Form 12 – Application for a constitutional or other writ

Note: see rule 25.01.1.

IN THE HIGH COURT OF AUSTRALIA

BRISBANE REGISTRY

BETWEEN: WILLIAM ANICHA BAY

Plaintiff
and

COMMONWEALTH OF AUSTRALIA
First Defendant
and
TOM ROGERS (Australian Electoral Commissioner)
Second Defendant

APPLICATION FOR A CONSTITUTIONAL OR OTHER WRIT

The plaintiff applies for the relief set out in Part I below on the grounds set out in Part II below.

Part I: Orders sought

1. The matter be expedited for hearing.
2. A declaration that FORM B, Schedule 1-Forms of the Referendum (Machinery Provisions)
Act 1984 (Cth) is constitutionally invalid to the extent that the text, “[Here set out the title of
the proposed law]” is not consistent within the meaning of s 128 of the Constitution.
3. A declaration that FORM B, Schedule 1-Forms of the Referendum (Machinery Provisions)
Act 1984 (Cth) is constitutionally invalid to the extent that the text, “[Here set out the title of
the proposed law]” impermissibly burdens the implied freedom of political communication.
4. There issue absolute a writ of mandamus, directed to the second defendant (Tom Rogers –
Australian Electoral Commissioner) requiring him to print, issue, and otherwise distribute
ballot papers for the referendum scheduled for 14th October 2023 according to law.
5. An urgent interlocutory injunction to restrain the second defendant (Tom Rogers – Australian
Electoral Commissioner) from printing, issuing, or otherwise distributing ballot papers for the
referendum scheduled for 14th October 2023 until such time as the constitutional validity of
FORM B, Schedule 1-Forms of the Referendum (Machinery Provisions) Act 1984 (Cth) is so
determined by this High Court.
 2

6. Such other or further orders as the Court deems fit.

Part II: Grounds of the application

7. Ground One: The text in FORM B1, Schedule 1-Forms of the Referendum (Machinery
Provisions) Act 1984 (Cth) does not fulfill the express wording requirements of s 128 of the
Constitution, namely that;
a) “…the proposed law shall be submitted in each State and Territory to the electors
qualified to vote for the election of members of the House of Representatives.”
b) “When a proposed law is submitted to the electors the vote shall be taken in such manner
as the Parliament prescribes.”
8. Ground Two: The text in FORM B2, Schedule 1-Forms of the Referendum (Machinery
Provisions) Act 1984 (Cth) impermissibly burdens the implied public right to a freedom of
political communication guaranteed by the Constitution.

Part III: Reasons why remittal not appropriate

9. The High Court is the appropriate forum for this matter. The similar (yet distinguishable)
case of Boland v Hughes (1988) 83 ALR 673 was heard in the High Court.
10. The Australian body politic needs certainty on the constitutional legitimacy of its referenda
and importantly, the provisions relating to amendments of it. Only the High Court has the
authority to provide this and to prevent unnecessary future disputed returns.
11. In the event of any disputed returns for the Referendum, such matters will return to this
Court. Therefore, remitting this matter to a lower court will throw away costs and time useful
to the determination of this matter at the outset which makes it favourable to the public
interest for this matter to be heard as soon as practicable and in this Court.
12. The facts of the matter are not complex and are unlikely to be in dispute.

Part IV: The factual background to the application

13. Schedule 1 of the Referendum (Machinery Provisions) Act 1984 (the Referendum Act)
prescribes the exact manner and form in which the proposed law is to be submitted, i.e., the
wording on the ballot paper (FORM B).
14. The relevant wording in FORM B - Schedule 1 is, ““[Here set out the title of the proposed
law]”.
1
“[Here set out the title of the proposed law]”
2
“[Here set out the title of the proposed law]”
 3

