Local Government (Casual Vacancies) Order 2013

The instrument operates through a small set of interlinked legal concepts, primarily: (1) the Councillors Order as the baseline for authorised councillor numbers; (2) the exclusion of recounts and by‑elections in specified circumstances; (3) an administrative sequencing mechanism for multiple vacancies; and (4) specific exceptions for mayoral offices. Each concept is expressed in the Order’s text and linked to the Local Government Act 1993.

Councillors Order as baseline: The Order’s effect is conditional on the Councillors Order taking effect (cl 2). The Councillors Order determines the total number of councillors that “are, in accordance with the Councillors Order, to be elected for the municipal area on and after the day on which the certificate of election is given in respect of the next ordinary election” (cl 4(1)(b)). The municipal areas to which the Order applies are thus those covered by the Councillors Order (cl 3(1) definition).

Exclusion of recounts and by-elections: The operative threshold is whether filling a casual vacancy by recount (s 307 of the Act) or by-election (s 308 of the Act) would cause the council’s total number of councillors to be greater than the total fixed by the Councillors Order (cl 4(1)). Where that test is met the local statutory entitlement to hold a recount or a by-election “in accordance with section 307 or 308” is removed for that office (cl 4(1)). The Order therefore operates as a proviso to sections 307 and 308 of the Act within its geographic and temporal scope.

Sequencing of multiple vacancies: Where more than one vacancy exists and filling all of them would likewise exceed the authorised number, the Order requires the general manager to determine the chronological order in which they occurred (cl 4(2)(a)-(c)). If the general manager is unable to do so, there is an explicit administrative mechanism: notification to the Electoral Commissioner (cl 4(3)) and a prescribed random-draw process performed by the Electoral Commissioner, including physical slips, identical hollow opaque spheres, a container, shaking or rotating, and sequential removal and recording of slips to create the order (cl 4(4)(a)-(g)). The list so produced determines the order in which vacancies are taken to have occurred (cl 4(5)). The detailed physical description in cl 4(4) is notable for prescribing the exact method of randomisation and recordkeeping.

Exceptions and mayoral treatment: Clause 4(6) excludes mayors and deputy mayors from the no-recount/no-by-election rule: the clause “does not apply in relation to a by-election for a mayor or deputy mayor” (cl 4(6)). Clause 4(7) addresses the special case of a mayor vacating both offices: if the councillor office is not to be filled under this clause, a by-election for mayor must be held under s 308(4) of the Act as if s 308(6) did not apply (cl 4(7)). This creates an explicit rule protecting the holding of mayoral by-elections in those circumstances, despite the general exclusion applying to councillor vacancies.

Interpretation and definitions: The Order defines “Act” and “Councillors Order” (cl 3(1)), imports definitions from the Local Government Act 1993 (cl 3(3)), and applies the Acts Interpretation Act 1931 to the Order as if it were by-laws (cl 3(2)). Those interpretative rules set the statutory frame for construing the Order’s provisions.

Procedural responsibilities: The Order places primary day-to-day duties on the council’s general manager (determine order of vacancies; notify Electoral Commissioner if unable to determine) and on the Electoral Commissioner (carry out the prescribed draw and create the ordered list). The Order does not create additional offences, penalties, or extensive administrative powers beyond these specified duties.

In sum, the main concepts are straightforward: conditional exclusion of the normal recount/by-election mechanisms where the Councillors Order reduces councillor numbers; a prescribed administrative method for deciding which vacancies, if any, are filled when multiple vacancies would otherwise lead to an excess; and tailored exceptions for mayoral positions.

The Order affects a narrow set of actors in local government electoral administration. Those who have duties or are materially impacted are listed and described below, with the relevant clauses cited.

Municipal areas and councils: The Order applies only to municipal areas “to which the Councillors Order applies” (cl 4(1) and cl 4(2)(a)). Therefore the primary institutional objects affected are councils within those municipal areas. For those councils, the availability of recounts and by‑elections under ss 307 and 308 of the Local Government Act 1993 is limited where filling a vacancy would result in a temporary councillor count in excess of the number set out in the Councillors Order (cl 4(1)).

