Plebiscite (South East Council Amalgamation) Act 2022

The Act relies on three interlocking legal concepts.

• Plebiscite treated as a poll under existing law. The Act expressly makes each plebiscite subject to the Local Government (Elections) Act 1999 as if the plebiscite were a poll under that Act, subject to the Schedule’s modifications (s 2(3)(a)). That means existing electoral processes, counting rules and return mechanisms under the LG(E) Act apply unless the Schedule says otherwise.

• Non‑binding expression of electors’ views. The Act records explicitly that the plebiscites are non‑binding. The note to s 2(2) states the “purpose of the non‑binding plebiscites is to obtain electors’ views” and that the Government is not compelled to take action following the outcome. The question posed is narrow and procedural: it asks whether electors support examination of an amalgamation, not whether electors approve an amalgamation itself (s 2(2)).

• Tailored procedural modifications. Schedule 1 lists exclusions and modifications to the LG(E) Act and the Local Government (Elections) Regulations 2010 that apply to these “relevant polls” (Schedule 1, opening table). The Schedule inserts a new definition , “relevant poll” means a plebiscite to be held under this Act , and then makes specific deletions, substitutions and insertions across the LG(E) Act and the Regulations (Schedule 1, various entries). Examples of those tailored changes are: fixing the voters roll closing date at 29 July 2022 and specifying particular voters rolls to be used (inserted s 15A), adjusting timing by substituting “14” for “28” in s 38, requiring postal voting papers to be arranged into separate parcels by ward (inserted s 47(3)), and requiring ward‑level counts and reporting of support/opposition numbers in the provisional declaration (inserted ss 52(2)-(3), s 54(3) modification).

These three concepts combine to produce a regime that is procedural rather than substantive: the Act does not change the law on how amalgamations are made or approved, it sets up an electoral mechanism to measure and publish local opinion on whether an examination of amalgamation should take place, and it modifies standard local government electoral procedures to accommodate the specific logistics and reporting requirements of these polls (s 2(2), s 2(3), Schedule 1).

Electors in the two named councils. The plebiscites are held in the District Council of Grant and the City of Mount Gambier (s 2(1)). The Act fixes the voters roll to be used for each relevant poll: the voters roll to be used for the periodic election in each council for which voting closes on 10 November 2022 will be used as the voters roll for that council’s relevant poll; and 29 July 2022 is taken to be the closing date for a relevant poll (Schedule 1, inserted s 15A(a)-(b)(i)-(ii)). That determines who may participate and when enrollment cut‑offs apply.

Returning officers and Electoral Commissioner. The Act makes explicit operational duties for electoral officials. The returning officer must ensure that postal voting papers returned for the relevant poll are arranged into separate parcels for each ward (Schedule 1, inserted s 47(3)), and must determine, in relation to each ward, the number of electors who voted in support of and against the proposition (Schedule 1, inserted s 52(2)). The Electoral Commissioner is required to publish the certified result on a website maintained by the Commissioner as soon as reasonably practicable after certifying the result under s 54 of the LG(E) Act (s 2(4)).

The Minister. Schedule 1 modifies s 54(1) and s 54(2) of the LG(E) Act so that the returning officer must return the result to “the Minister and” (Schedule 1, modifications to s 54(1) and s 54(2)). The provisional declaration must include the ward‑level details required by new s 52(3), and the result notice published under s 54(3) is required to include those details (Schedule 1, modifications to s 52(3), s 54(3)).

Councils. The two councils are named as the geographic subjects of the plebiscites and will receive ward‑level returns showing support and opposition (Schedule 1, inserted s 52(3)). Schedule 1 also deletes or alters phrases in the LG(E) Act that previously required council consultation or council‑provided notices in specific sections (for example, deletion of “by the council” in s 4(2)(d), deletion of “after consultation with the council” in s 33(2), and deletion of paragraph (b) of s 12 and modification of s 13 to exclude relevant polls), which affects the councils’ statutory participatory or consultative roles in the conduct of these polls (Schedule 1 entries).

