'Wholly void' election of Aboriginal member a 'landmark case'


A lawsuit that could see the newly elected Independent Member for Nhulunbuy lose his seat, has been described as a landmark case by a Northern Territory legal academic.

By Emilia Terzon

Related Story: The fight for the remote seat of Nhulunbuy explained


Key points:
  • Yingiya Mark Guyula elected to seat of Nhulunbuy in August NT election
  • Electoral commission labels his win "wholly void" over membership to local authority
  • Legal experts argue the clash is due to poor communication about law

Court documents lodged by the NT Electoral Commission (NTEC) allege Yingiya Mark Guyula's election earlier this year was "wholly void" because he was a member of a local authority in Arnhem Land and paid in that role.

"[Mr Guyula] was paid by the East Arnhem Regional Council (EARC) the sums of $119, $119, $121.28 and $123.05 respectively for his attendance at the meetings," an application filed in October by the Commission alleged.

In a reply lodged to the Court of Disputed Returns last week, Mr Guyula admitted he was paid to attend several meetings, but argued he did not attend as a member of the local authority.

"[Mr Guyula] denies that he attended or understood himself as attending those meetings as a member of the Milingimbi Local Authority, but rather as an interested and responsible community member and senior elder in customary Aboriginal law who was expected by his community and by Aboriginal customary law to participate in such gatherings on the community's behalf," the reply stated.

Darwin-based legal academic Dr Danial Kelly has studied the intersections of Australian law and Aboriginal customary law in Arnhem Land, and spoke to Mr Guyula about his case.

"This case is a classic example of Australian law clashing with Aboriginal law," Dr Kelly said.

"It's a scenario that's played out many, many times in Aboriginal communities throughout the Northern Territory."

But Dr Kelly said Mr Guyula's case was unique in the NT because of its application to electoral law.

"If it's land law matters, there's many. But this is a unique thing because it's electoral law," Dr Kelly said.

"There is a negligible, almost no effort, made by Australian governments to communicate to Aboriginal people what the Australia law is.

"For the many Aboriginal people in the Northern Territory who live in remote communities and traditional lifestyles, to some extent, they simply do not have the opportunity or means to even understand what the Australian law is."

East Arnhem residents confused by new local authority

Another section of Mr Guyula's reply to the Court alleged the establishment of the Milingimbi Local Authority in March 2014 left Mr Guyula and other residents "confused as to the nature, role, functions and powers (if any) of the then proposed Local Authority".

It further alleged Mr Guyula was not "validly appointed" to the authority and that, regardless if he was, his appointment expired before the Northern Territory election in August.

This challenged the Commission's allegation that Mr Guyula was initially appointed for a two-year period, which was later extended to four years.

"In his capacity as member of the Milingimbi Local Authority, the respondent attended its meetings on 15 October 2014, 19 December 2014, 16 December 2015 and 20 April 2016," the NTEC's court application stated.

"At those meetings, the respondent moved and/or seconded resolutions passed by the Milingimbi Local Authority."

The other candidates referred to in the NTEC's application are Labor's Lynne Walker, Independent Jackson Anni and Country Liberals candidate Charlie Yunupingu.

Ms Walker lost the seat to Mr Guyula by just eight votes on a two-candidate preferred basis.

If found to have been a member of the authority at the time of the election, the court could force a by-election in the seat of Nhulunbuy or declare Ms Walker the winner.

Ms Walker was in line to become the NT Deputy Chief Minister in the newly elected Gunner government.

East Arnhem Regional Council declined to comment.

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Explainer: A Yolngu politician, Australian law, and the fight for the remote seat of Nhulunbuy



In a surprise twist to an already unexpected result, Nhulunbuy's independent Yolngu politician Yingiya Mark Guyula might yet lose his seat in the Court of Disputed Returns. The election of Mr Guyula was one of the biggest upset wins in the Northern Territory's August 28 election.

But now the Northern Territory's Electoral Commission has declared the result void, meaning it has no legal effect, and the matter has gone to court.

One expert said this was a unique case, where Aboriginal law has clashed with Australian electoral law.

So what happened, and what happens next?

What was the election result?

The seat of Nhulunbuy covers the north-eastern tip of Arnhem land, taking in the mining town of Nhulunbuy itself as well as Aboriginal communities including Galiwinku and Yirrkala.

It had been held by Labor since 1980 and by Lynne Walker since 2008.

In March the ABC's election analyst Antony Green predicted that Ms Walker would comfortably win the seat again, but with a margin reduced from 19 down to 14 per cent.

Instead, pushed ahead by preferences and after a nail-biting wait for the postal vote deadline, Mr Guyula won by just eight votes.

Who is Yingiya Mark Guyula?

Two days before the Electoral Commission declared his election win void, Mr Guyula gave his maiden speech in the Northern Territory Parliament.

He introduced himself as Liya-dhalinymirr Djambarrpuyungu leader.

"Let me begin by saying this is not something that I wanted to do. I did not want to become a politician but we Yolŋu have tried many ways of gaining recognition of Yolŋu law, and none have worked. I am here as an elected member but also as a diplomat ... bringing two parliaments together," he said.

He described his childhood in Galiwinku, where he learnt traditional skills from his father before entering the mainstream school system at the age of 10, later working in aircraft maintenance before earning his private pilot's licence in Victoria.

