Kempsey Shire Council awaits Supreme Court ruling on elections

Published on 17 January 2022

Kempsey Shire Council is seeking legal advice to prepare for a Supreme Court hearing after the NSW Electoral Commission sought to have the recent Councillor election declared void.

The NSW Electoral Commission revealed in December that some users of their iVote system were unable to gain access to the system to vote in the local government elections due to technical issues in the process run by the Commission.

In the case of Kempsey Shire Council there were 34 electors who were approved by the Electoral Commission but were unable to vote and did not vote by other means.

Following analysis of the potential outcomes, John Schmidt, the Electoral Commissioner for New South Wales determined that there was no material impact, except in three contests, including the Kempsey Councillor election.

As a result, the Commissioner is seeking a series of orders in the New South Wales Supreme Court, including a declaration that our councillor election conducted on 4 December 2021 be declared void.

The report into the NSW Electoral Commission’s iVote system found that “a number of electors’ online applications to vote by technology assisted voting (iVote) at the 2021 local government elections were approved but they were unable to access the voting component of the iVote system on election day 4 December 2021 to cast their votes. This was because these electors were not issued with the necessary security credential before the close of voting on election day, which is a prerequisite to accessing the voting component of the system.”

The Kempsey Mayoral election was not materially impacted and Leo Hauville is confirmed as the new Mayor.

Council and the elected councillors have been named as defendants in the matter. The Commissioner has been granted an expedited hearing to have the matter heard as soon as possible.

Kempsey Shire Council General Manager, Craig Milburn, said that Council would work with all parties in the interests of ensuring a fair and democratic election result.

“Kempsey Shire Council is fundamentally committed to free, fair and true, democratic elections,” said Mr Milburn.

“As the Commissioner has determined that our Councillor elections may have been impacted by issues in their iVote system, the Supreme Court will need to rule on that result’s validity. We have engaged Local Government Legal to provide advice to Council to prepare for the hearing.

“While we wait for this matter to be heard in Court, we do have a declared Council and it is business as usual with the first Council meeting scheduled for 25 Jan 2022.”

More information including detailed explanation of the analysis can be found on the NSW Elections site.