Alternative Law Journal
As if there wasn’t enough to-ing and fro-ing before the days of the November Referendum on the Republic, the monarchists tried to sort out the Electoral Commissioner.
As Justice Sackville of the Federal Court said in his reasons for judgment on 5 November 1999 (the day before the referendum) ‘the applicant is the National Chairman of the Australian Monarchist League, an organisation which supports the retention of the Monarchy under the Constitution’.
It was Mr Benwell’s application that the Scrutineers Handbook produced by the Electoral Commissioner was not in accordance with the requirements of the Referendum (Machinery Provisions) Act 1984 (Cth) (the Machinery Act). Mr Benwell said that the effect of this was that informal ballots would be counted as formal ‘yes’ votes in the referendum because the Handbook did not properly reflect the requirements of the Machinery Act.
Mr Benwell drew attention to the need to interpret the Machinery Act, specifically the interrelationship of ss.24 and 93(8) of the Act. Section 24 of the Machinery Act says that an elector shall write ‘yes’ if they approve the proposed law, and ‘no’ if they do not approve the proposed law. Section 93(8) of the same Act says that a ballot paper is informal if the ‘voter’s intention is not clear, and that effect should be given … to the voter’s intention so far as is clear’.
The Handbook seemed to run ss.24 and 93 together by saying that ‘although electors are required to express their vote by writing the work ‘yes’ or ‘no’ in space provided on the ballot paper, there are other markings that can be accepted as a formal vote if the elector’s intention is clear’.
Mr Benwell sought an injunction which would prevent further distribution of the Handbook, and which would segregate from the referendum counting any votes that might be subject to the returning officer’s discretion on the question of whether ‘yes’ or ‘no’ intention was apparent.
To obtain an injunction the Court must be satisfied there is a ‘serious issue to be tried’; unless there is, why act in an urgent way to interfere with things? It is also necessary that the balance of convenience does not lie in favour of leaving things as they are.
Not surprisingly, Justice Sackville found that Mr Benwell had not raised a serious issue to be tried, and that the balance of convenience lay against the injunction.
Justice Sackville found that s.93(8) qualifies s.24, so that the word ‘yes’ or ‘no’ is not the only permissible response: it is possible to indicate a clear intention by other means.
Mr Benwell replied with a cute argument that the intention that needs to be made clear for the purposes of s.93 is the intention to write ‘yes’ or ‘no’, not an intention to approve or disapprove of the referendum proposal. Under this argument, s.93 was designed to help people who tried but failed to right the letters ‘y’ ‘e’ and ‘s’ or the letters ‘n’ and ‘o’ so as to write ‘yes’ or ‘no’, but was not there to assist people who write ‘oui’, ‘si’, ‘non’, or mark with a tick or an enthusiastic ‘oh yeah!’.
Justice Sackville rejected this argument: the section, he found, refers to the voter’s intention as to approving the proposal.
Justice Sackville made it clear that the intention indicated must be ‘unmistakable’. The Handbook gave examples of what would be accepted, such as the word ‘definitely’ which is a pretty clear indication that the voter intends to say ‘yes’, as is the use of a tick. The Handbook approved the expressions ‘OK’ and ‘sure’, which Justice Sackville felt were less clear but nevertheless acceptable as an expression of intention.
On the question of ‘balance of convenience’, Justice Sackville took account of the fact that 35,000 printed copies of the Handbook had been published, and over 700 copies had been downloaded from the Internet. Over 50,000 polling staff had received a summary form of the Handbook. Mr Benwell, on the other hand, commenced his proceedings three days before the referendum was scheduled. Along with other factors, including the unlikely practical relevance that the issue would have in the outcome of the referendum, Justice Sackville found that the balance of convenience lay against the injunction.
So what was it all about? What was Mr Benwell’s use of Federal Court time and resources, at the last possible moment, designed to achieve? Did he merely want to clarify a possible ambiguity in the Referendum Machinery Provisions Act 1984? No, Mr Benwell had a clear view as to how any possible ambiguity could be resolved: he wanted a finding that the Machinery Act required people to write the three letters y.e.s. for yes and the two letters n.o. for no, and to not otherwise indicate their intentions as to the Australian Constitution. This interpretation, if successful, would have meant that only people who wrote English well and confidently, and in strict compliance with the letter of the law and the written instructions regarding completion of the ballot paper, could have their vote count.
There has been much debate about what the ‘no’ result in the referendum meant: what was being rejected? But there can be no doubt that the result of the Australian Monarchist League’s case means that all Australians have the right to clearly express their view on constitutional reform, whether or not they can spell.
[*] Simon Rice is a Sydney lawyer.
 Benwell v Gray, Electoral Commissioner  FCA 1532 <http://scaleplus.law.gov.au/html/feddec/0/99/2/FD014740.htm>