15. The Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 bill passed its
reading in both Houses on 19 June 2023. This title so named above is the short title of the bill
i.e., the short title of the proposed law to alter the Constitution.
16. The long title of the proposed law is “A Bill for an Act to alter the Constitution to recognise
the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander
Voice”. This is the wording that is to be inserted on the Referendum ballot paper as inferred
by pg. 8-9 of the ‘Your official referendum booklet’,3 and as required by the Referendum Act.
17. A title of a law is not a law but merely forms part of a law.
18. The full text of the proposed law to alter the Constitution is contained in ‘Schedule 1-
Alteration of the Constitution’ of the Constitution Alteration (Aboriginal and Torres Strait
Islander Voice) 2023 bill.
19. At the time of completing this application, the writ for the Referendum scheduled to be held
on 14 October 2023 had not been issued however it is anticipated to be issued within the next
few days. This writ will give legal effect to, and confirm the proposed law to be submitted to
the qualified electors. It will also make plain and distinct the title of the proposed law.
20. The plaintiff has purportedly been an announced candidate for the Queensland State Election
2024 since 27th May 2023.4
21. The plaintiff has been actively promoting the ‘Vote No’ case for several months (since 17th
April 2023)5 on social media, in speeches, fundraising events, and rallies.
22. The plaintiff’s “Your official referendum booklet” (Referendum Booklet) was received by
him in the mail on 24th August 2023.6
23. The plaintiff has relied on the sample ballot papers from the Australian Electoral Commission
(AEC) and the AEC website to inform his electorate and supporters that the proposed law
question would be descriptive of the proposed law.7 Accordingly, on page 24 of the
Referendum Booklet it shows on the sample ballot that, “There would be a description of the
proposed constitutional change here.”.8

3
See Exhibit A1
4
See Exhibit A2
5
See Exhibit A3
6
Affidavit of Dr William Anicha Bay at [1]
7
Affidavit of Dr William Anicha Bay at [4]
8
See Exhibit A4
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24. The plaintiff relied on the material disclosed on page 6 of the Referendum Booklet and
reproduced on the AEC website to communicate to his supporters and electorate that the
proposed law to alter the constitution contained three distinct and important amendments.9
25. The plaintiff became aware that the AEC did not intend to reproduce the entirety of the text
of the proposed law, nor an adequate i.e., informative description of the proposed law on the
ballot paper until 24th August 2023.10
26. As at the time of writing this application (4 September 2023) the official AEC website says
that, “The question that will be put to voters is whether to alter the Constitution to recognise
the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander
Voice.”11
27. The plaintiff has inferred from the information provided on pages 8 and 9 of the Referendum
Booklet and the AEC website that the second defendant (Mr Rogers) intends to publish a
ballot paper with the title of the proposed law in place of the description of the proposed law
as per FORM B – Schedule 1 of the Referendum Act.12
28. The plaintiff has lodged this application at or around the time of the issuance of the writ for
the Referendum by the Governor-General to minimise the imposition on the defendants and
to be certain that the Referendum is proceeding.13
29. The plaintiff has had his reputation damaged as a result of him educating his supporters and
electorate on a proposed law description that differs from the proposed law description on the
ballot paper and as such, the defendants have made the plaintiff appear to be ignorant, racist,
and untrustworthy14.
30. The plaintiff has had his ability to politically communicate with his electorate and his
supporters severely burdened by the requirements of the Referendum Act which does not
allow for the second defendant (Mr Rogers) to adequately describe the proposed law to alter
the Constitution.15
31. The plaintiff is seeking redress of this issue by agitating for an amendment to the Referendum
Act to allow for proper disclosure of the substance and spirit of the proposed constitutional
alterations to be included on the ballot paper to allow for informed voting by himself, his

9
Affidavit of Dr William Anicha Bay at [5]
10
Affidavit of Dr William Anicha Bay at [6]
11
See Exhibit A5 and Affidavit of Dr William Anicha Bay at [7]
12
Affidavit of Dr William Anicha Bay at [8]
13
Affidavit of Dr William Anicha Bay at [9]
14
See Exhibit A6 and Affidavit of Dr William Anicha Bay at [10]
15
Affidavit of Dr William Anicha Bay at [11]
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electorate, the wider public and to prevent further damage to his reputation and to allow him
to communicate correctly and lawfully on this most important constitutional matter.16

