NSW Supreme Court Orders New Elections After Electronic Voting System Failed

Supreme Court
New South Wales
Case Name: NSW Electoral Commission v Kempsey Shire Council

(No 2)
Medium Neutral Citation: [2022] NSWSC 282
Hearing Date(s): 22 & 23 February 2022
Date of Orders: 17 March 2022
Decision Date: 17 March 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision: (1) The proceedings stand over to 5 April 2022 at

9.30am.
(2) On or before 5.00pm on 25 March 2022 the

Plaintiff and the First, Tenth and Thirteenth Defendants
are to confer in relation to the orders necessary to give
effect to the judgment.
(3) On or before 5.00pm on 29 March 2022 the

Plaintiff and the First, Tenth and Thirteenth Defendants
are to file and serve proposed orders and any
submissions in support which are not to exceed 5
pages.
(4) On or before 5.00pm on 1 April 2022 any other

party may file and serve proposed orders, and any
submissions in support, which are not to exceed 5
pages.
(5) Grant the parties liberty to apply on 1 day’s notice.
Catchwords: JUDICIAL REVIEW – challenge to three Local

Government elections – failure of technology assisted
voting on election day – small number of voters
disenfranchised – disproportionate effect on election
due to use of proportional system of voting – standing
of Electoral Commissioner to make application –
whether breach of Local Government Act in conduct of
election – test of materiality of breach to outcome –
approach to determining materiality to outcome –
whether materiality assessed by attempting to model
disenfranchised voters’ likely voting intentions by
reference to voting patterns of other voters – whether
materiality assessed by comparison between number of
disenfranchised voters and margins between elected
and non-elected candidates and margins between
excluded and non-excluded candidates – relief –
whether elections should be declared wholly void or
only void in respect of the election of particular
councillors – election of at least one candidate in each
contest was directly affected – interrelationship
between election of candidates under proportional
representation – inappropriate to impose on electorate
Councillors elected under two different electoral
systems – relief – discretion – whether discretion to
declare elections void should not be exercised on
account of cost and dislocation of new election to the
affected Councils – whether discretion to declare
elections void should not be exercised on account of
effect on candidates – discretion to declare void will be
exercised – making of declaration deferred to allow for
contingencies affecting conduct of elections – Electoral
Commissioner to advise Court of any proposal to
address wasted costs of successful and unsuccessful
candidates
Legislation Cited: Commonwealth Electoral Act 1918

Electoral Act 2017
Interpretation Act 1987
Local Government Act 1993
Local Government (General) Regulation 2021
Supreme Court Act 1970
Constitution
Cases Cited: Associated Provincial Picture Houses Ltd v

Wednesbury Corporation [1948] 1 KB 223
Australian Conservation Foundation Inc v
Commonwealth (1980) 146 CLR 493; [1980] HCA 53
Australian Electoral Commission v Johnston & Ors
(2014) 251 CLR 463; [2014] HCA 5
Bourne v Murphy (1996) 92 LGERA 329; [1996]
NSWCA 59
Bridge v Bowen (1916) 21 CLR 582; [1916] HCA 38
Carroll v Electoral Commissioner of Qld (No 1) (2001) 1
Qd R 117; [1998] QSC 190
Chanter v Blackwood (1904) 1 CLR 39; [1904] HCA 2
CNY17 v Minister for Immigration and Border Protection
(2019) 94 ALJR 140; [2019] HCA 50
Hansen v Electoral Commissioner (2004) 132 LGERA
296; [2004] NSWSC 348
Hossain v Minister for Immigration and Border
Protection (2018) 264 CLR 123; [2018] HCA 34
In re Parliamentary Election for Bristol South East
(1964) 2 QB 257
Liston v Davies (1937) 57 CLR 424; [1937] HCA 22
Minister for Immigration and Border Protection v
WZARH (2015) 256 CLR 326; [2015] HCA 40
MZAPC v Minister for Immigration and Border
Protection & Anor (2021) 95 ALJR 441; [2021] HCA 17
Peek v NSW Egg Corporation (1986) 6 NSWLR 1
Project Blue Sky v Australian Broadcasting Authority
(1998) 194 CLR 355; [1998] HCA 28
Re Minister for Immigration and Multicultural and
Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1;
[2003] HCA 6
Re Wood (1988) 167 CLR 145; [1998] HCA 22
Roberts v Jeffery & 4 Ors [2003] NSWSC 162
Tanti v Davies (No 3) [1996] 2 Qd R 602
Category: Principal judgment
Parties: NSW Electoral Commission (Plaintiff)

Kempsey Shire Council (First Defendant)
Joshua Freeman (Second Defendant)
Kerri Riddington (Third Defendant)
Anthony Patterson (Fourth Defendant)
Alexandra Wyatt (Fifth Defendant)
Ian Bain (Sixth Defendant)
Vijay Craigie (Seventh Defendant)
Simon Fergusson (Eighth Defendant)
Elizabeth Campbell (Ninth Defendant)
Shellharbour City Council (Tenth Defendant)
Maree Edwards (Eleventh Defendant)
Kellie Marsh (Twelfth Defendant)
Singleton Council (Thirteenth Defendant)
Susan George (Fourteenth Defendant)
Anthony McNamara (Fifteenth Defendant)
Valerie Scott (Sixteenth Defendant)
Hollee Jenkins (Seventeenth Defendant)
Belinda Charlton (Eighteenth Defendant)
Godfrey Adamthwaite (Nineteenth Defendant)
Daniel Thompson (Twentieth Defendant)
Malinda McLachlan (Twenty-first Defendant)
Anthony Jarrett (Twenty-second Defendant)
Representation: Counsel:
Mr J Emmett SC; Ms C Roberts; Mr S Puttick (Plaintiff)
Mr M Seymour; Mr C Koikas (First and Thirteenth
Defendants)
Ms A Wyatt, in person (Fifth Defendant)
Mr I Bain, in person (Sixth Defendant)
Ms E Campbell, in person (Ninth Defendant)
Ms S Palaniappan (Tenth Defendant)
Ms M Edwards, in person (Eleventh Defendant)
Mr G Ward (Twelfth Defendant)
Ms S George, in person (Fourteenth Defendant)
Ms P Wright (Eighteenth Defendant)
Mr G Adamthwaite (Nineteenth Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Local Government Legal (First and Thirteenth
Defendants)
Cooney Harvey Doney (Second to Fifth Defendants)
Mr I Bain, in person (Sixth Defendant)
Cooney Harvey Doney (Seventh to Ninth Defendants)
Sparke Helmore Lawyers (Tenth Defendant)
Ms M Edwards, in person (Eleventh Defendant)
Mr G Ward (Twelfth Defendant)
Ms S George, in person (Fourteenth Defendant)
No Appearance (Fifteenth to Seventeenth Defendants)
PJ Donnellan & Co (Eighteenth Defendant)
Mr G Adamthwaite, in person (Nineteenth Defendant)
No Appearance (Twentieth to Twenty-second
Defendants)
File Number(s): 2022/8416
Table of Contents
Summary_Toc98140359 - paragraph 3
Proportional Voting System and the Council Elections_Toc98140360 -

paragraph 8
Shellharbour City Council, Ward A_Toc98140361 - paragraph 9
Kempsey Shire Council_Toc98140362 - paragraph 14
Singleton Council_Toc98140363 - paragraph 16
The “iVote” System and its failure_Toc98140364 - paragraph 18
The Effect of the Failure of the iVote system_Toc98140365 - paragraph

22
Dr Teague’s Evidence_Toc98140366 - paragraph 35
The Breach of the LGA in the Conduct of Council

Elections_Toc98140367 - paragraph 43
The Consequences of the Breach_Toc98140368 - paragraph 55
How is the Materiality of the Irregularity in an Election to be

Assessed?_Toc98140369 - paragraph 76
One Candidate’s Election Invalidated or all Candidates’ Election

Invalidated?_Toc98140370 - paragraph 87
Discretion: Community Disruption_Toc98140371 - paragraph 106
Discretion: Personal and Financial Toll on Candidates_Toc98140372 -

paragraph 112
Other Submissions_Toc98140373 - paragraph 118
Future Progress and Potential Cross-claims_Toc98140374 - paragraph

122
JUDGMENT
1 The principal issue in these proceedings is what are the legal consequences of
the failure on the afternoon of 4 December 2021 of the “iVote” system of
technology assisted voting administered by the Electoral Commissioner for
New South Wales (the “Electoral Commissioner”) on three of the many council
elections conducted on that day. The Electoral Commissioner has applied for
orders declaring the three elections void in whole or in part.
2 At the outset it is necessary to emphasise that nothing in these proceedings

involves any alleged failing much less misconduct on the part of the Councils
or any of the candidates, including those who were elected. To the contrary,
the Councils and the candidates, including the elected Councillors, are
completely innocent of any of the conduct said to have caused the elections to
miscarry. They will unfairly bear the consequences of the failure of the iVote
system.
Summary
3 By a summons filed on 11 January 2022, the Commissioner applied for

declaratory relief to the effect that the elections for Kempsey Shire Council,
Singleton Council and Shellharbour City Council-Ward A conducted on 4
December 2021 were void for want of compliance with regulation 333E of the
Local Government (General) Regulation 2021 (the “General Regulation”) made
under the Local Government Act 1993 (the “LGA”). Each of the affected
Councils, as well as the councillors who the Electoral Commissioner later
declared elected in those elections, were joined as defendants. The
unsuccessful candidates were advised of the existence of these proceedings
and the relief sought. They were given the opportunity to be joined. None
sought to do so.
4 Given the interests at stake, the proceedings were expedited and heard on
22 and 23 February 2022. Each of the Councils was legally represented as
were the twelfth defendant, Ms Kellie Marsh, and the eighteenth defendant, Ms
Belinda Charlton. Six other defendants appeared for themselves at the hearing
and tendered evidence. Despite the great stress that was occasioned to many
of the individual defendants by these proceedings, they were of considerable
assistance to the Court.
5 One matter the Councillors pressed very strongly on the Court is the great
unfairness that will be occasioned to them should their elections be declared
void. If that were to occur, they will then have to consider whether to stand for
election without necessarily being reimbursed for the expenditure and time they
incurred in securing their election. It was agreed that the Court would address
a contention made on their behalf that a condition of granting any relief in
respect of the elections is that the Electoral Commissioner reimburse them for
their costs and expenses. The possibility that they might bring cross-claims to
recover those costs and expenses was deferred for later consideration, if
necessary. The Court was advised that the Electoral Commissioner and the
Councils had agreed in principle to the reimbursement of the latter’s expenses
in the event that any elections were voided.
6 For the reasons that follow, the failure of the iVote system on 4 December
2021 meant that each election was not conducted in accordance with the
General Regulation as was required by s 310 of the LGA. Even though the
number of voters denied the franchise by the failure of the iVote system was
small, the system of proportional representation utilised in local government
elections is such that the votes that were denied to those voters had the real
potential to affect the election of at least one Councillor in each of the three
subject elections. Once that conclusion is reached then the scope of the
Court’s discretion to refuse to declare the election void in whole or in part is
limited. The primary consideration is the interests of the electorate and the
cost, stress and inconvenience to the elected cannot be elevated above the
electorate’s interest in having a Council elected in accordance with the LGA.
The most difficult issue is whether the failure of the iVote system means that
the election of all of the Councillors in the three subject elections must be
voided or only the election of those Councillors whose election was directly
affected by the missing votes. With considerable reluctance I consider that,
because the system of election for the three Councils is proportional
representation, it is necessary to declare all of the Councillors’ elections void.
Had the Court only declared one Councillor’s position void then the result
would be a by-election using the optional preferential system of voting which
would undermine the “manifest purpose of the proportional voting scheme of
the [Local Government] Act” (Re Wood (1988) 167 CLR 145; [1998] HCA 22 at
[21]; “Re Wood”). I will refrain from making declarations immediately to
facilitate the timing of the elections and any further consideration of the
interests of the Councillors.
7 To explain these conclusions, it is first necessary to describe the nature of the

electoral system, the results of the elections, the failure of the iVote system and
the Electoral Commissioner’s modelling of the effects of that failure.
Proportional Voting System and the Council Elections
8 The method of counting votes under the proportional system of voting is

specified in Schedule 5 to the General Regulation. It uses the single
transferable vote system of proportional representation. It is either the same or
a very similar system to the system used for elections to the Australian Senate.
It is also similar to the “Hare Clark” system that has been utilised in elections to
the Legislative Assembly in Tasmania for many years, although that system
does not allow above-the-line voting which is permitted in Senate and Local
Government elections. In any event, the system is accurately described in a
report attached to the affidavit of the Electoral Commissioner’s “Executive
Director, Elections”, Mr Simon Kwok, as follows:1
“The proportional representation system is described in Schedule 5 of the

