballot-box and I do not think it is material that … he has failed so to mark his ballot-paper as to make the vote he thus ‘records’ an effective exposition of his opinions." The decision of the court below that only valid votes should be counted was reversed.
ACM has followed up this question in the hope of discovering further material which would strengthen our arguments on this point. Computer searches have failed to reveal any more court decisions. However in March 2004 the Mosman Council submitted questions to the local electors at a referendum.
The second question was:
"Do you favour the election of Mayor by all residents resulting in the increase in the number of elected representatives by 1, ie from 12 to 13 as existing or from 9 to 10 if Wards are reduced to 3?”
There were 6434 yes votes (46.6%), 6117 no votes (44.3%) and 1259 informal votes (9.1%).
The Council decided that the referendum had been carried but the NSW Electoral Commission, acting on the advice of the State Crown Solicitor, ruled that the referendum had been lost. The question was governed by s 20 of the Local Government Act, 1993 which then provided:
"The question … is carried if it is supported by a majority of the votes cast."
….NSW Crown Solicitor’s Opinion…..
Professor Flint decided that ACM should attempt to obtain a copy of the Crown Solicitor’s opinion through the Freedom of Information Act. ACM administrator Adam Johnston lodged the necessary application with the NSW Electoral Commission in December 2006 but received no acknowledgement.
I joined ACM in 2008 and was asked to pursue this matter. I lodged a fresh FOI application in March 2008. The Commission refused to release the Crown Solicitor's advice but their reply disclosed its substance.
I decided to make a fresh application rather than seek an internal review under the Act. I did so claiming that legal professional privilege had been waived not only when the Commission advised Mosman Council that it was acting on the Crown Solicitor's advice, but also in its reply to my previous application.
I was able to quote legal precedents which Mr Justice Handley had given me. On my second last day with ACM I was elated to receive a letter from the Commission enclosing a copy of the Crown Solicitor's advice. Although the Local Government Act 1993 was amended in 2006 to require informal votes to be excluded the Crown Solicitor's advice on the original Act remains relevant for ACM.
We have an independent opinion from a respected source which supports our position that informal votes must be included in the total when determining whether a majority of those voting in a constitutional referendum approve the proposal. The advice did not refer to any legal precedents but was based on the ordinary meaning of s 20.
…The Australian Conventions…
ACM later asked Dr Frank McGrath, whose doctoral thesis was based on the debates at the Constitutional Conventions which drafted the Australian Constitution during the 1890s, to review the debates on s 128 to see if they contained anything of relevance. The Conventions rejected the requirement in the Swiss Constitution that a constitutional referendum must be supported by a majority of the electors and adopted the less stringent requirement that it be supported by a majority of the electors voting.
If the Swiss model had been adopted, it would have required the 602,272 electors who failed to vote at the 1999 referendum to be counted to determine whether there was an overall majority in favour of the proposal.
ACM is now making enquiries about the present position in Switzerland.
[*William Church was an officer at the ACM office from late 2007 to 2008. He is a qualified lawyer and is currently undertaking postgraduate studies at the University of Queensland. He resides in Brisbane and continues to contribute to ACM as a member of the QLD Committee. He has strong personal interests in politics, philosophy, history and constitutional issues.]