NSW Electoral Commissioner v Kempsey Shire Council

94 ALJR 140; [2019] HCA 50 Hansen v Electoral Commissioner (2004) 132 LGERA 296; [2004] NSWSC 348 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 In re Parliamentary Election for Bristol South East (1964) 2 QB 257 Liston v Davies (1937) 57 CLR 424; [1937] HCA 22 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 MZAPC v Minister for Immigration and Border Protection & Anor (2021) 95 ALJR 441; [2021] HCA 17 Peek v NSW Egg Corporation (1986) 6 NSWLR 1 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re Wood (1988) 167 CLR 145; [1998] HCA 22 Roberts v Jeffery & 4 Ors [2003] NSWSC 162 Tanti v Davies (No 3) [1996] 2 Qd R 602 Category: Principal judgment Parties: NSW Electoral Commissioner (Plaintiff) Kempsey Shire Council (First Defendant) Joshua Freeman (Second Defendant) Kerri Riddington (Third Defendant) Anthony Patterson (Fourth Defendant) Alexandra Wyatt (Fifth Defendant) Ian Bain (Sixth Defendant) Vijay Craigie (Seventh Defendant) Simon Fergusson (Eighth Defendant) Elizabeth Campbell (Ninth Defendant) Shellharbour City Council (Tenth Defendant) Maree Edwards (Eleventh Defendant) Kellie Marsh (Twelfth Defendant) Singleton Council (Thirteenth Defendant) Susan George (Fourteenth Defendant) Anthony McNamara (Fifteenth Defendant) Valerie Scott (Sixteenth Defendant) Hollee Jenkins (Seventeenth Defendant) Belinda Charlton (Eighteenth Defendant) Godfrey Adamthwaite (Nineteenth Defendant) Daniel Thompson (Twentieth Defendant) Malinda McLachlan (Twenty-first Defendant) Anthony Jarrett (Twenty-second Defendant) Representation: Counsel: Mr J Emmett SC; Ms C Roberts; Mr S Puttick (Plaintiff) Mr M Seymour; Mr C Koikas (First and Thirteenth Defendants) Ms A Wyatt, in person (Fifth Defendant) Mr I Bain, in person (Sixth Defendant) Ms E Campbell, in person (Ninth Defendant) Ms S Palaniappan (Tenth Defendant) Ms M Edwards, in person (Eleventh Defendant) Mr G Ward (Twelfth Defendant) Ms S George, in person (Fourteenth Defendant) Ms P Wright (Eighteenth Defendant) Mr G Adamthwaite (Nineteenth Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Local Government Legal (First and Thirteenth Defendants) Cooney Harvey Doney (Second to Fifth Defendants) Mr I Bain, in person (Sixth Defendant) Cooney Harvey Doney (Seventh to Ninth Defendants) Sparke Helmore Lawyers (Tenth Defendant) Ms M Edwards, in person (Eleventh Defendant) Mr G Ward (Twelfth Defendant) Ms S George, in person (Fourteenth Defendant) No Appearance (Fifteenth to Seventeenth Defendants) PJ Donnellan & Co (Eighteenth Defendant) Mr G Adamthwaite, in person (Nineteenth Defendant) No Appearance (Twentieth to Twenty-second Defendants) File Number(s): 2022/8416

Table of Contents Summary - paragraph 3 Proportional Voting System and the Council Elections - paragraph 8 Shellharbour City Council, Ward A - paragraph 9 Kempsey Shire Council - paragraph 14 Singleton Council - paragraph 16 The "iVote" System and its failure - paragraph 18 The Effect of the Failure of the iVote system - paragraph 22 Dr Teague's Evidence - paragraph 35 The Breach of the LGA in the Conduct of Council Elections - paragraph 43 The Consequences of the Breach - paragraph 55 How is the Materiality of the Irregularity in an Election to be Assessed? - paragraph 76 One Candidate's Election Invalidated or all Candidates' Election Invalidated? - paragraph 87 Discretion: Community Disruption - paragraph 106 Discretion: Personal and Financial Toll on Candidates - paragraph 112 Other Submissions - paragraph 118 Future Progress and Potential Cross-claims - paragraph 122

Judgment

1. The principal issue in these proceedings is what are the legal consequences of the failure on the afternoon of 4 December 2021 of the "iVote" system of technology assisted voting administered by the Electoral Commissioner for New South Wales (the "Electoral Commissioner") on three of the many council elections conducted on that day. The Electoral Commissioner has applied for orders declaring the three elections void in whole or in part.
2. At the outset it is necessary to emphasise that nothing in these proceedings involves any alleged failing much less misconduct on the part of the Councils or any of the candidates, including those who were elected. To the contrary, the Councils and the candidates, including the elected Councillors, are completely innocent of any of the conduct said to have caused the elections to miscarry. They will unfairly bear the consequences of the failure of the iVote system.