Councillors and candidates: Individual councillors who vacate office are directly implicated because their vacated seats may not be filled by recount or by-election under the specified circumstances (cl 4(1)). Prospective candidates and persons who might otherwise be eligible for recounts or by-elections are affected because their statutory path to office by recount or by-election can be removed by operation of cl 4(1).

Electoral Commissioner: The Electoral Commissioner gains a defined operational duty where multiple vacancies exist and the council’s general manager cannot determine the order of occurrence (cl 4(3)-(5)). The Commissioner must perform the prescribed randomisation procedure, manage physical materials (slips, spheres, container), allow other persons present to participate in shaking or rotating the container, extract and open spheres, and record the order on a list (cl 4(4)(a)-(g)). The Electoral Commissioner is therefore the actor who creates the official record of the order of vacancies in such cases (cl 4(5)).

Council general managers: The general manager of the municipal area is obliged to determine the order in which casual vacancies occurred where possible (cl 4(2)(c)). If unable to determine the order, the general manager must notify the Electoral Commissioner that cl 4(4) applies (cl 4(3)). Thus the general manager bears an administrative decisionmaking burden and a notification duty.

Mayors and deputy mayors: While the general exclusion does not apply to by-elections for mayor or deputy mayor (cl 4(6)), the Order specifically addresses the scenario where a mayor vacates both the mayoralty and the councillor seat (cl 4(7)). In that circumstances the mayoral by-election mechanism under s 308(4) must be used as if s 308(6) did not apply, which places the Electoral Commissioner and the council into the mayoral by-election procedures under the Act even if the councillor vacancy is not to be filled (cl 4(7)).

Voters and electorates: Electors in affected municipal areas are indirectly affected. Where the Order prevents a recount or by-election for a councillor vacancy that would otherwise have been held, electors will not participate in that particular recount or by-election. The Order does not itself quantify representational impacts, but it changes the circumstances in which electors can expect a recount or by-election under ss 307 and 308 of the Act.

Administrating department: The Order is administered by the Department of Premier and Cabinet (notified statement at end of instrument). That administrative attribution has implications for oversight and liaison but the Order does not confer new statutory powers on the Department.

Other actors: The Order’s application depends on the Councillors Order and references the Local Government Act 1993; therefore anyone with an interest in councillor numbers, electoral timing, or local government administration in the affected municipal areas , including ratepayers, local political actors, and legal counsel for councils , is indirectly affected by the constraints the Order imposes.

Who does not have duties under the Order: The instrument contains no new offences or penalty provisions, so it does not create criminal or civil sanction regimes targeted at private parties. It also does not expand the powers of the Electoral Commissioner or general manager beyond the specified procedural roles.

In summary, affected parties are local councils in municipal areas covered by the Councillors Order, their general managers, the Electoral Commissioner, councillors and potential candidates for casual vacancies in those councils, and the electors of those councils. The Department of Premier and Cabinet is the administrative home for the Order.

The Order creates specific procedural duties for the council general manager and the Electoral Commissioner and modifies the statutory rights of potential successors to casual vacancies by restricting the availability of recounts and by-elections in limited circumstances. The principal duties and rights are set out below with textual citations.

General manager duties:

• Ascertain whether filling a casual vacancy by recount or by-election would result in a temporary councillor total greater than that specified by the Councillors Order (implicit in the operation of cl 4(1) and cl 4(2)). The Order presumes the general manager is the person who assesses the chronology of vacancies (cl 4(2)(c)).
• Where there is more than one vacancy and the general manager is unable to determine the order in which the vacancies occurred, notify the Electoral Commissioner that cl 4(4) applies in relation to the vacant offices (cl 4(3)). The duty to notify is mandatory , the general manager “is to notify” the Electoral Commissioner (cl 4(3)).

