In 2022, it is clear that many, if not most activities that we would ordinarily carry out in person, can now be done online. But sometimes, technology fails and things can go wrong. The 2021 NSW local government elections are an example of that.
The NSW Supreme Court recently set aside the 2021 local government election results in respect of the Shellharbour City, Kempsey Shire, and Singleton Councils because of a technical issue with their remote electronic voting system, iVote. Those Councils must now rerun their elections. The technical issue in question in the case of NSW Electoral Commission v Kempsey Shire Council (No 2) [2022] NSWSC 282 was that, because of high iVote uptake, not all voters who applied to use iVote actually received the iVote number that they needed to be able to actually vote remotely.
Applicable law and issue
Section 310 of the Local Government Act 1993 (NSW) (LG Act) requires contested elections to be conducted in accordance with a set of regulations, the Local Government (General) Regulation 2021 (NSW) (Regulations). The Regulations (see clause 333E) require the Electoral Commissioner to allow any eligible voter who applies for technology assisted voting to vote through it. From the outset it was agreed by the parties that a breach of those provisions had occurred, but the Court had to decide whether those breaches went beyond merely formal defects (which are allowed under section 317 of the Act) and therefore justified the setting aside of the election results. A further issue was whether the results should be set aside in their entirety, or only for those Councillors whose positions were affected.
The Court’s decision
The Court assessed whether the iVote failure justified setting aside the results in terms of materiality, comparing the number of voters that were prevented from voting with the winning margin of the elected candidate. For example, in Shellharbour City Council, there were 54 people who had been prevented from voting and a margin of only four votes between the last two candidates. In each of the elections in Shellharbour City, Kempsey Shire, and Singleton, the Court concluded that the breach was material.
In deciding whether to partly or wholly set aside the results, the Court distinguished between the proportional system of voting adopted for local government elections, and the preferential voting system adopted at other levels of government. The Court held that it could not partly set aside the election without the rerun election becoming in effect preferential voting, which would frustrate the purpose behind the proportional voting scheme operated by the NSW Government. On that basis the Court set aside the entire election.
The Act requires that once a declaration has been made that the elections are invalid, they must be rerun within three months. Although those declarations have been deferred, residents of the Shellharbour City, Kempsey Shire and Singleton Councils, should expect rerun elections in the near future. As a result of this case, the NSW Government has announced that it will no longer use the iVote system until such time that these technical glitches can be fully investigated and addressed.