Summary

1. By a summons filed on 11 January 2022, the Commissioner applied for declaratory relief to the effect that the elections for Kempsey Shire Council, Singleton Council and Shellharbour City Council‑Ward A conducted on 4 December 2021 were void for want of compliance with regulation 333E of the Local Government (General) Regulation 2021 (the "General Regulation") made under the Local Government Act 1993 (the "LGA"). Each of the affected Councils, as well as the councillors who the Electoral Commissioner later declared elected in those elections, were joined as defendants. The unsuccessful candidates were advised of the existence of these proceedings and the relief sought. They were given the opportunity to be joined. None sought to do so.
2. Given the interests at stake, the proceedings were expedited and heard on 22 and 23 February 2022. Each of the Councils was legally represented as were the twelfth defendant, Ms Kellie Marsh, and the eighteenth defendant, Ms Belinda Charlton. Six other defendants appeared for themselves at the hearing and tendered evidence. Despite the great stress that was occasioned to many of the individual defendants by these proceedings, they were of considerable assistance to the Court.
3. One matter the Councillors pressed very strongly on the Court is the great unfairness that will be occasioned to them should their elections be declared void. If that were to occur, they will then have to consider whether to stand for election without necessarily being reimbursed for the expenditure and time they incurred in securing their election. It was agreed that the Court would address a contention made on their behalf that a condition of granting any relief in respect of the elections is that the Electoral Commissioner reimburse them for their costs and expenses. The possibility that they might bring cross‑claims to recover those costs and expenses was deferred for later consideration, if necessary. The Court was advised that the Electoral Commissioner and the Councils had agreed in principle to the reimbursement of the latter's expenses in the event that any elections were voided.
4. For the reasons that follow, the failure of the iVote system on 4 December 2021 meant that each election was not conducted in accordance with the General Regulation as was required by s 310 of the LGA. Even though the number of voters denied the franchise by the failure of the iVote system was small, the system of proportional representation utilised in local government elections is such that the votes that were denied to those voters had the real potential to affect the election of at least one Councillor in each of the three subject elections. Once that conclusion is reached then the scope of the Court's discretion to refuse to declare the election void in whole or in part is limited. The primary consideration is the interests of the electorate and the cost, stress and inconvenience to the elected cannot be elevated above the electorate's interest in having a Council elected in accordance with the LGA. The most difficult issue is whether the failure of the iVote system means that the election of all of the Councillors in the three subject elections must be voided or only the election of those Councillors whose election was directly affected by the missing votes. With considerable reluctance I consider that, because the system of election for the three Councils is proportional representation, it is necessary to declare all of the Councillors' elections void. Had the Court only declared one Councillor's position void then the result would be a by‑election using the optional preferential system of voting which would undermine the "manifest purpose of the proportional voting scheme of the [Local Government] Act" (Re Wood (1988) 167 CLR 145; [1998] HCA 22 at [21]; "Re Wood"). I will refrain from making declarations immediately to facilitate the timing of the elections and any further consideration of the interests of the Councillors.

Proportional Voting System and the Council Elections

1. The method of counting votes under the proportional system of voting is specified in Schedule 5 to the General Regulation. It uses the single transferable vote system of proportional representation. It is either the same or a very similar system to the system used for elections to the Australian Senate. It is also similar to the "Hare Clark" system that has been utilised in elections to the Legislative Assembly in Tasmania for many years, although that system does not allow above‑the‑line voting which is permitted in Senate and Local Government elections. In any event, the system is accurately described in a report attached to the affidavit of the Electoral Commissioner's "Executive Director, Elections", Mr Simon Kwok, as follows: [1] "The proportional representation system is described in Schedule 5 of the Local Government (General) Regulation 2021. This sets out the Weighted Inclusive Gregory Method (WIGM) of vote counting for councillor elections in NSW. In a proportional voting system, a candidate is elected if they receive votes equal to or exceeding the quota. The quota is determined by first dividing the aggregate number of the first preferences by one more than the number of candidates to be elected. The quotient (disregarding the fraction) is increased by 1 to give the quota. After the count of first preferences is complete, each candidate who has reached a quota is elected. Where an elected candidate has a surplus of ballot papers over the quota, this surplus is transferred to the continuing candidates (i.e. those not yet elected or excluded). If multiple candidates are elected, each candidate's surplus is transferred (one at a time) to the continuing candidates, from the highest surplus to the lowest. To transfer a surplus, all the ballot papers received by the elected candidate are sorted to their next preferred continuing candidate. Each ballot paper is then worth a portion of that surplus. This portion is called the transfer value. Example: if an elected candidate had 100 ballot papers and their surplus was 10 votes, then each ballot paper would be worth 0.1 of a vote. A continuing candidate receiving 20 of these ballot papers would therefore receive 2 of the 10 surplus votes. After each transfer of ballot papers (and their associated votes), if any more candidates have reached quota, they are elected and added to the queue of surpluses to be transferred. This transfer of surpluses continues (one at a time) until all have been transferred. Then, if vacancies remain, the candidate with the lowest number of votes is excluded. All the ballot papers received by this candidate, including those received from surplus transfers, are sorted to the continuing candidates according to their next available preference. This process continues with candidates being: ͦ elected when their votes equal or exceed quota, with their surplus distributed as above or ͦ excluded, with their ballot papers distributed as above until either: ͦ no vacancies remain to be filled or ͦ the number of remaining candidates equals the number of remaining vacancies or ͦ all remaining vacancies can be filled by candidates whose total votes cannot be overtaken by the remaining candidates in the count. In these circumstances, the elected candidates are elected despite not reaching the quota."

Shellharbour City Council, Ward A

1. The operation of this system of voting and the significance of the failure of the iVote system in respect of relatively few votes is best illustrated by the results of the election for the two Councillors representing Shellharbour City Council‑Ward A on 4 December 2021. The first preference count was as follows: Group Candidates in Ballot Order Elected at Count First Preferences Votes A MARSH, Kellie 6,067 2,254 BITSCHKAT, Shane 425 425 Group Total 8,746 8,746 LABOUR 3,577 4,123 B EDWARDS Maree 546 269 MOON Mick 269 4,392 Group Total 4,392 0 Exhausted Formal Voters 13,136 13,136 Informal Ballot Papers 640 640 Total Voters / Ballot Papers 13,778 13,778

