ABC election analyst Antony Green says referendum rules have been in place for 40 years, and the Australian Electoral Commission has provisions for interpreting the intent of voters.
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00:00 When you turn up to vote, there'll be people handing out yes and no, how to vote material,
00:06 saying vote yes or no.
00:08 When they get into the ballot polling place, the issuing officer will issue a ballot paper
00:12 and say write yes or no on the ballot paper.
00:15 And if you have a look at the ballot paper, and we've got an example here which shows
00:18 that on the ballot paper itself, it says vote yes or no, and then right at the bottom where
00:24 you write yes or no, it says directly underneath it, vote yes or no.
00:28 So the only thing people are going to see when they turn up to vote is to vote yes or
00:33 no.
00:34 There is only one box.
00:35 There aren't two boxes where people tick or cross.
00:37 None of that.
00:38 It is one box and voters write yes or no in it.
00:42 If a voter writes yes or no, no questions asked.
00:46 The vote is a yes or a no.
00:47 But if they do something else, if they don't write yes or no, it's open to the interpretation
00:53 of the returning officer about whether the intent is clear.
00:56 So if someone writes yes or yes with a couple of asterisks or they write no way or hell
01:02 no, they write something like that, it will be reinterpreted as to whether the intent
01:06 is clear.
01:07 But the confusion that's coming up is everyone's raised about ticks and crosses.
01:10 Now I don't think anyone's going to use a tick or cross because there's nothing anywhere
01:14 that says, talks about ticks or crosses.
01:16 But if a tick or cross is used, the ruling is that a tick will be treated as a yes and
01:22 a no will be informal.
01:24 So why do you think we're now seeing concerns around the interpretation of those sorts of
01:30 symbols if they're used?
01:31 These rules have been there for 40 years.
01:33 This was raised in 1988 at the referendums.
01:35 It was raised in 1999.
01:37 So this isn't some Anthony Albany's plot.
01:39 These are the same rules that John Howard had in 1999.
01:42 So it's been there for 40 years.
01:44 The Act was reviewed earlier this year and they added a provision to make yes, why and
01:48 end count with no questions asked.
01:50 But nothing else was raised at the time that this should be clarified.
01:54 So the rules in place now are the same ones that have been there for 40 years.
01:57 As far as I understand, the incidence of people actually using ticks and crosses is virtually
02:01 nil because everything says yes or no.
02:05 And everything anybody will see about this vote talks about yes and no.
02:09 Now what happens if, say for instance, a much stricter view is applied?
02:14 How difficult will it be to get clarification, I suppose, if people are using things which
02:20 aren't anticipated?
02:21 Well, the provision of the Act, like most Acts, has a provision which says if the voter's
02:27 intent is clear, it will count.
02:30 So if someone writes 'yeah' or 'no way', the intent's clear.
02:34 It counts.
02:35 If someone does it in a foreign language, it won't.
02:36 The intent is not clear except to somebody who understands the language.
02:40 Those sorts of things apply.
02:41 And as far as ticks and crosses are concerned, this is based on a lot of case law that goes
02:45 back a long way.
02:47 So that's where all the rulings have come from.
02:49 This is long-standing case law in this area.
02:52 Do you anticipate that there is a potential for the way that this is understood to be
02:57 challenged?
02:58 For instance, the policy around crosses not being counted but ticks potentially being
03:03 counted.
03:04 Do you anticipate that there is scope for that sort of a view, that sort of a standing
03:09 to be challenged?
03:10 They can try and take it to the court, but the reason they're making this ruling is their
03:15 judgement based on legal advice and past case law is this is how it should apply.
03:20 [BLANK_AUDIO]