Local Government (General) Regulation 2021. This sets out the Weighted
Inclusive Gregory Method (WIGM) of vote counting for councillor elections in
NSW.
In a proportional voting system, a candidate is elected if they receive votes
equal to or exceeding the quota. The quota is determined by first dividing the
aggregate number of the first preferences by one more than the number of
candidates to be elected. The quotient (disregarding the fraction) is increased
by 1 to give the quota. After the count of first preferences is complete, each
candidate who has reached a quota is elected.
Where an elected candidate has a surplus of ballot papers over the quota, this
surplus is transferred to the continuing candidates (i.e. those not yet elected or
excluded). If multiple candidates are elected, each candidate’s surplus is
transferred (one at a time) to the continuing candidates, from the highest
surplus to the lowest.
1
Annexure E to the affidavit of Simon Kwok sworn 10 January 2022 (Kwok1”) at 48 Court Book (“CB”) at 57.
To transfer a surplus, all the ballot papers received by the elected candidate
are sorted to their next preferred continuing candidate. Each ballot paper is
then worth a portion of that surplus. This portion is called the transfer value.
Example: if an elected candidate had 100 ballot papers and their surplus was
10 votes, then each ballot paper would be worth 0.1 of a vote. A continuing
candidate receiving 20 of these ballot papers would therefore receive 2 of the
10 surplus votes. After each transfer of ballot papers (and their associated
votes), if any more candidates have reached quota, they are elected and
added to the queue of surpluses to be transferred. This transfer of surpluses
continues (one at a time) until all have been transferred. Then, if vacancies
remain, the candidate with the lowest number of votes is excluded. All the
ballot papers received by this candidate, including those received from surplus
transfers, are sorted to the continuing candidates according to their next
available preference. This process continues with candidates being:
ͦ elected when their votes equal or exceed quota, with their surplus
distributed as above or
ͦ excluded, with their ballot papers distributed as above until either:
ͦ no vacancies remain to be filled or
ͦ the number of remaining candidates equals the number of remaining
vacancies or
ͦ all remaining vacancies can be filled by candidates whose total votes
cannot be overtaken by the remaining candidates in the count.
In these circumstances, the elected candidates are elected despite not
reaching the quota.”
Shellharbour City Council, Ward A
9 The operation of this system of voting and the significance of the failure of the
iVote system in respect of relatively few votes is best illustrated by the results
of the election for the two Councillors representing Shellharbour City
Council-Ward A on 4 December 2021. The first preference count was as
follows:
Elected
Candidates in First
Group at Votes
Ballot Order Preferences
Count
MARSH, 6,067
A
Kellie 2,254
BITSCHKAT, 425 425

B
Shane 8,746 8,746
Group Total 3,577 4,123
LABOUR 546 269
EDWARDS 269 4,392

Maree
4,392 0
MOON Mick
Group Total
Exhausted
Formal
Voters
13,136 13,136
Informal
640 640
Ballot Papers
13,778 13,778
Total Voters /
Ballot Papers
10 The heading “Group” reflects that group or “above the line” voting was utilised.
This enables voters to simply vote for the group of their choice and their
preferences will be allocated in accordance with the preference flows
nominated by that group. In this election there were 13,138 formal votes for two
positions. The quota for election was one more than the result of dividing the
total number of formal votes by the number of elected positions and adding a
vote (i.e., 1+ 13,138(2+1) = 4,380 votes).
11 The above table reflects the first round of counting for the election. Ms Marsh
secured 2,254 first preference votes in her own right and the group of which
she was a member secured 6,067 votes. As she was the first candidate for her
group, she is taken to have received 8,321 votes (6,067 + 2,254) which was
well in excess of a quota. Ms Edwards received 546 votes in her own right and
the group of which she was a member secured 3,577 votes. As she was the
first candidate for her group, she was taken to have received 4,123 votes (546
+ 3,577) which was short of a quota.
12 The result of this first round of counting was that Ms Marsh was elected. In the
next round the preferences indicated in her primary votes were distributed. This
was done by attributing each vote a transfer value determined by the
proportion that her total vote exceeded a quota (i.e., her surplus) bore to her
total vote (0.47 = 3,941/8,321). After the preferences in the votes for Ms Marsh
were distributed (including the group votes) with that value, Mr Bitschkat had
4,287 votes, Ms Edwards had 4,180 votes and Mr Moon had 295 votes. 2 As
neither Mr Bitschkat or Ms Edwards had obtained a quota, the next step was to
eliminate the candidate with the lowest number of votes, namely Mr Moon, and
distribute the preferences indicated in his votes. Those preferences were
assigned a transfer value that represented one full vote. After his preferences
were distributed, Ms Edwards had 4,295 votes and Mr Bitschkat had 4,291
votes, a difference of four votes. As neither Ms Edwards nor Mr Bitschkat had
received a full quota, and there were no more preferences to be distributed, Ms
Edwards was declared elected.
13 This description of the voting rounds and totals reveals the potential effect on
at least Ms Edwards election if additional votes had been cast. Ultimately there
was only four votes between her and Mr Bitschkat. Even if any additional votes
had not been directly cast for him or did not explicitly preference him ahead of
Ms Edwards, any additional votes cast for Ms Marsh directly would have
affected, albeit marginally, the transfer value assigned to her surplus votes.
Kempsey Shire Council

14 There were eight councillors elected to Kempsey Shire Council. A total of
16,204 formal first preference votes were cast.3 The quota for a candidate to
be elected was 1,801 votes. There were two groups of four candidates and 14
ungrouped candidates.4 Only two candidates achieved a quota based on first
preference votes, namely the eighth defendant (Mr Fergusson) and the ninth
defendant (Ms Campbell). The next successful candidate being the seventh
defendant (Mr Craigie) was not elected until the seventh count, followed by the
sixth defendant (Mr Bain) who was elected on the 13th count. The last three
2
Annexure B to the affidavit of Simon Kwok sworn 21 February 2022 (“Kwok2”) at 47; CB 142.
3
Kwok2 at 12 to 13; CB 107 to 108.
4
Kwok2 at 13; CB 108.
candidates were elected on the 19th count being the second defendant (Mr
Freeman), the third defendant (Ms Riddington) and the fourth defendant (Mr
Patterson) respectively.
15 The lowest vote total on the final count amongst the three elected councillors
for Kempsey Shire Council was Mr Patterson who was elected with 1,413
votes. The other remaining candidate in that round had a progressive total of
1,344 votes.5 However, one possible indicator of the potential for a small
number of additional votes to have affected the outcome can be gauged by
noting the margin of votes between the various candidates who were
eliminated in the various counting rounds namely: two votes in the fourth
count,6 25 votes in the fifth count,7 19 votes in the sixth count,8 two votes in the
12th count,9 34 votes in the 17th count10 and 31 votes in the 18th count.11 With
the 14th count, there was a tie for the two lowest candidate totals namely 712
votes for Mr Patterson and another candidate, Ms McGinn. Ms McGinn was
excluded on a countback to the previous voting round (General Regulation, cl
9(5) of Schedule 5).12 In large part due to Ms McGinn’s preferences, Mr
Patterson was ultimately elected.
Singleton Council
16 There were nine councillors elected to Singleton Council. A total of 12,745
formal first preference votes were cast and the quota for election was 1,275
votes. There were 15 candidates, one of whom was rendered ineligible (and
received 3,092 votes).13 Four candidates achieved a quota on the first count,
namely the 19th defendant (Mr Adamthwaite), the 20th defendant (Mr
Thompson), the 21st defendant (Ms McLachlan) and the 22nd defendant (Mr
Jarrett). The 18th defendant (Ms Charlton) was elected on the seventh count
and the 17th defendant (Ms Jenkins) was elected on the tenth count. 14 The
5
6
Kwok2 at 15 to 16; CB 110; 111.
7
8
Kwok2 at 17 to 18; CB 112 to 113.
9
10
11
12
13
14
14th defendant (Ms George), the 15th defendant (Mr McNamara) and the 16th
defendant (Mr Scott) were elected on the 11th count, which was the last round
of counting.
17 Neither Mr McNamara nor Mr Scott reached a quota. Mr Scott’s progressive

total was the lower of the two. His progressive total exceeded that of the other
remaining candidate, Ms Johnstone, by three votes.15 Mr McNamara’s
progressive total exceeded Ms Johnstone’s progressive total by 28 votes. 16
Another possible indicator of the potential for a small number of additional
votes to have affected the outcome can be gauged by the margin of votes
between the various candidates who were eliminated in particular counting
rounds, namely four votes in the ninth count17 and 34 votes in the eighth
count.18
The “iVote” System and its failure

18 Technology assisted voting was first approved to be used for the 2011 State
election. It was subsequently used in the 2015 and 2019 State election.
December 2021 was the first occasion in which it was used in local council
elections.
19 Technology assisted voting is regulated by Part 11 Division 7A of the General

Regulation. Regulation 333D enables an elector to apply to vote in an election
by means of technology assisted voting. Such an application has to be made in
accordance with the “approved procedures” and must specify the ground on
which the application was made. The grounds are reflected in the definition of
“eligible elector” in regulation 333C. They include: electors qualified to receive
a postal vote who have not received their ballot paper before the eighth day
prior to election day; electors with a relevant form of disability; illiterate electors;
silent electors; electors who do not reside within 20km of a polling place and
electors absent from the area of the election on polling day. There is no
out-of-area voting for local government elections.
15
16
17
18
20 Regulation 333F empowers the Commissioner to approve procedures for
technology assisted voting. Regulation 333E provides:
“333E Electoral Commissioner to determine applications

If the Electoral Commissioner is satisfied that an applicant is an eligible
elector, the applicant must be permitted to vote at the election by means of
technology assisted voting in accordance with this Division.” (emphasis added)
21 During election day on 4 December 2021, the Commissioner issued a press
release to the effect that a number of voters were unable to gain access to the
iVote system due to the high volume of usage.19 It seems that they were not
issued with an approved iVote number.
The Effect of the Failure of the iVote system

22 After the election, the Electoral Commissioner directed Mr Kwok to undertake
an analysis of the potential effect of the iVote failure on the results of the
mayoral and council elections. It is not necessary to describe the results of the
analysis of the mayoral elections other than to note that none are the subject of
these proceedings. This seems largely attributable to the fact that mayoral
elections do not utilise a proportionate voting system. The proportional voting
system tends to exacerbate the effect of a relatively small number of voters
being disenfranchised.
23 For the Council elections, Mr Kwok and his staff undertook a preliminary
assessment of the consequences of the failure of the iVote system. They
ascertained the potential number of additional voters who registered to use
iVote but did not receive an iVote number in time for the election. They
determined that the total number of those voters was between 0.11% and
1.69% of the total number of electors who cast a vote in each Local
Government election.20 For each of Kempsey Shire Council, Shellharbour City
Council-Ward A and Singleton Council there were 134, 122 and 139 such
voters respectively.21
24 The first step in the analysis was to identify those council elections that could
possibly have had a different result had all the voters who were approved to
19
Kwok1 at 53; CB 44.
20
Kwok1 at [20]; CB 14.
21
Exhibit A
use iVote been able to cast a vote.22 This involved determining the minimum
number of votes in the counting process that led to a candidate’s exclusion at
any stage of the vote count or to a candidate not being elected at the last stage
of the vote count.23 For example, based on the above figures, for Singleton
Council that number was four votes. If that minimum number was less than the
potential number of iVoters who were excluded, then the relevant council
election was analysed further.24
25 With these Council elections, Mr Kwok and his team undertook a preliminary
“Monte Carlo” Simulation Analysis. Each simulation was undertaken by
conducting a recount of the relevant Council election using the actual results
and a set of hypothetical iVotes which was equal in number to the number of
“missing” iVotes. This set of iVotes, including their preferences, was randomly
selected from the iVotes that were cast in that election. For each Council
election that reached this stage of the analysis, 1,000 simulations were
undertaken.25 Based on the results of the 1,000 simulations, the modelling
produced a maximum likelihood estimator (“MLE”) which is described as the
“best possible estimate of the (unknown) probability of alternative result, given
the sample of [1,000] alterations”, where an alternative result involved the
election of at least one different councillor.26
26 This analysis resulted in the identification of seven local council elections in