1. The heading "Group" reflects that group or "above the line" voting was utilised. This enables voters to simply vote for the group of their choice and their preferences will be allocated in accordance with the preference flows nominated by that group. In this election there were 13,138 formal votes for two positions. The quota for election was one more than the result of dividing the total number of formal votes by one more than the number of elected positions (i.e., 1+13,138/(2+1) = 4,380 votes).
2. The above table reflects the first round of counting for the election. Ms Marsh secured 2,254 first preference votes in her own right and the group of which she was a member secured 6,067 votes. As she was the first candidate for her group, she is taken to have received 8,321 votes (6,067 + 2,254) which was well in excess of a quota. Ms Edwards received 546 votes in her own right and the group of which she was a member secured 3,577 votes. As she was the first candidate for her group, she was taken to have received 4,123 votes (546 + 3,577) which was short of a quota.
3. The result of this first round of counting was that Ms Marsh was elected. In the next round the preferences indicated in her primary votes were distributed. This was done by attributing each vote a transfer value determined by the proportion that her total vote exceeded a quota (i.e., her surplus) bore to her total vote (0.47 = 3,941/8,321). After the preferences in the votes for Ms Marsh were distributed (including the group votes) with that value, Mr Bitschkat had 4,287 votes, Ms Edwards had 4,180 votes and Mr Moon had 295 votes. [2] As neither Mr Bitschkat or Ms Edwards had obtained a quota, the next step was to eliminate the candidate with the lowest number of votes, namely Mr Moon, and distribute the preferences indicated in his votes. Those preferences were assigned a transfer value that represented one full vote. After his preferences were distributed, Ms Edwards had 4,295 votes and Mr Bitschkat had 4,291 votes, a difference of four votes. As neither Ms Edwards nor Mr Bitschkat had received a full quota, and there were no more preferences to be distributed, Ms Edwards was declared elected.
4. This description of the voting rounds and totals reveals the potential effect on at least Ms Edwards election if additional votes had been cast. Ultimately there was only four votes between her and Mr Bitschkat. Even if any additional votes had not been directly cast for him or did not explicitly preference him ahead of Ms Edwards, any additional votes cast for Ms Marsh directly would have affected, albeit marginally, the transfer value assigned to her surplus votes.

Kempsey Shire Council

1. There were eight councillors elected to Kempsey Shire Council. A total of 16,204 formal first preference votes were cast. [3] The quota for a candidate to be elected was 1,801 votes. There were two groups of four candidates and 14 ungrouped candidates. [4] Only two candidates achieved a quota based on first preference votes, namely the eighth defendant (Mr Fergusson) and the ninth defendant (Ms Campbell). The next successful candidate being the seventh defendant (Mr Craigie) was not elected until the seventh count, followed by the sixth defendant (Mr Bain) who was elected on the 13th count. The last three candidates were elected on the 19th count being the second defendant (Mr Freeman), the third defendant (Ms Riddington) and the fourth defendant (Mr Patterson) respectively.
2. The lowest vote total on the final count amongst the three elected councillors for Kempsey Shire Council was Mr Patterson who was elected with 1,413 votes. The other remaining candidate in that round had a progressive total of 1,344 votes. [5] However, one possible indicator of the potential for a small number of additional votes to have affected the outcome can be gauged by noting the margin of votes between the various candidates who were eliminated in the various counting rounds namely: two votes in the fourth count, [6] 25 votes in the fifth count, [7] 19 votes in the sixth count, [8] two votes in the 12th count, [9] 34 votes in the 17th count [10] and 31 votes in the 18th count. [11] With the 14th count, there was a tie for the two lowest candidate totals namely 712 votes for Mr Patterson and another candidate, Ms McGinn. Ms McGinn was excluded on a countback to the previous voting round (General Regulation, cl 9(5) of Schedule 5). [12] In large part due to Ms McGinn's preferences, Mr Patterson was ultimately elected.

Singleton Council

1. There were nine councillors elected to Singleton Council. A total of 12,745 formal first preference votes were cast and the quota for election was 1,275 votes. There were 15 candidates, one of whom was rendered ineligible (and received 3,092 votes). [13] Four candidates achieved a quota on the first count, namely the 19th defendant (Mr Adamthwaite), the 20th defendant (Mr Thompson), the 21st defendant (Ms McLachlan) and the 22nd defendant (Mr Jarrett). The 18th defendant (Ms Charlton) was elected on the seventh count and the 17th defendant (Ms Jenkins) was elected on the tenth count. [14] The 14th defendant (Ms George), the 15th defendant (Mr McNamara) and the 16th defendant (Ms Scott) were elected on the 11th count, which was the last round of counting.
2. Neither Mr McNamara nor Ms Scott reached a quota. Ms Scott's progressive total was the lower of the two. Her progressive total exceeded that of the other remaining candidate, Ms Johnstone, by three votes. [15] Mr McNamara's progressive total exceeded Ms Johnstone's progressive total by 28 votes. [16] Another possible indicator of the potential for a small number of additional votes to have affected the outcome can be gauged by the margin of votes between the various candidates who were eliminated in particular counting rounds, namely four votes in the ninth count [17] and 34 votes in the eighth count. [18]

The "iVote" System and its failure

1. Technology assisted voting was first approved to be used for the 2011 State election. It was subsequently used in the 2015 and 2019 State election. December 2021 was the first occasion in which it was used in local council elections.
2. Technology assisted voting is regulated by Part 11 Division 7A of the General Regulation. Regulation 333D enables an elector to apply to vote in an election by means of technology assisted voting. Such an application has to be made in accordance with the "approved procedures" and must specify the ground on which the application was made. The grounds are reflected in the definition of "eligible elector" in regulation 333C. They include: electors qualified to receive a postal vote who have not received their ballot paper before the eighth day prior to election day; electors with a relevant form of disability; illiterate electors; silent electors; electors who do not reside within 20km of a polling place and electors absent from the area of the election on polling day. There is no out‑of‑area voting for local government elections.
3. Regulation 333F empowers the Commissioner to approve procedures for technology assisted voting. Regulation 333E provides: "333E Electoral Commissioner to determine applications If the Electoral Commissioner is satisfied that an applicant is an eligible elector, the applicant must be permitted to vote at the election by means of technology assisted voting in accordance with this Division." (emphasis added)
4. During election day on 4 December 2021, the Commissioner issued a press release to the effect that a number of voters were unable to gain access to the iVote system due to the high volume of usage. [19] It seems that they were not issued with an approved iVote number.

