Local Government (Casual Vacancies) Order 2014

The order is compact and built around a few interlocking concepts drawn from the Act and the Councillors Order.

• Tying effect to the Councillors Order: The order only operates after the Councillors Order takes effect (cl 2; cl 4 opening words). Its trigger depends on comparing the council’s present or prospective composition to the number of councillors the Councillors Order specifies will be elected at the next ordinary election for the municipal area (cl 4(1)(b), cl 4(2)(b)). Thus the instrument is a temporal and numerical adjustment device tied to a separate instrument that changes councillor numbers.

• Suspension of statutory vacancy-filling procedures in specified circumstances: The order bars use of the recount procedure under s 307 and the by-election procedure under s 308 of the Act where filling a vacancy would result in the council having more councillors than the number set by the Councillors Order for the next ordinary election (cl 4(1)). The prohibition is stated as an instruction 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)). The effect is to displace those statutory remedial mechanisms in the specified factual matrix.

• Multiple vacancies and indeterminate sequence: Where there is more than one casual vacancy and, if all were filled, the council would exceed the new total (cl 4(2)(a)-(b)), and where the general manager cannot determine the chronological order of occurrence (cl 4(2)(c)), the order fixes a sequence using a random-draw method conducted by the Electoral Commissioner (cl 4(4)-(5)). The procedure is specified in detail: slips with the names of the persons who last held the vacant offices are placed in identical hollow opaque spheres; spheres are placed in a container; the container is shaken or rotated (allowing others present to participate); a sphere is removed and opened; the name is recorded and the process repeated until all names have been drawn; the list records the order in which names are withdrawn and that list is taken to be the order in which the vacancies occurred (cl 4(4)-(5)).

• Notification duty: The order requires the council general manager to notify the Electoral Commissioner that the random-draw procedure under cl 4(4) applies (cl 4(3)). This introduces an interactional step between local administration and the Electoral Commissioner.

• Excluded offices and special mayoral rule: The random-order and non-filling rules do not apply to by-elections for mayor or deputy mayor (cl 4(6)). Separately, if a mayor vacates both the mayoralty and the councillor position and cl 4 prevents filling the councillor vacancy, the order requires a by-election for the mayoralty under s 308(4) of the Act to be held as if s 308(6) did not apply (cl 4(7)). That is, the order preserves a mechanism to fill the mayoralty even where the councillor vacancy is not filled under its own rules.

• Interpretative placement: The order declares that the Acts Interpretation Act 1931 applies "as if it were by-laws" (cl 3(2)). It also imports the Act’s definitions for words used in both instruments (cl 3(3)). Naming the instrument (cl 1) and linking commencement to the Councillors Order (cl 2) are administrative elements but important to how the order functions temporally and legally.

These concepts, taken together, convert a reduction (or change) in the number of councillors effected by the Councillors Order into a rule that may prevent interim augmentation of councillor numbers through the ordinary recount or by-election procedures. The order prescribes an administratively simple method to handle indeterminate sequencing of multiple vacancies and sets out notification and practical recording steps. It leaves unchanged the Act’s other rules unless specifically displaced by the order’s operation.

The instrument affects a limited set of actors and rights in municipal governance. Identify the principal parties the order touches:

• Councils (municipal areas) to which the Councillors Order applies: The primary objects are municipal areas subject to the Councillors Order (cl 4(1) refers explicitly to "a municipal area to which the Councillors Order applies"). A council in that category faces constraints on filling casual vacancies where doing so would cause the council to have more councillors than the number prescribed by the Councillors Order for the next ordinary election.

• Individual councillors and former councillors: Persons holding or who last held offices that become casual vacancies are implicated, because their former offices may remain vacant rather than being filled by recount or by-election (cl 4(1)). Where multiple vacancies exist and the order’s randomisation procedure applies, the names of the persons who last held the vacant offices are printed on slips and entered in the order of draw (cl 4(4)-(5)). Those names thereby determine which vacancies are treated as earlier or later.

