NSW Electoral Commissioner v Kempsey Shire Council (No 2)

The NSW Electoral Commissioner sought judicial review of three Local Government elections, challenging their validity due to technological failures that disenfranchised a small number of voters. The NSW Supreme Court was asked to determine the legality of the elections under the Local Government Act. The primary legal issues involved the standing of the Electoral Commissioner, the materiality of the breaches to the election outcomes, and the appropriate form of relief if the elections were found to be invalid.

The court examined whether the Commissioner had standing to bring the application and concluded that he did, as his role includes ensuring compliance with electoral laws. It was established that breaches had occurred, but the court needed to determine if these breaches materially affected the election outcomes. The court assessed materiality by comparing the number of disenfranchised voters with the margins between elected and non-elected candidates and between excluded and non-excluded candidates. The court found that the election of at least one candidate in each contest was directly affected, rendering the breaches material. The court noted the interrelationship between the election of candidates under a proportional representation system and decided that it was inappropriate to impose on the electorate councillors elected under two different electoral systems.

After considering the potential costs and dislocation of holding new elections, and the effect on candidates, the court exercised its discretion to declare the elections void. However, the declaration was deferred to allow time for any contingencies affecting the conduct of the elections to be addressed. The Electoral Commissioner was directed to advise the Court of any proposals to address the wasted costs incurred by successful and unsuccessful candidates.