The Effect of the Failure of the iVote system

1. After the election, the Electoral Commissioner directed Mr Kwok to undertake an analysis of the potential effect of the iVote failure on the results of the mayoral and council elections. It is not necessary to describe the results of the analysis of the mayoral elections other than to note that none are the subject of these proceedings. This seems largely attributable to the fact that mayoral elections do not utilise a proportionate voting system. The proportional voting system tends to exacerbate the effect of a relatively small number of voters being disenfranchised.
2. For the Council elections, Mr Kwok and his staff undertook a preliminary assessment of the consequences of the failure of the iVote system. They ascertained the potential number of additional voters who registered to use iVote but did not receive an iVote number in time for the election. They determined that the total number of those voters was between 0.11% and 1.69% of the total number of electors who cast a vote in each Local Government election. [20] For each of Kempsey Shire Council, Shellharbour City Council‑Ward A and Singleton Council there were 134, 122 and 139 such voters respectively. [21]
3. The first step in the analysis was to identify those council elections that could possibly have had a different result had all the voters who were approved to use iVote been able to cast a vote. [22] This involved determining the minimum number of votes in the counting process that led to a candidate's exclusion at any stage of the vote count or to a candidate not being elected at the last stage of the vote count. [23] For example, based on the above figures, for Singleton Council that number was four votes. If that minimum number was less than the potential number of iVoters who were excluded, then the relevant council election was analysed further. [24]
4. With these Council elections, Mr Kwok and his team undertook a preliminary "Monte Carlo" Simulation Analysis. Each simulation was undertaken by conducting a recount of the relevant Council election using the actual results and a set of hypothetical iVotes which was equal in number to the number of "missing" iVotes. This set of iVotes, including their preferences, was randomly selected from the iVotes that were cast in that election. For each Council election that reached this stage of the analysis, 1,000 simulations were undertaken. [25] Based on the results of the 1,000 simulations, the modelling produced a maximum likelihood estimator ("MLE") which is described as the "best possible estimate of the (unknown) probability of alternative result, given the sample of [1,000] alterations", where an alternative result involved the election of at least one different councillor. [26]

1. For Kempsey Shire Council, the only simulated alternative outcome to the declared result was the election of Mr Mark Baxter instead of Mr Patterson. [28] This result was achieved in 610 of the 1,000 simulations. In December 2021 Mr Baxter was excluded in the 18th count of the 19 counts conducted. [29] For Singleton Council, the only simulated alternative outcome to the declared result was the election of Ms Sarah Johnstone instead of Ms Scott. This result was achieved in 432 of the 1,000 simulations. Ms Johnstone had three votes less than Ms Scott in the final round of vote counting in December 2021. [30] For Shellharbour City Council‑Ward A, the only simulated alternative outcome to the declared result was the election of Mr Bitschkat instead of Ms Edwards. This result was achieved in seventy of the 1,000 simulations. As noted, Mr Bitschkat had four votes less than Ms Edwards in the final round of counting in December 2021.
2. Mr Kwok's team also conducted a simulation analysis that did not use votes (including preference patterns) randomly selected from the actual iVotes cast as the basis for simulating the additional votes but instead randomly selected votes from all ballots cast in that council election. This method produced MLE's for Kempsey Shire Council, Singleton Council and Shellharbour City Council-Ward A of 53.0%, 42.9% and 30.1% respectively.
3. A "sensitivity" analysis was also undertaken for each of these three elections showing the MLE's for varying numbers of missing iVotes using simulations that randomly selected votes from amongst the iVotes cast. The results of that analysis for Shellharbour City Council-Ward A is illustrated by the following graph.
4. The x-axis allows for a variation in the number of additional iVotes that would have been cast had there not been a system failure. The y-axis shows the variation in the MLE number derived from simulating that number of additional votes. The shaded area is the 95% confidence interval. The table shows a reasonably sharp drop in the likelihood of an additional outcome if there were even a few less "missing" iVotes. Although the possibility of there being additional iVotes is not relevant as the maximum number of missing iVotes has been ascertained, the fact that the modelling of the effect of an additional number of iVotes that was more than 54 produced a lower likelihood of alternative outcomes is addressed below.

Dr Teague's Evidence

1. The sixth defendant, Mr Bain, read affidavits from Dr Vanessa Teague. [37] Dr Teague is a cryptographer with a speciality in election security. In 2005 she was awarded a PhD in computer science specialising in cryptography from Stanford University. She has authored a number of papers on election security and has been engaged as an expert consultant in relation to the Swiss e-voting system. She is currently an Adjunct Professor in the Research School of Computer Science at the Australian National University.
2. Part of Dr Teague's first affidavit sets out her concerns in relation to the integrity of the iVote system generally as well as the capacity for electronically recorded voting data in the iVote system to be mis‑recorded or manipulated. [38] These concerns are irrelevant to the Court's function in that the use of the iVote system is authorised and, to an extent, mandated by statute.
3. Dr Teague also explained that she and her team replicated the simulation method of Dr Kwok and his team but used 1,000,000 simulations instead of 1,000. Dr Teague said they found "broadly similar results" to Mr Kwok's team but added the important caveat "if their [i.e., the Electoral Commission's] assumptions are correct." [39]
4. Dr Teague's principal complaint with Mr Kwok's analysis concerns the utility of running simulations based on a random selection of votes that were cast by others in the same election. Dr Teague strongly disagreed with using those votes as the basis for predicting the outcome if the missing iVotes had been cast. [40] Dr Teague opined that there was "no reason to think that voters who were arbitrarily excluded from the franchise would have intended to express political opinions that were identical to those of successful voters" (i.e., voters who successfully invoked iVote). [41] She suggested two reasons why the missing votes may have been different, being that voters who left their iVote registration to the last two days may have formed different voting intentions from those who voted early and the "downtime" in the iVote system may have induced biases in the composition of those who successfully invoked iVote. With the latter she suggested that voters with disabilities, voters who lived outside of the Council area or voters who were in COVID isolation were examples of persons who may have been prevented from voting altogether because of the iVote failure compared to other categories of persons approved to use iVote who could make alternative arrangements to vote. [42]