Part V: The plaintiff’s argument in support of the application

32. The plaintiff has standing: The plaintiff has standing because he is a qualified elector17 and
is required by s 45 of the Referendum Act to vote in this Referendum. He also has the ability
to petition the Court of Disputed Returns under s 355 (c) of the Commonwealth Electoral Act
1918. The plaintiff is injured in his constitutional rights by not being afforded due process
under s 128 of the Constitution for the lawful alteration of the Commonwealth Constitution
thus depriving him of what he values most politically, i.e., the just and lawful participation in
the proper authorship of the supreme law of the Commonwealth.
33. The plaintiff has also suffered reputational damage because he has publicly alleged that i) the
Voice would make representations to Parliament and ii) that legislative details of the powers
and composition of the Voice are yet to be determined. The wording of the proposed law to
be put on the ballot paper does not support that interpretation thus making the plaintiff appear
vexatious, untrustworthy, and misleading to his electorate18.
34. The plaintiff has also suffered online attacks on his character since awareness of the
‘proposed law’ was made public in late August19, and there is the reasonable prospect of
ongoing libel against the plaintiff due to the conflict and disconnect between what the
plaintiff (correctly) alleges the proposed law actually is and what the text of the proposed law
that will be printed on the ballot paper (incorrectly) states is the proposed law.
35. Thus, there is a direct connection between the faulty and unconstitutional wording of the
ballot paper and the present (and future) injury sustained to the plaintiff’s reputation and the
plaintiff’s ability to politically communicate on this very important political issue.
36. Consequently, the plaintiff has suffered damage greater than that of the general public and
has a ““special interest” over and above that enjoyed by the public” 20 and thus has the
requisite standing in this matter for the case to proceed.
37. Matter distinguishable from Boland v Hughes21: Despite a similar matter being heard
before Chief Justice Mason in Boland v Hughes (1988) this case is distinguishable because

16
Affidavit of Dr William Anicha Bay at [12]
17
Affidavit of Dr William Anicha Bay at [13]
18
See Exhibit A6
19
See Exhibit A6
20
Australian Institute of Marine & Power Engineers v Secretary, Department of Transport [1986] FCA 636; 13 FCR
124, Justice Gummow at [22].
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many of the failures in Boland’s matter were attributable to the very late filing of Mr
Boland’s matter (two days before the Referendum of 1988). That tardiness also resulted in
the inability of the Court to hear the arguments before a full Court.
38. No such impediment exists in this case where much time has been allowed for constructive
correction in the public (and private) interest at minimal cost to the defendants. Furthermore,
Boland v Hughes focussed on a prayer for relief to separate out four constitutional alterations
from one proposed law into four. This matter is the opposite of that matter in that there is
currently an absence of disclosure on the ballot form due to the Referendum Act; not an
alleged excess of disclosure as was the case in Boland v Hughes.
39. Additionally, the plaintiff is not arguing the Parliament does not have the power to define the
content of the proposed law to alter the Constitution. The plaintiff is arguing that Schedule 1
of the Referendum Act impermissibly prohibits the disclosure of that determined content and
in doing so violates s 128 of the Constitution and the implied freedom of political
communication that the Constitution so provides.
40. Matter of public importance: This matter has significant public importance because the
lack of descriptive wording of the proposed law is contrary to the public’s interest in being
fully informed of the changes to Constitution. Section 128 is the most important section of
the Constitution as it holds the power to change the Constitution itself. Section 128 is the
social compact upon which the power of the Australian people and its governance rests;
therefore its application must be interpreted strictly and correctly, and there can be no doubt
attended to its legality. To do otherwise is to undermine the very bedrock of our democracy.
41. Furthermore, proponents of both sides of the Referendum have an interest in ensuring the
result of the Referendum is seen as a legitimate outcome and not subject to unnecessary
litigation, and most importantly; that a Referendum need not be held again.
42. Matter of urgency: It is vital that this matter be heard before the Court as soon as practicable
to minimise disruption to an efficient and timely holding of the 2023 Referendum. It is also
expedient to hear this matter before the Referendum to not cause undue costs to the
defendants, or tie this Court up in litigation after the event, or to cause the public to have to
pay for another Referendum. If this matter is heard within a few days, it is anticipated there
will be minimal disruption to the mechanics of the Referendum, especially since the writ for
the Referendum has not yet issued.

