The overall result of the Northern Territory election was never in doubt but, almost two weeks after polling day, three seats remain undecided, including those of the former chief minister and the current deputy Labor leader.
Labor’s Lynne Walker is behind by 10 votes in her remote Arnhem Land seat of Nhulunbuy and has indicated she may take legal action if she loses by five votes or fewer.
Labor won the election with 15 decided seats but Nhulunbuy, as well as Braitling and Katherine, were recounted on Monday because the margins amounted to fewer than 100 votes.
Walker, who was set to become the deputy chief minister in the new government, looked to be in the lead on election night until the electoral commission realised it had distributed preferences on the incorrect assumption that the second lead candidate was the Country Liberal party’s Charlie Yunupingu. The preferences should have flowed to the independent candidate and Yolngu man Yingiya Mark Guyula.
Walker told Gove FM radio the only possible action she could take was if the margin between her and Guyula narrowed to five votes or fewer.
“It can be taken to the court of disputed returns if there is a case that Labor could put,” Walker said.
Amendments to the NT Electoral Act extended the time period for receiving postal votes to two weeks. There are more than 40 yet to come in for Nhulunbuy but about 20 already received were unsigned and invalid, according the the NT electoral commission.
The NT electoral commissioner, Iain Loganathan, told Guardian Australia the commission was able to act on incomplete forms received before polling day, by calling the voter and getting them to go to a booth or resend a form, but it was too late to do anything about invalid forms coming in now.
Guyula ran a campaign centred on calls for a treaty and having an Indigenous voice in parliament representing the mostly Indigenous seat. He had polled 4.3% in his bid for a federal Senate seat in July.
Walker suffered a heavy swing against her last month, after winning in 2012 with 69% of the two candidate-preferred vote.
The results of the three seats will be formally declared on Monday and the chief minister, Michael Gunner, said the government was waiting for the full team to be decided before he allocated ministries at a caucus meeting on Sunday.
So far only Gunner, Nicole Manison as treasurer and Natasha Fyles as attorney general and minister for justice have been sworn in.
In the undecided seats of Braitling and Katherine, held by the former chief minister Adam Giles and his deputy, Willem Westra Van Holthe, there are more outstanding postal votes than the current margins of 23 and 28 respectively.
Both were considered safe seats for the CLP, never having been held by Labor, but after the extraordinary backlash against the government both Giles and Westra Van Holthe are behind.
Only two CLP members, Gary Higgins and Lia Finocchiaro, have been elected, forming the official opposition earlier this week. The decision has upset some independent MPs who claim the CLP should not be the official opposition and have the resources and staff that comes with it, when it is a team of just two. Speak Kezia Purick – an independent who quit the CLP last year – declared the CLP the opposition based on advice from the solicitor general and parliamentary clerk.
The federal independent senator Nick Xenophon told the NT News the decision demonstrated the “cozy duopoly” of the two major parties in the Northern Territory.
Speaking to local radio on Thursday, Xenophon said “it seems a little convenient” that the Labor party was “happy to give the CLP opposition status”.
“Unless you have a strong opposition, you won’t have a strong government,” he said, adding that he believed there were some decisions made by the CLP during the last term of government when the Labor opposition was “not keeping them on their toes”.