The Breach of the LGA in the Conduct of Council Elections

1. Chapter 10 of the LGA is entitled "How are people elected to civic office?". Part 3 of Chapter 10 addresses the election system utilised. As I understand the position, each of the subject councils used the method of electing councillors from wards specified in s 280 of the LGA with all of the Kempsey Shire Council area and the Singleton Council area designated as a single ward each. Section 285 provides that: "285 Voting system for election of councillors The voting system in a contested election of a councillor or councillors is to be‑‑ (a) optional preferential, if only one councillor is to be elected, or (b) proportional, if 2 or more councillors are to be elected."
2. Part 5 of Chapter 10 deals with casual vacancies. In light of the careful submission of Mr Ward who appeared for Ms Marsh, it is necessary to consider its provisions closely. Section 291 provides that, subject to the part, if a "casual vacancy" occurs in a civic office the office is to be filled by a "by-election". However, this is subject to s 291A which relevantly provides: "291A Countback to be held instead of by-election in certain circumstances (1) This section applies to a casual vacancy in the office of a councillor if-- (a) the casual vacancy occurs within 18 months after the date of the last ordinary election of the councillors for the area, and (b) the council has at its first meeting following that ordinary election of councillors, by resolution, declared that any such casual vacancy is to be filled by a countback of votes cast at the last election for that office. (2) This section does not apply to a casual vacancy in the office of a councillor if the councillor who vacated office was elected-- (a) in an election using the optional preferential voting system (including the election of a mayor elected by the electors of an area), or (b) in an election without a poll being required to be held. (3) A casual vacancy to which this section applies is to be filled by a countback election conducted in accordance with the regulations. (4) A countback election to fill a casual vacancy to which this section applies must be conducted-- (a) if the election at which the person whose departure created the casual vacancy was elected was administered by the Electoral Commissioner--by a returning officer appointed by the Electoral Commissioner, or (b) if the election at which the person whose departure created the casual vacancy was elected was administered by a returning officer appointed by an electoral services provider engaged by the council--by a returning officer appointed by the electoral services provider. (5) If a countback election fails or the returning officer is otherwise unable to fill the casual vacancy by a countback election-- (a) the returning officer must notify the general manager of the council concerned, and (b) a by-election in accordance with this Part must be held to fill the casual vacancy. (5A) ... (6) ..."

The Consequences of the Breach

1. It seems unlikely that any election of some complexity could be completely error‑free including errors that amount to a breach of the governing legislation. Some legislative schemes for elections establish a court of disputed returns and confer on them a jurisdiction to hear and determine complaints about the conduct of elections. They often specify a threshold test for the materiality of any breach of the relevant legislation (or other conduct) to the outcome before the court can overturn the result (see for example Electoral Act 2017, s 237). There is no such court for local government elections. Instead, this Court exercises its judicial review function confirmed by ss 23 and 69 of the Supreme Court Act 1970 to determine the consequences that follow from the breach of s 310 of the LGA.
2. Mr Seymour also pointed to s 70 of the Supreme Court Act 1970 which empowers the Court to grant an injunction to restrain a person from acting in an office in lieu of the laying of an information in the nature of quo warranto seeking ouster of office. Mr Seymour referred to Liston v Davies (1937) 57 CLR 424; [1937] HCA 22 ("Liston v Davies") where such an information was laid in a challenge to a Local Government election. In Liston v Davies Dixon J traced the history of the information to its criminal origins (at 431) and noted that the writ could be obtained by any private individual (at 433). It is unnecessary to consider this further for two reasons.
3. First, because the primary relief sought in this case is declaratory relief and s 75 of the Supreme Court Act 1970 is more than a sufficient basis for its grant when considered in combination with ss 23, 69 (and 70). A declaration as to the voidness of the election, if appropriate, is necessary to engage s 318 of the LGA which is described next.
4. Second, although both the Kempsey Shire Council and Singleton Council took issue with the Electoral Commissioner's standing (as opposed to the Electoral Commission), I accept that he has a sufficient "special interest" in the conduct of the elections to enable him to bring these proceedings (Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 590 - 591; [1980] HCA 53). Part 6 of Chapter 10 of the LGA and Part 11 of the General Regulation is replete with provisions conferring various functions on either the Electoral Commissioner, the "election manager" which in this case was the Electoral Commissioner (regulation 275) or the returning officer he or she appoints (e.g., LGA, ss 296B, 298 and 302; General Regulation, regulations 314A, 317 and 350). The provisions of the General Regulation concerning technology assisted voting described above confer the function of considering and approving applications to use that method of voting on the Electoral Commissioner. Being a public officer entrusted with such authority in the conduct of the three elections, the Electoral Commissioner has standing to bring these proceedings (see Peek v NSW Egg Corporation (1986) 6 NSWLR 1 at 5 to 6).

How is the Materiality of the Irregularity in an Election to be Assessed?

