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:
|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.