which there was at least one preliminary simulation out of 1000 with an
alternative outcome, that is at least one different councillor elected. With those
seven elections, various records were checked to determine whether the
relevant eligible voter who was denied an iVote did not vote by alternative
means. In the case of Kempsey, Shellharbour City-Ward A and Singleton
Council this yielded a revised number of potential additional iVotes that were
not cast of 34, 54 and 55 respectively.27
22
Kwok1 at 52; CB 61.
23
Kwok1 at 52; CB 61.
24
Kwok 1 at 52; CB 61.
25
Kwok1 at 54 to 56; CB 63 to 65.
26
Kwok1 at 55; CB 64.
27
Kwok1 at [23]; CB 15.
27 The Monte Carlo Simulation Analysis was then conducted again using only the
revised number of additional voters who were denied the ability to vote
because of the deficiencies in the iVote system. The outcome of that analysis
for the Councils the subject of these proceedings was as follows:
P
o N
N
N t o
o
o e of
M
n si
o i
o ti m
f n
f al ul
d
a ati
f if
N i d on
o f N
o V d s
r e o 95
o it wi
m r o %
o t i th
a e f co
f e o an
C l n o nfi
E n alt
ou c u de
l b al er
nc b e t nc
e a i na
il a d c e
c l V tiv
l u o Int
t l o e
l ri m er
o o t ou
o n e val
r t e tc
t g s
s b o
c
p al m
p o
a l e
a u
p o (ie
p n
e t “
e t
r p M
r
s a L
s
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e
r
s
61
0/ 57.
2 1
Ke 1 10 9
2 6
m 7 3 00 %/
8 2 1 2
ps 9 4 (6 64.
1 0
ey 0 1. 0
2 4
0 %
%)
43
2/ 40.
1 1
Si 2 10 1
7 2
ng 4 5 00 %/
1 7 3 2
let 6 5 (4 46.
3 4
on 7 3. 3
7 5
2 %
%)
Sh
ell
70
ha
1 1 /1
rb 2 5.5
5 3 00
ou 7 5 %/
7 1 4 2 0
r– 7 4 8.8
4 3 (7.
W 2 %
0 8 0
ar
%)
d
A
28 For Kempsey Shire Council, the only simulated alternative outcome to the
declared result was the election of Mr Mark Baxter instead of Mr Patterson. 28
This result was achieved in 610 of the 1,000 simulations. In December 2021 Mr
Baxter was excluded in the 18th count of the 19 counts conducted.29 For
Singleton Council, the only simulated alternative outcome to the declared result
was the election of Ms Sarah Johnstone instead of Mr Scott. This result was
achieved in 432 of the 1,000 simulations. Ms Johnstone had three votes less
than Mr Scott in the final round of vote counting in December 2021. 30 For
Shellharbour City Council-Ward A, the only simulated alternative outcome to
the declared result was the election of Mr Bitschkat instead of Ms Edwards.
This result was achieved in seven of the 1,000 simulations. As noted, Mr
Bitschkat had four votes less than Ms Edwards in the final round of counting in
December 2021.
29 Mr Kwok’s team also conducted a simulation analysis that did not use votes
(including preference patterns) randomly selected from the actual iVotes cast
as the basis for simulating the additional votes but instead randomly selected
votes from all ballots cast in that council election. This method produced MLE’s
for Kempsey Shire Council, Singleton Council and Shellharbour City Council–
Ward A of 53.0%, 42.9% and 30.1% respectively.
30 A “sensitivity” analysis was also undertaken for each of these three elections
showing the MLE’s for varying numbers of missing iVotes using simulations
that randomly selected votes from amongst the iVotes cast. The results of that
analysis for Shellharbour City Council–Ward A is illustrated by the following
graph.
28
29
30
31 The x-axis allows for a variation in the number of additional iVotes that would
have been cast had there not been a system failure. The y-axis shows the
variation in the MLE number derived from simulating that number of additional
votes. The shaded area is the 95% confidence interval. The table shows a
reasonably sharp drop in the likelihood of an additional outcome if there were
even a few less “missing” iVotes. Although the possibility of there being
additional iVotes is not relevant as the maximum number of missing iVotes has
been ascertained, the fact that the modelling of the effect of an additional
number of iVotes that was more than 54 produced a lower likelihood of
alternative outcomes is addressed below.
32 Similar analyses were done for the Singleton and Kempsey Shire Council
elections.31 They showed a general trend of a reducing MLE for fewer
additional iVotes although the gradient is not as sharp as the above graph.
33 The cross-examination of Mr Kwok by counsel for Shellharbour City Council,

Ms Palaniappan, revealed two elements of conservatism in his analysis; it does
not allow for the possibility that some of the eligible voters who did not receive
an iVote number may have cast an informal vote or they may have not voted at
all.32 Mr Kwok contended that, having made efforts to become an eligible voter,
such voters were more likely to have sought to cast a vote and done so
formally.33 However he agreed that his experience was that some people who
registered for iVote did not vote and some iVotes were recorded as informal. 34
In re-examination he noted that, of the 2,772 iVotes cast for Shellharbour City
31
Kwok1 at 78; CB 87.
32
Tr 22/02/2022 p 23.8
33
Tr 22/02/2022 p 27.35
34
Tr 22/02/2022 p 27.41; p 28.10
Council-Ward A election, 26 were recorded as informal. Figures were tendered
indicating the rate of informal iVotes for Kempsey Shire Council, Shellharbour
City Council-Ward A and Singleton Councils was 2.63%, 3.28% and 0.94%
respectively.35
34 The other defendants, including Ms Wyatt, Ms Edwards and Ms Marsh, were

critical of the assumptions that underlay Mr Kwok’s analysis including the
assumption that all 54 “missing” iVoters in Shell Harbour City Council-Ward A
would have voted and his sampling the other iVoters.36 I accept that the
matters raised with Mr Kwok suggest that, if the iVote system had not failed,
there is a reasonable possibility that a small number of the relevant voters who
were approved to use iVote would nevertheless have not cast valid votes.
Dr Teague’s Evidence
35 The sixth defendant, Mr Bain, read affidavits from Dr Vanessa Teague. 37 Dr
Teague is a cryptographer with a speciality in election security. In 2005 she
was awarded a PhD in computer science specialising in cryptography from
Stanford University. She has authored a number of papers on election security
and has been engaged as an expert consultant in relation to the Swiss e-voting
system. She is currently an Adjunct Professor in the Research School of
Computer Science at the Australian National University.
36 Part of Dr Teague’s first affidavit sets out her concerns in relation to the
integrity of the iVote system generally as well as the capacity for electronically
recorded voting data in the iVote system to be mis-recorded or manipulated.38
These concerns are irrelevant to the Court’s function in that the use of the
iVote system is authorised and, to an extent, mandated by statute.
37 Dr Teague also explained that she and her team replicated the simulation
method of Dr Kwok and his team but used 1,000,000 simulations instead of
1,000. Dr Teague said they found “broadly similar results” to Mr Kwok’s team
35
Exhibit A.
36
CB 749
37
Affidavit of Vanessa Teague sworn 27 January 2022 (“Teague1”; CB 620). Affidavit of Vanessa Teague sworn
11 February 2022 (“Teague2”; CB 656).
38
Teague1 (CB 626) at [22] to [43].
but added the important caveat “if their [i.e., the Electoral Commission’s]
assumptions are correct.”39
38 Dr Teague’s principal complaint with Mr Kwok’s analysis concerns the utility of

running simulations based on a random selection of votes that were cast by
others in the same election. Dr Teague strongly disagreed with using those
votes as the basis for predicting the outcome if the missing iVotes had been
cast.40 Dr Teague opined that there was “no reason to think that voters who
were arbitrarily excluded from the franchise would have intended to express
political opinions that were identical to those of successful voters” (i.e., voters
who successfully invoked iVote).41 She suggested two reasons why the
missing votes may have been different, being that voters who left their iVote
registration to the last two days may have formed different voting intentions
from those who voted early and the “downtime” in the iVote system may have
induced biases in the composition of those who successfully invoked iVote.
With the latter she suggested that voters with disabilities, voters who lived
outside of the Council area or voters who were in COVID isolation were
examples of persons who may have been prevented from voting altogether
because of the iVote failure compared to other categories of persons approved
to use iVote who could make alternative arrangements to vote.42
39 Dr Teague gave oral evidence reinforcing her criticism of the assumptions in

Mr Kwok’s modelling. Dr Teague explained that the counterintuitive shape of
the sensitivity graph for the modelling of Shellharbour City Council-Ward A
noted in [30_Ref97803393] reinforces her critique of Mr Kwok for using the
votes that were cast as the basis for assessing the likelihood of the election
having been affected by votes that were not cast. Dr Teague opined that the
reason the MLE reduces even though the number of missing additional iVotes
increases, is because the simulations use the existing iVotes to project the
composition of the missing iVotes. Dr Teague said that, in effect, this approach
just replicates the existing election, that is it is “just re-enforcing [the]
39
Teague1 (CB 623) at [13].
40
Teague1 (CB 621) at [5] to [16].
41
42
assumption that the votes that were excluded were the same as the votes you
already started with”.43
40 Dr Teague rejected Mr Kwok’s approach of seeking to address the effect of the

iVote failure by attempting to model the voting patterns of the missing voters.
Instead, she and a colleague undertook a quantitative analysis of all the
Council elections to determine whether it was possible that the election
outcome had been altered by the removal of a particular number of votes
without making any assumption about the likely similarities between the
missing votes and the votes that were cast.44 This analysis concluded that in
39 Local Council contests the number of excluded votes that was sufficient to
change the outcome was less than the number of iVotes that the Electoral
Commissioner acknowledged was excluded.45 This form of analysis appears to
be similar to the first step undertaken by the Electoral Commissioner noted
above. Dr Teague concluded that the number of votes necessary to alter the
Kempsey Shire Council, Singleton Council and Shell Harbour City
Council-Ward A election results were 1, 3 and 6 respectively which were far
below the number of iVotes that appear to have been prevented from being
cast.46
41 Based on this analysis, Dr Teague contended that invalidating “the three

selected Councils would be an arbitrary selection when many other contests
are comparably in doubt”.47 This opinion was the foundation of Mr Bain’s
submission which was that, as a matter of discretion, the Court should decline
to declare the three subject elections void on the basis that there are other
Council elections equally in doubt but not the subject of challenge. In this
respect Dr Teague’s evidence proves far too much. In fact, it was powerful
evidence to the contrary of the position of all the defendants who sought to
resist relief declaring the Council elections void in whole or in part. The only
application before the Court concerns the three elections in question and not
any other Council election. The fact, if it be a fact, that there may be an
43
Tr 23/02/2022 p 120.49.
44
45
46
47
Teaue1 (CB 629) at [42].
invalidating defect in some other Council election is not a basis to refuse to
declare these elections void in whole or in part if the circumstances require it.
42 Dr Teague’s evidence raises an important matter of principle in relation to the

means of assessing the materiality of a defect that disenfranchised certain
voters, namely whether it is appropriate to attempt to predict their voting
intention as Mr Kwok has done and, if so, by what method or whether it is
appropriate to only make a comparison between the margin of votes that would
make a difference and the missing number of voters as Dr Teague did. This is
addressed below.
The Breach of the LGA in the Conduct of Council Elections
43 Chapter 10 of the LGA is entitled “How are people elected to civic office?”. Part
3 of Chapter 10 addresses the election system utilised. As I understand the
position, each of the subject councils used the method of electing councillors
from wards specified in s 280 of the LGA with all of the Kempsey Shire Council
area and the Singleton Council area designated as a single ward each. Section
285 provides that:
“285 Voting system for election of councillors