The Governor. The Governor retains regulation‑making power under this Act (s 3), so the executive can make further procedural modifications by regulation that will affect how these plebiscites are administered.

Other stakeholders likely affected by the mechanics. Anyone who administers or supports LG electoral processes , vendors of electoral materials, postal vote couriers, scrutineers, and local media , will be affected by the timing, the requirement to handle postal votes by ward (Schedule 1, s 47(3)), and the ward‑level results reporting obligations (Schedule 1, ss 52(2)-(3); s 2(4)). The Act does not change substantive local government law on amalgamation decisions or impose obligations on private actors beyond what the LG(E) Act already prescribes as adapted by Schedule 1.

Electors’ right to express a view. The Act gives electors in the two councils the opportunity to vote on the narrow proposition set out in s 2(2). That right is enabled by the application of the Local Government (Elections) Act 1999 procedures to these polls (s 2(3)(a)), including the use of the periodic election voters rolls specified in Schedule 1, inserted s 15A(b).

Electoral Commissioner’s duties. The Electoral Commissioner must publish notice of the result of each plebiscite on a website maintained by the Commissioner as soon as reasonably practicable after certifying the result in accordance with s 54 of the LG(E) Act (s 2(4)). The Act expressly states that this requirement is “without limiting section 54 of the Local Government (Elections) Act 1999”, indicating the publication duty supplements existing return and publication requirements under s 54 of that Act (s 2(4)).

Returning officer duties and counting obligations. The Schedule imposes operational duties on returning officers for relevant polls. The returning officer must arrange returned postal voting papers into separate parcels for each ward to which the relevant poll relates (Schedule 1, inserted s 47(3)). When counting votes, the returning officer must determine, for each ward of a council, the number of electors who voted in support of and against the proposition, in addition to determining the result for the council as a whole (Schedule 1, inserted s 52(2)). The provisional declaration of the result must include the ward‑level details (Schedule 1, inserted s 52(3)). The returning officer must also return the result to the Minister as well as other statutory addressees by virtue of the Schedule’s amendments to s 54(1) and s 54(2) of the LG(E) Act (Schedule 1).

Fixed electoral timelines. The Act fixes the voters roll closing date for the relevant polls at 29 July 2022 and fixes polling day as 10 November 2022 with voting to close at 5 pm on that day (s 2(3)(b)(i)-(iii); Schedule 1, inserted s 15A). The Schedule also substitutes “14” for “28” in s 38 of the LG(E) Act (Schedule 1, modification to s 38), shortening a time period in that Act for whatever procedural requirement s 38 governs in the LG(E) Act.

Regulation‑making power. The Governor can make regulations “as are contemplated by, or necessary or expedient for the purposes of, this Act” (s 3). That gives the executive scope to impose further procedural rules or clarifying provisions affecting these plebiscites.

Non‑binding character and government discretion. The Act records that the plebiscites are non‑binding and that the Government is not compelled to take action following the outcome (note to s 2(2)). The question is whether electors support an examination of amalgamation, not whether electors approve any action that must be taken; the Act does not create legal consequences for either council based solely on the plebiscite result.

No new offences or penalties in the Act itself. The Act does not create express new offences or penalties. Instead, the LG(E) Act applies to these polls as if they were polls under that Act (s 2(3)(a)), so any offences, penalties or enforcement mechanisms remain those provided in the LG(E) Act as varied by Schedule 1.

No novel penalties in the Act. The Plebiscite (South East Council Amalgamation) Act 2022 does not itself create new criminal offences, civil penalties, or enforcement mechanisms. Instead, it applies the Local Government (Elections) Act 1999 to these plebiscites “as if the plebiscite were a poll held under that Act”, subject to Schedule 1 (s 2(3)(a)). Consequently, enforcement, sanctions for electoral misconduct, and the usual poll‑related offences remain within the LG(E) Act’s framework unless a particular provision is modified or excluded by Schedule 1.

