1999 Referendum Report and Statistics - Litigation

Updated: 20 January 2011

The Benwell Injunction Application

On 2 November 1999, Mr Phillip Benwell of the Australian Monarchist League applied to the Federal Court for an interim injunction claiming that the instructions to scrutineers provided by the AEC in the Scrutineer's Handbook were in conflict with section 24 of the Referendum (Machinery Provisions) Act 1984 ("Referendum Act"). Mr Benwell asked the Court to order that, during the scrutiny of ballot papers, the AEC put aside for further examination those ballot papers marked with ticks and crosses.

Section 24 of the Referendum Act provides that votes shall be marked by either writing 'yes' or 'no' in the box provided on the ballot paper. However, section 93(8) of the Referendum Act allows a ballot paper to be declared formal if the intention of the voter is clear. The information provided by the AEC in the Scrutineer's Handbook was based on legal advice from the Attorney-General's Department on the relationship between sections 24 and 93(8) of the Referendum Act.

In particular, the handbook advised scrutineers that a ballot paper marked with a tick should be regarded as a formal 'yes' vote (on the basis that the voter's intention to vote 'yes' was clear), but that a ballot paper marked with a cross should be regarded as an informal vote (on the basis that the voter's intention to vote either 'yes' or 'no' was not clear).

Justice Sackville dismissed the injunction application on 5 November 1999, the day before polling day for the referendum. The case has been reported as Benwell v Gray, Electoral Commissioner [1999] FCA 1532.

The Ford Injunction Application

On 1 November 1999, Justice Gaudron of the High Court heard ex parte an application by Mr Neville Ford to postpone the referendum on the preamble on the grounds that the pamphlet published and distributed by the AEC was allegedly misleading. Justice Gaudron dismissed the application.

The Buzzacott Injunction Application

On 1 November 1999, Mr Kevin Buzzacott applied to the Federal Court for an interim and a permanent injunction to stop the referendum on the republic on the grounds that a move to a republic would constitute an act of genocide against the Aboriginal peoples of Australia. Justice von Doussa dismissed the application on 2 November 1999. In relation to the application for a permanent injunction, on 19 April in Adelaide, Justice Finn ordered that the matter be discontinued in relation to all the respondents, the AEC, Bill Gray, the State of South Australia and the Commonwealth.

The Coe Injunction Application

On 5 November 1999, Ms Isabell Coe applied to the Federal Court for an interim injunction to stop the referendum on the republic on the grounds that the Commonwealth had illegally acquired sovereignty over Australia, and hence could not legally transfer sovereignty to the Australian people. At the hearing before Justice Finn, the applicant was given leave to amend her application, and the hearing was adjourned until January.

On 18 January 2000, the applicant filed a Notice of Discontinuance in relation to the AEC as a respondent to the application, and requested leave of the Court to join the Governor-General as respondent, which was granted. Proceedings are continuing for a permanent injunction.

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