Electoral Commissioner duties:

• Upon notification under cl 4(3), the Electoral Commissioner “is to” carry out the prescribed procedure: prepare slips bearing the name of the person who last held each vacant office; place each slip in a separate identical hollow opaque sphere; place the spheres in a container that allows them to move freely; shake or rotate the container and permit other persons present to do so; remove and open spheres in turn; and record each name on a list in the order in which slips are withdrawn (cl 4(4)(a)-(g)). This is a detailed, mandatory administrative method.
• The Commissioner’s recorded list determines the order in which casual vacancies are to be taken to have occurred, for the purposes of applying the no-recount/no-by-election rule (cl 4(5)).

Modification of electors’ or candidates’ rights:

• The Order removes the statutory right (or at least the statutory mechanism) to hold a recount under s 307 or a by-election under s 308 of the Local Government Act 1993 in circumstances where filling the vacancy would cause the total number of councillors temporarily to exceed the number fixed by the Councillors Order (cl 4(1)). The text states that “no recount or by‑election in respect of the office is to be held in accordance with section 307 or 308, respectively, of the Act” (cl 4(1)). That is an explicit limitation on the availability of those remedies in the specified context.
• The Order preserves the right to a by-election for a mayor or deputy mayor by excluding these offices from the no-recount/no-by-election rule (cl 4(6)). Where a mayor vacates both offices and the councillor office is not filled, the mayoral by-election is still required under s 308(4) as if s 308(6) did not apply (cl 4(7)). This preserves certain electoral rights for mayoral contests even if councillor contests are affected.

Interpretation duties:

• The Order requires that it be construed with the Acts Interpretation Act 1931 as if it were by-laws (cl 3(2)). This has implications for how the general manager and Electoral Commissioner interpret their duties, though the Order itself prescribes clear procedural steps.

Administrative decisionmaking and recordkeeping:

• The general manager must make a factual determination about the sequence of vacancies where possible (cl 4(2)(c)). Where the Electoral Commissioner performs the draw, the Commissioner must create a recorded list documenting the order (cl 4(4)(f)-(g); cl 4(5)). These duties create a small but explicit recordkeeping and procedural burden.

Absence of additional statutory rights or penalties:

• The Order does not create new private rights to challenge the process (no dispute resolution provisions are included), nor does it establish penalties for noncompliance within its text. Duties are imposed on particular public officials and compliance consequences are procedural rather than penal in the instrument itself.

Practical sequence of duties:

1. When a casual vacancy occurs in a municipal area covered by the Councillors Order, the general manager must consider whether filling it would breach the Councillors Order total (cl 4(1)).
2. If more than one vacancy exists and filling them all would exceed the authorised total, the general manager must determine the order of occurrence where possible (cl 4(2)).
3. If the general manager cannot determine order, they must notify the Electoral Commissioner (cl 4(3)).
4. The Electoral Commissioner performs the draw and records the order (cl 4(4)-(5)).
5. The resulting order governs which vacancy(ies) are taken to have occurred first for the purpose of applying the no-recount/no-by-election rule (cl 4(5)).

These are the core duties and the principal modification of rights created by the Order.

The Order contains no express penalty provisions or enforcement mechanisms within its text. It prescribes duties and procedural steps for public officials, but does not create offences, financial penalties, or explicit administrative sanctions for noncompliance.

What the instrument does provide:

• Mandatory language for officials: The Order uses mandatory phrasing , for example, “the general manager . . . is to notify the Electoral Commissioner” (cl 4(3)); “the Electoral Commissioner is to” perform the draw procedure (cl 4(4)). This establishes clear duties on named officials, which ordinarily can be enforced through public law remedies (for example, judicial review) under general principles, but the Order does not itself specify remedial or penalty mechanisms.

What it does not provide:

• No statutory penalties: There are no clauses creating offences, fines or other statutory penalties for failure to notify the Electoral Commissioner, failing to run the draw as specified, or failing to follow the Order’s requirements.
• No enforcement agency: The Order names the Department of Premier and Cabinet as the administering agency (notified statement), but does not authorise that Department to impose sanctions or to directly enforce compliance.