• General managers of affected councils: The general manager has a compulsory administrative role. If the general manager cannot determine the chronological order of multiple vacancies, they must notify the Electoral Commissioner that the random-draw procedure in cl 4(4) applies (cl 4(2)(c), cl 4(3)). The general manager’s determination (or inability to determine) triggers the Electoral Commissioner’s role.

• Electoral Commissioner: The Electoral Commissioner is given a procedural task when notified. The Commissioner must prepare slips bearing the names of the last holders of the vacant offices, place them in identical opaque spheres, place the spheres in a container, allow shaking or rotating (others present may participate), remove and open spheres one by one, and record the names in the order drawn to create a list (cl 4(4)(a)-(g)). That list fixes the order in which the vacancies are to be taken to have occurred (cl 4(5)). The Electoral Commissioner therefore decides the sequence only insofar as they conduct the required random-draw and record the outcome.

• Electorate and prospective candidates: Voters in the affected municipal area are indirectly affected. Where the order prevents a recount (s 307) or a by-election (s 308) from being held (cl 4(1)), electors will not have a recount or by-election to fill the vacancy in that municipal area. The order also specifies that it does not apply to by-elections for mayor or deputy mayor (cl 4(6)), meaning the electorate retains access to by-elections for those offices except as limited by other provisions of the Act.

• Mayoral candidates and office-holders: If a mayor vacates both the mayoral office and the councillor office, the order preserves the requirement to hold a mayoral by-election under s 308(4) of the Act "as if section 308(6) of the Act did not apply" (cl 4(7)). This means the mayoralty is treated differently to ordinary councillor vacancies in such a case; the mayoral election mechanism remains available even if the councillor seat is not filled under this order.

• Administrative and legal advisers: Administrators, solicitors and statutory officers who advise councils or the Electoral Commissioner must interpret and apply the numerical comparison in cl 4(1)(b) and cl 4(2)(b) when determining whether the bar on recounts or by-elections applies. Because the order ties its threshold to the number of councillors "that are, in accordance with the Councillors Order, to be elected ... on and after the day on which the certificate of election is given in respect of the next ordinary election", administrators must consider both the Councillors Order and the timing of certificates of election for the next ordinary election.

Actors not affected: The order explicitly excludes by-elections for mayor and deputy mayor from its operation (cl 4(6)). It also does not purport to alter other parts of the Act beyond the specific displacement of sections 307 and 308 where described (cl 4(1)); therefore, rights, duties and procedures elsewhere in the Act continue to apply.

In short, the order directly constrains councils, general managers and the Electoral Commissioner in particular factual matrices, and indirectly affects the electorate and candidates by restricting when recounts or by-elections are to be held.

The instrument creates a small set of duties and clarifies certain rights by prohibiting usual statutory remedies in specified circumstances and by prescribing procedural duties for council officers and the Electoral Commissioner.

Duties imposed by the order

• Duty not to hold recount or by-election in specified cases: Where a casual vacancy occurs after the Councillors Order takes effect and, if filled by recount or by-election, the total number of councillors would exceed the number set by the Councillors Order for the next ordinary election, the order requires that no recount or by-election is to be held under s 307 or s 308, respectively (cl 4(1)). This is an affirmative prohibition on taking those procedural steps.

• Duty on the general manager to notify the Electoral Commissioner: Where multiple vacancies exist and the general manager cannot determine the order in which they occurred, cl 4(3) imposes a duty on the general manager to notify the Electoral Commissioner that the random-order procedure in cl 4(4) applies.

• Duties on the Electoral Commissioner to conduct randomisation and record sequence: Once notified, the Electoral Commissioner is required to prepare slips with the names of the persons who last held each vacant office, place them in identical hollow opaque spheres, place the spheres in a container, allow shaking or rotating (and permit others present to do the same), remove a sphere and open it, note the name, and repeat until all spheres have been drawn, creating a list that records the names in the order drawn (cl 4(4)(a)-(g)). The Commissioner must then take the list to determine the order in which the vacancies are to be taken to have occurred (cl 4(5)).

