Federal Court of Australia
Federal Court of Australia
Babet v Electoral Commissioner [2023] FCA 1126 File number: NSD 978 of 2023
Judgment of: RARES J
Date of judgment: 20 September 2023
Catchwords: REFERENDUMS – where Electoral Commissioner issued guidelines to returning officers to count ballot papers on referendum as to question whether voter approved proposed alteration under s 128 of Constitution as informal where voter marked a cross and formal where voter marked a tick – where s 93(8) of the Referendum (Machinery Provisions) Act 1984 (Cth) required marking on ballot paper to be given effect, as formal if "according to the voter's intention, so far as that intention is clear" – whether voter's intention in placing cross on ballot paper clearly expresses intention not to approve proposed law – whether voter's intention in placing tick on ballot paper clearly expresses intention to approve proposed law – held: use of cross ambiguous; use of tick unambiguous. CONSTITUTION – whether necessary to decide constitutional issue of standing.
Legislation: Constitution s 128 Commonwealth Electoral Act 1918 (Cth) s 135 Commonwealth Electoral Act 1902 (Cth) ss 151 and 199 Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Cth) Federal Court Rules 2011 r 36.03 Judiciary Act 1903 (Cth) s 78B Referendum (Machinery Provisions) Act 1984 (Cth) ss 24, 25, 27, 33, 35, 45, 89, 90, 91, 92, 93, 96, 100, 102, 103, 107A, 107AA, 108, 139 Electoral Act 1927 (NZ) s 136
Cases cited: Ansett Australia Ground Staff Superannuation Fund Pty Ltd v Ansett Australia Ltd (2003) 176 FLR 393 Benwell v Gray, Electoral Commissioner [1999] FCA 1532 Chanter v Blackwood (No 1) (1904) 1 CLR 39 Combet v Commonwealth (2005) 224 CLR 494 Evans v Crichton-Browne (1981) 147 CLR 169 In re Raglan Election Petition (No 4) [1948] NZLR 65 Kane v McClelland (1962) 111 CLR 518 Mitchell v Bailey (No 2) (2008) 169 FCR 529 Phong v Attorney-General (Cth) (2001) 114 FCR 75 Wilkie v Commonwealth (2017) 263 CLR 487 Woodward v Sarsons (1875) LR 10 CP 733 Wybrow v Chief Electoral Officer [1980] 1 NZLR 147
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