The Giles Country Liberal NT government managed to ram through legislation this week which not only implements optional preferential voting for Territory elections but also prohibits handing out of “how to vote” and other candidate materials to voters on polling day within 100 metres of a polling place. The ABC’s Antony Green has an excellent discussion of the issues.
However I’m not at all sure these reforms will be as big a winner for the beleaguered CLP government as they and some others seem to think.
It can’t seriously be argued that electoral advantage, rather than principled democratic electoral reform, is what Giles is seeking. He claimed that optional preferential voting would help to reduce informal voting. But that isn’t really a problem in Territory elections anyway, despite low levels of literacy in Aboriginal communities. The overall informal vote at the last NT election in 2012 was just 3.2%, compared with 5.9% nationally at the last federal election in 2013.
As Antony Green notes, moving to optional preferential voting has been advantageous for conservative parties in some southern states, reducing the flow of preferences from the Greens to the ALP. No doubt the CLP will be hoping it has a similar effect here in the Territory. However, maybe they’re leaving out of calculation the possible effect of the new 1Territory Party on the forthcoming election. As far as we can tell, and despite somewhat bizarre secretiveness as to the makeup of its Executive, it appears that 1Territory consists largely of disaffected former core CLP members and supporters.
Despite their disaffection, and however the Party itself chooses to allocate preferences on its How to Vote cards, many potential voters for 1Territory will themselves be Country Liberal voters registering a protest vote due to the almost unbelievable level of chaos and incompetence of the CLP government over the last 4 years. Many would then still choose to preference CLP over ALP if forced to fill in every square on the ballot paper, as was required by the compulsory exhaustive preferential voting system that has applied until now. I can’t help thinking that, like Greens voters in southern states with optional preferential voting, many of those protest voters will choose to record a vote for 1Territory and then not allocate any other preference. It is conceivable that, in a global sense, CLP lost preferences from 1Territory may cancel out ALP lost preferences from the Greens.
Antony Green also suggests that optional preferential voting may favour the CLP in the seat of Karama, where there is a “no love lost” contest between disendorsed Independent and former ALP Leader Delia Lawrie and new ALP candidate Ngaree Ah Kit. If a significant number of voters cast their ballot for one of the two Labor-leaning candidates and fail to record any preference for the other, it is possible that the CLP candidate might sneak through the gap and win. But the same in reverse potentially applies in the seat of Arnhem, where Labor’s Selena Uibo could conceivably sneak through for a win if conservative votes are similarly split between the CLP candidate Ian Gumbula and incumbent MLA, the CLP-defector/fellow traveller Larissa Lee.
Banning the “gauntlet”
The other factor in the upcoming election will be the effect of banning distribution of “how to vote” and other candidate materials to voters on polling day within 100 metres of a polling place. The original proposal was for a ban within 500 metres of a polling place, which would certainly have been tantamount to a complete prohibition in every practical sense.
In my view there would have been a respectable constitutional argument that such a drastic restriction would breach the implied constitutional freedom of political communication that has applied in Australia since 1992, particularly on the European “structured proportionality” approach to assessing restrictions on political speech that now applies as a result of a recent High Court decision. I won’t explain the arguments here.
Such a challenge could still be launched even with the less drastic 100 metre restriction on handing out materials that was ultimately enacted, but it would have a somewhat lower chance of success. Given the risk of an adverse costs order in the event of failure, I doubt that any candidate is likely to launch a challenge to the new legislation on that ground.
In a more practical sense is there really a “gauntlet” at all (Giles’ excuse for the ban)? It’s certainly true historically that Territory political parties have tended to be more aggressive than “down south” in the extent to which they surround polling booths with prominent and usually very negative advertising banners and posters. But, at least in my experience, the party volunteers who actually hand out “how to vote” cards are quite friendly and no more aggressive, insistent or numerous than their counterparts interstate. Indeed if anything the reverse is true. I have generally found walking into polling booths to be quite a relaxed, amiable experience where you get to say g’day and exchange good-natured banter with volunteers from all parties, and possibly score a free sausage sandwich to boot. I think Giles has simply invented a non-existent “gauntlet” phenomenon to provide a plausible but spurious pretext for a blatantly self-interested “reform”.
But how serious an effect is this restriction likely to have? Antony Green argues that it will have a more serious adverse effect in remote Aboriginal communities than at urban booths. He might be right, but I’m not so sure. Just about all Aboriginal voters in remote communities arrive on foot to vote. As long as a party/candidate has enough volunteers, stationed 100 metres away from the mobile polling station, to intercept most voters as they approach to cast their votes, then there really shouldn’t be very much adverse effect at all. I would expect that both major parties could muster enough volunteers to perform that task on each of the mobile polling booths, as could the First Nations Party (assuming it still exists). Bush seats seldom have genuine Independent candidates.
By contrast, there may well be a significant adverse effect at urban polling booths. A high proportion of urban voters arrive to vote by car, and commonly park in parking areas within the school grounds where most polling booths are located. Where those parking areas are within 100 metres of the school building where the polling booth is operating (which will often be the case), handing out of “how to vote” material will become effectively impossible. In those electorates, it is highly likely that the proportion of voters who will “choose” to record only a single preference on their ballot paper will be significantly higher than the experience in southern states with optional preferential voting (where I understand around 50% of voters do this).