1. Some of the cases addressing the effect of an irregularity or breach of the electoral provisions have involved a candidate being disqualified or votes being wrongly rejected or wrongly counted in circumstances where the voter's intention can be ascertained. Generally, in these cases the likely effect of the irregularity on the outcome can, to an extent, be ascertained, although the observations of Cole JA in Bourne v Murphy (above at [71]) illustrate that, even then, uncertainty can ensue. However, this case involves the wrongful denial of the franchise to voters so that there is no, or at least no direct, evidence of the disenfranchised voters' intent. In these circumstances how does the Court assess whether their disenfranchisement was material to the outcome?
2. In Australian Electoral Commission v Johnston & Ors (2014) 251 CLR 463; [2014] HCA 5 ("Johnston"), Hayne J, sitting as the Court of Disputed Returns, determined three election petitions challenging the half senate election for Western Australia in the September 2013 Federal Election. The election for the last two of the six positions was close and a recount was directed. During the recount 1,370 ballot papers could not be found. During the first count at the "fiftieth exclusion point" only 14 votes separated the two candidates with the lowest progressive totals. The lowest candidate was excluded and that candidate's preferences were critical to the election of the fifth and sixth candidates. If the position had been reversed then two other candidates would have been elected (at [40] to [42]). During the recount without the missing votes, the position was reversed with the candidate who was excluded at the "fiftieth exclusion point" on the first count now leading the other candidate by twelve votes (at [50]).
3. Section 360 of the Commonwealth Electoral Act 1918 (Cth) conferred on the Court of Disputed Returns a power to declare that a person who was returned as elected, was not duly elected and to declare any election absolutely void. Section 362(3) placed two restrictions on the power to declare an election void on account of a specified "illegal practice", namely that the result of the election was "likely to be affected" and that it is "just" to so order (at [56]). One part of s 365 provided that "if any elector, on account of absence or error of, or omission by, any officer, [was] prevented from voting in any election, the Court shall not, for the purpose of determining whether the absence of error of, or omission by, the officer did or did not affect the result of the election, admit any evidence of the way in which the elector intended to vote in the election." Hayne J held that the loss of the votes meant that the voters who cast them were "prevented from voting" and therefore rejected evidence of the records from the first count which were said to indicate what those voters' intentions were (at [100]). His Honour found that it was likely that the result was affected, reasoning as follows (at [11]): "The number of ballot papers lost far exceeded the margin between relevant candidates at a point in the count determinative of who were the successful candidates for the fifth and sixth Senate places …. That margin was assessed on the fresh scrutiny to be 14 votes in favour of one candidate and, on the re-count of available ballot papers, 12 votes in favour of the other. Without evidence of the voting intentions recorded in the lost ballot papers, the conclusion that the result which was declared was likely affected by the loss of the ballot papers is inevitable."

One Candidate's Election Invalidated or all Candidates' Election Invalidated?

1. As noted, the breach of s 310 of the LGA that resulted from the failure of iVote occurred in the conduct of the election of all the elected councillors. Leaving aside the various matters raised by the defendants which were said to affect the Court's discretion to declare an election void, the next issue that arises is whether the conclusions reached to this point warrant a declaration that the election of all the Councillors in each election were void or a declaration concerning only those Councillors whose own election was directly affected by the failure of iVote. Although I have made findings about the materiality of the breach, those findings do not address whether the breach was material in relation to the election of those candidates who would clearly have been elected even if the breach of s 310 did not occur, such as Ms Marsh with Shellharbour City Council-Ward A, Mr Ferguson and Ms Campbell with Kempsey Shire Council and Mr Adamthwaite, Mr Thompson, Ms McLachlan and Mr Jarret with Singleton Council.
2. The potential for the invalidation of the election of all the councillors arises from the prescription in the LGA that the proportional system of voting must be used to fill Council elections for more than one position (s 285). This aspect of the LGA seeks to secure to the electorate an elected Council which is not so much comprised of councillors who each have the support of a majority of the electorate but instead councillors who in their totality reflect the choice of the entire electorate in proportion to their numerical strength. Senior Counsel for the Electoral Commissioner, Mr Emmett SC, contended that there were some "interpretative considerations" which supported the conclusion that each election in their entirety should be declared void such as the "potential interdependence of candidates standing in a single electorate" as reflected in various provisions of the LGA such as ss 308A to 308D and s 309(3). [59] Equally he accepted that there was "considerable force" in the contention that only one position for each Council should be declared invalid.
3. Against that, most of the defendants submitted that any declaration should be limited so that it does not require the re-election of all the Councillors. Mr Seymour contended that to declare all the positions void would be a disproportionate outcome. [60] Similarly, Ms Wyatt noted that two of the candidates in the Kempsey election, Mr Ferguson and Ms Campbell, were elected on first preference votes [61] and contended that the "missing" 34 iVotes could not have affected the election of the next two candidates including herself. [62] In a further submission dated 14 February 2022, Ms Wyatt closely analysed the data attached to Mr Kwok's affidavit. She submitted that her election was not affected by the error with iVote [63] and contended that it could not be proved "beyond reasonable doubt" that an additional "43 votes would change the outcome of the Kempsey Local Government election". [64] Presumably the reference to 43 votes is meant to be a reference to 34 votes. Otherwise, it is not suggested that an effect of the outcome should or can be proved beyond reasonable doubt. The materiality threshold is not that high.