21
83 ALR 673
 7

43. The Referendum Act does not fulfill the express requirements of s 128: It is argued that s
128 of the Constitution requires the proposed law to be submitted to qualified electors at the
time of voting.22 This procedure is the way voters participate in “the constitutionally
prescribed system of representative and responsible government...”.23 Section 128 does not
specify the title of the proposed law to be submitted to electors. To deny the electors full
details on the proposed alterations is not what the framers of the Constitution intended.24
44. The mandatory use of the ‘title’ on FORM B (the ballot paper) by Schedule 1 of the
Referendum Act does not fulfill the requirements of s 128 because including the title is not a
submission of the proposed law to the electors as relevant information on the proposed
alteration to the Constitution has been omitted (not submitted).
45. The full proposed law contains two elements of significance that departs from the long title of
the proposed law: a) the Voice’s function (of making “representations to the Parliament and
the Executive Government of the Commonwealth…”) and b), the Voice’s structure
(Parliament’s “power to make laws with respect to matters relating to the Voice, including its
composition, functions, powers and procedures”). These two substantive provisions are
invalidly not being submitted to the electors because of the inflexible requirement of Form B.
46. It is argued that a proposed law to alter the Constitution that has not been submitted to the
electors cannot be approved by the electors, thus placing any Referendum using the currently
proposed ballot paper wording in constitutional jeopardy.
47. Furthermore, s 128 does not provide for submission of the proposed law prior to the vote but
at the time of the vote. This is the inference by the framers’ use of the word “is” in s 128 and
not the words “has been” in the important sentence of s 128: “When a proposed law is
submitted to the electors the vote shall be taken...”.
48. Extrinsic material provided by the AEC up until the day of vote recording are insufficient to
ensure all qualified electors have been exposed to and properly informed on the full nature of

22
“When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament
prescribes.”
23
Justice Rares at [87] in Australian Electoral Commission v Kelly [2023] FCA 854.
24
As reported at page 987 of Quick and Garran, ‘The Annotated Constitution of The Australian Commonwealth’ (1901),
in the original s 128 clause presented to the Sydney Convention of 1891 the Committee removed the wording,
““Conventions to be elected by,” in order that the question should be submitted to the electors.” This highlights the
importance of the electors being fully debriefed aware and sovereign in the exercise of constitutional amendment. Indeed,
the counter argument was put that the constitutional amendments were too complicated to be put to the electors but this
was not upheld in committee. “Mr Deakin pointed out that the Conventions could only say yes or no, and the electors
ought to be allowed to yes or no themselves…” i.e., full electoral informed consent was the spirit of this section.
 8

the proposed alteration to the Constitution. It is insufficient because the materials mislead the
public on pages 8,9 & 24 on what the proposed law actually is.25
49. Leaving that argument aside, there is also the issue that this extrinsic material may not reach
all qualified electors. Apart from the problems with postal mail delivery and receipt (and then
adequate distribution throughout the household) there is the very real issue that not all
qualified electors will be reached as the electoral roll has not been closed and yet the extrinsic
material (the Referendum Booklet) has already been sent out.
50. Will the AEC re-issue new Referendum Booklets to ensure all last-minute enrolled electors
receive a copy? And then, will they be receiving a booklet with the same version of the
proposed ballot paper as previous electors? These questions will inevitably lead to grounds
for disputed returns which all parties can avoid if the proposed law is satisfactorily
communicated on the ballot paper at the time of voting.
51. The only way to allow for this lawful communication is by amending Schedule 1 of the
Referendum Act to remove or amend the restrictive word ‘title’ to allow the defendant (Mr
Rogers) to insert the proposed law according to law, that is section 128 of the Constitution.
52. Submission requires full disclosure at the time of voting and the current wording of the
Referendum Act requires that only the title be given which cannot possibly allow for the
lawful communication of the true nature of the proposed changes to the Constitution.
53. Indeed, the wording for the proposed law only mentions recognising the First Peoples of
Australia (without actually specifying who those First Peoples are), and an establishment of
an Aboriginal and Torres Strait Islander Voice. It does not elaborate on, or even mention that:
a) there will be a new chapter (Chapter IX) in the Constitution
b) there will be an insertion of a new section in the Constitution (s 129)
c) there will be three subsections to this new section, namely (i), (ii), and (iii)
d) the new body may “may make representations to the Parliament”
e) the new body may “may make representations to … the Executive Government..”
f) the representations are on matters relating to Aboriginal and Torres Strait Islander peoples
g) the Parliament shall have “power to make laws with respect to matters relating to the
Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers
and procedures.”
54. Adequate and lawful communication of the proposed law i.e. submission to the electors
without these express declarations or at the very least a short description cannot be held to be