Interaction with the Local Government Act 1993:

• The Order modifies the operation of ss 307 and 308 of the Local Government Act 1993 by stating that recounts or by‑elections “are not to be held in accordance with section 307 or 308” where the specified numerical threshold is exceeded (cl 4(1)). Enforcement of the Act’s remaining provisions and remedies will continue to lie within the Act and general public law mechanisms. The Order does not supplement the Act’s enforcement framework.

Legal consequences of noncompliance (procedural):

• The instrument’s duties are expressed in mandatory terms. In the absence of specific statutory penalties, failures by a general manager or the Electoral Commissioner to comply with these mandatory obligations would be susceptible to ordinary administrative law review , for example, by way of mandamus or other prerogative remedies , if an affected person were to seek judicial relief. The Order itself does not create a private cause of action or specify time-limits or standing for judicial review.

Practical enforcement implications:

• The practical effect of the Order is to remove the statutory procedural right to hold a recount or by‑election in the named circumstances, rather than to create a new sanction. As a result, the principal enforcement concern for compliance is ensuring that responsible officials follow the notification and draw procedures so that the statutory bar is applied in a transparent, documented way.
• The mandatory recording requirement placed on the Electoral Commissioner (cl 4(4)(f)-(g)) creates an evidentiary record that would be central to any review, but the instrument does not itself prescribe what consequences flow from defective or absent records.

Summary:

• The Order prescribes duties on identified public officials and limits the availability of recounts and by-elections in defined circumstances. It contains no express penalty or enforcement provisions within its text. Enforcement of compliance would therefore rely on existing statutory remedies under the Local Government Act, general administrative law, or other applicable legal processes outside the Order itself. All of this must be read alongside the Local Government Act 1993, which remains the principal legislative framework for elections and vacancies.

The Order is explicitly framed as subordinate to and interacting with two principal instruments: the Local Government Act 1993 (the Act) and the Local Government (Number of Councillors) Order 2013 (the Councillors Order). It also invokes interpretative rules from the Acts Interpretation Act 1931. The cross-references in the text determine its legal operation and limits.

References to the Local Government Act 1993:

• The Order modifies the practical application of the Act’s vacancy provisions by providing that, in specified circumstances, “no recount or by-election in respect of the office is to be held in accordance with section 307 or 308, respectively, of the Act” (cl 4(1)). The effect is to displace the operation of ss 307 and 308 for certain vacancies in municipal areas covered by the Councillors Order.
• Clause 4(7) explicitly directs how a mayoral by-election is to be conducted under the Act: if a mayor vacates both offices and the councillor office is not to be filled under this Order, a by-election for mayor is to be held in accordance with s 308(4) of the Act “as if section 308(6) of the Act did not apply” (cl 4(7)). That is an explicit, textually expressed modification of the application of s 308 in the specific mayoral scenario.

Relation to the Councillors Order:

• The entire operation of the Order is conditional upon and defined by the Councillors Order. Commencement is expressly linked: the Order “takes effect on the day on which the Local Government (Number of Councillors) Order 2013 commences” (cl 2). The key test used throughout the Order compares the council’s present potential total number of councillors (if a recount or by-election were held) to “the total number of councillors that are, in accordance with the Councillors Order, to be elected for the municipal area on and after the day on which the certificate of election is given in respect of the next ordinary election” (cl 4(1)(b)). The Councillors Order therefore functions as the normative baseline for authorised councillor numbers.

Interpretative framework:

• Clause 3(2) provides that the Acts Interpretation Act 1931 applies to the interpretation of this Order “as if it were by-laws”. That imports the interpretative presumptions and rules applicable to by-laws under the Acts Interpretation Act into the construction of this Order. Clause 3(3) also states that expressions used in the Order and the Act have the meaning they have in the Act, which reinforces textual consistency across instruments.