The voting system in a contested election of a councillor or councillors is to
be--
(a) optional preferential, if only one councillor is to be elected, or
(b) proportional, if 2 or more councillors are to be elected.”
44 Part 5 of Chapter 10 deals with casual vacancies. In light of the careful
submission of Mr Ward who appeared for Ms Marsh, it is necessary to consider
its provisions closely. Section 291 provides that, subject to the part, if a “casual
vacancy” occurs in a civic office the office is to be filled by a “by-election”.
However, this is subject to s 291A which relevantly provides:
“291A Countback to be held instead of by-election in certain

circumstances
(1) This section applies to a casual vacancy in the office of a councillor if--
(a) the casual vacancy occurs within 18 months after the date of the
last ordinary election of the councillors for the area, and
(b) the council has at its first meeting following that ordinary election
of councillors, by resolution, declared that any such casual vacancy is
to be filled by a countback of votes cast at the last election for that
office.
(2) This section does not apply to a casual vacancy in the office of a
councillor if the councillor who vacated office was elected--
(a) in an election using the optional preferential voting system
(including the election of a mayor elected by the electors of an area),
or
(b) in an election without a poll being required to be held.
(3) A casual vacancy to which this section applies is to be filled by a
countback election conducted in accordance with the regulations.
(4) A countback election to fill a casual vacancy to which this section applies
must be conducted--
(a) if the election at which the person whose departure created the
casual vacancy was elected was administered by the Electoral
Commissioner--by a returning officer appointed by the Electoral
Commissioner, or
(b) if the election at which the person whose departure created the
casual vacancy was elected was administered by a returning officer
appointed by an electoral services provider engaged by the council--by
a returning officer appointed by the electoral services provider.
(5) If a countback election fails or the returning officer is otherwise unable to
fill the casual vacancy by a countback election--
(a) the returning officer must notify the general manager of the council
concerned, and
(b) a by-election in accordance with this Part must be held to fill the
casual vacancy.
(5A) ...
(6) ...”
45 Each of the subject Councils passed a resolution of the kind referred to in
s 291A(2). Section 292 provides that a by-election to fill a casual vacancy in
the office of a councillor by the electors of an area must be held on a Saturday
that falls within not later than three months after the vacancy occurs.
46 The phrase “casual vacancy” is not defined, however s 234 of the LGA sets out
the circumstances in which a civic office becomes vacant. Those
circumstances include the holder of the office dying, resigning, being
disqualified from holding office, being absent from three consecutive ordinary
meetings and being dismissed from office. It also includes where they cease to
hold the office for “any other reason” (s 234(1)(h)).
47 The procedure for a “countback election” is to be found in Schedule 9A to the

General Regulation (regulation 393C). It involves a recount of the original ballot
papers while disregarding the preference indicated on a ballot paper for a
previously elected councillor whose seat has become vacant (Schedule 9A,
clause 7). Schedule 9A specifically contemplates the necessity to fill multiple
casual vacancies (clause 6). It also provides that the countback election “fails”
if there are no candidates, that is if none of the unsuccessful candidates who
previously stood apply to be a candidate for the countback election (clause 3,
clause 5(2)).
48 Although Part 5 specifies when a “by-election” is to be held, neither it, nor any
other part of the LGA nor the General Regulation explicitly specifies how it is to
be conducted. Instead that falls to s 285 noted above and the method used will
depend on how many contested positions are in contest.
49 Part 6 of Chapter 10 addresses how elections are to be conducted. Sections

296AA and 296 oblige a Council to conduct the election via the services of
either the Electoral Commissioner or an “electoral services provider”. In this
case, the Electoral Commissioner conducted the elections on behalf of each of
the three subject Councils pursuant to a contract authorised or contemplated
under ss 296(2) and (5) of the LGA. These contracts were executed in
November 2019 and were varied in July 2021 to allow for the revised election
date in December 2021.48 Pursuant to clauses 4.1 and 4.2 of these contracts,
the Electoral Commissioner agreed to provide the services of administering the
“2020 Ordinary Election”, being the election held in December 2021, in
accordance with the service details specified in Schedule 1.49 The services
listed in Schedule 1 appear to describe all the necessary services for the
conduct of an election including vote counting,50 ballot paper production and
distribution51 and the provision of an “iVote internet and telephone voting
platform”.52 In relation to the latter the contract stated:53
“iVote will be offered to electors who are eligible to vote via technology
assisted voting, enabling these electors to cast their vote using an internet
connected device or by using an operator assisted telephony service.”
48
Affidavit of Craig Milburn sworn 15 February 2022 (“Milburn”; CB 190) at [5]; CB 696ff; CB 788 at [3].
49
Milburn at 11; CB 198.
50
51
52
53
50 Division 3 of Part 6 of Chapter 10 deals with nominations and election. Section
308A permits the grouping of candidates on the ballot in elections in which
there are two or more councillors to be elected. This permits above-the-line
voting. Sub-section 309(1) provides:
“If the number of candidates nominated for election as councillors for a ward or
an area is greater that the number required to be elected for the ward or area,
the election is to be a contested election.”
51 Section 310 is of particular significance. It provides:
“A contested election for a civic office is to be conducted as prescribed by the

regulations.”
52 Part 11 of the General Regulation sets out a comprehensive code for the
conduct of elections including methods of voting and counting. Sub-regulation
351(1) obliges the returning officer to count the votes in accordance with
Schedule 4 (the optional preferential system) or Schedule 5 (proportional
representation) depending on the system of election employed. As noted,
these elections used the system of proportional representation specified in
Schedule 5. Those parts of the General Regulation providing for the system of
technology assisted voting have already been described.
53 The combination of s 310 and regulation 333E means that it is a statutory

requirement to conduct “a contested election” in circumstances where, if the
Electoral Commissioner is satisfied that an applicant for technology assisted
voting is approved as an eligible elector, then they “must be permitted to vote”.
Counsel for Shellharbour City Council, Ms Palaniappan, initially submitted that
it had not been demonstrated that the Electoral Commissioner was relevantly
“satisfied” that the “missing” iVoters were eligible electors for the purposes of
regulation 333E. However, following the service and reading of an affidavit
from the Electoral Commissioner,54 that contention was not pressed.55 The
result is that, because of the failures of the iVote system described above,
regulation 333E of the General Regulation was not complied with and, in turn,
the “contested election for a civic office” was not conducted as prescribed by
the General Regulation. Although s 310 refers to a contested election for “a”
civic office, the singular includes the plural (Interpretation Act 1987, s 8(b)), and
54
Affidavit of John Schmidt dated 25 February 2022.
55
Supplementary note of the Tenth Defendant dated 2 March 2022.
thus this was a contested election for multiple civic offices (especially when
regard is had to the system of voting). The breaches of s 310 of the LGA
occurred in the conduct of the election of all councillors to Kempsey Shire
Council, Singleton Council and Shellharbour City Council-Ward A.
54 Counsel for Kempsey and Singleton Councils, Mr Seymour, contended that, in

considering whether there was a breach of some provision of the LGA in the
conduct of the elections, primary attention should be focussed on the extent to
which the Electoral Commission complied with his contractual obligations. 56 I
do not agree. Sections 290 to 291A facilitate Councils obtaining the necessary
logistical assistance to conduct elections in accordance with the LGA and the
elections. However, the terms of any contractual agreement or arrangement
between a Council and the Electoral Commissioner (or an electoral services
provider) are ultimately a matter for them. The content of those agreements
cannot derogate from the requirements of the LGA especially so far as the
latter addresses such matters as the “rights” of electors to vote and the integrity
of the electoral process. A breach of any such agreement or arrangement
would not necessarily constitute a breach of the LGA in relation to an election
and a breach of the LGA might occur in circumstances where there was no
breach of any such agreement or arrangement.
The Consequences of the Breach
55 It seems unlikely that any election of some complexity could be completely

error-free including errors that amount to a breach of the governing legislation.
Some legislative schemes for elections establish a court of disputed returns
and confer on them a jurisdiction to hear and determine complaints about the
conduct of elections. They often specify a threshold test for the materiality of
any breach of the relevant legislation (or other conduct) to the outcome before
the court can overturn the result (see for example Electoral Act 2017, s 237).
There is no such court for local government elections. Instead, this Court
exercises its judicial review function confirmed by ss 23 and 69 of the Supreme
Court Act 1970 to determine the consequences that follow from the breach of
s 310 of the LGA.
56
Tr 22/02/2022 at pp 84 to 86; Tr 23/02/2022 p 88.42.
56 Mr Seymour also pointed to s 70 of the Supreme Court Act 1970 which
empowers the Court to grant an injunction to restrain a person from acting in
an office in lieu of the laying of an information in the nature of quo warranto
seeking ouster of office. Mr Seymour referred to Liston v Davies (1937) 57 CLR
424; [1937] HCA 22 (“Liston v Davies”) where such an information was laid in a
challenge to a Local Government election. In Liston v Davies Dixon J traced
the history of the information to its criminal origins (at 431) and noted that the
writ could be obtained by any private individual (at 433). It is unnecessary to
consider this further for two reasons.
57 First, because the primary relief sought in this case is declaratory relief and
s 75 of the Supreme Court Act 1970 is more than a sufficient basis for its grant
when considered in combination with ss 23, 69 (and 70). A declaration as to
the voidness of the election, if appropriate, is necessary to engage s 318 of the
LGA which is described next.
58 Second, although both the Kempsey Shire Council and Singleton Council took
issue with the Electoral Commissioner’s standing (as opposed to the Electoral
Commission), I accept that he has a sufficient “special interest” in the conduct
of the elections to enable him to bring these proceedings (Australian
Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 590 -
591; [1980] HCA 53). Part 6 of Chapter 10 of the LGA and Part 11 of the
General Regulation is replete with provisions conferring various functions on
either the Electoral Commissioner, the “election manager” which in this case
was the Electoral Commissioner (regulation 275) or the returning officer he or
she appoints (e.g., LGA, ss 296B, 298 and 302; General Regulation,
regulations 314A, 317 and 350). The provisions of the General Regulation
concerning technology assisted voting described above confer the function of
considering and approving applications to use that method of voting on the
Electoral Commissioner. Being a public officer entrusted with such authority in
the conduct of the three elections, the Electoral Commissioner has standing to
bring these proceedings (see Peek v NSW Egg Corporation (1986) 6 NSWLR
1 at 5 to 6).
59 To address the possible consequences that follow from the breach of s 310 it is
necessary to refer to further provisions of the LGA and relevant case law.
Sections 317 and 318 deal with errors and defects in the conduct of elections
and their consequences. Sub-section 317(1) provides that “[a]n election is not
invalid just because: (a) there was a formal defect or error in or relating to the
election, if the election was held substantially in accordance with this Act, or (b)
there was a defect in the appointment of the returning officer” or two other
conditions of no present relevance. Sub-section 317(2) provides that a
proclamation issued by the Governor to the effect that a specified irregularity
does not invalidate an election is conclusive as to the matter stated in the
proclamation.
60 Section 318 provides:
“318 Lapsed or void election

(1) If an election for a civic office is not held when it is due, fails or is later
declared void--
(a) the holder of the civic office at the time when the election should
have been held or when the election failed (or, in the case of a void
election, if there is no such holder, the candidate purporting to have
been elected at the void election), holds the office as if duly elected
until an election is held under paragraph (b), and
(b) the returning officer is to hold another election as if a casual
vacancy had occurred in the civic office.
(2) An election held for the purposes of this section is as valid as it would
have been if it had been held at the time originally appointed for the purpose.”
61 Within Part 9 of Chapter 10, subsection 329(1) enables any person to apply to
the NSW Civil and Administrative Tribunal (“NCAT”) for an order that a person
be dismissed from civic office. Subsection 329(2) empowers NCAT to make an
order dismissing a person from civic office if there has been an “irregularity” in
the manner in which the person has been elected or appointed to office or if the
person has been disqualified from office.
62 Subsection 317(a) operates to ensure that certain types of defects or errors do

not invalidate an election, namely “formal” defects and errors that occurred in
circumstances where the election was “substantially held in accordance” with
the LGA. As I will explain, it was accepted that there is a threshold of
materiality which must be met before it could be said that the denial of the
franchise to certain voters contrary to regulation 333E invalidated the elections
(in whole or in part). If that threshold was crossed, then the relevant
contravention would not be a “formal” defect or error. Otherwise, neither ss 317
nor 318 purport to define or limit the circumstances in which this Court can or
should declare an election void, being either the election of a particular
councillor or an entire council. Instead, s 318 presupposes or assumes the
power and authority of the Court to do so and makes provision for the exercise
of that power by the Court in two respects. (Mr Ward described this election as
one that “fail[ed] for the purposes of s 318”.57 I doubt that is correct, but even
so, this Court is still required to determine whether it was void.)
63 The first matter about the exercise of the power to declare an election void, that
s 318 addresses, is the continuity in office of the councillor(s) until they are
replaced. Inferentially it validates the decisions they make or participate in until
that time (s 318(a)). The second matter is that it specifies how councillors
whose positions are declared void will be replaced, namely as if there had
been a casual vacancy (s 381(b)). As noted, the provisions concerning the
existence of a casual vacancy can accommodate a countback or by-election
for one candidate or more than one candidate, including an entire council,
depending on how many positions, if any, are vacated by the Court’s
declaration. As the relevant breach of the LGA involves a denial of the
franchise then, if the election was declared void in whole or in part, the
countback provisions would not be engaged and a by-election for one or more
positions would need to be held. This is so because either the declaration that
the election was void would mean that there was no “last ordinary election” and
thus s 291A(1)(a) would not be satisfied or the absence of the relevant votes
would mean that the returning officer is “otherwise unable to fill the casual
vacancy by a countback election” (s 291A(5)(a)).
64 The Electoral Commissioner’s submissions outline two alternative approaches