Discretion: Community Disruption

1. Various reasons were put forward by the defendants which were said to warrant the Court exercising its discretion and declining to declare any of the elections void in whole or in part.
2. The Manager of Governance and Information Services at Kempsey Shire Council, Daniel Thoroughgood, swore an affidavit describing the (substantial) costs borne by the Council in conducting the election that would be effectively wasted if the election had to be conducted again. [68] He described the Council election as "adversarial" and listed various statements and advertisements including on social media about the Council or the candidates that could be generously described as robust and, in some cases, false or offensive. [69] He states that he had been told by several candidates including elected Councillors that, if a fresh election were called, they may not run again due to the time and resources involved and because they found the campaign a "particularly negative experience". [70] The General Manager of the Council, Mr Milburn, swore an affidavit to similar effect. [71]
3. The Chief Executive Officer of Shellharbour City Council, Ms Carey McIntyre, swore an affidavit which made the same points in relation to that Council's election including the cost to the Council and ratepayers, the difficulty in conducting another election in pandemic conditions, the loss of faith amongst voters in the integrity and utility of Council elections and the disruption to the business of Council from having one or two Councillor positions in doubt until a further election is held. [72] The same points were made on behalf of Singleton Council in an affidavit sworn by its general manger, Jason Linnane. [73]
4. Ms Palaniappan's written submissions identified five reasons why, as a matter of discretion, a declaration should not be made. [74] First, she referred to the cost of the new election being borne by the ratepayers, although I understand that it is anticipated that some arrangement will be reached between the Councils and the Electoral Commissioner. Second, she referred to the evidence set out above concerning the inconvenience and disruption caused by another election and submitted that elector confidence would be undermined if another election is held. [75] Third, Ms Palaniappan referred to the risks from holding another election in a pandemic. [76] Fourth, Ms Palaniappan referred to the possible damage to the reputation of the Councils. [77] Fifth, Ms Palaniappan submitted that, given the passage of time, it is not possible to conduct the same election again including by reason of the publicity given to these proceedings. [78] Mr Seymour made submissions to similar effect. [79]

Discretion: Personal and Financial Toll on Candidates

1. All of the councillors who either appeared at the hearing or lodged submissions contended that a full re-election should not be ordered because of the cost to the Councils and the personal and financial cost to each of the Councillors if they decided to run again in the election. Mr Seymour also made that submission. [81] In the alternative the Councillors contended that the grant of any form of relief sought by the Electoral Commissioner should be conditional on the payment of their costs and expenses of the election in December 2021.
2. To this end Ms Riddington provided a list of the expenses she incurred and her time records. She asked the Court to "acknowledge that running for Council carries significant personal costs to candidates in both time and money", [82] a proposition that no reasonable person could deny. An affidavit sworn by Ms Wyatt was to similar effect. [83] Ms Wyatt said that she felt "deep shame and embarrassment at having been named as a defendant in the Supreme Court, as this conjures perception[s] of significant wrong-doing and criminal conduct". [84] Her oral submissions reinforced the genuineness of this belief. [85] Ms Campbell made the same point. [86] Both Mr Bain's affidavits referred to the considerable time and expense he and other candidates had devoted to his election. [87] Ms Campbell also swore an affidavit to that effect [88] as did Ms Marsh. [89]
3. Ms Charlton swore two affidavits describing in detail her efforts to become elected as an independent candidate. [90] This included self-funding her campaign. She "spent 30 days straight including weekends and evenings out in the community delivering brochures, talking to people and listening to people and ensuring that election material was maintained at election venues". [91] She recounts that, after these proceedings were commenced, she was approached by a resident who accused her of wrongdoing. She says that she has exhausted all her funds and, if the election is declared invalid, she cannot afford to run again. [92]
4. Ms Wright who appeared on behalf of Ms Charlton made detailed submissions in support of the two propositions noted above (at [112]). Ms Wright pointed to her client's evidence that she will not be able to afford to run for office again if a new election is ordered. Ms Wright submitted that those who voted for her at the election in December 2021 will be denied the opportunity to vote for her at any new election and that would not be in the public interest. [93] Ms Wright noted that her client was entitled to rely on the Electoral Commission properly performing its functions. [94] Ms Wright contends that the failure was entirely the failure of the Electoral Commission and it had been on notice of the potential for the failure for many years. Ms Wright also submitted that her client would suffer a "practical injustice" if her expectation that the election would be properly conducted was defeated by a declaration that it be declared void (citing WZARH and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6). [95] Ms Wright also submitted that a declaration that the election was void would be disproportionate "when assessed against the impact on" the individual defendants, that is the elected Councillors. [96] In oral submissions Ms Wright contended that the prejudice occasioned was so great that no relief should be granted at all. [97] Insofar as it was submitted that any relief should be granted conditional on the reimbursement of the individual Councillors of their expenses, Ms Wright contended that that was a "reasonably practicable means of achieving the plaintiff's stated purpose". [98]

Other Submissions

1. I will briefly address the balance of the submissions made by the defendants.
2. Some of the defendants sought orders for a Court‑ordered apology from the Electoral Commissioner. [99] I have no power to make such an order and for the reasons just stated it cannot be made a condition of declaratory relief.
3. Mr Bain's principal submission, namely that it would be arbitrary to declare these three Council elections void but not others has already been addressed. Mr Bain also noted that due to the postponement of the December 2020 Council elections to December 2021 the duration of the term of the current Councillors was reduced to two years and nine months and that would be further eroded by having another Council election. [100] Those contentions have also been addressed. The Councils still have a substantial term to run. Mr Bain also anticipates that voter turnout will be lower than that which occurred at the original election and any re-election will confer on well-resourced candidates an unfair advantage. [101] To similar effect, Mr Ward contended that an election for both positions in Shellharbour City Council-Ward A would disadvantage Ms Marsh's independent group and potentially advantage Ms Edwards' group which has the endorsement of a major political party. As noted, the object is not to attempt to ensure a repeat of the December 2021 election, but a Council elected in accordance with the LGA. Otherwise, the Court is in no position to assess the capacity of the candidates to stand for election and should generally refrain from doing so.
4. Finally, I note that in a submission dated 24 January 2022, [102] Ms Wyatt referred to other alleged failings on the part of the Electoral Commission in the conduct of the election including its alleged failure to provide information to voters that there would be no out‑of‑area voting and that electoral material could not be distributed within 100m of polling booths. [103] Ms Wyatt contends that these factors affected the election outcome and that it was artificial to attempt to isolate the effect of the failures with iVote. [104] The Court cannot and did not conduct some form of general inquiry into the December 2021 elections. Instead, its only function has been to determine whether there was a breach of the LGA in connection with the election for the three subject Councils and its consequences. The only alleged breach that was properly litigated was the alleged breach of s 310 of the LGA and regulation 333E of the General Regulation.

