Ballot papers have to be marked according to the laws governing voting before they are accepted as ‘formal’ or valid votes. Ballot papers that are not marked according to the rules are deemed ‘informal’ and are not included in the count to see who is elected.
While some citizens deliberately cast informal votes - not marking the ballot paper or marking it incorrectly - most informal voting is caused by misunderstandings about the rules. Confusion among voters is undoubtedly heightened by the fact that they often have to vote according to different methods at Commonwealth, state or territory and local elections.
So-called ‘savings provisions’ in Australian electoral laws allow various degrees of latitude for ballot papers that are not filled in entirely correctly but where a voter’s intention is clear. While the Commonwealth Electoral Act specifies, for example, that House of Representatives ballots must include a full list of preferences and Senate ballots must now include six preferences above the line or twelve preferences below it, the Act also allows some ballots to be counted as valid even if a full set of preferences are not indicated, numbers are written twice, or other minor mistakes are made.
Laws regarding informal voting are sometimes controversial, particularly when differences between state and Commonwealth laws cause confusion among voters. In 1990, for example, the New South Wales Coalition Government of Nick Greiner legislated to make ticks and crosses on ballot papers informal. A single tick or cross on a ballot paper had previously been counted as a formal vote indicating one preference under New South Wales’s optional preferential voting system. The move to make ticks and crosses informal produced a higher than usual informal vote at the 1991 state election. This high level of informal voting was widely seen as disadvantaging the Labor Party. Labor amended the state legislation to re-allow tick and cross votes after it won office in 1995.
Legal Disputes over Elections
As the discussion throughout this Hot Topics indicates, the courts can become involved in elections at various stages, including the registration of parties, candidate preselections, voter enrolments and disputes between candidates during campaigns.
Legal challenges to the outcomes of Australian elections are heard by the Court of Disputed Returns, which is the High Court, the Federal Court or the relevant state or territory Supreme Court. Petitions to the Court of Disputed Returns have to be filed by a candidate or voter in the election within 40 days of the return of the writs officially announcing the election results. The Court is required to deal with the petitions speedily.
Most elections produce petitions to the Court of Disputed Returns on a range of matters that might have affected the result. These include the eligibility of successful candidates and irregularities in the handling and counting of votes. While most petitions are not upheld, those that are upheld may result in by-elections or casual vacancies.