The High Court dismissed Joanna Jordan’s petition seeking to annul the result of the 2012 Children’s Referendum, finding that she had not proved the Government’s unconstitutional information campaign materially affected the result as a whole.
In a judgment delivered on 18 October 2013, Mr Justice McDermott said the evidence raised a serious issue to be tried, so he granted Ms Jordan leave to present the petition. After considering the full evidence and submissions at the same hearing, however, he dismissed the petition.
The Supreme Court had already ruled in McCrystal v Minister for Children and Youth Affairs that parts of the Government’s booklet and website breached the principles governing the use of public money in a referendum campaign. It declared that public funds had been spent in a manner that was not fair, equal or impartial. The referendum went ahead on 10 November 2012, with 615,731 votes in favour and 445,863 against.
Ms Jordan argued that the Government booklet, website and advertising favoured a “Yes” vote and materially affected the outcome. The respondents disputed that the campaign had a decisive effect, pointing to the result’s margin, other campaigning and the absence of reliable evidence showing what caused voters to choose as they did.
The judge said the petition had to establish, on the balance of probabilities, both the nature of the wrongdoing and that it materially affected the referendum result as a whole. The burden remained on Ms Jordan. The court found that the Supreme Court’s earlier ruling established prima facie evidence of unconstitutional conduct, but that did not by itself establish its effect on the vote.
Experts disagreed about a post-referendum survey. One analysis found a statistical association between recalling receipt of the Government booklet and voting “Yes”; the judge said that association did not prove the booklet caused additional “Yes” votes. He preferred the evidence of Professor Michael Marsh on the survey analysis and found insufficient evidence to establish that the booklet materially affected the result. He also found no evidence that the website, which had relatively few visitors, materially affected the result. The advertising evidence likewise did not establish the required effect.
The judge was also not satisfied that the Government’s response after the Supreme Court ruling interfered with the referendum or that a delay in polling would have changed the result. He concluded that the evidence did not prove the petition’s grounds on the balance of probabilities and dismissed it. The judgment did not overturn the Supreme Court’s findings about the campaign materials; it rejected the claim that their effect justified annulling the referendum result.