Interaction with local government electoral processes:

• The Order does not abolish ss 307 or 308 of the Act generally; rather it creates a situational bar where the Councillors Order’s post‑reform councillor totals would be exceeded if a vacancy were filled. In municipal areas not covered by the Councillors Order, or where filling a vacancy would not exceed the new authorised count, ss 307 and 308 remain operative in their ordinary terms.
• The Order prescribes a procedural mechanism for determining the order of multiple vacancies when the general manager cannot determine it, which supplements the Act’s existing vacancy and election procedures by providing a specific fallback. The role given to the Electoral Commissioner for that fallback is a narrow, instrument-specified administrative role (cl 4(4)).

Limitations and scope:

• The Order applies only in municipal areas to which the Councillors Order applies (cl 3(1) definition of Councillors Order; cl 4 language). It does not purport to alter other parts of the Act beyond ss 307 and 308 as they relate to the specific vacancies described. It also expressly preserves the availability of mayoral by-elections in the specified mayoral scenario (cl 4(6)-(7)), further clarifying its interaction with the Act.

No reference to other statutes:

• The instrument does not reference other statutes beyond the Acts Interpretation Act 1931 and the Local Government Act 1993, and does not attempt to override or amend the Act by legislative amendment; rather it operates as an order that modifies the availability of particular procedural devices under the Act in certain situations.

Administrative law overlay:

• Because the Order imposes duties on public officers (general managers and the Electoral Commissioner) and specifies mandatory procedures, it sits within the normal administrative law regime. Non‑statutory remedies and judicial review under common law could apply to decisions taken under the Order, but the Order itself does not set out review or appeal mechanisms.

In short, the Order is a narrowly targeted subordinate instrument that conditions key parts of the Local Government Act 1993 (ss 307 and 308) on the numbers fixed in the Councillors Order, prescribes a particular administrative procedure for sequencing multiple vacancies, and adopts interpretative rules via the Acts Interpretation Act 1931.

The text of the Order as provided contains the following factual information about its establishment and administration; it does not list subsequent amendments or an amending schedule within the instrument itself.

Key points recorded in the instrument:

• Short title: The instrument is cited as the Local Government (Casual Vacancies) Order 2013 (cl 1).
• Commencement linkage: The Order takes effect on the day on which the Local Government (Number of Councillors) Order 2013 commences (cl 2). This makes its commencement conditional on the separate Councillors Order’s commencement date.
• Gazette notification: The instrument bears the administrative note that it was notified in the Gazette on 26 June 2013 (final matters in the instrument).
• Administration: The instrument notes that it is administered in the Department of Premier and Cabinet (final matters).

No amendments recorded in the instrument:

• The instrument does not include a schedule of amendments, repeal, or expiry. It does not record any amending instruments within its text.
• The text provided contains no later-dated notations, repeal clauses, or transitional amendment provisions.

Implications for users consulting the legislative history:

• To discover whether the Order has been amended, repealed, or superseded after the version provided, a practitioner would need to consult the official consolidated statute/regulations database or the NSW legislation register for any subsequent amending instruments or repeal notices. That step is outside the instrument’s own text.
• The instrument’s commencement dependence on the Councillors Order (cl 2) is an intrinsic part of its operational history; if the Councillors Order’s commencement date has been altered or the Councillors Order subsequently amended, those changes will have affected the effective operation of this Order.

Administrative notes:

• The Order’s administrative home and Gazette notification date are recorded; these items help identify the primary archival references and the responsible department for any policy queries or implementation questions.

In short, the instrument sets out its creation, commencement trigger, Gazette notification date and administrative responsibility, but contains no internal amendment history. For a complete amendment history, users must consult the NSW consolidated legislation records and any subsequent instruments that amend or repeal the Order.

The instrument itself contains no litigation history, case citations, or references to judicial determinations. It names no cases and does not include any judicial interpretations. The following facts are drawn solely from the instrument’s text.

What the Order states:

• The Order contains only procedural and interpretative provisions for handling casual vacancies in municipal areas to which the Councillors Order applies. It does not reference any judicial or administrative decisions, nor does it identify prior or contemporaneous litigation as a constitutional or interpretive rationale.