• Duty to hold by-election for mayor in certain cases: If a mayor vacates office as both mayor and councillor and cl 4 results in no recount or by-election being held for the councillor office, the order requires that a by-election for the mayoralty is to be held under s 308(4) of the Act as if s 308(6) did not apply (cl 4(7)). That is a duty to proceed with a mayoral by-election despite the councillor seat remaining unfilled under this order.

Rights and entitlements affected or clarified

• Right to a recount or by-election displaced in defined circumstances: Electors and candidates normally have the remedies or processes under ss 307 and 308 of the Act. The order expressly removes access to those remedies in the specific factual situation where filling the vacancy would create a greater number of councillors than the Councillors Order provides for the next ordinary election (cl 4(1)). The order therefore narrows the circumstances in which those statutory rights are exercisable.

• Right to meaningful procedural fairness in ordering multiple vacancies: Where multiple vacancies exist and the chronological order is indeterminate, the order provides a prescribed method for determining order via a random draw (cl 4(4)-(5)). That procedure creates a property-right-like expectation: that the random draw will be conducted by the Electoral Commissioner once the general manager has triggered cl 4 via notification (cl 4(3)). The order allows any person present to shake or rotate the container (cl 4(4)(d)), which introduces a limited participatory element.

• Right to a mayoral by-election protected in particular cases: Where a mayor vacates both offices, the order protects the right to a mayoral by-election by directing that s 308(4) apply as if s 308(6) did not (cl 4(7)). That preserves an elector-facing right in a specific factual matrix.

Interpretative duties and dependencies

• Duty to apply the Acts Interpretation Act as if the instrument were by-laws: Cl 3(2) requires that the Acts Interpretation Act 1931 apply to interpretation "as if it were by-laws". That modifies the interpretative rules that advisers must apply when construing the order.

• Dependence on the Councillors Order and the Act for meaning: Cl 3(1) defines "Act" and "Councillors Order" for the instrument, and cl 3(3) provides that a word or expression used in the order and in the Act has the meaning it has in the Act. Therefore, interpretation and application of the order require reference to the Councillors Order for numbers and to the Act for definitions and the displaced provisions ss 307 and 308.

No express enforcement regime, penalties or private rights of action are created by the text. The duties are administrative and procedural in nature, and the rights affected are limited to the exercise of the recount and by-election procedures under the Act, and the mayoral by-election safeguard in cl 4(7).

The order itself contains no express penalties, criminal sanctions, or civil remedies for non-compliance. The instrument operates by prescribing procedural prohibitions and duties, but it does not create an enforcement schedule or penalty regime in its text. The relevant enforcement dynamics therefore arise from these factors:

• Displacement of statutory procedures: The order expressly prohibits holding recounts or by-elections under ss 307 and 308 in specified circumstances (cl 4(1)). Non-compliance with that prohibition,if it occurred,would amount to undertaking an electoral process contrary to a statutory instrument, which could give rise to administrative remedies, judicial review, or other consequences under the Act, but the order itself does not state those mechanisms. Users must look to the Act, administrative law doctrines and applicable criminal or civil enforcement provisions elsewhere for remedial pathways; the order does not reference any specific enforcement machinery.

• Administrative compliance duties: The order places procedural duties on the general manager (to notify) and on the Electoral Commissioner (to conduct and record the draw) (cl 4(3)-(5)). Failure by the general manager to notify the Electoral Commissioner would prevent the random-draw procedure from being triggered in the manner the order requires. The order does not prescribe sanctions against a general manager who fails to notify, nor does it prescribe remedies if the Electoral Commissioner fails to conduct the draw. Practical enforcement would therefore depend on supervisory or departmental oversight or, where appropriate, judicial review to compel performance of statutory duties.

• Reliance on existing statutory enforcement: Because the order displaces sections 307 and 308 in certain circumstances, enforcement of the order’s directions will in practice be coupled to enforcement of the Act’s processes. Any challenge to the application of the order in a particular case would likely invoke judicial review of administrative action or statutory interpretation disputes, but the order itself does not create a private right to relief or penalties.

