Challenging elections for fun, profit and the public good

It appears that the newly dominant Labor Party in the Northern Territory may be contemplating a legal challenge to the validity of the election of former CLP Chief Minister Terry Mills as an Independent MLA in his former seat of Blain.

Labor will likely hold 18 of the 25 Legislative Assembly seats anyway, but it seems that semi-complete dominance is just not enough. Presumably Labor sees Mills as a potential threat because he is the only surviving conservative-leaning MLA around whom shell-shocked Tories could plausibly coalesce and rebuild. Such a role for Terry Mills would have seemed inconceivable just over three years ago when he was deposed as Chief Minister in a typically opportunistic coup by the now reviled and rejected Adam Giles. At the time Mills was about as popular as a halal kebab at a One Nation barbecue, having presided over large increases in power and water rates that were undoubtedly economically responsible but equally undoubtedly politically inept.

As a Territorian who wants to see an effective Opposition and diverse political representation rather than an elected dictatorship, I would be sorry to see a successful challenge to Terry Mills’ election.  But as a public law academic a court challenge is a fascinating prospect. It would deal with some interesting and unresolved issues in electoral law.

Any challenge would relate to the provisions of section 20 of the Northern Territory (Self-Government) Act, which mandates that an MLA must at nomination date not only be an Australian citizen but that:

(d)  he or she has been resident within the Commonwealth for at least 6 months and within the Territory for at least 3 months.

Such a challenge is especially interesting from my personal perspective, as the lawyer who conducted what is to date the only court challenge under section 20, namely the matter of Hickey v Tuxworth in 1987. I acted for then Independent candidate Maggie Hickey who had lost the seat of Barkly by just 19 votes to incumbent National (and former CLP Chief Minister) Ian Tuxworth.  The challenge arose when it emerged that Labor candidate Len Hallett (who had run third) was not an Australian citizen.  There was no doubt about that fact, the only question (at least as Nader J saw it) was whether he should order a recount of existing votes or declare the election void resulting in a by-election having to be called.  That question will also be a key issue in any challenge to Terry Mills’ election last week.

Unlike Len Hallett, there is no doubt that Terry Mills is an Australian citizen. The potential problem for Mills lies in the residence requirement of section 20. Although Terry has lived in Darwin for the last 25 years or more and still maintains his family house (home?) here, he has spent much of the last 3 years (since being deposed as Chief Minister) in Bali, Indonesia, for most of that time being a trade representative of the Northern Territory government.

For former Labor Minister Kon Vatskalis at least, that fact leads to the undeniable conclusion that he isn’t a  Territory resident:

I expect a recount or a challenge as he does not comply with the requirements of the Self Government Act regarding Australian and NT residency. Everyone knows that he was living permanently in Bali.

However it isn’t as simple as that. There is no definition of residence in the Northern Territory (Self-Government) Act, nor did the Commonwealth Minister throw any light on the question in his Second Reading Speech when the Act was introduced way back on 11 May 1978.  Nevertheless, when interpreting any Act a court is required to give effect to Parliament’s legislative intention.

That may be problematic where Parliament’s intention has not been made clear. Given that most states’ constitutions do not contain any residence requirement as a qualification for electoral office (Tasmania is an exception),  there is little doubt that the Commonwealth Parliament was concerned to ensure that NT MLAs should not be “blow-ins” with little or no connection to the Territory. At the time most public servants were short-term Commonwealth transferees, as were many if not most corporate employees. The Territory had a transient population (with the notable exception of its Aboriginal residents). Most were here for a good time not a long time, as the expression went.

But that observation doesn’t get us very far. Terry Mills is not a blow-in on any view. Moreover, it is very unlikely that a court would interpret Territory “residence” as requiring continuous unbroken presence here. Absence on business or on holiday or for medical treatment, for example, even for a fairly prolonged period of time, would be unlikely to negate NT residence unless it is clear on the evidence that a person has evinced an intention to take up permanent residence elsewhere.   For tax and social security purposes, “residence” in Australia is defined by analysing multiple factors. For example, section 7 of the Social Security Act 1991 relevantly provides:

(3)  In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

 (a)  the nature of the accommodation used by the person in Australia; and

 (b)  the nature and extent of the family relationships the person has in Australia; and

(c)  the nature and extent of the person’s employment, business or financial ties with Australia; and

 (d)  the nature and extent of the person’s assets located in Australia; and

 (e)  the frequency and duration of the person’s travel outside Australia; and

(f)  any other matter relevant to determining whether the person intends to remain permanently in Australia.

I don’t know enough of the facts concerning Terry Mills’ living and working arrangements to draw a conclusion on how likely he would be to be held to retain Northern Territory residence under such an approach, but I suspect he would have a fair prospect of success.

However, let’s assume for a moment that a court holds Terry Mills was NOT a Territory resident at the nomination date for the 2016 NT election.  What orders would the court then make?

