“The AEC completely and utterly rejects the suggestions by some that by transparently following the established,public and known legislative requirements we are undermining the impartiality and fairness of the referendum.”
The opposition’s legal affairs spokeswoman Michaelia Cash,however,hit back at the AEC statement and said allowing people to put a cross to denote a No vote was a “basic question of fairness”.
“If a tick counts for Yes,a cross should count for No. To do otherwise gives the Yes case an unfair advantage. The decision to treat ticks as ‘yes’ but crosses as ambiguous is a decision the AEC has made,” she said.
“Saying that there’s a savings provision is misleading. There is no savings provision that deals with ticks and crosses. The AEC says this approach is based on legal advice from the 1980s. But the Australian people have never seen that advice – and just because you’ve done something for a long time doesn’t mean it’s right.”
“The sensible thing would be to make a clear rule so that ticks and crosses are treated equally,and neither side gets an advantage.”
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The AEC was asked for a copy of the legal advice.
In an interview with this masthead earlier this month,Rogers said some of the theories the AEC had seen online about the referendum being compromised were “truly nutty,tinfoil hat-wearing,bonkers conspiracy theories”.
“That doesn’t mean people can’t express those views but if they’re talking about the electoral system and trying to confuse people,it’s our job to fix it.”
The AEC has launched a campaign calledstop and consider,Rogers said,to encourage people to think about the reliability of sources they accessed for election information.
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ABC election analyst Antony Green suggested the No campaign may have raised concerns about crosses now to make the case that “the Yes case is getting all the advantages,with institutions all signed on” in support.
“This could have been raised earlier this year when the Referendum Act was reviewed,but no one raised this as an issue,” he said.
“The rules on what is called the ‘savings provision’,the Act says write Yes or No but the provision for formality gives leeway so that a vote with a clear intent to say Yes or No can count. So if someone writes ‘yeah’ or ‘hell no’ or ‘yessss’ or ‘no way’,that is not Yes or No but the intent is clear and it is counted.
“But when it comes to ticks and crosses there is a body of case law on the subject which rules on what the meaning of a tick and what the meaning of a cross is and it’s not all related to elections either. The AEC has solicitor-general’s advice on this. This looks perfectly sound to me.”
Despite Dutton’s insistence that an X should denote a No vote,in his 2022 election candidate nomination formhe repeatedly placed an X in a box to indicate a Yes to questions about his citizenship and the country of his parents’ birth,for example.
Australian National University politics lecturer Jill Sheppard said the AEC had to deal with one of the world’s most complicated electoral systems because of compulsory voting and the preferential voting system.
“It is not an exaggeration to say they are really world-leading in election administration and we don’t give them enough credit. They export their knowledge around the world and particularly throughout Asia,” she said.
“In as much as this helps the No campaign,Peter Dutton knows what he is doing. He is pushing a narrative around complexity.”
The AEC noted in the 1999 referendum,just 0.86 per cent of votes cast were informal and of those informal votes,only a few related to people using either a tick or a cross rather than writing Yes or No on their ballot paper.
Indigenous Australians Minister Linda Burney said the AEC was a trusted entity in this country and the way that they are conducting this referendum is absolutely no different to previous national votes.
“The important thing is that Australians know their way around ballot papers. And this is a referendum that requires Australian people to write either ‘Yes’ or ‘No’ in the space provided. And my encouragement is to write ‘Yes’,” she said.
“Quite frankly,the AEC should be congratulated for having more people,Aboriginal people on the roll than ever before in our history,and working closely and collaboratively with people that want to see this as a fair and equitable referendum.”
Cut through the noise of federal politics with news,views and expert analysis from Jacqueline Maley. Subscribers can sign up to our weeklyInside Politics newsletter here.