• Record and evidentiary effect: The order requires the Electoral Commissioner to prepare and record a list of names in the order drawn (cl 4(4)(f)-(g), cl 4(5)). That list will be the operative record that fixes the order in which vacancies are to be taken to have occurred. The recorded list thus has evidentiary significance for any administrative or legal review concerning which vacancies may or may not be filled under the order. The instrument does not prescribe retention periods, certification requirements, or audit mechanisms for that list beyond the explicit recording step.

• Practical enforcement levers: In practice, administrative enforcement of the order will rest on the Department of Premier and Cabinet (the administering department identified in the instrument), the Electoral Commission’s internal governance, and council governance processes. The order identifies the department responsible ("This order is administered in the Department of Premier and Cabinet."), but does not specify enforcement powers exercised by the department.

In summary, the order prescribes prohibitions and duties but contains no stand-alone penalty scheme. Enforcement will rely on the interaction of the order with broader statutory frameworks, administrative oversight, and potential judicial review. Those mechanisms lie outside the instrument’s text.

The order is explicitly designed to work in tandem with the Local Government Act 1993 (the Act) and the Local Government (Number of Councillors) Order 2014 (the Councillors Order), and it invokes interpretative law by reference to the Acts Interpretation Act 1931. The text creates specific interactions:

• Displacement of ss 307 and 308 of the Act in defined cases: The instrument expressly instructs 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" when a vacancy would cause the council to have more councillors than the number the Councillors Order prescribes for the next ordinary election (cl 4(1)). That is a direct, conditional displacement of those sections where the specified numerical condition is met. Practitioners must therefore read ss 307 and 308 together with this order to determine whether the statutory processes are available in any given vacancy.

• Dependence on the Councillors Order for numerical threshold and timing: The order’s application hinges on the councillor numbers established by the Councillors Order for the relevant municipal area and on the timing of certificates of election at the next ordinary election: the test compares the prospective total number of councillors "were the vacancy to be filled" with "the total number of councillors that are, in accordance with the Councillors Order, to be elected ... on and after the day on which the certificate of election is given in respect of the next ordinary election" (cl 4(1)(b); cl 4(2)(b)). This creates a cross-instrument dependency requiring simultaneous reference to both instruments for correct application.

• Interpretative rules: The order requires the Acts Interpretation Act 1931 to be applied to its interpretation as if it were by-laws (cl 3(2)). That means the interpretative presumptions and definitions under the Acts Interpretation Act will govern construction of this order. Additionally, cl 3(3) imports definitions from the Act, so terms used in both instruments retain the meanings they have under the Act.

• Interaction with mayoral by-election provisions of the Act: The order excludes by-elections for mayor and deputy mayor from its non-filling rules (cl 4(6)). Further, where a mayor vacates both offices and the councillor office is not filled under the order, the instrument requires a by-election for mayor under s 308(4) to be held "as if section 308(6) of the Act did not apply" (cl 4(7)). That is a deliberate modification of the effect of s 308(6) conditional on the mayor having vacated both offices, and it requires reading s 308(4) and s 308(6) in light of cl 4(7).

• Administrative law and judicial review: The order imposes duties on public officers (general manager, Electoral Commissioner) and prescribes procedures. Challenges to the exercise or non-exercise of those powers would proceed under administrative law principles and judicial review remedies, although the instrument itself does not mention judicial review. The Acts Interpretation Act and the Local Government Act will provide substantive and procedural context for any such review.

• No amendment to the Act itself: The order does not amend the Act; it functions as a rule that modifies the availability of parts of the Act in specific circumstances. Therefore the underlying statutory text of the Act remains intact but its practical application is narrowed by this order in the specified factual matrix.

• No express interaction with other Acts or external electoral law: The instrument contains no direct references to electoral statutes outside the Act or to other laws that might govern electoral conduct, campaign finance, or administrative penalties. Its interpretative reach is to the Act and the Councillors Order as named in cl 3(1).

Practitioners must therefore approach application questions by cross-referencing the order with the Councillors Order and the relevant sections of the Act, applying interpretative rules under the Acts Interpretation Act where necessary. The order’s effect is less to change the statutory architecture and more to condition the application of specified statutory procedures in particular circumstances.