First, we should note that, although no-one appealed Nader J’s order declaring the election of  Ian Tuxworth in 1987 to be void (so that a by-election was held at which Maggie Hickey was elected and Tuxworth lost), the High Court subsequently indicated in another case that His Honour’s decision had actually been wrong. In Re Wood in 1988 the High Court observed:

With respect, the conclusion in Hickey v. Tuxworth cannot be accepted, at least for the purposes of the Act. If the unqualified candidate’s nomination in that case was formally correct and his name was properly on the ballot paper, it is difficult to see how the election miscarried. The problem of want of qualification arises under the Act if an unqualified candidate is elected, but an election is not avoided if an unqualified candidate stands. If it were otherwise, the nomination of unqualified candidates would play havoc with the electoral process, for the ministerial officer who accepts nominations has no general power to refuse a nomination in due form.

Nevertheless, that problem does not arise in Terry Mills’ case. He is the successful candidate and if he is held not to have been qualified then the Court will certainly have jurisdiction and indeed be obliged to make an order in relation to the election. The only question will be whether the Court can order a recount of existing votes with Mills excluded, or whether a fresh by-election is the only option. Answering that question will require a close examination of the votes cast including allocation of preferences. The current figures on the Northern Territory Electoral Commission website show as follows:

Blain

Primary votes:

Gregory John KNOWLES (Ind) 240
Damian HALE (ALP) 1596
Marie-Clare BOOTHBY (CLP) 1101
Terry MILLS (Ind) 1338

Updated: 2 Sep 2016 2:18 pm

Two candidate preferred:

Terry MILLS (Ind) 1948
Damian HALE (ALP) 1849

Updated: 2 Sep 2016 2:18 pm

 If Terry Mills is eliminated, how many of Mills’ second preference votes would flow to ALP candidate Damian Hale and how many to CLP candidate Marie-Clare Boothby? One can reasonably suspect that Mills’ preferences would flow fairly heavily in favour of Boothby rather than Hale, to the extent that she might well overtake Hale on a Two Party Preferred basis.  However, that still isn’t the end of the story.  The Territory now has an optional preferential voting system. How many people voted 1 for Mills but didn’t record any other preferences?  If there are more of those than the 2PP gap between Hale and Boothby after Mills is eliminated and his preferences distributed, it becomes impossible to know with certainty what those voters would have done if (as should have been the case) they didn’t have the option of voting for Terry Mills. Would they have voted for Hale or Boothby? You can make an educated guess that most would probably have voted for Boothby but a court isn’t permitted to guess. In that situation the court would have no choice but to declare the election void and order a by-election in Blain.  I suspect that is the most likely result of a challenge if Mills is held not to have been qualified as a candidate under section 20.

The irony of that outcome is that there would be no prohibition on Terry Mills nominating as a candidate in the subsequent by-election, if by that time he had again been resident in the Territory for three months (as would very likely be the case). Moreover, I can’t help suspecting that Terry Mills would be likely to be re-elected at the by-election, with many voters regarding Damian Hale’s challenge as a fairly shabby effort. Labor would have wasted much time, effort and money on legal fees for no result.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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11 Responses to Challenging elections for fun, profit and the public good

  1. Martin English says:

    Perhaps Mills should “do a Deakin”; resign, forcing a by election, which Labour will delay calling, then spend the intervening time as “acting” MP and pointing out Labour’s general shiftiness over this.

  2. Stephen Murray says:

    The origins of the residency requirement in the 1978 Self-Government Act lie in the establishment of the Northern Territory Legislative Council, which was established by the Chifley Government in 1947 to perform an advisory function in respect of the Territory.

    The Explanatory Memorandum on the 1978 Self Government Bill show that much of the electoral structure and processes in place prior to self government were carried across http://www.aph.gov.au/binaries/library/pubs/explanmem/docs/1978ntselfgovernmentbill.pdf

    The qualifications for electors were one such provision

    Again, there is no reference to the reason for the residency qualifications in the 1947 Bill debate – maddeningly, even when an amendment was moved by the Government in the Committee stage to add a six months residency in the Commonwealth requirement to the three months in the Territory).

    The “no blow ins” purpose of the residency qualification might be considered against the fact that, in addition to the six elected members, there were seven appointed members. Speculation during the debate had it that these were likely to be bureaucrats, and so it transpired. When the Legislative Council met in 1948, all seven appointed members were heads of Departments administering the Northern Territory.

    There was concern during the 1947 debate that the pool of qualified candidates might be greatly diminished by the usual electoral requirement that a candidate not have an office of profit or contract with the Commonwealth. Given the nature of employment in the Territory, and the extent of Commonwealth employment and contracts, even the Government acknowledged this was an issue. In the end, 19 candidates ran for the six seats available

    As to the question of what “resident” might mean in an electoral context, it came in for consideration by the NSW Court of Appeal decision in a 2014 case where there was a residency requirement for local government elections. However, “resident” does have a definition in the NSW Local Government Act, involving both an entitlement to enrolment and a “place of living”.

