Indigenous voice to parliament: Peter Dutton cross as ticks get counted

The AEC hasn’t counted crosses as No votes at referendums since 1988 but the Coalition wants the approach overturned.

The Coalition has taken issue with crosses on referendum ballot papers not being counted as a No vote, while ticks could count as Yes votes. The AEC says crosses are too ambiguous. Picture: Tracey Haslam

Peter Dutton is seeking a last-minute change to how referendum votes are counted, saying it is “completely outrageous” that a tick can be ­accepted as a Yes vote for an Indigenous voice to parliament but a cross will not be accepted for No.

For more than 30 years across multiple referendums the Australian Electoral Commission has relied on legal advice that a tick on a ballot paper can’t be disputed as a Yes vote and so can be counted, but a cross cannot.

The advice has been repeatedly sought and reaffirmed ­because federal parliament’s referendum machinery legislation states the AEC must count a ballot paper if the voter’s intention is clear.

The Opposition Leader and opposition legal affairs spokeswoman Michaelia Cash on Thursday wrote to the AEC about the matter, saying the ­approach was “fundamentally lopsided” and risked distorting the vote.

Mr Dutton also called on ­Anthony Albanese to consider clarifying in legislation what was allowed so that one side of the debate was not favoured over the other.

“If a tick counts for Yes, a cross should count for No. To do otherwise gives the Yes case an unfair advantage, and has the potential to undermine the ­impartiality and fairness of the referendum,” Mr Dutton’s and Senator Cash’s letter states, ­requesting the AEC’s legal advice be released.

Earlier Mr Dutton told 2GB radio it was “completely outrageous” a cross would not be counted as a No vote and said the Prime Minister had been ­attempting to skew the referendum outcome in favour of the Yes camp.

The Prime Minister’s office did not respond to that claim, with government sources hitting out at Mr Dutton’s “fantasy and fiction”.

At the voice referendum, which is due to be held on October 14, voters will be told to write “yes” or “no” in response to a single question asking whether they support the proposed constitutional amendment.

Sample of part of the ballot paper at the 1999 republic referendum.

Under AEC guidelines, a vote is informal if a cross is used on a referendum ballot paper which has only one question “since a cross on its own may mean either ‘yes’ or ‘no’”.

The AEC said voters should write “yes” or “no” in English and in full on their ballot papers – and not use ticks or crosses.

“The issue with a cross is that on many forms people in Australia use in daily life, and in some other languages, it represents a ‘check mark’ indicating yes – it therefore leaves it open to interpretation or challenge by a scrutineer,” the AEC’s Evan Ekin-Smyth said.

“A ‘tick’ would also be open to interpretation and may not count depending on just how clear that mark is on the ballot paper. The same issues exist for just the letter ‘y’ or ‘n’ – if the handwriting makes it unclear it could risk an informal vote.

“The AEC will be very clear and regular with our communication that people need to write the full word ‘yes’ or ‘no’ in ­English, in full.”

Monarchists launched a court challenge against the republic referendum in 1999 arguing the guidelines for counting votes were biased towards the Yes case.

The No case won the referendum and just 0.86 per cent of ballots – about 100,000 votes – were deemed informal and not counted.