Informal Votes at a Constitutional Referendum

AuthorK R Handley
DOI10.22145/flr.39.3.6
Date01 September 2011
Published date01 September 2011
Subject MatterArticle
INFORMAL VOTES AT A CONSTITUTIONAL REFERENDUM
K R Handley*
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 deter mining 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.
1
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 dete rmine
whether 'the majority of the electors voting approve the proposed law'.
2
Further
research has caused me to change my opinion.
The absolute majority for the 'No' case at the 1999 referendum was 1 137 763 but
602 272 electors did not vote and another 101 189 or .86 per cent voted informal. The
first relevant paragraph of s 128, read in isolation, is relatively clear:
And if in a majority of the States a majority of the electors voting approve the proposed
law, and if a majority of all the electors voting also approve the proposed law, it shall be
presented to the Governor-General for the Queen's assent.
Absolute majorities are not required, only majori ties of those who voted. The
602 272 electors who failed to vote were rightly ignored. In marked contrast the second
substantive paragraph of s 128 requires absolute majorities in the Houses of the
Parliament in support of the proposed law.
There appears to be only one relevant reported case: Latham v Glasgow Corporation .
3
It involved the local optio n provisions of the Temperance (Scotland) Act 1913. Section
2(3) provided that a no-licence or limiting resolution was carried if certain percentages
of 'the votes recorded ' at a local referendum were in favour of the resolution. The
particular referendum was carried if informal votes were ignored, but lost if they were
included in determining whether a majority supported the resolution. The Court of
________________________________________________________________________________
* A Judge of the NSW Court of Appeal.
1
Tony Blackshield and George Williams, Australian Constitutional Law and Theory (Federation
Press, 5th ed, 2010) 1401. 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 Griff ith
Society (2002) 141.
3
[1921] SC 694 ('Latham').

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