Implications for research:

• The instrument’s operational provisions , the bar on holding recounts or by-elections in specified circumstances and the prescribed randomisation procedure for sequencing multiple vacancies , could conceivably give rise to disputes about administrative compliance, interpretation, or the adequacy of the prescribed procedure in practice. However, no such cases are referenced in the instrument.
• Any litigation that might concern this Order would be recorded in external sources: reported case law, tribunal decisions, or judicial review filings. Those materials must be sought outside the instrument’s text.

Analytical note on potential litigation vectors (text-based only):

• Non-exhaustively, but grounded in the instrument’s procedural content, possible areas where litigation could arise include challenges to:
  • Whether the Councillors Order applies to a particular municipal area (affecting whether this Order operates) (cl 2; cl 3(1)).
  • Whether filling a vacancy would cause the total number of councillors to exceed the number fixed by the Councillors Order (the central numerical test in cl 4(1)).
  • Whether the general manager correctly determined the order of vacancies or unreasonably concluded they could not determine it, triggering the notification requirement to the Electoral Commissioner (cl 4(2)-(3)).
  • Whether the Electoral Commissioner complied with the physical draw and recording requirements in cl 4(4)(a)-(g) and cl 4(5).
  • Whether the mayoral exception was properly applied when a mayor vacated both positions (cl 4(6)-(7)).

No cases named:

• The instrument does not cite any decisions; therefore any litigation history must be separately researched. The instrument itself remains silent on case law.

In summary, there is no litigation history contained in the instrument. Practitioners seeking judicial treatment of the Order must consult case law databases, tribunal records and other external sources to identify any proceedings that have addressed the Order’s interpretation or application.

This section highlights operational, interpretive and implementation quirks that flow directly from the Order’s text and that practitioners and administrators should be alert to. Each “gotcha” is text-based and cites the relevant clause.

1. Commencement depends on the Councillors Order (cl 2)

• The Order takes effect only on the day the Councillors Order commences (cl 2). If the Councillors Order’s commencement is delayed, altered, or subject to staggered commencement across municipal areas, this Order will be correspondingly delayed or subject to the same geographic variation. Failure to check the Councillors Order’s commencement status could lead to incorrect assumptions about whether the no-recount/no-by-election rule applies.

2. The scope is limited to municipal areas covered by the Councillors Order (cl 4(1), cl 3(1))

• The Order applies only “in relation to a municipal area to which the Councillors Order applies” (cl 4(1)). If a municipal area is not covered by the Councillors Order, ss 307 and 308 of the Act remain fully available and the Order is inapplicable. Misidentifying the list of affected municipal areas can produce incorrect application of cl 4(1).

3. The numerical test is forward-looking and tied to certificates of election (cl 4(1)(b))

• The numerical trigger compares the total number of councillors that would result “were the vacancy to be filled by a recount or by‑election” with “the total number of councillors that are, in accordance with the Councillors Order, to be elected for the municipal area on and after the day on which the certificate of election is given in respect of the next ordinary election” (cl 4(1)(b)). The involvement of the phrase “on and after the day on which the certificate of election is given” introduces a specific temporal reference point; practitioners must interpret which certificate and which “next ordinary election” the instrument references in context of the Councillors Order and ordinary election timetables.

4. The general manager’s factual determination is pivotal (cl 4(2)(c), cl 4(3))

• Where multiple vacancies exist, the general manager must determine the order of occurrence where possible (cl 4(2)(c)). That factual determination directly determines whether the no-recount/no-by-election rule is engaged for particular vacancies. An incorrect or undocumented determination could be vulnerable to challenge. If the general manager cannot determine order, the mandatory notification to the Electoral Commissioner must be made (cl 4(3)); failing to notify when unable to determine order triggers procedural non‑compliance.

5. The prescribed randomisation method is unusually specific and physical (cl 4(4)(a)-(g))

• The Electoral Commissioner must use “slips” bearing the names, place each slip in a separate identical hollow opaque sphere, place spheres in a container that allows free movement, shake or rotate and permit others present to do so, then remove spheres and record names in order (cl 4(4)(a)-(g)). The specificity raises practical questions: procuring identical hollow opaque spheres, ensuring transparency and chain-of-custody for the container and slips, and documenting the process sufficiently. Small errors (non-identical spheres, failure to allow persons present to participate) may be technically non-compliant with the precise steps in cl 4(4).