  3. Jim says:

    Ken

    I haven’t lived in the Territory for over 15 years, but I still have an interest in the Territory and have friends that still live there.

    I just can’t help but get the impression that the politicians up there have become more self-serving (this post is a good example), and any focus on the public good has been largely lost by politicians and many public servants. Despite the resources available to the Territory Government via horizontal fiscal equalisation, can anyone name one major social indicator that has materially improved in the past 15-20 years (or even since self Government for that matter)?

    Every policy or investment should be periodically reviewed. Is it time to review self government in the Territory? I suspect that the current model isn’t actually serving Territorians very well at all.

    • Ken Parish says:

      Yes I agree about the current model of self-government in the NT. I’ve written about it before here at Troppo, most recently here.

      • Jim says:

        Great post. The sad thing is that you could re-run the same post every year (perhaps having to change the names), with the same sad message….

  4. Marks says:

    I am not sure I buy into this Territory exceptionalism theme. I don’t see, for example, that the NT has worse governance than NSW. Or Queensland in the not so distant past.

    NSW can’t run a public transport system to save itself.

    That’s not to say the NT is doing well. Merely that there’s no reason for people in other states to point fingers.

    To add to that, at least NT voters flushed the Parliament. Would that NSW could do the same.

    • Jim says:

      Having worked within the public services in the NT and Queensland, followed by another 10 years as a consultant on projects across Australia (including back in the Territory), my casual observation is that most jurisdictions are far from perfect in their decision making.

      But the direction of change in the Territory is different to the other states and territories. While the other states and territories are slowly (and inconsistently) lurching towards better decision making, the NT is slowly going backwards.

      • Marks says:

        I’d agree that the NT is going back slowly. However, that is despite a dysfunctional party in charge, which has now been replaced.

        I don’t know much about Queensland, but it would not be hard to imagine that Queensland is slowly improving after a dose of “can do”. Is that much different from the NT other than a time shift?

        Then NSW. Having observed the running of public transport in Prague very recently, I can only say that NSW is clueless in comparison. The list of invidious comparisons would take some time. However, totally clueless, expensive, backward, dysfunctional, are probably the kindest things one could say. The health system is in crisis continually, yet they are building the world’s most expensive light rail. Just this one area of NSW dysfunction (public transport) dwarfs the problems of the NT.

        Then when you look at the Federal Parliamentary antics…

        Recall that we had a double dissolution election. Leading to no double dissolution, and probably a more unstable Parliament. Think about the economic issues facing the nation, everything from immigration levels, housing prices, debt levels, banking and insurance systemic issues, and then consider the level of debate on those issues. Tis/tisn’t sums that up.

        Nope. The NT has problems for sure. But exceptionally different to other states allowing for time shifts?

        • Marks says:

          I should clarify the connection between the most expensive light rail in the world, and the health system woes in NSW.

          If, instead of building a light rail NSW could have decided to build a standard tram line, which would have been more able to interchange with buses, more environmentally friendly, faster and several hundred million dollars cheaper.

          Those several hundred million dollars going to the hospital system, while delivering a better outcome for public transport users.

  5. PoliticoNT says:

    Ken, I think it’s time we properly assess why Terry Mills lost popularity. Your observation that:

    Mills was about as popular as a halal kebab at a One Nation barbecue, having presided over large increases in power and water rates that were undoubtedly economically responsible but equally undoubtedly politically inept.

    is a reasonable one to make, but incorrect. The key driver of the CLP’s electoral collapse was the manner in which the Review Management Board (RMB) process was run, not the outcome. Having spent the better part of four years working to convince the electorate that the CLP of old (or at least our perceptions of) was dead and buried, and that there would be no return of the old brigade, Mills allowed the opposite.

    The electorate was rightly aggrieved when the RMB appointed a group of old boys on very cosy conditions, including cars and CBD apartments. Compounding this error was the determination of Mills (& various 5th floor hacks) to try and convince the electorate the process was a good one (including the appointment of the old boys). The large print ads in the NT News were the worst of it. And it destroyed the CLP.

    At the August 2012 election Rhianna Harker got 43% of the vote, a decent swing against Henderson. By the following February she was down to 28% of the vote against a complete unknown. (Manison could have been in a coma and would have won.) We like to blame utility rises for the shift but we forget the CLP had trashed its electoral standing before the rises were announced.

    I’d go a step further, because the foundations for the electorate’s anger with the RMB process were laid years earlier; by Foundation 51. Politicians of all colours can bleat about how important fund-raising is but when they do so it’s not about democracy and community involvement – it’s about covering their own arses. F51 was a problem from the inception because it gave a perception that a seat at the big table was up for sale. NT Labor has its own slush fund, the difference being Labor doesn’t walk around in public banging its chest and bragging.

    As a former CLP member I was deeply opposed to Foundation 51 (and have paid a personal and professional price for doing so) because it damaged the CLP. Better to have a chook raffle and quiz night with all hands involved – the money might be a lot less but at least people can see they’re all in it together. Perception is critical.

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