to determining the consequences of the breach of s 310 for both elections,
although the second is perhaps just a specific example of the first.
57
Tr 23/02/2022 at 128
65 First, the Electoral Commissioner pointed to the principles applicable to judicial
review in circumstances where the Court addresses the consequences of a
breach of a statutory provision on some action or decision taken or made under
the statute. Hence they pointed to the authoritative statement of McHugh,
Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting
Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”) at [93] that
the relevant “test for determining the issue of validity is to ask whether it was a
purpose of the legislation that an act done in breach of the provision should be
invalid” and that, in determining the question of purpose, regard must be had to
"the language of the relevant provision and the scope and object of the whole
statute". The defendants emphasised their Honours’ statement that it was
“unlikely that it was a purpose of the legislation that an act done in breach of a
statutory provision should be invalid if public inconvenience would be a result
of the invalidity of the act” (at [97]). However, some care needs to be taken in
applying that statement in an electoral context where the breach concerns the
denial of the franchise and it is the interests of the electors and not the elected
that are paramount. The pursuit of a line of reasoning that an election or a re-
election is productive of much “inconvenience” and should not take place, even
though there has been a material denial of the franchise, can ultimately lead to
a very dark place.
66 Further, in Hossain v Minister for Immigration and Border Protection (2018) 264
CLR 123; [2018] HCA 34; (“Hossain”) at [29], Kiefel CJ, Gageler and Keane JJ
held that “ordinarily” a statute which impliedly requires that a condition be
observed in the course of a decision-making process is not to be interpreted as
denying legal force and effect to every decision made in breach of the
condition. Instead, “the statute is ordinarily to be interpreted as incorporating a
threshold of materiality in the event of non-compliance”, namely that
“compliance with the condition could have resulted in the making of a different
decision” (Hossain at [29] and [31]). This approach to materiality takes as its
starting point the decision that was in fact made (CNY17 v Minister for
Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 at [47]
per Kiefel CJ and Gageler J; MZAPC v Minister for Immigration and Border
Protection & Anor (2021) 95 ALJR 441; [2021] HCA 17; “MZAPC” at [38]) and
then posits a “counter factual analysis” as to whether compliance with the
condition could have resulted in the making of a different decision, the burden
of proof of which is on the party alleging invalidity (MZAPC at [35] and [39]).
67 The principle in Project Blue Sky was applied by Simpson J (as her Honour
then was) in an electoral context in Hansen v Electoral Commissioner (2004)
132 LGERA 296; [2004] NSWSC 348 where there was a challenge to an
election following a determination by the returning officer that 377 pre-poll
votes out of a total of 2,308 votes cast in the election were invalid. The votes
had been counted and, if allowed, would have altered the result (at [6]). The
votes were rightly excluded but the irregularity in the votes followed from the
procedures adopted for the election by the returning officer (at [21]). Simpson J
applied Project Blue Sky (at [42]) to conclude that, having regard to the “rather
stringent provisions” concerning pre-poll votes and the relatively high
proportion of such votes, it was necessary to declare the election “void” (at
[50]). Her Honour’s reasoning was otherwise consistent with Hossain.
68 Second, the Electoral Commissioner referred the Court to various authorities

discussing what has been described as the “common law of elections” (Bridge
v Bowen (1916) 21 CLR 582 at 586; [1916] HCA 38 per Griffith CJ; “Bridge v
Bowen”) and which addressed the threshold of materiality for some error,
defect or malpractice which must be overcome before an election is
invalidated. The Electoral Commissioner’s submissions noted that the various
formulations of the test vary although they all refer to the potential for the
defect to have affected the outcome of the election, albeit in different terms.
Hence in Bridge v Bowen at 623 to 623, Isaac J stated that “[i]f there has been
any official irregularity in the conduct of the election, where the law requires
absolute and strict adherence or where the irregularity is so great as to depart
substantially from a directory enactment, his selection so-called is void unless
he can show the result could not have been affected by it” but “where the
defect complained of does not strike at the election as an entirety, but is
confined to some breach of law in individual instances, then he is not
necessarily affected, and is not affected at all unless he or his majority is
shown to be connected with the defect.” This statement uses pre-Project Blue
Sky language to describe what the law requires and, to that extent, it discusses
the onus of proof in relation to materiality that rests upon the party asserting
invalidity (MZAPC supra).
69 In Bridge v Bowen, Griffith CJ referred to the need for there to be “good ground
for believing that the formal result does not represent the free and deliberate
choice of the component electors” (at 588). This formulation was adopted in
Tanti v Davies (No 3) (1996) 2 Qd R 602 at 608 (“Tanti”) and Carroll v Electoral
Commissioner of Qld (No 2) (2001) 1 Qd R 164; [1998] QSC 190 at [12] and
[139]). Earlier in Chanter v Blackwood (1904) 1 CLR 39 at 59; [1904] HCA 2,
Griffith CJ referred to the Court being “satisfied that there were reasonable
grounds to believe that a majority of the electors may have been prevented
from electing the candidate they preferred”.
70 In Bourne v Murphy (1996) 92 LGERA 329; [1996] NSWCA 59 (“Bourne v

Murphy”) the Court of Appeal determined an appeal arising from an application
made to this Court under s 329 of the LGA in relation to a Council election
conducted using a system of proportional representation. At that time, s 329
conferred the power to order the dismissal of a person from civic office on this
Court (and not NCAT). It was contended that there had been “an irregularity in
the manner in which the person had been elected”. After a recount, the
Councillor the subject of the challenge was the last elected and had a majority
of three votes over the next closest candidate. On the first count, the majority
was 17 votes (at 330.9). It was argued that the returning officer had wrongly
rejected a number of votes as informal. Priestly JA only accepted that there
was a relevant error as to one vote and thus found that there was no
irregularity “in the manner in which” the candidate was elected (at 341).
Cole JA found that 11 votes had been wrongly excluded which should have
been counted. His Honour analysed their potential effect on the outcome as
follows (at 348 to 349):
“Those [11] votes are identified and their preferences are known. Nonetheless
the impact of the exclusion of those formal votes from counting cannot be
known with certainty. That is because of at least three factors. First, had those
votes been counted the ratio applicable under the transfer formula for excess
votes after a necessary quota changes. Secondly, whilst the effect of that
change in transfer formula can be calculated, the random discretionary
selection of votes in consequence at the first and second count stage is
unknown. Thirdly, the consequence of any alteration in the number of
distributed votes at the thirteenth and fourteenth count, and thereafter, is
uncertain. The consequence is that Miss Bourne is unable to show that the
favourable result to her of the election was unaffected. As the outcome of the
election of any recalculated basis is at best uncertain the principles enunciated
in 1875 in Woodward v Sarson (1875) LR 10 GP 733 apply. Lord Colleridge
there said (at 744):
‘And we think the same result should follow, if, by reason of any such
or similar mishaps, the tribunal, without being able to say that a
majority had been prevented, should be satisfied that there was
reasonable ground to believe that a majority of the votes may have
been prevented from electing the candidate they preferred.’” (emphasis
in original)
71 His Honour then considered what relief should be granted under s 329
concluding (at 349 to 350):
“Section 329 confers a judicial discretion. In my opinion, where it has been

shown that, as against a majority of three, 11 formal votes have not been
counted, a significant or substantial irregularity has been shown sufficient to
require the Court to exercise the discretion there conferred. Where there is a
complicated system of preferential voting involving, as here, some 16
sequential counts which involve random selection of votes at least two stages,
and prediction of the consequence of allocation of votes on at least two others,
the Court cannot be satisfied that the poll as declared truly represents the view
of the voters. It seems to me that once that position is reached the Court
should exercise its discretion to order the dismissal of a person from civic
office and allow the Act, which contemplates in those circumstances a new
election in consequence of s 318, to operate.”
72 As at that time, there was no provision for a countback election in the event of
a casual vacancy occurring.
73 In Bourne v Murphy Beazley JA held that for an “irregularity” in an election to

fall within s 329 it “must be an irregularity such that the result of the election is
thereby uncertain” (at 358.7). Her Honour found that there were eight ballot
papers wrongly classified by the returning officer, five of which were affected by
an error in construing the relevant regulation and that, of those, the
classification of four votes was unreasonable in the “Wednesbury” sense
(Associated Provincal Picture Houses Ltd v Wednesbury Corporation [1948] 1
KB 223) (at 363.8). Her Honour concluded (at 363):
“… The consequence is that had these votes been correctly classified, not
been affected by error or not been unreasonably classified, the outcome of the
election would be uncertain, including for the three factors referred to by
Cole JA … whose draft reasons I have had the opportunity of reading. For the
appellant to successfully establish otherwise, she had to demonstrate that the
result could not have been affected by the wrong classification or erroneous
treatment of these ballot-papers. This she has not done and cannot do for a
number of reasons, the most obvious of which is because of the random
selection of ballot-papers prescribed by cl 6(g) of Sch 2.”
74 For the sake of completeness, I note that her Honour rejected the existence of
any discretion not to order a person’s removal from civic office once the
relevant form of irregularity was established (at 365). (This aspect of her
Honour’s reasons was followed by Bell J, as her Honour then was, in Roberts v
Jeffery & 4 Ors [2003] NSWSC 162 at [62].) However, In Bourne v Murphy,
Beazley JA also addressed the position on the assumption that the Court had a
discretion, stating (at 365):
“Assuming, however, that I am wrong in this conclusion, it is appropriate to

consider whether such an order ought to be made. Counsel for the appellant
submitted that there were a number of factors present in this case which would
compel the Court not to exercise its discretion under s 329, the cost of holding
a by-election being a major, if not the major factor, in this regard. Indeed, his
Honour considered this to be a consequence ‘to be avoided at all costs’. There
were two other significant factors relevant to the Court’s discretion. First, as
the contest would only be for the one position, it is probable, indeed certain,
that the first respondent would be elected as the Annandale/Glebe Ward is a
Labor Party ward. Secondly, the method of election would be optional
preferential and not proportional, as there would only be one candidate to be
elected: s 285(a). Notwithstanding that these matters are of great weight, they
are not sufficient to override the fundamental right of candidates to be elected
in accordance with the wishes of the electorate. The Court cannot be satisfied
that this occurred here. In my opinion, the trial judge should have made an
order under s 329(1).”
75 Regardless of the basis upon which these Courts have considered the matter,
they all accept that, absent any express statutory provision that provides
otherwise, there is some threshold of materiality which must be overcome
before relief will be granted voiding an election in whole or in part by reason of
a breach of a statutory requirement pertaining to the election. If it was
necessary to decide I would consider myself bound to subsume the discussion
of breaches of statutory provisions concerning elections in the above cases
into the framework of Project Blue Sky, Hossain and MZAPC. However, in the
end result it is not necessary to go that far. The threshold is certainly above the
mere existence of a bare possibility and below more likely than not that a
different result would have ensued. For the reasons set out below, within that
range, the various formulations, including that the result of the election is
rendered uncertain, are all satisfied in this case. In view of the evidence that
was adduced any relevant onus was discharged.
How is the Materiality of the Irregularity in an Election to be Assessed?
76 Some of the cases addressing the effect of an irregularity or breach of the
electoral provisions have involved a candidate being disqualified or votes being
wrongly rejected or wrongly counted in circumstances where the voter’s
intention can be ascertained. Generally, in these cases the likely effect of the
irregularity on the outcome can, to an extent, be ascertained, although the
observations of Cole JA in Bourne v Murphy (above at [71_Ref98145559])
illustrate that, even then, uncertainty can ensue. However, this case involves
the wrongful denial of the franchise to voters so that there is no, or at least no
direct, evidence of the disenfranchised voters’ intent. In these circumstances
how does the Court assess whether their disenfranchisement was material to
the outcome?
77 In Australian Electoral Commission v Johnston & Ors (2014) 251 CLR 463;
[2014] HCA 5 (“Johnston”), Hayne J, sitting as the Court of Disputed Returns,
determined three election petitions challenging the half senate election for
Western Australia in the September 2013 Federal Election. The election for the
last two of the six positions was close and a recount was directed. During the
recount 1,370 ballot papers could not be found. During the first count at the
“fiftieth exclusion point” only 14 votes separated the two candidates with the
lowest progressive totals. The lowest candidate was excluded and that
candidate’s preferences were critical to the election of the fifth and sixth
candidates. If the position had been reversed then two other candidates would
have been elected (at [40] to [42]). During the recount without the missing
votes, the position was reversed with the candidate who was excluded at the
“fiftieth exclusion point” on the first count now leading the other candidate by
twelve votes (at [50]).
78 Section 360 of the Commonwealth Electoral Act 1918 (Cth) conferred on the
Court of Disputed Returns a power to declare that a person who was returned
as elected, was not duly elected and to declare any election absolutely void.
Section 362(3) placed two restrictions on the power to declare an election void
on account of a specified “illegal practice”, namely that the result of the election
was “likely to be affected” and that it is “just” to so order (at [56]). One part of
s 365 provided that “if any elector, on account of absence or error of, or
omission by, any officer, [was] prevented from voting in any election, the Court
shall not, for the purpose of determining whether the absence of error of, or
omission by, the officer did or did not affect the result of the election, admit any
evidence of the way in which the elector intended to vote in the election.”
Hayne J held that the loss of the votes meant that the voters who cast them
were “prevented from voting” and therefore rejected evidence of the records
from the first count which were said to indicate what those voters’ intentions
were (at [100]). His Honour found that it was likely that the result was affected,
reasoning as follows (at [11]):
“The number of ballot papers lost far exceeded the margin between relevant
candidates at a point in the count determinative of who were the successful
candidates for the fifth and sixth Senate places …. That margin was assessed
on the fresh scrutiny to be 14 votes in favour of one candidate and, on the re-
count of available ballot papers, 12 votes in favour of the other. Without
evidence of the voting intentions recorded in the lost ballot papers, the
conclusion that the result which was declared was likely affected by the loss of
the ballot papers is inevitable.”
79 In Johnston, Hayne J had some evidence from which one could at least infer
that the lost votes could have affected the outcome of the recount, namely
what was recorded in the first count. However, I understand that his Honour’s
conclusion that the election was affected was principally based on a
comparison of the number of missing votes (1,370) to the margin between the
last two candidates at the “fiftieth exclusion point” (14 or 12).
80 Similarly, the reasoning of Beazley JA in Bourne v Murphy that led to her

