Babet v Electoral Commissioner [2023] FCAFC 164

Federal Court of Australia

Babet v Electoral Commissioner [2023] FCAFC 164 Appeal from: Babet v Electoral Commissioner [2023] FCA 1126

File number: NSD 1065 of 2023

Judgment of: BESANKO, WHEELAHAN AND STEWART JJ

Date of judgment: 9 October 2023

Date of publication of reasons: 12 October 2023

Catchwords: CONSTITUTIONAL LAW — referendum under s 128 of the Australian Constitution — where proposed law for alteration of the Constitution approved by Commonwealth Parliament — where referendum to be held regarding proposed law — where, in accordance with the Referendum (Machinery Provisions) Act 1984 (Cth) (the RMP Act), referendum ballot paper contains a single box in which elector to indicate yes or no with respect to approval of proposed law — where Electoral Commissioner published guidance that tick alone inside box will constitute formal vote and cross alone inside box will be treated as informal vote — where s 93(8) of the RMP Act also provides that effect shall be given to a ballot paper of a voter according to the voter's intention, so far as that intention is clear — whether primary judge erred in finding tick written alone would demonstrate sufficient clarity of positive intention for purposes of s 93(8) and referendum question — whether, in alternative, primary judge erred in finding that a cross written alone would not demonstrate sufficient clarity of negative intention for purposes of s 93(8) and referendum question — no error by primary judge in construction and application of s 93(8). CONSTITUTIONAL LAW — where appellants sought declaratory and injunctive relief on basis of their being electors within meaning of s 128 of Constitution — where, in alternative, first appellant sought relief in capacity as member of the Australian Senate — where primary judge deemed it unnecessary to decide whether appellants had standing, having dismissed their applications on merits — whether necessary for primary judge to determine whether appellants, or first appellant, had standing as condition precedent to exercise of federal judicial power — whether if primary judge did have to determine standing, either both appellants or first appellant had standing — primary judge had discretion not to consider standing or jurisdiction where satisfied that appellants did not succeed on merits — primary judge did not err in exercise of that discretion — given Full Court has reached same conclusion on merits as primary judge, unnecessary to determine standing or jurisdiction — appeal dismissed with costs