The instrument records a concise administrative history in its published text; no amendments are recorded within the body of the order provided.

• Citation and notification: The order is cited as the Local Government (Casual Vacancies) Order 2014 (cl 1). The instrument records that it was notified in the Gazette on 12 February 2014 (final paragraph).

• Commencement tie-in: The order’s commencement is expressly tied to the commencement of the Local Government (Number of Councillors) Order 2014 , it "takes effect on the day on which the Councillors Order commences" (cl 2). No separate commencement date is specified in the order itself; the effective date is therefore the date that the Councillors Order begins to operate.

• Administration: The order is administered in the Department of Premier and Cabinet (final paragraph). That identifies the administrative home for the instrument but does not record any subsequent amendments.

• Display and numbering provenance: The order is displayed and numbered in accordance with the Rules Publication Act 1953 (closing line). The inclusion of that line is an administrative formalism that situates the instrument in statutory publication practice.

• No recorded amendments within the text provided: The text supplied contains no schedule of amendments, no revocation clause, and no dates of subsequent modification. There is no express legislative history such as amendment dates, repeal, or transitional amending provisions contained within the order’s text.

• Implicit dependency on the Councillors Order for effect: Because the order takes effect only once the Councillors Order commences (cl 2), any amendment to the Councillors Order that changes timing or numbers would, de facto, change the factual scenarios in which this order operates. The order itself does not provide an amendment mechanism for that dependency; instead, its operational scope is responsive to the Councillors Order.

• No stated expiry or sunset clause: The order contains no temporal limitation or sunset provision; it remains in force until repealed or superseded under the usual statutory processes. The administering department would therefore be the contact point for any formal amendment or repeal action.

For practical purposes, the instrument’s amendment history within the provided text is limited to its 2014 citation and Gazette notification. Users wishing to know whether the order has been amended since that notification must consult official consolidated legislation databases or the administering department’s records; such subsequent material is not contained in the supplied text.

The supplied instrument contains no litigation history. It does not reference any judicial decisions, appeals, or administrative tribunals concerning its application. The text names no cases and records no disputes. The instrument is procedural in scope and its operation could be the subject of judicial review in particular factual scenarios, but there is no adjudicative record included in the instrument as supplied.

Absent any case citations or recorded proceedings in the text, practitioners should treat the litigation history as unrecorded in this instrument and, where necessary, search case law databases, administrative law reports, and tribunal records for any decisions applying or construing the order in practice. The instrument itself neither provides guidance on dispute resolution nor specifies any forum for enforcement beyond the Act’s institutional framework and ordinary judicial review channels.

Because the instrument requires the Electoral Commissioner to create and record a list when conducting a random draw (cl 4(4)(f)-(g), cl 4(5)), such documentation could be an evidentiary starting point in any litigation about the order’s application, but any adjudicative history must be sourced from external case law, not from the instrument’s text.

The instrument is compact but contains several points where practical application could produce uncertainty, unintended outcomes, or administrative friction. These are matters for which advisers and administrators should pay attention.

• Timing and the certificate-of-election reference: The central numerical test compares the council’s prospective number of councillors "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)). That phrase introduces multiple timing elements: the Councillors Order’s provisions on the number of councillors, the phrase "on and after the day on which the certificate of election is given", and the timing of the next ordinary election. Administrators must parse whether "on and after" and the certificate-of-election event are used to fix the applicable number at a particular legal moment. Misreading this could produce incorrect conclusions about whether the order bars a recount or by-election.

• "Were the vacancy to be filled" hypothetical calculation: The order requires a hypothetical calculation of councillor numbers if the vacancy were filled by recount or by-election (cl 4(1)(b)). That counterfactual requires precise counting including any other vacancies, co-options, or interim appointments. Where multiple vacancies and various temporary changes exist, calculating the hypothetical total may be non-trivial.

• Multiple vacancies and general manager’s inability to determine order: Cl 4(2)(c) triggers the random-draw procedure only when the general manager is "unable to determine the order in which the casual vacancies occurred". The instrument does not define the circumstances that constitute reasonable inability to determine chronology, nor does it prescribe what investigatory steps the general manager must take before concluding inability. The scope of that discretion could be contested.