Modification of return and publication obligations. The Schedule modifies the LG(E) Act’s return and publication regime so that the returning officer must include ward‑level detail in provisional declarations and the result notified under the LG(E) Act must, for a relevant poll, include those ward details (Schedule 1, inserted s 52(3); Schedule 1, modification to s 54(3)). The Schedule also requires the returning officer to return the result to “the Minister and” where the LG(E) Act previously required returns to other addressees (Schedule 1, modifications to s 54(1) and s 54(2)). These changes alter who receives official returns and what must be published but do not in themselves introduce new sanctions.

Operational controls on returning officers. The Schedule imposes mandatory organisational steps for returning officers that are procedural (arrange postal votes into ward parcels, count and report ward‑level votes; Schedule 1, inserted ss 47(3) and 52(2)-(3)). Non‑compliance with those duties would, in practice, be addressed under the LG(E) Act provisions that govern conduct of polls (s 2(3)(a)), though the Act does not identify particular penalties for failure to carry out these inserted duties.

Role of the Electoral Commissioner. Section 2(4) requires the Electoral Commissioner to publish the certified result on a website maintained by the Commissioner as soon as reasonably practicable after certifying the result in accordance with s 54 of the LG(E) Act. That publication requirement is a statutory duty imposed by this Act and is an enforceable statutory obligation; remedies for failure to publish would be those generally available for non‑performance of statutory duties or under the LG(E) Act framework where applicable.

Governor’s regulation power. Section 3 confers regulation‑making power to the Governor to make regulations “contemplated by, or necessary or expedient for the purposes of, this Act”. Any regulatory instruments made under that power could create further procedural obligations, which may include enforcement or administrative penalties if framed to do so; none are set out in the principal Act itself.

Summary. Enforcement and penalties are governed principally by the Local Government (Elections) Act 1999 as applied by s 2(3)(a). The principal Act reshapes certain duties about returns, publication and counting but does not itself create new sanctions in the text provided.

Direct application of the Local Government (Elections) Act 1999. The primary interaction is explicit: s 2(3)(a) directs that the Local Government (Elections) Act 1999, including regulations made under that Act, applies to each plebiscite as if the plebiscite were a poll under that Act. That means the LG(E) Act supplies the baseline legal regime for everything from electoral offences, voting methods, counting conventions, returns and publication, except where Schedule 1 and any regulations under this Act provide otherwise.

Targeted modifications and exclusions. Schedule 1 operates as a list of exclusions and modifications to specified provisions of the LG(E) Act and the Local Government (Elections) Regulations 2010 in respect of these “relevant polls”. The Schedule inserts a definition of “relevant poll” and then lists precise textual deletions, substitutions and insertions to multiple sections (Schedule 1, opening and entries). Examples include: altering definitions (insert “relevant poll” after “public notice” in s 4(1)), deleting “by the council” from s 4(2)(d), deleting paragraph (b) of s 12, altering s 13’s scope to exclude relevant polls, inserting s 15A (voters roll arrangements and the 29 July 2022 closing date), deleting “after consultation with the council” from s 33(2), changing a numerical time parameter in s 38 from “28” to “14”, and imposing additional requirements in ss 47 and 52 for postal vote parceling and ward‑level counting and reporting (Schedule 1 entries).

Regulations and delegated law. Section 3 authorises the Governor to make regulations necessary or expedient for the Act. In practice, that means the Act provides a base statutory framework while leaving scope for further delegated legislation to fill detail or adjust administrative steps. The LG(E) Regulations 2010 are already in the chain of applied laws; Schedule 1 deletes Regulation 7(2) of those Regulations for relevant polls (Schedule 1, Regulations 2010 section).

Publication obligations and interaction with LG(E) Act returns. The Act’s s 2(4) requires publication of results on the Electoral Commissioner’s website “as soon as is reasonably practicable after certifying in accordance with [s 54] the result of a plebiscite”. The Act expressly states this is without limiting s 54 of the LG(E) Act, indicating an additive rather than substitutive relationship with that section’s return and certification rules (s 2(4)).

