Dear Members of the Tribunal,

RE: Secret Ballots

1. We write seeking a declaration that, in order for ballots to be conducted according to Rule M.5
of NSW Labor Rules, the Returning Officer must require voters to complete their own ballots
without showing them to anyone else. We also seek orders that future ballots, including ballots
at future NSW Young Labor Conferences, be conducted in this way.

2. For the avoidance of doubt, this application does not seek to have any previous ballots
overturned, or any disciplinary consequences for the people involved: simply a declaration that
this conduct is against the rules and orders preventing it from happening again.

3. The balance of this application proceeds in three parts. Part A lays out the relevant background.
Part B explains what the NSW Labor Rules require. Part C explains why these orders and
declarations are the appropriate remedy.

A. Background
4. This dispute arises from conduct we have personally observed at various NSW Young Labor
Conferences since 2013. At those conferences, a large number of voters showed their ballots to
other people to prove they had voted a certain way. Indeed, at some of those conferences,
members of the Right collected voters’ blank ballots and completed them in bulk with the aid of
a plastic transparency. The Returning Officer Janai Tabbernor did not require voters to
complete their own ballots without showing them to anyone else.

5. On 21 May 2020, we wrote to Janai Tabbernor (care of the Party Officers) seeking assurances
that she would require voters to complete their own ballots without showing them to anyone
else at subsequent conferences (see Attachments 1 and 2). By her letter of 29 May 2020, Janai
Tabbernor refused to give such assurances (see Attachment 3).

B. The NSW Labor Rules’ requirements

6. Section M of the NSW Labor Rules requires that elections be conducted by secret ballot. In
particular, Rule M.5 provides:
SECRET BALLOTS
M.5
(a) Where practicable elections should take place in a polling room or part of a room set
aside for this. Where practicable the polling room should have separate voting
compartments so that voters cannot be watched while they are marking their ballot
papers.
(b) A candidate cannot take part in the running of an election in any way, and nobody
will be allowed to come into or stay in the polling room during the polling except with
the returning officer’s permission. The exceptions to this are the General Returning
Officer, the Assistant General Returning Officers and members voting or about to vote.
(c) Voters cannot leave the polling room or the part of the room set aside for polling
during the time between receiving and depositing their ballot papers.
 7. We say that, when voters are allowed to show their ballots to other people or allow their ballots
to be completed by other people, the election is not conducted by secret ballot.

8. First, the ordinary meaning of the phrase ‘secret ballot’ supports the view that voters must fill in
their own ballots without showing them to others. If a voter shows their ballot to another
person, or allows that other person to complete their ballot, that other person knows how the
voter voted; therefore the voter did not vote in secret.

9. Janai Tabbernor might argue that the privilege of voting in secret belongs to the individual
voter; therefore the individual voter can choose to waive it by showing or handing over their
ballot to a third party. This is contrary to the purpose of a secret ballot, because voters may feel
unfair pressure to show or hand over their ballots – particularly when the third party has already
collected or been shown a large number of ballots. Further, even if those voters were entitled to
waive their secret ballot rights, they are not entitled to waive other voters’ rights to a secret ballot.
Because showing or handing over ballots to a member of the Right means that ballot will be
completed in accordance with the Right’s ticket, voters who refuse to show or hand over their
ballots to a member of the Right could be understood as likely to vote against the Right’s ticket.
Voters who wish to vote against the Right’s ticket cannot do so in secret: handing over their
ballot means they cannot vote the way they choose; showing the Right their ballot means their
ballot is not secret; and refusing to do either strongly suggests they voted against the Right’s
ticket, particularly when large numbers of voters have either handed over or shown their ballots.

10. Second, the balance of Rule M.5 indicates that voters must fill in their own ballots without
showing them to others. Rule M.5(a)’s stated purpose is that ‘voters cannot be watched while they
are marking their ballot papers’ (emphasis added). A third party is not entitled to collect a voters’
ballots and complete them in bulk, because Rule M.5(b) prohibits such third parties from
entering the ballot room, and Rule M.5(c) prohibits delegates from leaving the ballot room with
their ballots (for example, to give them to a third party).

11. Third, Rule M.5’s references to a secret ballot should be understood against its broader context.
The secret ballot is a longstanding feature of Australian democracy. Commonwealth legislation
expressly prohibits third parties from completing voters’ ballots;1 therefore such conduct should
not be permitted in NSW Labor ballots either.

C. Remedy
12. The Tribunal declaring that the Returning Officer must require voters to complete their own
ballots without showing them to anyone else, and making orders that future ballots are
conducted in this way, is the only effective way to enforce the NSW Labor Rules about secret
ballots. For the reasons set out above at [4]-[5], we have a reasonable apprehension that Janai
Tabbernor will fail to do this at future NSW Young Labor Conferences. We have sought
guarantees from Jania Tabbernor that this conduct will not be permitted at future NSW Young

1
Commonwealth Electoral Act 1918, s 338.
 Labor Conferences, without success. The orders cannot wait until ballot day itself: the Tribunal
only meets once a month, so by the time it ordered relief, the ballot would already have been
completed. Nor can the orders wait until after the ballot is wrongly conducted: this would result
in the inconvenience of invalidating a ballot already conducted, and presumably require a
further NSW Young Labor Conference to be scheduled to properly conduct the ballot at
considerable inconvenience to the Party and NSW Young Labor delegates and members.

13. A ballot is not secret when voters show their ballots to others or hand them over for
completion. We simply seek an order that, for a ballot to be truly secret, the Returning Officer
must require voters to complete their own ballots without showing them to anyone else.

14. We would be grateful for the opportunity to make further submissions in reply to any made by
the Returning Officer, and for the chance to address any questions the Tribunal may have.

Yours sincerely,

Harry Stratton
25 July 2020