Honour’s finding that the outcome of the election was uncertain did not turn on
what was known about the wrongfully excluded voter’s intentions but instead it
followed a comparison of the number of voters and the margin between the
candidates. In Tanti the margin on the declared vote was 16 votes. Ambrose J
found that there were 35 instances of either invalid votes or the denial of the
opportunity for electors to cast valid votes (at p 662) and 11 “declaration votes”
which should have been counted but were not counted (at p 661). His Honour
concluded that “it could not be said that those 35 errors are such as to make it
unlikely that the [elected candidate] would not have been elected if they had
not been made” (id). His Honour declined to order that the declaration votes be
inspected having regard to the secrecy attached to a particular voter’s voting
intentions and because they would not be determinative of whether a new
election ought to be ordered (at p 662).
81 In this matter, a number of the defendant Councillors were critical of the failure
of the Electoral Commissioner to contact the disenfranchised iVoters and
inquire of their voting intentions on 4 December 2021.58 While I appreciate their
frustration about how this issue arose, I do not accept this criticism of the
Electoral Commissioner. It would be severe infringement of those voters’
privacy to make such inquiries.
82 As noted, the Electoral Commissioner relied on the analysis in the report

attached to Mr Kwok’s report as an indicator of the degree of certainty or
uncertainty attaching to the outcome of each election. I have already described
that analysis and the criticisms of a number of the defendants that it tended to
overestimate the number of disenfranchised iVoters who would have cast
formal votes. I accept that criticism. However, against that is the point made by
Dr Teague about the validity of running simulations using either the pool of
iVotes that were cast or the total votes that were cast in the election. I cannot
see any proper basis for using the votes cast by others to infer the voting
intentions of the disenfranchised. Perhaps the position might be different if
there were evidence of some established trend in iVotes as is sometimes said
to occur with postal votes but, even if that were the case, it would be a doubtful
basis to infer the voting intentions that might have been yielded had the
missing iVotes been cast. However, there was no such evidence. Given the
disparate circumstances that can qualify a person as an eligible voter, I do not
consider that there is a proper factual basis for this aspect of Mr Kwok’s
analysis. Instead, the various simulations are simply evidence that some of the
many possible permutations of votes could have yielded a different outcome.
83 At least in this case, where there is no evidence of the disenfranchised voters’

intentions, I consider that the better analysis is one that was undertaken in the
cases noted above, namely a comparison of the various margins between
candidates at the exclusion points including the last count and the number of
excluded voters, while having regard to the observations of Cole JA in Bourne
58
See also submissions of the tenth Defendant dated 21 February 2022 at [34].
v Murphy (above at [70_Ref98145842]). This approach is akin to that
suggested by Dr Teague.
84 In the case of Shellharbour City Council-Ward A the (maximum) number of

disenfranchised iVoters was 54 and the margin between the last two
candidates was four votes. Even making allowance for the potential for a
number of the 54 voters not to have yielded formal votes, I am satisfied that the
breach of regulation 333E was material to the outcome of the election, that is,
that had there been no such breach then the result of the election being the
combined election of Ms Edwards and Ms Marsh could have been different,
that the result of the election is “uncertain” and that there are reasonable
grounds to believe that a sufficient number of the electors may have been
prevented from electing a candidate who was otherwise entitled to be elected,
namely Mr Bitschkat.
85 In the case of Kempsey Shire Council, the (maximum) number of

disenfranchised iVoters was 34 which was equal to or exceeded the margins
between excluded candidates in the fourth count (two votes), the fifth count (25
votes), the sixth count (19 votes), the 12th count (two votes), the 17th count
(34 votes) and the 18th count (31 votes). Even making allowance for the
potential for a number of the 34 iVoters not to have cast formal votes, I am
satisfied that the breach of regulation 333E was material to the outcome of the
election, that is, that had there been no such breach then the result of the
election being the election of all of the councillors who were elected could have
been different, that the result of the election is “uncertain” and that there are
reasonable grounds to believe that a sufficient number of the electors may
have been prevented from electing at least one candidate who was otherwise
entitled to be elected.
86 In the case of Singleton Council, the (maximum) number of disenfranchised

iVoters was 55 which was much greater than the difference between the
progressive total of the two candidates elected in the last round of counting and
that of the last remaining candidate left on that count (55 versus 28; 55 versus
3). It was also far greater than the margins between the excluded candidates in
the eighth count (34 votes) and the ninth count (four votes). Even making
allowance for the potential for a number of the 55 iVoters not to have cast
formal votes, I am satisfied that the breach of regulation 333E was material to
the outcome of the election, that is, that had there been no such breach then
the result of the election being the election of all of the councillors who were
elected could have been different, that the result of the election is “uncertain”
and that there are reasonable grounds to believe that a sufficient number of the
electors may have been prevented from electing at least one candidate who
was otherwise entitled to be elected.
One Candidate’s Election Invalidated or all Candidates’ Election Invalidated?

87 As noted, the breach of s 310 of the LGA that resulted from the failure of iVote
occurred in the conduct of the election of all the elected councillors. Leaving
aside the various matters raised by the defendants which were said to affect
the Court’s discretion to declare an election void, the next issue that arises is
whether the conclusions reached to this point warrant a declaration that the
election of all the Councillors in each election were void or a declaration
concerning only those Councillors whose own election was directly affected by
the failure of iVote. Although I have made findings about the materiality of the
breach, those findings do not address whether the breach was material in
relation to the election of those candidates who would clearly have been
elected even if the breach of s 310 did not occur, such as Ms Marsh with
Shellharbour City Council–Ward A, Mr Ferguson and Ms Campbell with
Kempsey Shire Council and Mr Adamthwaite, Mr Thompson, Ms McLachlan
and Mr Jarret with Singleton Council.
88 The potential for the invalidation of the election of all the councillors arises from
the prescription in the LGA that the proportional system of voting must be used
to fill Council elections for more than one position (s 285). This aspect of the
LGA seeks to secure to the electorate an elected Council which is not so much
comprised of councillors who each have the support of a majority of the
electorate but instead councillors who in their totality reflect the choice of the
entire electorate in proportion to their numerical strength. Senior Counsel for
the Electoral Commissioner, Mr Emmett SC, contended that there were some
“interpretative considerations” which supported the conclusion that each
election in their entirety should be declared void such as the “potential
interdependence of candidates standing in a single electorate” as reflected in
various provisions of the LGA such as ss 308A to 308D and s 309(3). 59 Equally
he accepted that there was “considerable force” in the contention that only one
position for each Council should be declared invalid.
89 Against that, most of the defendants submitted that any declaration should be
limited so that it does not require the re-election of all the Councillors. Mr
Seymour contended that to declare all the positions void would be a
disproportionate outcome.60 Similarly, Ms Wyatt noted that two of the
candidates in the Kempsey election, Mr Ferguson and Ms Campbell, were
elected on first preference votes 61 and contended that the “missing” 34 iVotes
could not have affected the election of the next two candidates including
herself.62 In a further submission dated 14 February 2022, Ms Wyatt closely
analysed the data attached to Mr Kwok’s affidavit. She submitted that her
election was not affected by the error with iVote 63 and contended that it could
not be proved “beyond reasonable doubt” that an additional “43 votes would
change the outcome of the Kempsey Local Government election”. 64
Presumably the reference to 43 votes is meant to be a reference to 34 votes.
Otherwise, it is not suggested that an effect of the outcome should or can be
proved beyond reasonable doubt. The materiality threshold is not that high.
90 Mr Ward put Mr Marsh’s position succinctly as follows:65
“Cr Marsh and her A Ward team secured 66.57% of the vote. It makes no
sense in law to require her to recontest the first of two seats when the voters
made clear their intention at the ballot box. It makes no public policy sense to
put taxpayers and/or ratepayers at additional expense to cover possible claims
of compensation and run another election to determine an outcome that is
already quite clear with respect to first seat in Ward A.
The wrong that needs to be remedied is the failure of a system that placed in
doubt the election of the second Councillor in Ward A, not the first. Voiding
both seats would be overcompensating for a problem that simply doesn’t exist.
Voiding the entirety of the election is unreasonable. Our client is a single
mother on a modest income. Without compensation for the expenses she
59
Plaintiff’s written submissions filed 21 February 2022 at [75].
60
First Defendant’s written submissions at [2.7].
61
CB 304.
62
CB 305.
63
Exhibit 1 at [26]; CB 317.
64
65
CB 781.
incurred in the original campaign, our instructions are that she will be unable to
fund a second election campaign.” (emphasis added)
91 Two High Court decisions concerning Senate elections, namely Johnston and
Re Wood, provide the best guidance to the approach to be adopted in
circumstances where, in an election for a multi-member electorate using
proportional representation, there is a defect in the voting system which
precludes a sufficient number of voters from casting a vote so as to have
affected the election of at least one member.
92 In Re Wood, the High Court, sitting as the Court of Disputed Returns had to
address the consequences that would follow from a finding that the twelfth
senator elected from New South Wales in a double dissolution election was
ineligible as he held foreign citizenship (Constitution, s 44). The Court rejected
the approach taken in the United Kingdom to single-member electorates for the
House of Commons of discarding the votes for the disqualified candidate and
determining which of the remaining qualified candidates received the most
votes as unsuitable for a Senate election conduced in accordance with the
single-transferable vote system of proportional representation (at 165 to 166;
see In re Parliamentary Election for Bristol South East (1964) 2 QB 257).
93 Their Honours then observed that three other methods were canvassed and
addressed the first as follows (at 166):
“The first [method] was a supplementary election for the unfilled place in the
Senate. That was the outcome of the Vardon litigation, but a supplementary
election is inappropriate and unnecessary in the present case. It is
inappropriate because such an election would fill the vacant place by what
would be in effect preferential voting for a single member constituency, not by
proportional voting for a multiple member constituency. The manifest purpose
of the proportional voting scheme of the Act would be liable to be frustrated if a
further poll were taken in which the quota would be more than 50% of the
votes cast. In Vardon v O'Loughlin, the invalidity of the electoral process
precluded the ascertainment in accordance with the law of the choice which
the voters had made, and a further election was the only means by which that
choice could be ascertained. But in the present case, there is no blemish
affecting the taking of the poll and the ballot papers are available to be
recounted if the valid choice of the electors can lawfully be ascertained by
recounting. It is unnecessary to take a further poll. The full number of qualified
senators required can be returned in accordance with the Act after a recount of
the ballot papers. There will be no partial failure of the election and therefore
no need to issue a new writ for a supplementary election: see s.181 of the
Act.” (emphasis added)
94 The next method considered and rejected in Re Wood was a full senate
election of 12 senators. Their Honours observed that the validity of the other 11
senators was the not the subject of a petition before the Court (at 167). Their
Honours then rejected the third other method suggested namely the invocation
of the casual vacancy provisions in s 15 of the Constitution on the basis that
the preconditions to its invocation had not arisen (at 167). Given the findings
that the ballot papers were available to be recounted, their Honours concluded
the vacancy should be filled by the further counting of the ballot papers cast at
the election, treating expressions of preference in favour of the unqualified
candidate as ineffective (at 166; see Johnston at [114]).
95 Next, it is necessary to return to that part of Johnson which addressed what

