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Informal Votes at a Constitutional Referendum

Published online by Cambridge University Press:  24 January 2025

K R Handley
K R Handley*
Affiliation:
NSW Court of Appeal
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Extract

Section 128 of the Commonwealth Constitution provides that proposals for constitutional change at a referendum are carried if they are supported by double majorities ‘of the electors voting.’ It is not immediately clear whether informal votes are to be included in the total or denominator when determining whether the yes votes are a majority. The point could determine the result in a future referendum. Indeed if such ‘votes’ are to be included in the total ‘voting’ the referendum on 28 September 1946 to give the Commonwealth additional social security powers would have been lost.

In a paper to the 2002 Conference of the Samuel Griffith Society I expressed the view that informal votes must be included in the denominator, or total, to determine whether ‘the majority of the electors voting approve the proposed law’. Further research has caused me to change my opinion.

Information

Type
Research Article
Information
Federal Law Review , Volume 39 , Issue 3 , September 2011, pp. 509 - 515
Copyright
Copyright © 2011 The Australian National University

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References

1 Tony, Blackshield and George, Williams, Australian Constitutional Law and Theory (Federation Press, 5th ed, 2010) 1401Google Scholar. The yes votes in Queensland, South Australia and Tasmania were 48.88%, 49.44% and 46.56%, and the informal votes in those States were 4.66%, 4.44% and 7.93%.

2 ‘When “maybe” means “no“': Proceedings of the Fourteenth Conference of the Samuel Griffith Society (2002) 141.

3 [1921] SC 694 ('Latham’).

4 Ibid 712–3.

5 (1971) 126 CLR 271, 272.

6 Official Record of the Debates of the Australasian Federal Convention, Sydney, 1891, 885, 888, 891, 892, 895, 896; Adelaide, 1897, 1021; Melbourne, 1898, 717, 724, 725, 726, 738, 740–1, 755, 756.

7 John, Quick and Robert, Garran, The Annotated Constitution of the Australian Commonwealth (Angus and Robertson, 1901) 986, 995Google Scholar.

8 Ibid 986, 995, 997.

9 Simon, Deploige, The Referendum in Switzerland (Longmans, Green and Co, 1898)Google Scholar.

10 Ibid 126.

11 (1988) 165 CLR 360, 385.

12 (2009) 238 CLR 1.

13 Ibid [68]–[77] (French CJ); [203]–[205] (Gummow, Crennan and Bell JJ); and [298]–[305] (Hayne and Kiefel JJ).

14 Ibid [205].

15 Ibid [298].

16 Quick and Garran, above n 7, 987.

17 Official Record of the Debates of the Australasian Federal Convention, Adelaide, 1897, 1021 (Howe) and 1026 (Symon).

18 Ibid 1024 (Lewis).

19 Ibid 1025. The amendment required double majorities ‘of the electors who vote’ in a majority of States, and nationally.

20 Ibid 1027.

21 Ibid 1208.

22 Above n 7, 995.

23 Ibid.

24 Above n 9, 210.

25 Ibid 207–11.

26 Ibid 136.

27 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1898, 740–41.

28 Voting at referenda was made compulsory by Act No 10 of 1924 s 2, incorporated by s 4 of the Referendum (Constitution Alteration) Act 1906 (Cth) as amended.

29 Blackshield and Williams, above n 1, 1399.

30 Ibid 1399.

31 Graeme, Orr, ‘The Conduct of Referenda and Plebiscites in Australia: A Legal Perspective’ (2000) 11 Public Law Review 117Google Scholar.

32 AEC, Scrutineers Handbook: A Handbook for Scrutineers at the 1999 Referendum (AEC, 1999)Google Scholar para 6.8.

33 Above n 31, 130.

34 [1921] SC 694.

35 Above n 32, para 6.8.

36 ‘The 1984 Act'.

37 Above n 32, 26.

38 Opinions of Attorneys-General of the Commonwealth of Australia: Vol 1 1901-1914 (Australian Government Publishing Service, 1981) 487-8.