6. The list produced by the draw is conclusive for sequencing (cl 4(5))

• The Order states that vacancies “are to be taken to have occurred in the order in which they appear on the list prepared” (cl 4(5)). The draw’s result is therefore controlling. Practitioners should document the draw to withstand scrutiny, as the Order ties legal consequence to the list.

7. Mayoral and deputy mayoral by-elections are protected; councillor slots may not be (cl 4(6)-(7))

• Clause 4(6) excludes mayors and deputy mayors from the no-recount/no-by-election rule; cl 4(7) requires a by-election for mayor under s 308(4) of the Act if a mayor vacates both offices and the councillor office is not filled. This can produce asymmetric results: a mayoral by-election may proceed even when a councillor vacancy for the same person is not to be filled. Practitioners must handle the two processes separately and ensure they apply the mayoral exception correctly.

8. Interpretation rules: Acts Interpretation Act applies “as if by‑laws” (cl 3(2))

• The Order requires application of interpretative provisions in the Acts Interpretation Act 1931 as if the Order were by-laws. That affects statutory construction and may produce different interpretative presumptions compared with ordinary regulations. Practitioners should be aware of relevant provisions of the Acts Interpretation Act when construing terms or timing in the Order.

9. No internal dispute resolution or enforcement mechanism (penalty gap)

• The Order contains no penalty clauses nor an internal dispute resolution process. Challenges to noncompliance would rely on ordinary administrative law remedies. This can be a procedural “gotcha” if a party expects a statutory appeal route or an administrative penalty.

10. Recording and disclosure expectations

• The Order requires the Electoral Commissioner to record the names in order on a list (cl 4(4)(f)-(g)). The instrument does not specify whether the list must be published or retained for a specified period. Practitioners should ensure prudent recordkeeping and consider making the list publicly available or formally lodged to avoid disputes about transparency.

In short, the Order’s precise commencement link, narrow geographic scope, numerical test tied to future election certificates, the centrality of the general manager’s factual determination, and the very specific physical draw procedure create a set of practical pitfalls that must be addressed in municipal electoral administration.

This section sets out a practical, text-grounded compliance checklist for the officials and practitioners the Order directly affects: council general managers, the Electoral Commissioner, and council electoral officers. All steps below are tied to the Order’s textual requirements.

Preparation and governance

• Identify whether your municipal area is covered by the Councillors Order. The Order applies only to municipal areas “to which the Councillors Order applies” (cl 3(1); cl 4(1)). Confirm the Councillors Order’s commencement date (cl 2) and the precise councillor numbers it prescribes for your municipal area.
• Incorporate the Order into your council’s electoral procedures and ensure staff are trained on when its provisions displace ss 307 and 308 of the Local Government Act 1993.

When a casual vacancy occurs (single vacancy)

1. Determine the test in cl 4(1):
   • Ascertain whether, were the vacancy to be filled by recount (s 307) or by-election (s 308), the total number of councillors would be more than the total to be elected in accordance with the Councillors Order on and after the relevant certificate of election date (cl 4(1)(a)-(b)).
2. If the test is met:
   • Do not hold a recount or by-election under s 307 or s 308 for that office (cl 4(1)). Record the legal basis for not holding the recount or by-election, citing cl 4(1) and the relevant Councillors Order provision(s).