followed from Hayne J’s finding that the loss of the votes on the recount was
likely to have affected the result. The two persons who were elected to the fifth
and sixth position on the first count argued that such evidence as was gathered
during that count about the voting intentions disclosed in the missing votes
could be used for the purposes of granting relief that declared them validly
elected (at [110]). They contended that the tender of that evidence for that
purpose was not precluded by s 365 of the Commonwealth Electoral Act 1918
(Cth). Hayne J rejected that contention and found that a vote count that
involved a combination of evidence of voting intentions for certain votes
derived from a first count and other votes from a recount was not a form of vote
counting authorised by the Commonwealth Electoral Act (at [117]). His Honour
contrasted that form of count with that which occurred in Re Wood in that the
above extract reveals that in that case their Honours found that there was “no
blemish” affecting the poll and the votes were available to be recounted such
that the full quota of senators determined “in accordance with the
[Commonwealth Electoral Act 1918 (Cth)] could be ascertained” (at [114]).
96 Of particular significance to this matter is that the final outcome of Johnston

was that the election of all six senators for Western Australia was declared
“absolutely void” (at 503) even though the election of the first four senators was
not (directly) affected by the missing votes. Other than the rejected contention
that the two senators elected on the first count should be declared elected, the
invalidation of the election of all six senators does not appear to have been the
subject of argument. Presumably it was accepted that this result had to follow
because of the reasoning in Re Wood set out above.
97 These two cases are especially instructive for this case not just because of the
stature of the decision maker but because they concerned what is effectively
the same form of electoral system. The reasoning in Re Wood and the result in
Johnston confirms that, absent statutory provision to the contrary, where a
relevant defect affects the election of at least one representative in a single
transferable vote system of proportional representation then the remedy cannot
be, or at least should not be, to order a by-election for the affected positions
where to do so would be to impose on the electorate a different electoral
system to that which has been legislated. It further follows from the reasoning
in Re Wood and the result in Johnston that where the defect or error has
resulted in the disenfranchisement of a material number of voters in a single
transferable vote system of proportional representation and where their voting
intention cannot be (properly) ascertained such that a vote count in accordance
with the relevant legislation cannot be conducted, then the appropriate
outcome is to void the entire election.
98 As noted, both Re Wood and Johnston are decisions of a court acting as a

Court of Disputed Returns and not a court exercising a judicial review function.
However, the significance that these judgments attach to the statutory
prescription of a system of proportional voting supports the contention that the
principles just enunciated apply to a consideration of whether the entire council
election or just the election of a particular civic office or offices should be
declared void in the present circumstances. It is true that the outcome in
Bourne v Murphy was the dismissal from office of a single councillor and the
ordering of a by-election for a single councillor position which was by way of an
optional preferential system in circumstances where the balance of the council
was elected under a system of proportional representation. However, that
result was required in those circumstances because the Court was only seized
of a challenge to an individual councillor’s election under s 329 of the LGA and
it was not a challenge to the entire election. In that sense it was similar to Re
Wood. Further, at the time Bourne v Murphy was decided, the LGA did not
make provision for a countback election.
99 Mr Ward’s written submission is extracted above. In oral submissions he
contended that it would be “undemocratic” to void the election of both
66
Shellharbour City Council–Ward A positions in these circumstances. His
submissions, powerful as they were, rest upon the false premise that the Local
Council elections were an exercise in electing candidates with majority support
to separate “seats”. As I have sought to explain, the voting system mandated
by the LGA is not of that kind.
100 In his oral submissions Mr Ward further contended that the type of reasoning
noted above (i.e. in Re Wood and seemingly applied in Johnston) has no
application in circumstances where the combination of ss 234, 290, 291,
318(b), and 329 of the LGA enable a casual vacancy to be filled by a by-
election at least in some circumstances.67 As I understand this reasoning, it is
to the effect that, as the LGA contemplates the possibility of a Local Council
being comprised of many councillors elected under both a proportional
representation system at an ordinary election and a single Councillor elected
under an optional preferential system following a casual vacancy, then this
Court should only make orders voiding one position as the least disruptive
outcome; that is it should only invalidate Ms Edward’s election to Shellharbour
City Council-Ward A and not Ms Marsh’s election.
101 I do not accept that reasoning. Leaving aside a declaration under s 318, if a
single casual vacancy were to arise within these three Councils within
18 months of their last ordinary election, then by operation of s 291A the casual
vacancy would ordinarily be decided via a countback election and, only if that
failed or was not able to be conducted, would a by-election then be held. It
follows that, at least in the first 18 months of a council’s term of office, the LGA
does not contemplate that in the ordinary course a casual vacancy will be filled
by a different election system to that which the balance of the councillors were
elected at the last ordinary election. Instead, a by-election is only the method of
last resort and that would only arise by reason of the circumstances set out in s
234 or an individual challenge to that councillor’s election under s 329.
66
Tr 23/02/2022 p 128.34
67
Tr 23/02/2022 p 134.10; p 135.30.
102 It is one thing to conceive of some possible scenario under the LGA in which in
the first 18 months of its term a council might be comprised of councillors
elected under a proportional system of representation together with one
councillor elected in a by-election under an optional preferential system
following a casual vacancy. It is quite another to hold that a defect in the
franchise occurring at the ordinary election of all the councillors conducted
under a system of proportional representation should be the subject of relief
that results in a council comprised of some councillors elected under a
proportional system of election and a councillor elected under an optional
preferential system of election (or two sets of councillors elected under a
proportional system of voting with radically different quotas).
103 I do not consider that the provisions relied on by Mr Ward remove the present
circumstances from those that arose in Re Wood and Johnston. Instead, the
nature of the proportional system of voting means that a material error such as
this affecting the election of one Councillor renders all of them liable to be
voided. However, the fact that ss 318(b) and 291A make provision for the filling
of a casual vacancy by a countback can in some circumstances be a reason
why the discretion to declare at least some of them void should not be
exercised. For example, if the error in the election concerned the manner of
excluding votes whose intention was otherwise known and that could only have
affected say the last two candidates elected then it may be open to only
declare those positions void and allow the countback provisions to take their
course.
104 In this case, the first emphasised passage in Re Wood in [93_Ref98146710] is

especially applicable to Shellharbour City Council-Ward A. Ms Marsh was the
preferred candidate of the majority of electors but the contest between Ms
Edwards and Mr Bitschkat was close. To only void Ms Edwards’ election and
force a by-election for one position would effectively result in each councillor
position for Shellharbour City Council-Ward A being separately elected under a
single candidate optional preferential system when the LGA requires that they
be elected using a proportional system of representation. Subject to
considering the other discretionary matters raised by the defendants, the
appropriate relief is to declare both positions void.
105 With reluctance I also reach the same conclusion with Kempsey and Singleton
Councils. To grant relief that resulted in by-elections for one or perhaps two
Councillor positions for each of those Councils would mean that within
18 months of their last ordinary election they would have Councillors elected
under two radically different election systems. Again, subject to considering the
other discretionary matters raised by the defendants, the appropriate relief is to
declare all positions on both Councils void.
Discretion: Community Disruption

106 Various reasons were put forward by the defendants which were said to
warrant the Court exercising its discretion and declining to declare any of the
elections void in whole or in part.
107 The Manager of Governance and Information Services at Kempsey Shire

Council, Daniel Thoroughgood, swore an affidavit describing the (substantial)
costs borne by the Council in conducting the election that would be effectively
wasted if the election had to be conducted again.68 He described the Council
election as “adversarial” and listed various statements and advertisements
including on social media about the Council or the candidates that could be
generously described as robust and, in some cases, false or offensive. 69 He
states that he had been told by several candidates including elected
Councillors that, if a fresh election were called, they may not run again due to
the time and resources involved and because they found the campaign a
“particularly negative experience”.70 The General Manager of the Council, Mr
Milburn, swore an affidavit to similar effect.71
108 The Chief Executive Officer of Shellharbour City Council, Ms Carey McIntyre,
swore an affidavit which made the same points in relation to that Council’s
election including the cost to the Council and ratepayers, the difficulty in
conducting another election in pandemic conditions, the loss of faith amongst
voters in the integrity and utility of Council elections and the disruption to the
business of Council from having one or two Councillor positions in doubt until a
68
Affidavit of Daniel Thoroughgood sworn 15 February 2022 at [6] to [13]; “Thoroughgood”; CB 182.
69
Thoroughgood; CB 183 at [15] and [17].
70
Thoroughgood CB 186 at [16].
71
Milburn at [10] to [18]; CB 190.
further election is held.72 The same points were made on behalf of Singleton
Council in an affidavit sworn by its general manger, Jason Linnane. 73
109 Ms Palaniappan’s written submissions identified five reasons why, as a matter

of discretion, a declaration should not be made.74 First, she referred to the cost
of the new election being borne by the ratepayers, although I understand that it
is anticipated that some arrangement will be reached between the Councils
and the Electoral Commissioner. Second, she referred to the evidence set out
above concerning the inconvenience and disruption caused by another election
and submitted that elector confidence would be undermined if another election
is held.75 Third, Ms Palaniappan referred to the risks from holding another
election in a pandemic.76 Fourth, Ms Palaniappan referred to the possible
damage to the reputation of the Councils.77 Fifth, Ms Palaniappan submitted
that, given the passage of time, it is not possible to conduct the same election
again including by reason of the publicity given to these proceedings.78 Mr
Seymour made submissions to similar effect.79
110 All declaratory relief in judicial review proceedings is discretionary. While

Bourne v Murphy did not involve proceedings by way of judicial review, the
judgments of both Cole and Beazley JJA suggest that the scope of the
discretion to refuse relief in relation to an election that has miscarried by
reason of the failure of the franchise is relatively narrow. While I could envisage
that an order voiding a Council election might not be made if the Council’s term
was about to expire, that is not the case. At the risk of repetition, it is the
interests of the electors and not the elected that are paramount. For some,
Local Government may be remote from their lives whereas for others voting in
an election for their Local Council is the best opportunity they have to
participate in the government decisions that have an immediate impact on
them. It is not part of the Court’s function to make assessments that electors
72
Affidavit of Carey McIntyre sworn 16 February 2022 at [10] to [17]; CB 683 to 684.
73
Affidavit of Jason Linnane sworn 14 February 2022, CB 788.
74
Tenth Defendant’s written submissions dated 21 February 2022 at [37] to [42]; “Def 10 subs”; CB 744 to 746.
75
Def 10 subs at [38] to [39].
76
Def 10 subs at [40].
77
Def 18 subs at [41].
78
Def 18 subs at [41] to [42].
79
Submissions of first and thirteenth Defendants at [2.9] to [2.12]
are better off without having a properly elected Council. The principles are the
same regardless of whether a federal, state or local government election is in
contest. Sometimes democracy can be messy and cause division but ultimately
its function is to resolve disagreements about how we are governed peacefully.
Its authority to do so rests on the integrity of the electoral process.
111 While I accept that the matters noted above were raised by the deponents in
good faith, I do not accept that they can justify declining to declare the
elections void. It can be accepted that each Council’s reputation might be
affected and faith in the democratic process will be undermined if a new
election results. However, those outcomes will not be a consequence of the
Court’s declaration but because of the Electoral Commission’s management of
the Council elections in December 2021. Those results are just as likely to
follow from any relief that maintains a Council in office for a further two years
even though it has not been properly elected in accordance with the LGA.
Otherwise, the purpose of granting declaratory relief is not to cause an election
to be conducted that will somehow replicate the election that took place on
4 December 2022. Instead, its purpose is to secure for the electorate a Council
properly elected in accordance with the LGA. Finally, I note that elections have
been conducted in wartime,80 flood, drought and, most recently, during a
pandemic.
Discretion: Personal and Financial Toll on Candidates