No substantive changes to amalgamation law. The Act does not amend or interact substantively with laws governing council amalgamations, governance, or local government powers beyond providing an advisory electoral expression of opinion. The plebiscites ask whether electors support an examination of amalgamation (s 2(2)), and the Act emphasises the non‑binding character of that expression (note to s 2(2)). Any changes to amalgamation outcomes or statutory processes would be governed by other parts of South Australian local government law, not by this Act.

Summary of interaction. The Act functions as a procedural overlay: it borrows the LG(E) Act framework for logistics, offences and adjudication, but it carves out or changes discrete procedural elements for these polls via Schedule 1 and leaves a further layer of potential detail to regulations under s 3.

Principal Act information. The legislative history supplied with the Act shows it is the Principal Act with the following particulars: Year 2022, No 10, titled Plebiscite (South East Council Amalgamation) Act 2022, with assent and commencement both on 29 September 2022 (Legislative history table).

No subsequent amendments recorded in the provided text. The legislative history as presented does not record any amending instruments or later Acts altering the Plebiscite (South East Council Amalgamation) Act 2022; the Act as supplied is the enacted text commencing on 29 September 2022.

Delegated law potential. Section 3 grants the Governor power to make regulations “contemplated by, or necessary or expedient for the purposes of, this Act”. While that is not an amendment of the principal Act, it allows the executive to make subordinate instruments that could change practical administration; those regulations would be listed in a later legislative or subordinate legislation register. The Schedule already modifies provisions of the Local Government (Elections) Regulations 2010 by deleting Regulation 7(2) for relevant polls (Schedule 1, Regulations 2010 entry).

Practical note on record keeping. Where one must present the Act’s amendment history to clients or for compliance, rely on the Act’s own legislative history entry and the website or index signposted in the Notes (“For further information … see the Index of South Australian Statutes or www.legislation.sa.gov.au”), recognising that any regulations made under s 3 or subsequent amending Acts would be recorded there (Notes at end).

No litigation recorded in the source text. The Act’s supplied legislative history and contents do not record any judicial decisions or challenges relating to the Plebiscite (South East Council Amalgamation) Act 2022. The Act itself does not cite cases, and no judicial proceedings are noted in the legislative history section provided.

Implications for potential litigation. Any litigation arising from these plebiscites , for example, disputes about electoral rolls, the conduct of postal voting, the correctness of counting and provisional declarations, or the sufficiency of publication by the Electoral Commissioner , would proceed under the legal framework that applies to the poll. That is, the Local Government (Elections) Act 1999 applies to these plebiscites as if they were polls under that Act, subject to Schedule 1 (s 2(3)(a)). The Act’s modifications to returns, reporting and postal vote handling (Schedule 1, inserted ss 47(3), 52(2)-(3) and modifications to s 54) are likely to be focal points in any procedural challenge because they set the specific statutory duties for these polls.

No precedent materials are supplied. The provided text contains no judicial interpretations or references to case law. Any party seeking to litigate aspects of these plebiscites would need to base arguments primarily on the text of the LG(E) Act as applied and the variations effected by Schedule 1 of this Act, together with general principles of administrative law.

Narrow question, non‑binding outcome. The proposition put to electors is narrowly phrased: “Do you support the examination of an amalgamation of the District Council of Grant and the City of Mount Gambier to form a single council?” (s 2(2)). The Act’s own explanatory note states the plebiscites are non‑binding and that the Government is not compelled to take action following the outcome (note to s 2(2)). That means the plebiscite does not in itself change legal status, governance arrangements or trigger statutory amalgamation processes. Users and advisers must not conflate electoral expression with legal compulsion.

Fixed and possibly stale voters roll. The Act fixes the closing date for the voters roll as 29 July 2022 for relevant polls and directs that the voters rolls used for the periodic elections with voting closing on 10 November 2022 be used for the relevant polls (Schedule 1, inserted s 15A(a)-(b)). The Schedule also disapplies certain voters roll requirements under subsections (7), (10) and (13) of s 15 of the LG(E) Act for these relevant polls (Schedule 1, inserted s 15A, parenthetical note). Practitioners should note that those roll arrangements are statutory and fixed in the Act; any changes in electors’ status after 29 July 2022 may not be reflected for these polls unless regulations under s 3 make adjustments.

