Photo: ABC NT

There is now a very real question as to whether the Northern Territory general election on 25 August 2012 – and in the bush mobile polling booths in the fortnight prior – was the dirtiest election we’ve seen in the NT’s short self-governing history.

As I wrote about past elections here the day before this years poll:

Both sides of politics have played that ugly game, but the Country Liberals played it better than Labor. Stone was replaced by the unlamented Dennis Burke, who to his credit ended the CLP’s overt use of race as an electoral weapon during his brief stint as Chief Minister, although he still directed Country Liberal preferences to One Nation above Labor at five bush seats in 2001.

Terry Mills, leader of the victorious Country Liberal Party, was short on detail when he responded to early allegations from Labor’s new leader Delia Lawrie of bad play in this year’s poll by the CLP  in the bush, Mills accusing Labor of being “the party of dirty tricks“.

I could go on for some length about the argy-bargy that went on in the bush – and the towns – during this year’s election.

All that was but fun and games compared to some very serious allegations that have emerged that go to conduct not by the parties but by NT Electoral Commission officers charged with getting in the vote.

I’ve been closely involved in the conduct of a couple of elections in the NT.

Back in the mid-nineties I worked on two Federal elections, one as a team member, one as the leader of a small group of three core electoral staff at remote polling stations.

On both occasions we had a great time in light planes for a week or two. Sometimes we’d take votes at two or three small communities or cattle stations in a day, picking up local interpreters and assistants at each place as needed.

All of the core staff had a couple of days training in Darwin and we were all thoroughly vetted for political bias and drilled in the finer points of law and policy involved in the proper conduct of an election in what could occasionally be tense or trying situations.

The local staff – the interpreters and assistants picked up for the day at most mobile booths – played a crucial role – but only received basic instructions as and where possible. They were the people who advised us about the complex arrangements required to ensure that “wrong-skin” people didn’t find themselves in too-close company inside the booth, they’d help with language and gender issues and they’d be the go-to people of choice in a minor crisis.

The first I heard of the serious allegations of misconduct during this year’s NT election was three days after the poll in an ABC Radio piece that reported Labor’s formal complaint about the behaviour of a polling official – or two – at the small township of Nyirripi, 500 kilometres or so west of Alice Springs in the Central Desert.

Nyirripi is in the seat of Stuart, won by the CLP’s Bess Price.

I sought confirmation of the allegation of official misconduct from the NT Electoral Commission on 29 August, asking:

…the complaint is that at the Nyirripi mobile polling booth on 16 August the polling official was alleged to be directing people to vote for the CLP candidate while that official was performing their official duties. I also understand that person was alleged to be checking with people that they had actually voted as directed.that:

By this time I’d heard of another allegation of similar conduct by a locally-engaged polling official at the large Aboriginal town of Wadeye, south-west of Darwin.

Wadeye is in the seat of Daly, won by the CLP’s Gary Higgins and the first of Labor’s remote seats to fall.

In relation to that allegation I asked the NT Electoral Commission:

As I understand it at the Wadeye booth on 25 August (or at a nearby mobile booth or booths) the NT EC engaged a local interpreter/assistant by the name of XXXX XXXXXX.

I am informed that the person named above prompted or told people in language that they should vote for the CLP. (I have removed the name of the person identified in my email)

I also asked the NT Electoral Commission to confirm whether any specific complaints had been made about these matters and whether they had commenced or were considering any formal investigations into the alleged conduct.

Despite a verbal assurance that I would get a response later that day I heard nothing further. I asked again on 10 September, and again yesterday morning. I’m not alone in the media – locally or nationally – in getting little of any value out of the NT Electoral Commission in response to serious questions.

I sent requests for comment on the general and specific issues I raised with the NT Electoral Commission to all parties that contested the election. Most, including the CLP, responded to the general argy-bargy issues.

The CLP – after further prompting for a response to the allegations of official misconduct raised in my email to the NT Electoral Commission – declined further comment.

There has been an ugly cloud of silence hovering over these matters for the last few weeks. That cloud burst yesterday.

I missed the midday presser by Labor leader Delia Lawrie as I drove south out of Darwin for work and it wasn’t until I stopped six hours and six hundred kilometres later and checked my emails that I realised what a cloudburst it had been.

The first item in my inbox was a brief two-page legal advice to Labor from eminent public lawyer – he wrote my Constitutional Law textbook at University all those years ago – Peter Hanks QC.

Hanks QC’s advice of 14 September said in part:

“1. … I am instructed that, on that day [25 August] the person appointed to be an officer for the Electoral Act under s. 330(1) was present at the Wadeye polling place, and acted as an interpreter for voters …

2. … I have been provided with 7 statutory declarations by voters, each of which alleges that XXXXX XXXXX told that voter to “Vote for Gary“.

3. … I am instructed that Gary Higgins was the CLP candidate for the electorate of Daly and was elected at the poll.”

All Australian jurisdictions – except the NT – have general offences relating to an electoral official contravening a provision of local electoral law.

The NT does share with the other jurisdictions the specific offence for an electoral officer to attempt to influence the vote of another person.

In the NT Electoral Act, s. 266(2) provides that:

(2) An officer must not, in exercising a power or performing a function under this Act, do anything to influence the vote of another person at an election.

Maximum penalty: If the offender is a natural person – 200 penalty units or imprisonment for 12 months.

If the offender is a body corporate – 1 000 penalty units.

I’ve spent more than a few hours scanning the physical and on-line law reports and journals and have not yet located any reports of prosecutions – in the NT or any other Australian jurisdiction – of an electoral official for breaching similar provisions.

The NT may be uncomfortably close to setting a very unfortunate precendent here.

Peter Hanks QC’s advice in regard to s. 266(2) is that:

7. If the facts as alleged in the 8 statutory declarations are accurate, several offences against s. 266(2) of the Electoral Act (NT) were committed at Wadeye … offences that seriously threaten the integrity of he operation of the Electoral Act (NT) and the system of representative government in the Northern Territory.

8. It is at least possible that similar illegal statements were made to other voters at the polling place at Wadeye. In any event, if the statement referred to in the 8 statutory declarations were made during the polling, that would be an indictment of the quality of training and supervision provided by the [Electoral] Commission.

The second item in my inbox was a presser from Delia Lawrie that told of the referral of several:

” … extremely serious allegations of breaches of the Electoral Act from the recent Northern Territory election to the police and are calling for a full Judicial Inquiry.

It referred to the Wadeye statutory declarations the subject of Peter Hanks QC’s advice above then had the following in relation to the Nyrripi issue I had raised with the NT Electoral Commission four days after the election:

The alleged breaches include:

A Statutory Declaration declaring that an Electoral Commission official was instructing people to vote for the CLP inside the Nyrippi booth. The ALP understands that two officials were suspended by the Electoral Commission in relation to this incident.

The ALP has been informed of many irregularities across several remote electorates but most people were unwilling to risk the potential retribution resulting from putting their name to a Statutory Declaration.

Such breaches undermine the democracy of the Northern Territory. Nothing less than a full independent Judicial Inquiry under the Inquiries Act is required for faith in our democratic system to be maintained.

Whether Labor gets its Judicial Inquiry is in the hands of newly-elected CLP Chief Minister Terry Mills.

Allegations of unlawful conduct contrary to the Electoral Act would be investigated by the NT Police. NT Chief Minister Terry Mills is also the Minister for Police, Fire and Emergency Services.

The results of the NT election were declared on 3 September 2012. An application to the Court of Disputed Returns to dispute the validity of an election may be made up until 19 October 2012 with the Supreme Court of the NT.