• Participatory element in the random draw: The Electoral Commissioner must "permit any other person present who wishes to do so to shake or rotate the container" (cl 4(4)(d)). This participatory instruction introduces a risk of perceived impropriety if parties with an interest attend the draw. The instrument does not specify who "any other person present" may include, or whether there must be a public notice or invitation. Absent rules about witnesses, disputes could arise about the legitimacy of the procedure.

• Documentary requirements and evidentiary sufficiency: The instrument requires the Electoral Commissioner to "record on a list the name of the person which appeared on the slip" and to repeat until all names are recorded (cl 4(4)(f)-(g)); cl 4(5) then fixes the vacancies in that order. The instrument does not prescribe certification, signature, or custody requirements for that list, nor does it address how long the record is to be retained. Questions about evidentiary sufficiency and the finality of the list could therefore emerge.

• Exclusion of mayor and deputy mayor: Cl 4(6) states that the clause "does not apply in relation to a by-election for a mayor or deputy mayor". Practitioners must keep in mind that the order’s bar on recounts and by-elections does not extend to mayoral or deputy mayoral contests, although cl 4(7) then provides an exception in the opposite direction (preserving the mayoral by-election in particular circumstances). Misapplication of the exclusion could lead to procedural errors.

• Interaction with section 308(6): Cl 4(7) requires that, where a mayor vacates both offices and no by-election or recount is held for the councillor office, "a by-election for the office of mayor is to be held ... as if section 308(6) of the Act did not apply". The order therefore modifies the effect of s 308(6) in a discrete scenario. Practitioners must consult s 308(6) and s 308(4) of the Act to understand the baseline rule and the consequence of this disapplication; a failure to do so risks misunderstanding the mayoral by-election requirements.

• No express remedy for failure to notify: Cl 4(3) requires the general manager to notify the Electoral Commissioner that cl 4(4) applies. The instrument contains no express consequences for a failure to notify. Administrators must therefore consider departmental oversight or judicial remedies if the duty is not performed.

• Narrow scope: The order’s narrow scope means that its application will be fact-dependent. Users must identify whether the Councillors Order applies to the municipal area in question; if it does not, this instrument is inapplicable. Likewise, where the Councillors Order reduces or alters numbers in a way that does not create the specified over-cap scenario, this instrument will not intervene.

• No penalty regime: The absence of express penalties or enforcement steps in the instrument may make corrective action slow if the duties are not performed. Administrative law remedies may be required to compel compliance, which can be time-consuming.

These "gotchas" are not defects in textual drafting alone; they are practical and procedural friction points that advisers and administrators should anticipate when the order is engaged.

This section sets out practical, source-grounded steps for the principal duty-holders and advisers to comply with the order. The steps follow the instrument’s language and sequence.

For councils and general managers

1. Identify whether the Councillors Order applies to the municipal area. The order operates only "in respect of a municipal area to which the Councillors Order applies" (cl 4(1) and cl 4(2)). Confirm applicability before taking any steps.

2. On occurrence of a casual vacancy after the Councillors Order commences, perform the hypothetical count required by cl 4(1)(b): calculate whether, if the vacancy were filled by recount or by-election, the total number of councillors would be more than the total number specified by the Councillors Order for the municipal area "on and after the day on which the certificate of election is given in respect of the next ordinary election of councillors for the municipal area held after the Councillors Order takes effect" (cl 4(1)(b)). Keep a contemporaneous record of this calculation and the statutory basis.

3. If the calculation shows the prospective total would exceed the number in the Councillors Order, do not proceed with a recount under s 307 or a by-election under s 308; the order requires that no recount or by-election "is to be held" in accordance with those sections (cl 4(1)). Document the legal basis for the decision and the relevant dates and numbers.

4. Where more than one casual vacancy exists and the hypothetical-fill of all vacancies would cause the council to exceed the number in the Councillors Order (cl 4(2)(a)-(b)), determine whether the general manager can ascertain the chronological order in which the vacancies occurred. If the general manager can determine the order, document the reasoning and proceed accordingly. If the general manager is unable to determine the order (cl 4(2)(c)), proceed to notify the Electoral Commissioner as set out below.