Ward‑level reporting and data detail. The Schedule requires the returning officer to determine and include in the provisional declaration the number of electors in each ward who voted for and against the proposition (Schedule 1, inserted s 52(2)-(3)). This will produce ward‑level data about local opinion. That is a specific statutory reporting requirement rather than a discretionary release of information (Schedule 1, inserted s 52(3); s 2(4) requiring publication). Stakeholders should anticipate that publication of detailed ward results is mandated and will be published by the Electoral Commissioner.

Procedural deletions and scope reductions. The Schedule deletes or alters words and paragraphs in the LG(E) Act, for example deleting “by the council” from s 4(2)(d), deleting paragraph (b) of s 12, changing s 13 from “All” to “Except in relation to a relevant poll, all”, and deleting “after consultation with the council” from s 33(2) (Schedule 1 entries). These deletions remove or limit certain council‑based procedural roles or statutory requirements for the relevant polls. Because the Schedule makes textual deletions rather than adding detailed replacements, there is an increased need to check the LG(E) Act text to identify precisely which duties or consultation steps no longer apply to these plebiscites.

Shortened timeframes. The Schedule substitutes “14” for “28” in s 38 of the LG(E) Act (Schedule 1, modification to s 38). That reduces the time period specified in that section for anything governed by s 38 in the LG(E) Act. Practitioners should map what s 38 covers in the LG(E) Act to understand the operational impact; the Schedule confirms the legislative intent to shorten certain statutory timelines for relevant polls.

Returning officer logistics for postal votes. The Schedule requires postal voting papers returned for the relevant poll to be arranged into separate parcels for each ward (Schedule 1, inserted s 47(3)). That imposes a specific chain‑of‑custody and sorting requirement that may affect counting logistics, staffing and vendor arrangements for handling returned postal ballots. It is a statutory duty for relevant polls and not a mere administrative suggestion.

Publication duty by Electoral Commissioner. Section 2(4) requires the Electoral Commissioner to publish the certified result on a website maintained by the Commissioner as soon as reasonably practicable after certifying the result in accordance with s 54 of the LG(E) Act. The Act expressly adds this duty on top of existing s 54 requirements. Failure to publish as required would be a failure to perform this statutory duty and could be the subject of administrative review or other remedies.

No automatic substantive change on amalgamation. Because the plebiscites are non‑binding and the question is about an “examination” rather than about making or approving an amalgamation, stakeholders should not treat an affirmative result as a statutory trigger for amalgamation or assume legal effects flow automatically from the vote (note to s 2(2)).

Delegated law risk. Section 3 gives the Governor regulation‑making authority that may add or clarify procedural requirements. That means the Act’s practical effects could be changed or elaborated by regulations not contained in the primary Act; practitioners should monitor subordinate legislation made under s 3 for operational detail.

Electoral administration: Electoral Commissioner and returning officers

• Use the Local Government (Elections) Act 1999 framework. Treat each plebiscite as a poll under the LG(E) Act subject to the Schedule’s exclusions and modifications (s 2(3)(a)). Cross‑reference the LG(E) Act text with the Schedule to identify which provisions are displaced or altered.
• Apply the fixed voters roll and polling timetable. Ensure the voters roll used is the periodic election roll for the council with voting closing 10 November 2022 and that 29 July 2022 is treated as the closing date for enrollment for the relevant poll (Schedule 1, inserted s 15A(a)-(b)(i)-(ii); s 2(3)(b)(i)). Fix polling day as 10 November 2022 and close voting at 5 pm on that day (s 2(3)(b)(ii)-(iii)).
• Postal vote handling by ward. Implement procedures so that postal voting papers returned for the relevant poll are arranged into separate parcels for each ward before counting (Schedule 1, inserted s 47(3)). That will require chain‑of‑custody protocols, labelling, and storage arrangements to keep parcels distinct by ward.
• Count and report ward‑level results. When counting, ensure the returning officer determines for each ward the number of electors who voted for and against the proposition in addition to the overall council result (Schedule 1, inserted s 52(2)). Include those ward‑level figures in the provisional declaration (Schedule 1, inserted s 52(3)).
• Return results to the Minister and publish. Ensure the returning officer returns the result to “the Minister and” (as modified in Schedule 1 to s 54(1)-(2)) and that the Electoral Commissioner publishes notice of the certified result on the Commissioner’s website as soon as reasonably practicable after certification (s 2(4); Schedule 1, modification to s 54(3)). Ensure that the publication includes the ward‑level details required by Schedule 1.