At the end of the speech, on behalf of the Yolngu Nations Assembly, he tabled a letter which he said was a declaration of ongoing sovereignty and an invitation to work towards the mutual acceptance of Yolngu and Australian law.

He said he would represent both Yolngu and Balanda (non-Aboriginal) people in the seat, and would keep working to secure a treaty.

Where does court action come into this?

Two days later, on Thursday October 20, the Electoral Commission released a statement saying that it had "received information" from a government department and the East Arnhem Regional Council.

The commission said the department and council records showed that Mr Guyula was a member of the Milingimbi Local Authority, one of nine local authorities that report to the regional council.

The law in the Northern Territory prevents someone who holds a public office from running in an election.

The Electoral Commission said that it would bring the matter to the Court of Disputed Returns, based on advice of the Northern Territory Solicitor-General.

What happens now?

Both parties have made submissions to the court on the case.

The Electoral Commission's submission states that Mr Guyula's election was "wholly void" because he was a member of the local authority and paid a small allowance for the role.

Mr Guyula has lodged a reply and said that he did not understand himself to be attending the meetings as a member of the local authority, but as a responsible community member and senior elder.


A professor of law at Charles Darwin University, Dr Danial Kelly, said the matter was a "classic example" of Australian law clashing with customary Aboriginal law.

"It's a scenario that's played out many, many times in Aboriginal communities throughout the Northern Territory," he said.

"It's just that because of the profile of this particular case, the issues have been brought into the spotlight."

He said this matter was unusual because it related to electoral law, rather than to a land or criminal matter, but was part of a broader phenomenon.

If the court finds against Mr Guyula it could force a by-election in Nhulunbuy or name Ms Walker as the winner in the seat.

The final decision cannot be appealed.


Ben Smee: Much riding on decision about validity of Yingiya Mark Guyula’s election win in Nhulunbuy 



THE Court of Disputed Returns will ultimately decide the election result in Nhulunbuy.


If the court finds that Yingiya Mark Guyula was ineligible because he was also a member of the Milingimbi local authority, then he should lose the seat.


Electoral law must be sacrosanct. We can’t pick and choose the circumstances in which to apply those rules.


What is less clear is what happens next. Does the court simply hand the election win to Lynne Walker, who lost in the final count by seven votes? Or does it run the election again, effectively allowing Guyula to stand legitimately?


There’s a lot riding on that decision. A lot more than a seat in Parliament.


The election shock in Nhulunbuy threw a new Government badly off its stride. Labor’s long consideration of a legal challenge after the election had little to do with sour grapes, or a desire to build an even bigger majority.


Lynne Walker was popular with her colleagues, respected across her party’s factions and crucial to Michael Gunner’s authority with the party wing.


It was Walker whose support made it possible for Gunner to take the leadership from Delia Lawrie without any serious collateral damage. She stood in between the personalities and the alliances as a voice of reason, respected by the lot.


Without Walker, the new government has appeared at times tentative and indecisive.


Labor has a huge majority, but the government should be wary of its large backbench. The biggest threat to the Gunner Government is that dissent starts to spread, like tropical mould, in the same way that infighting overwhelmed Terry Mills and Adam Giles.


Watch the jockeying begin the second a Minister comes under pressure for poor performance or bad behaviour. Backbenchers Jeff Collins, Scott McConnell, Paul Kirby, Kate Worden and Tony Sievers will before too long push claims for a Cabinet seat. Younger MLAs like Chansey Paech and Selina Uibo will soon come into that mix.


Any shuffling of the deck will mean ultimately bruising egos. And without a calming influence like Lynne Walker, that first reshuffle looms as a very difficult moment for the Gunner Government.


In his maiden speech to Parliament, Yingiya Mark Guyula said he was “here as an elected member but also a diplomat”, a representative of the Yolngu Parliament, a historic presence in the chamber.


His seat in Parliament represented an electoral shift in East Arnhem Land, where the mothballing of the Gove alumina refinery had roughly halved the population in town, and as a result tipped the balance to an electorate with an expanded number of bush communities.



The result highlighted the massive town-bush divide: in Nhulunbuy, the vote was overwhelmingly for Walker. Outside of the town proper, Guyula won massive support.


His election, by just seven votes, did more than just bring to light that divide. Suddenly, it was front and centre of the political debate. Guyula commented, immediately after the election, that “a lot of the time women start the fighting and men end up in jail”. At a time when there is a nationwide push to combat domestic violence, those comments sat uncomfortably in many quarters.


While the discussion might be uncomfortable, the alternative would be to allow the bush-town divide to fester.


There will be some who will find irony in the court process: that an indigenous law man, who won a groundbreaking election victory where he campaigned for a treaty, could be disallowed because of a technicality. That detail may not have had any tangible affect on the outcome.


The irony is heightened when you consider that Guyula represents the disconnect between white people’s laws and the views of traditional people.


If the court declares Walker the winner, it would unfairly disenfranchise thousands of bush voters. If the court decides Guyula can keep the seat, it could create arguments about how far we’re willing to bend the rules and in what circumstances.


The court will ultimately make its decision after hearing complex legal argument.


But the obvious and fair outcome would be to start over and run a by-election.


Given what’s at stake, that would be a very interesting event.