LAST week, during an appearance on Sky News, Australian Electoral Commission (AEC) Commissioner Tom Rogers triggered confusion after suggesting that ticks will be counted as Yes votes but crosses will not be counted as Nos in the upcoming Voice to Parliament referendum.

Intense commentary online and in mainstream media followed regarding what will and will not be considered a formal vote in the 2023 referendum; specifically around whether or not a ‘tick’ or a ‘cross’ will be able to be counted.

According to the AEC, much of that commentary is factually incorrect and ignores the law surrounding ‘savings provisions’, the longstanding legal advice regarding the use of ticks and crosses, and the decades-long and multi-referendum history of the application of that law and advice.

“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,” read an AEC statement to media on Friday.

”As has been the case at every electoral event, the AEC remains totally focused on electoral integrity.

“Indeed, electoral integrity is a central part of the AEC’s published values; underpinned by, and supported through, complete adherence to all relevant laws and regulations.”

The law

Like an election, the Referendum (Machinery Provisions) Act 1984 includes ‘savings provisions’ – the ability to count a vote where the instructions have not been followed but the voter’s intention is clear.

“The law regarding formality in a referendum is long-standing and unchanged through many governments, Parliaments, and multiple referendums,” the AEC suggested.

“Legal advice from the Australian Government Solicitor, provided on multiple occasions during the previous three decades, regarding the application of savings provisions to ‘ticks’ and ’crosses’ has been consistent – for decades.

“This is not new, nor a new AEC determination of any kind for the 2023 referendum.

“The law regarding savings provisions and the principle around a voter’s intent has been in place for at least 30 years and six referendum questions.”

The longstanding legal advice provides that a cross can be open to interpretation as to whether it denotes approval or disapproval.

For example, many people use a cross to indicate approval in checkboxes on forms.

The legal advice provides that for a single referendum question, a clear ‘tick’ should be counted as formal and a ‘cross’ should not.

How to cast a formal vote

The formal voting instructions for the referendum are to clearly write either ‘yes’ or ‘no’, in full, in English.

”It is that easy,” the AEC said.

“Given the simplicity, the AEC expects the vast, vast majority of Australian voters to follow those instructions and cast a formal vote.”

Previous levels of formality

More than 99 percent of votes cast at the 1999 federal referendum were formal.

Even of the 0.86 percent of informal votes, many would have had no relevance to the use of ticks or crosses.

By Doug CONNOR