Future Progress and Potential Cross-claims

1. It follows that, at some point, the Court will make declarations that each of the three subject elections were void and this will necessitate a full election for each of Kempsey Shire and Singleton Councils and both positions in Shellharbour City Council-Ward A. As noted, such an election will have to occur within three months of the declaration. At present, there are various contingencies affecting an election in that period including an impending federal election, the pandemic and perhaps the recent flooding. Accordingly, I will defer making the declarations now but hear from the parties about when they should be made. Needless to say, it cannot be delayed for an extended period.
2. This leaves the question of the candidates' expenses and the potential for them to cross‑claim against the Electoral Commissioner. At various points the possibility that the candidates could sue the Electoral Commissioner in negligence has been raised. It suffices to state that such proceedings would be complex and raise some novel issues. It is difficult to envisage such cross‑claims being able to be resolved before the time in which the Court would be obliged to make declarations.
3. At present the successful and unsuccessful candidates will unfairly bear the burden of the failure of the iVote system that was administered by the Electoral Commissioner. I have already accepted that a failure of the iVote system resulting in a new election is likely to cause a loss of faith in the electoral process. That loss of faith will only be exacerbated if candidates are forced out of standing because they cannot recover at least some of the resources expended in the December 2021 election. Both Ms Riddington and Ms Wyatt submitted that "[i]f indeed the election is ruled invalid and a new one called [we] contend that the [Electoral Commissioner] has a moral and ethical responsibility to meet all associated costs, including the reimbursement of campaign and legal expenses incurred by all defendants during and subsequent to the original (invalid) election." [105] The force of this contention is obvious. Although the Court has no power to order it, one potential response that might alleviate some of the hardship is a pool of ex gratia funds that would allow some recoupment of expenses for successful and unsuccessful candidates up to a capped amount.

Endnotes

1. Annexure E to the affidavit of Simon Kwok sworn 10 January 2022 (Kwok1") at 48 Court Book ("CB") at 57.
2. Annexure B to the affidavit of Simon Kwok sworn 21 February 2022 ("Kwok2") at 47; CB 142.
3. Kwok2 at 12 to 13; CB 107 to 108.
4. Kwok2 at 13; CB 108.
5. Kwok2 at 32; CB 127.
6. Kwok2 at 15 to 16; CB 110; 111.
7. Kwok2 at 17; CB 112.
8. Kwok2 at 17 to 18; CB 112 to 113.
9. Kwok2 at 24; CB 119.
10. Kwok2 at 30; CB 125.
11. Kwok2 at 31; CB 126.
12. Kwok2 at 25; CB 120.
13. Kwok2 at 34; CB 129.
14. Kwok2 at 33; CB 128.
15. Kwok2 at 44; CB 139.
16. Kwok2 at 44; CB 139.
17. Kwok2 at 39; CB 134.
18. Kwok2 at 41; CB 136.
19. Kwok1 at 53; CB 44.
20. Kwok1 at [20]; CB 14.
21. Exhibit A
22. Kwok1 at 52; CB 61.
23. Kwok1 at 52; CB 61.
24. Kwok 1 at 52; CB 61.
25. Kwok1 at 54 to 56; CB 63 to 65.
26. Kwok1 at 55; CB 64.
27. Kwok1 at [23]; CB 15.
28. Kwok2 at 11; CB 106.
29. Kwok2 at 31; CB 126.
30. Kwok2 at 44; CB 139.
31. Kwok1 at 78; CB 87.
32. Tr 22/02/2022 p 23.8
33. Tr 22/02/2022 p 27.35
34. Tr 22/02/2022 p 27.41; p 28.10
35. Exhibit A.
36. CB 749
37. Affidavit of Vanessa Teague sworn 27 January 2022 ("Teague1"; CB 620). Affidavit of Vanessa Teague sworn 11 February 2022 ("Teague2"; CB 656).
38. Teague1 (CB 626) at [22] to [43].
39. Teague1 (CB 623) at [13].
40. Teague1 (CB 621) at [5] to [16].
41. Teague1 (CB 621) at [5].
42. Teague1 (CB 622) at [7].
43. Tr 23/02/2022 p 120.49.
44. Teague1 (CB 623) at [17].
45. Teague1 (CB 624) at [18].
46. Teague1 (CB 625) at [17].
47. Teaue1 (CB 629) at [42].
48. Affidavit of Craig Milburn sworn 15 February 2022 ("Milburn"; CB 190) at [5]; CB 696ff; CB 788 at [3].

Amendments 17 March 2022 - [Coversheet] - Counsel representing the plaintiff amended. 18 March 2022 - [10], final sentence - mathematical calculation amended 21 March 2022 - [16], [17], [28] - "Mr Scott" amended to read "Ms Scott". [26] - Reference to "seven" elections amended to read "six". [28], penultimate sentence - "seven" of the 1,000 simulations amended to read "seventy" of the 1,000 simulations. [63] - "s 381(b) of the Local Government Act", amended to read "s 318(b) of the Local Government Act". [111] - 4 December "2022", amended to read "2021". 11 April 2022 - Coversheet, [54] and [[111] - References to "Commission" amended to read "Commissioner" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2022