25
See Exhibit A1 & A4
 9

constitutional, and yet an adequate description would not be especially hard: “Recognising
the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice
that may make representations to the Parliament and the Executive Government of the
Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples; and
allowing the Parliament to make laws with respect to matters relating to the Voice, including
its composition, functions, powers and procedures” is but one example.
55. Finally, qualified electors (including the plaintiff) may change their mind or forget the
reasons for their decision at any moment up to and until their vote is taken and will thus be
disenfranchised. This is because they will be deprived of the political communication and
information they need to make an informed decision at this important moment by way of only
having the non-descriptive and misleading long title of the bill to make their mind up upon.
56. The Referendum Act impermissibly burdens the implied freedom of political
communication: The Referendum Act burdens the freedom of political communication for
all Australians (who hold the political sovereignty of the Commonwealth in this and all
matters)26 where in all instances the Parliament does not adequately inform the electors of
their choice by making the proposed law clear in the long title of the bill.
57. Our system of representative government requires electors to have a “free and informed
choice”27 in choosing representatives and it is strongly arguable that this also applies to
choosing between constitutional alterations as well. Therefore, having a full description of, or
a textual copy of the law before the electors at the time of voting (and not just its title) is the
only way to ensure an informed (and constitutionally valid) choice has been made.
58. For the Referendum Act to only allow the title of the proposed law to be inserted amounts to
an unreasonable and unnecessary imposition on political communication in this country on
what is the most important political communication event possible. Chief Justice Kiefel and
Justice Keane has said, “The free flow of communication on matters of politics and
government is implied in the Constitution as necessary to the maintenance of the system of
government for which the Constitution provides.”28
59. The Commonwealth parliament and the Australian people (and the plaintiff as one member of
it) should be free to have a fair representation of the proposed law to alter the Constitution
included on the ballot. The Referendum Act in FORM B, Schedule 1 unlawfully fails to do

26
C.J. Kiefel & Justices Gageler, Keane, Gordon & Edelman at [24] in Gerner v Victoria [2020] HCA 48; 270 CLR 412
27
Justice Gordon at [131], LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18; 274 CLR 1; Chief Justice
Kiefel, Justices Gageler, Keane, Gordon and Edelman at [24] in Gerner v Victoria [2020] HCA 48; 270 CLR 412
28
C.J. Kiefel and Justice Keane at [26] in Farm Transparency International Ltd v New South Wales [2022] HCA 23
 10

this by constraining the AEC Commissioner to only include the title of the bill for the
proposed law (which is not the proposed law or an adequate description of it) and where there
is a burden on political communication by statute it must be justified.29
60. “A justification for a burden will only be sufficient if it is shown that the statutory provision
is proportionate to the achievement of its purpose.”30 The plaintiff argues that the restrictive
requirement of inserting the title only on the ballot form is neither suitable, necessary, nor
adequate in its balance to achieving the objective of the Referendum Act.31 The word ‘title’ is
not suitable because it is not rational to believe that a title is equivalent in form or substance
to a law. It is not necessary because the word ‘title’ could be and can be replaced with the
word ‘text’ or ‘description’. It is not adequate in its balance because the convenience of
machinery of voting at referendums cannot and should never outweigh the absolute and non-
derogable necessity of qualified electors being fully informed of the changes they are
(potentially) about to make to the most important law of this Commonwealth.
61. The title of the law is not the proposed law: It is argued that the long title of a law is not, in
fact, the law. If the title of a law were the law, then there would be no need for a law and a
title and vice versa. To suggest otherwise is an absurdity at law.
62. For the avoidance of doubt, it is noted that s 8 ss 2 and FORM A of the Referendum Act
shows that the proposed law is the full text of the law and that the title is a different entity. If
the proposed law were merely the title of the proposed law, then neither ss 2(a) nor ss 2(b)
would be required in the form of the writ. In other words, to not strike out or amend Schedule
1 FORM B of the Act would be in effect to declare s 8 ss (2) of the Act and the Governor-
General’s writ in error.
63. In the past where the long title of the proposed law had adequately captured the intent and
substantive content of the proposed law this was not an issue.32 In this Referendum,
circumstances have arisen where it can be clearly demonstrated that the long title of the law
does not adequately reflect the intent, content, or mechanics of the proposed law to alter the
Constitution; thus exposing the latent constitutional error in the Referendum Act which has
been present since 1984 but only now fully exposed.