5. Notify the Electoral Commissioner promptly if cl 4(2) applies and the general manager cannot determine the order. Cl 4(3) places a direct duty on the general manager to notify the Electoral Commissioner that cl 4(4) applies. Ensure notification is in writing, dated and retained, and include a formal statement that the conditions of cl 4(2) are met. Keep evidence of the notification.

For the Electoral Commissioner

6. On receipt of the general manager’s notification under cl 4(3), conduct the prescribed random-draw procedure set out in cl 4(4)(a)-(g). This consists of preparing slips bearing the names of the persons who last held each vacant office, placing each slip in a separate identical hollow opaque sphere, placing the spheres in a suitable container that allows them to move freely when shaken or rotated, shaking or rotating the container, permitting any other person present who wishes to do so to shake or rotate the container, removing one sphere and opening it to obtain the enclosed slip, and recording the name on a list. Repeat until all spheres have been removed, recording names in the order drawn (cl 4(4)).

7. Record and certify the resulting list in a way that makes it a durable administrative record. Cl 4(5) provides that the casual vacancies are to be taken to have occurred in the order in which names appear on that list. Therefore, the Electoral Commissioner should ensure the list is signed, dated, and preserved in official archives; indicate the witnesses present and provide a certified copy to the notifying general manager. Although the instrument does not prescribe signature or custody details, good administrative practice supports certification and preservation.

8. If any participant challenges the conduct of the draw on procedural grounds, preserve contemporaneous notes and evidence of compliance with the instrument’s procedural steps (for example, photographs, witness statements, certified copies). The instrument requires the Commissioner to permit others to shake or rotate the container (cl 4(4)(d)), but does not provide further detail; documenting compliance will reduce risk of procedural challenge.

Mayor-specific steps

9. Remember that cl 4(6) excludes by-elections for mayor and deputy mayor: the order "does not apply in relation to a by-election for a mayor or deputy mayor" (cl 4(6)). Therefore do not apply the non-filling rule to mayoral or deputy mayoral by-elections.

10. If a mayor vacates both offices (mayor and councillor) and the order results in no recount or by-election being held for the councillor office, proceed to hold a by-election for mayor under s 308(4) of the Act as if s 308(6) did not apply (cl 4(7)). That requires review of the Act’s mayoral by-election provisions and ensuring the mayoral by-election timetable and notice requirements under s 308(4) are complied with as modified by cl 4(7).

Record-keeping and documentation

11. Maintain contemporaneous written records for every step: the calculation under cl 4(1)(b), the general manager’s determination about the order of vacancies, the notification under cl 4(3), the Electoral Commissioner’s conduct of the draw under cl 4(4), the certified list under cl 4(5), and any decisions not to hold recounts or by-elections under cl 4(1). Although the instrument does not prescribe documentary format, these records will be critical for accountability and for defending decisions in any administrative review.

Interpretation and legal advice

12. Apply the Acts Interpretation Act 1931 to the instrument’s interpretation "as if it were by-laws" (cl 3(2)). Where there is uncertainty about how to apply the counting test, timing reference to certificates of election, or the threshold for the general manager’s inability to determine chronology, obtain written legal advice citing the relevant instrument clauses.

13. Cross-reference the Councillors Order and the Act as part of every assessment. Cl 3(1) defines "Act" and "Councillors Order", and cl 3(3) imports the Act’s meanings. The order’s operation depends on the Councillors Order’s numbers and on the Act’s ss 307 and 308; therefore compliance requires working from all three texts.

Administrative coordination

14. Coordinate early with the Department of Premier and Cabinet (the administering department named in the instrument) and with the Electoral Commission to ensure notification and process flows are clear before potential vacancy situations arise. While not required by the instrument, proactive coordination reduces the risk of procedural error.

Following these steps will align administrative practice with the order’s text and its prescribed processes. The instrument’s requirements are procedural and record-focused; attention to documentation, timely notification, and accurate numerical calculations are central to compliance.