The Supreme Court dismissed Joanna Jordan’s appeals over the 2012 referendum on the Thirty-First Amendment of the Constitution (Children) Bill, according to a concurring judgment delivered by Mr Justice Clarke on 24 April 2015.
The appeals concerned both a petition challenging the provisional referendum result and separate proceedings challenging aspects of the Referendum Act 1994. Clarke J agreed with the judgment of O’Donnell J, including its test for deciding whether an established irregularity materially affected a referendum result. His judgment is a concurrence and does not set out the Court’s orders in full.
Clarke J said the materiality question should not be decided only at the leave stage of a referendum petition. The parties seeking to uphold a provisional result must have a fair opportunity to address whether an alleged irregularity affected it, he said. He also observed that referendum results should not be displaced merely because misconduct or error occurred; there must be a basis for concluding that it actually affected, or could have affected, the outcome.
The case concerned unconstitutional government expenditure during the referendum campaign. Clarke J noted there was no suggestion that votes had been wrongly counted or that voters had been denied the opportunity to vote. The issue was the hypothetical question of how people might have voted without the expenditure.
He agreed that the relevant question was whether a reasonable and informed citizen could be expected to trust that the result would have been the same in the absence of the irregularity. In Clarke J’s view, the referendum margin was significant and the evidence about the expenditure’s effect was limited. It did not provide a realistic basis for fearing that the spending altered the result.
The judgment also addressed survey evidence. Clarke J said survey findings and expert analysis could be considered by courts, with methodological criticism taken into account when assessing their weight. He noted that evidence need not meet ideal research conditions to be useful, and that the question was whether the available evidence was enough to discharge the burden of proof.
Clarke J said a narrower result combined with stronger evidence could justify a different conclusion, including an order for a new poll. That was not the conclusion on the evidence in this case.