29
C.J. Kiefel and Justice Keane at [26] in Farm Transparency International Ltd v New South Wales [2022] HCA 23
30
C.J. Kiefel and Justice Keane at [29] in Farm Transparency International Ltd v New South Wales [2022] HCA 23
31
Explanatory Notes to Bill, p. 3: “The purpose of this Bill is to..make machinery provisions for voting at referendums..”
32
See the 1967 referendum proposed law for an example of adequate description: 'An Act to alter the Constitution so as
to omit certain words relating to the people of the Aboriginal race in any state and so that Aboriginals are to be counted
in reckoning the population'. The 1999 referendum proposed law was also adequately descriptive; “To alter the
Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being
replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.”
 11

64. Constitutional invalidity not burdensome on the Government: The plaintiff argues that
there is little impediment to the Government correcting this issue if it is so determined to be
an issue by this Court. The order for the declaration, if granted, will not affect past referenda
as the period allowed by law for disputing the referenda has expired and Royal Assent has
been given to those past amendments.
65. Also, as the writ for the Referendum has yet to be issued this means that printing for the
ballot papers has yet to be finalised which gives this Court the opportunity to prevent harm to
the plaintiff and the wider Australian body politic in advance of the Referendum thus
negativing wasteful disputed returns to this Court after the event.
66. Furthermore, there is no need to resubmit the Constitution Alteration (Aboriginal and Torres
Strait Islander Voice) 2023 bill to both houses of Parliament or re-issue the writ (if the writ
be so issued by the time the Court considers this matter). All that is required to correct this
issue would be for the Parliament (who have both the House and Senate jointly sitting from
the 4-14 September 2023) to amend the Schedule of the Referendum Act by replacing the
words: “[Here set out the title of the proposed law]” with “[Here set out the description of
the proposed law] or whatever the Parliament determines is adequate and lawful.
67. Furthermore, there is much time for Parliament and the AEC Commissioner to make
corrections to ensure this Referendum is constitutionally valid as s 9 ss (2) of the Referendum
Act allows for up to 58 days after the issuance of the writ to take the votes of electors. This
means the Referendum could be held as late as November 1st (notwithstanding the need for it
to be on a Saturday). Furthermore, s 10 ss (1) of the Referendum Act allows for further
extensions of time by the Governor-General which may accommodate issues like this. In
other words, there is no time impediment to the Parliament and Mr Rogers getting this matter
correct in advance of a lawful Referendum voting day.
68. In conclusion, by the Court acting expediently to determine the constitutional validity (or lack
thereof) regarding FORM B, Schedule 1 of the Referendum Act, this action will settle the
controversy between the plaintiff and the defendants and simultaneously help ensure a lawful
constitutional amendment to the Constitution and prevent questions about the legitimacy of
the referendum for both sides of the referendum, thus inevitably saving needless legislation
and a disputed Referendum in the Court of Disputed Returns and in the public’s mind.
 12

Part VI: An order for costs should not be made in favour of the defendant
69. Whilst the plaintiff is claiming a justiciable controversy over and above the average
Australian, his matter is also one of immense public interest and importance owing to the
potential unlawful alteration of our most important legal document. As such, it would be
against the public interest for a plaintiff with a demonstrable case acting in good faith to be
penalised for trying to protect his foundational democratic rights under this Constitution.

Part VII: List of authorities

70. Boland v Hughes (1988) 83 ALR 673.
71. Australian Institute of Marine & Power Engineers v Secretary, Department of Transport
[1986] FCA 636; 13 FCR 124, Justice Gummow at [22].
72. Australian Electoral Commission v Kelly [2023] FCA 854, Justice Rares at [87].
73. Gerner v Victoria [2020] HCA 48; 270 CLR 412 Chief Justice Kiefel, Justices Gageler,
Keane, Gordon, and Edelman at [24].
74. LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18; 274 CLR 1 at [131].
75. Farm Transparency International Ltd v New South Wales [2022] HCA 23 Chief Justice
Kiefel and Justice Keane at [26] and [29].

