The Supreme Court dismissed Joanna Jordan’s appeals concerning the 2012 referendum on the Thirty-First Amendment, which proposed changes to the Constitution relating to children. It confirmed the provisional referendum certificate without alteration, meaning it would become final when returned to the referendum returning officer.
The judgment, delivered by Chief Justice Denham on 24 April 2015, dealt with two appeals heard together: one relating to a referendum petition and the other to a plenary summons challenging parts of the Referendum Act 1994. The court dismissed both appeals. It did not order a recount or a new referendum.
The dispute followed the Supreme Court’s ruling in McCrystal v the Minister for Children and Youth Affairs. On 8 November 2012, two days before polling, the court found that government-funded campaign material was not fair, equal or impartial and breached the McKenna principles. The material included a booklet, website and advertisements. The Minister stopped publishing and distributing it after the ruling.
The referendum took place on 10 November 2012. Of those who voted, 58 per cent supported the proposed amendment and 42 per cent opposed it. Turnout was 33.49 per cent of the eligible electorate. The provisional certificate recorded 615,731 votes in favour and 445,863 against.
The High Court had granted Jordan leave to present a petition, finding a serious issue to be tried, but dismissed the petition after a hearing. It was not satisfied on the balance of probabilities that the campaign breach materially affected the referendum result. The High Court also rejected her challenge to the statutory requirements and standards governing referendum petitions.
The Supreme Court held that the petitioner carried the burden of proof throughout. It said a petition must establish that it is reasonably possible the irregularity affected the result, to the point where a reasonable person could doubt and no longer trust the provisional outcome. Applying that test to the evidence, including the campaign’s scale and spending, the vote margin, the cessation of the material and the publicity around the McCrystal ruling, the court found that this had not been established. It concluded that a reasonable person would trust the result.
The judgment also rejected the appeals concerning the Act’s constitutionality and compatibility with the European Convention on Human Rights. The court affirmed the High Court’s decision on alleged post-ruling conduct and found no basis to overturn its conclusion that the government’s response after the McCrystal ruling interfered with the referendum or citizens’ rights.