When multiple casual vacancies exist

1. Apply the test in cl 4(2)(a)-(b):
   • Check whether more than one casual vacancy exists and whether filling them all by recount or by-election would produce a total in excess of the Councillors Order total.
2. General manager decisionmaking (cl 4(2)(c)):
   • The general manager should document efforts made to determine the chronological order in which the vacancies occurred. Keep records of evidence relied upon (dates of resignation, death, disqualification notices, council minutes).
3. If the general manager can determine the order:
   • Record that determination, document the factual basis, and proceed to apply cl 4(1) to whichever vacancy(ies) the order dictates should not be filled.
4. If the general manager cannot determine the order (cl 4(3)):
   • The general manager must notify the Electoral Commissioner that cl 4(4) applies in relation to the vacant offices. The notification should be written, timestamped, and describe the vacancies and the reasons the order could not be determined.
5. Electoral Commissioner procedure (cl 4(4)(a)-(g)):
   • Prepare a slip for each vacant office bearing the name of the person who last held that office (cl 4(4)(a)).
   • Place each slip in a separate identical hollow opaque sphere (cl 4(4)(b)). Ensure spheres are materially identical and opaque.
   • Place the spheres in a container sufficiently large to allow them to move about freely when shaken or rotated (cl 4(4)(c)).
   • Shake or rotate the container; permit any other person present who wishes to do so to shake or rotate the container (cl 4(4)(d)). Consider having observers from relevant parties present to enhance transparency.
   • Take out and open one sphere to obtain the enclosed slip (cl 4(4)(e)); record the name on a list immediately (cl 4(4)(f)).
   • Repeat until all spheres are removed and record each name in the order in which the slips are withdrawn (cl 4(4)(g)).
6. Record and preserve the list (cl 4(5)):
   • The list produced is the legal ordering of the vacancies for the purposes of the Order. Preserve originals, make scanned copies, and include time-stamps, witness statements and the identity of persons present. Consider publishing the list to the council website or otherwise making it publicly accessible to avoid disputes.

Mayoral scenarios (cl 4(6)-(7))

• If a by-election is needed for mayor or deputy mayor, the no-recount/no-by-election bar does not apply (cl 4(6)). Practically: treat mayoral by-elections separately from councillor vacancy decisions.
• If a mayor vacates both offices and the councillor vacancy is not to be filled under this Order, a by-election for mayor must be held in accordance with s 308(4) of the Act as if s 308(6) did not apply (cl 4(7)). Advise the Electoral Commissioner and relevant council officers promptly so the mayoral by-election timetable and procedural steps under s 308(4) are implemented.

Interpretation considerations (cl 3(2) and cl 3(3))

• Apply the Acts Interpretation Act 1931 to the Order “as if it were by‑laws” (cl 3(2)). Ensure legal advisers are involved in any borderline interpretation (for example, which “certificate of election” is relevant), as the Order’s temporal references may require careful construction.

Recordkeeping and transparency

• Keep full documentation of the general manager’s decisionmaking process, the notification to the Electoral Commissioner, the Electoral Commissioner’s draw procedure, witness details and the list produced. Given the Order contains no internal enforcement mechanism, contemporaneous records and transparent processes reduce the risk of successful legal challenge.
• Consider adopting an internal protocol for procuring identical spheres and a suitable container, and for documenting and retaining evidence of the draw process (photographs, video, witness statements), consistent with cl 4(4)(b)-(g).

Public communication

• If a recount or by-election will not be held because of cl 4(1), prepare an explanatory public notice citing cl 4(1) and the Councillors Order, explaining the legal basis and linking to the recorded list where a draw has been necessary. This aids public understanding and administrative transparency.

Administrative coordination

• Liaise early with the Department of Premier and Cabinet (which administers the Order) for policy guidance when novel factual scenarios arise. Although the Department is not given enforcement powers in the Order, it is the named administering entity and can assist with inter-agency coordination.

Legal review and risk management

• When in doubt about the application of the numeric test in cl 4(1)(b) or about which certificate of election applies, obtain timely legal advice. Ensure any decisions that could affect electors’ rights are documented and, if appropriate, considered for immediate review by council legal counsel.

In summary, compliance requires: verifying applicability (Councillors Order coverage and commencement); careful factual determination and documentation by the general manager; mandatory notification to the Electoral Commissioner when necessary; strict adherence to the detailed draw procedure if used; preservation of robust records; and separate, protected handling of mayoral by-elections.