Part VIII: See the Annexure for the relevant constitutional provisions and statutes

Dated: 4 September 2023

....................................
William Anicha Bay
To: The First and Second Defendants
Australian Government Solicitor
processservice@ags.gov.au

TAKE NOTICE: Before taking any step in the proceeding you must, within 14 DAYS from
service of this application enter an appearance and serve a copy on the plaintiff.

The plaintiff is self-represented.

 13

Annexure

• FORM B, Schedule 1-Forms of the Referendum (Machinery Provisions) Act 1984 (Cth)

• Commonwealth Constitution s 128

128. Mode of altering the Constitution.

This Constitution shall not be altered except in the following manner:—

The proposed law for the alteration thereof must be passed by an absolute majority of
each House of the Parliament, and not less than two nor more than six months after its passage
 14

through both Houses the proposed law shall be submitted in each State and Territory to the
electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute majority, and the
other House rejects or fails to pass it or passes it with any amendment to which the first-
mentioned House will not agree, and if after an interval of three months the first-mentioned
House in the same or the next session again passes the proposed law by an absolute majority with
or without any amendment which has been made or agreed to by the other House, and such other
House rejects or fails to pass it or passes it with any amendment to which the first-mentioned
House will not agree, the Governor‑General may submit the proposed law as last proposed by the
first-mentioned House, and either with or without any amendments subsequently agreed to by
both Houses, to the electors in each State and Territory qualified to vote for the election of the
House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such
manner as the Parliament prescribes. But until the qualification of electors of members of the
House of Representatives becomes uniform throughout the Commonwealth, only one-half the
electors voting for and against the proposed law shall be counted in any State in which adult
suffrage prevails.

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.

No alteration diminishing the proportionate representation of any State in either

House of the Parliament, or the minimum number of representatives of a State in the House of
Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any
manner affecting the provisions of the Constitution in relation thereto, shall become law unless
the majority of the electors voting in that State approve the proposed law.

In this section, “Territory” means any territory referred to in section one hundred and
twenty-two of this Constitution in respect of which there is in force a law allowing its
representation in the House of Representatives.
 15

• Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023

16
17
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• Referendum (Machinery Provisions) Act 1984 Section 45 Subsection 1

It is the duty of every elector to vote at a referendum.

• Commonwealth Electoral Act 1918 Section 355

(c) be signed by a candidate at the election in dispute or by a person who was qualified to
vote thereat, or, in the case of the choice or the appointment of a person to hold the place of a
Senator under section 15 of the Constitution or section 44 of this Act, by a person qualified to
vote at Senate elections in the relevant State or Territory at the date of the choice or
appointment;

• Referendum (Machinery Provisions) Bill 1984 Explanatory Memorandum page 3:

OUTLINE The purpose of this Bill is to repeal the Referendum (Constitution Alteration) Act 1906
and subsequent amending Acts, make machinery provision for voting at referendums (including
voting by electors in the Territories), make changes to referendum provisions consequential upon the
passage of the Commonwealth Electoral Legislation Amendment Act 1983, and incorporate
modifications to current referendum procedures.”

• Referendum (Machinery Provisions) Act 1984 Section 8 Subsection 2

(2) The Governor-General shall cause to be attached to the writ a copy of the proposed law, or a
copy of a statement setting out:
(a) the text of the proposed law; and
(b) the text of the particular provisions (if any) of the Constitution proposed to be textually
altered by the proposed law, and the textual alterations proposed to be made therein.

• Referendum (Machinery Provisions) Act 1984 Section 9 Subsection 2

9 Day for close of Rolls and voting day
(2) The day fixed for taking the votes of electors at a referendum shall be not less than 33 days
and not more than 58 days after the issue of the writ.

• Referendum (Machinery Provisions) Act 1984 Section 10 Subsection 1

10 Extension of time
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(1) In spite of any other provision of this Act, the Governor-General may, before the voting
day for a referendum, by notice published in the Gazette, fix a later day for the taking of
votes of electors, either generally or for a specified Division.