Councils

• Recognise altered consultative roles. The Schedule deletes or modifies some provisions that previously required council action or consultation in relation to polls (for example, deleting “after consultation with the council” in s 33(2) and deleting “by the council” in s 4(2)(d); Schedule 1 entries). Councils should check which specific duties or notices no longer attach to them for these relevant polls and coordinate with the Electoral Commissioner to confirm responsibilities.
• Prepare for ward‑level publicity. Expect that ward‑level results will be published and that the council will receive official returns that include ward‑by‑ward support/opposition numbers (Schedule 1, inserted s 52(3); s 2(4)). Consider internal communications plans in light of the non‑binding nature of the plebiscite.

Electors and campaigners

• Enrollment cut‑off and voting arrangements. Electors who wish to participate must ensure they are on the roll used for the periodic election whose voting closes on 10 November 2022; the roll effectively froze for the purposes of these polls on 29 July 2022 (Schedule 1, inserted s 15A). Voting closes at 5 pm on 10 November 2022 (s 2(3)(b)(iii)).
• Understand what is being asked. The plebiscite asks only for support for an “examination” of amalgamation, not approval of amalgamation itself (s 2(2)). Campaigners should tailor messaging and advice to voters accordingly, and avoid implying legal effect beyond the expression of opinion.

Legal and compliance advisers

• Map Schedule 1 against the LG(E) Act. For each provision in Schedule 1 that deletes, substitutes or inserts wording, identify the corresponding LG(E) Act or Regulation provision, determine what obligation or safeguard is removed or altered, and advise clients on operational effects. Relevant Schedule 1 entries include the inserted definition of “relevant poll”, inserted s 15A, modified ss 47, 52, 54, and the deletions/substitutions in ss 4, 12, 13, 33 and 38.
• Monitor regulations. Section 3 permits regulations to be made for the Act’s purposes. Track any regulations made under s 3 because they may add procedural detail or obligations not present in the principal Act.
• Advise on data publication and privacy. Because the Act requires ward‑level counts and public publication of results (Schedule 1, inserted s 52(3); s 2(4)), clients concerned with data handling should receive advice on how statutory publication obligations interact with privacy considerations and whether any specific redactions or handling protocols are necessary. The Act itself mandates publication by the Electoral Commissioner.

Operational checklists for returning officers

• Confirm the correct voters roll has been imported and that any roll change processes excluded by Schedule 1 are handled consistently (Schedule 1, inserted s 15A, parenthetical text on subsections not applying).
• Establish postal ballot sorting procedures that segregate returns by ward and maintain secure chain of custody for those parcels (Schedule 1, inserted s 47(3)).
• Implement counting protocols ensuring the ward‑level tallies (support and opposition counts) are separately calculated and recorded for inclusion in provisional declarations (Schedule 1, inserted s 52(2)-(3)).
• Prepare provisional declaration and official return templates that include the additional ward details mandated by the Schedule and ensure returns are sent to the Minister as well as other statutory recipients (Schedule 1, modifications to s 54(1)-(3)).

Summary. Compliance requires strict procedural application of the LG(E) Act as modified by Schedule 1, attention to the fixed voters roll and polling timetable, mandated ward‑level handling and reporting of postal and counted votes, and timely online publication by the Electoral Commissioner. All actors should cross‑reference the Schedule’s textual changes against the LG(E) Act to operationalise the Act’s duties.