112 All of the councillors who either appeared at the hearing or lodged submissions
contended that a full re-election should not be ordered because of the cost to
the Councils and the personal and financial cost to each of the Councillors if
they decided to run again in the election. Mr Seymour also made that
submission.81 In the alternative the Councillors contended that the grant of any
form of relief sought by the Electoral Commissioner should be conditional on
the payment of their costs and expenses of the election in December 2021.
113 To this end Ms Riddington provided a list of the expenses she incurred and her
time records. She asked the Court to “acknowledge that running for Council
80
There was a federal election on 21 August 1943.
81
Def1 and Def 13 subs at [2.13]
carries significant personal costs to candidates in both time and money”, 82 a
proposition that no reasonable person could deny. An affidavit sworn by Ms
Wyatt was to similar effect.83 Ms Wyatt said that she felt “deep shame and
embarrassment at having been named as a defendant in the Supreme Court,
as this conjures perception[s] of significant wrong-doing and criminal
conduct”.84 Her oral submissions reinforced the genuineness of this belief. 85 Ms
Campbell made the same point.86 Both Mr Bain’s affidavits referred to the
considerable time and expense he and other candidates had devoted to his
election.87 Ms Campbell also swore an affidavit to that effect88 as did Ms
Marsh.89
114 Ms Charlton swore two affidavits describing in detail her efforts to become
elected as an independent candidate.90 This included self-funding her
campaign. She “spent 30 days straight including weekends and evenings out in
the community delivering brochures, talking to people and listening to people
and ensuring that election material was maintained at election venues”. 91 She
recounts that, after these proceedings were commenced, she was approached
by a resident who accused her of wrongdoing. She says that she has
exhausted all her funds and, if the election is declared invalid, she cannot
afford to run again.92
115 Ms Wright who appeared on behalf of Ms Charlton made detailed submissions

in support of the two propositions noted above (at [112_Ref98140717]). Ms
Wright pointed to her client’s evidence that she will not be able to afford to run
for office again if a new election is ordered. Ms Wright submitted that those
who voted for her at the election in December 2021 will be denied the
opportunity to vote for her at any new election and that would not be in the
82
Statement of Ms Riddington dated 20 January 2022, CB 278, at [13].
83
Affidavit of Alexandra Wyatt sworn 14 February 2022, CB 536.
84
Affidavit of Alexandra Wyatt sworn 14 February 2022 at [28]; CB 539.
85
Tr 23/02/2022 at p 117.
86
Speaking Notes of Elizabeth Anne Campbell
87
CB 571 at [15] to [16]; CB 615 to 616.
88
CB 660.
89
CB 783.
90
Affidavit of Belinda Charlton sworn 31 January 2022; CB 869; Affidavit of Belinda Charlton sworn 20 February
2022; CB 921.
91
Affidavit of Belinda Charlton sworn 31 January 2022 at [13]; CB 874.
92
Affidavit of Belinda Charlton sworn 31 January 2022 at [20]; CB 876.
public interest.93 Ms Wright noted that her client was entitled to rely on the
Electoral Commission properly performing its functions.94 Ms Wright contends
that the failure was entirely the failure of the Electoral Commission and it had
been on notice of the potential for the failure for many years. Ms Wright also
submitted that her client would suffer a “practical injustice” if her expectation
that the election would be properly conducted was defeated by a declaration
that it be declared void (citing WZARH and Re Minister for Immigration and
Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003]
HCA 6).95 Ms Wright also submitted that a declaration that the election was
void would be disproportionate “when assessed against the impact on” the
individual defendants, that is the elected Councillors.96 In oral submissions Ms
Wright contended that the prejudice occasioned was so great that no relief
should be granted at all.97 Insofar as it was submitted that any relief should be
granted conditional on the reimbursement of the individual Councillors of their
expenses, Ms Wright contended that that was a “reasonably practicable means
of achieving the plaintiff’s stated purpose”.98
116 I have already referred to the limited scope for declining declaratory relief in a
case such as this. The principal difficulty with all of these submissions is that
they appear to treat the Electoral Commissioner as though he was a private
party seeking a personal advantage from a declaration that the Council
elections were void and assume that the Court should weight that advantage
against the prejudice to the defendants that a re-election would cause as might
occur in litigation between private parties. However, this litigation is not of that
character. Instead, it takes place within the framework of the LGA with the
interests of the electorate in securing a properly elected Council paramount. In
circumstances where the Court has concluded that there was a material breach
of the LGA affecting the election of each Council which has a substantial term
to run, there is no scope to avoid an election for a new Council because the
93
Eighteenth Defendant’s outline of submissions dated 15 February 2022 at [13] to [16]; “18 Def subs”; CB
932.
94
18 Def subs at [16ff].
95
18 Def subs at [38ff].
96
18 Def subs at [47].
97
Tr 23/02/2022 p 96.35.
98
18 Def subs at [66]; CB 936; Speaking Notes for Oral Submissions on behalf of the Eighteenth Defendant at
[1] to [46].
individual Councillors are left out of pocket from the last election. I understand
that a number of Councillors may not run again and no doubt the availability of
candidates is critical to the proper conduct of the election. However, as I have
explained, the object is to secure a Council that is properly elected under the
LGA and not necessarily re-run the election held in December 2021. That
object cannot be subordinated to the subjective assessments of each
candidate as to whether they will again stand for election.
117 The same difficulty arises with the contention that the grant of declaratory relief
should be made subject to the Electoral Commissioner refunding the expenses
of the successful (or even the unsuccessful) candidates. If relief in that form
were to be granted, the Electoral Commissioner could determine not to pay
and the declarations would never come into force. That outcome would make
the interests of the electorate subservient to the subjective decisions of the
parties. I decline to make declarations subject to such conditions.
Other Submissions
118 I will briefly address the balance of the submissions made by the defendants.
119 Some of the defendants sought orders for a Court-ordered apology from the
Electoral Commissioner.99 I have no power to make such an order and for the
reasons just stated it cannot be made a condition of declaratory relief.
120 Mr Bain’s principal submission, namely that it would be arbitrary to declare

these three Council elections void but not others has already been addressed.
Mr Bain also noted that due to the postponement of the December 2020
Council elections to December 2021 the duration of the term of the current
Councillors was reduced to two years and nine months and that would be
further eroded by having another Council election.100 Those contentions have
also been addressed. The Councils still have a substantial term to run. Mr Bain
also anticipates that voter turnout will be lower than that which occurred at the
original election and any re-election will confer on well-resourced candidates
an unfair advantage.101 To similar effect, Mr Ward contended that an election
for both positions in Shellharbour City Council–Ward A would disadvantage Ms
99
e.g., Submissions of the Fifth Defendant, Mr Bain, CB 573 at [25].
100
CB 572 at [19].
101
CB 572 to 573.
Marsh’s independent group and potentially advantage Ms Edwards’ group
which has the endorsement of a major political party. As noted, the object is
not to attempt to ensure a repeat of the December 2021 election, but a Council
elected in accordance with the LGA. Otherwise, the Court is in no position to
assess the capacity of the candidates to stand for election and should
generally refrain from doing so.
121 Finally, I note that in a submission dated 24 January 2022,102 Ms Wyatt

referred to other alleged failings on the part of the Electoral Commission in the
conduct of the election including its alleged failure to provide information to
voters that there would be no out-of-area voting and that electoral material
could not be distributed within 100m of polling booths.103 Ms Wyatt contends
that these factors affected the election outcome and that it was artificial to
attempt to isolate the effect of the failures with iVote.104 The Court cannot and
did not conduct some form of general inquiry into the December 2021
elections. Instead, its only function has been to determine whether there was a
breach of the LGA in connection with the election for the three subject Councils
and its consequences. The only alleged breach that was properly litigated was
the alleged breach of s 310 of the LGA and regulation 333E of the General
Regulation.
Future Progress and Potential Cross-claims
122 It follows that, at some point, the Court will make declarations that each of the
three subject elections were void and this will necessitate a full election for
each of Kempsey Shire and Singleton Councils and both positions in
Shellharbour City Council–Ward A. As noted, such an election will have to
occur within three months of the declaration. At present, there are various
contingencies affecting an election in that period including an impending
federal election, the pandemic and perhaps the recent flooding. Accordingly, I
will defer making the declarations now but hear from the parties about when
they should be made. Needless to say, it cannot be delayed for an extended
period.
102
Marked as Exhibit 2.
103
Exhibit 2 at [15]; CB 300, as well as alleged deficiencies in the COVID -19 safety plan - Exhibit 2 at [20] to
[35]; CB 301 to 302.
104
123 This leaves the question of the candidates’ expenses and the potential for them
to cross-claim against the Electoral Commissioner. At various points the
possibility that the candidates could sue the Electoral Commissioner in
negligence has been raised. It suffices to state that such proceedings would be
complex and raise some novel issues. It is difficult to envisage such
cross-claims being able to be resolved before the time in which the Court
would be obliged to make declarations.
124 At present the successful and unsuccessful candidates will unfairly bear the
burden of the failure of the iVote system that was administered by the Electoral
Commissioner. I have already accepted that a failure of the iVote system
resulting in a new election is likely to cause a loss of faith in the electoral
process. That loss of faith will only be exacerbated if candidates are forced out
of standing because they cannot recover at least some of the resources
expended in the December 2021 election. Both Ms Riddington and Ms Wyatt
submitted that “[i]f indeed the election is ruled invalid and a new one called [we]
contend that the [Electoral Commissioner] has a moral and ethical
responsibility to meet all associated costs, including the reimbursement of
campaign and legal expenses incurred by all defendants during and
subsequent to the original (invalid) election.”105 The force of this contention is
obvious. Although the Court has no power to order it, one potential response
that might alleviate some of the hardship is a pool of ex gratia funds that would
allow some recoupment of expenses for successful and unsuccessful
candidates up to a capped amount.
125 I will stand over the proceedings to 5 April 2022 at 9.30am. At that time, I will
hear submissions about the forms of order necessary to give effect to this
judgment including the timing of any declarations. I will also expect to be
advised by the Electoral Commissioner of what steps, if any, are proposed to
be taken to address the issue of the costs and expenses thrown away by the
candidates in the December 2021 elections in the subject councils. There will
be scope to consider any issues about costs, cross-claims or a possible
mediation to address candidate’s costs and expenses. The Electoral
Commissioner and the Councils will be directed to file proposed short minutes
105
CB 280.1; Exhibit 2 at p 15; CB 312.
and submissions in support prior to 5 April 2022. The other parties are also free
to do so.
126 Accordingly, the Court orders that:
(1) The proceedings stand over to 5 April 2022 at 9.30am.
(2) On or before 5.00pm on 25 March 2022 the plaintiff and the first, tenth and
thirteenth defendants are to confer in relation to the orders necessary to give
effect to the judgment.
(3) On or before 5.00pm on 29 March 2022 the plaintiff and the first, tenth and
thirteenth defendants are to file and serve proposed orders and any
submissions in support which are not to exceed 5 pages.
(4) On or before 5.00pm on 1 April 2022 any other party may file and serve
proposed orders, and any submissions in support, which are not to exceed 5
pages.
(5) There be liberty to apply on 1 day’s notice.
**********
Amendments
17 March 2022 - [Coversheet] - Counsel representing the plaintiff amended.

NSW Supreme Court Orders New Elections After Electronic Voting System Failed

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NSW Supreme Court Orders New Elections After Electronic Voting System Failed

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Supreme Court

New South Wales

Case Name: NSW Electoral Commission v Kempsey Shire Council

Medium Neutral Citation: [2022] NSWSC 282

Hearing Date(s): 22 & 23 February 2022

Date of Orders: 17 March 2022

Decision Date: 17 March 2022

Jurisdiction: Common Law

Decision: (1) The proceedings stand over to 5 April 2022 at

(2) On or before 5.00pm on 25 March 2022 the

(3) On or before 5.00pm on 29 March 2022 the

(4) On or before 5.00pm on 1 April 2022 any other

(5) Grant the parties liberty to apply on 1 day’s notice.

Catchwords: JUDICIAL REVIEW – challenge to three Local

Legislation Cited: Commonwealth Electoral Act 1918

Cases Cited: Associated Provincial Picture Houses Ltd v

Category: Principal judgment

Parties: NSW Electoral Commission (Plaintiff)

Proportional Voting System and the Council Elections_Toc98140360 -

Shellharbour City Council, Ward A_Toc98140361 - paragraph 9

Kempsey Shire Council_Toc98140362 - paragraph 14

Singleton Council_Toc98140363 - paragraph 16

The “iVote” System and its failure_Toc98140364 - paragraph 18

The Effect of the Failure of the iVote system_Toc98140365 - paragraph

Dr Teague’s Evidence_Toc98140366 - paragraph 35

The Breach of the LGA in the Conduct of Council

The Consequences of the Breach_Toc98140368 - paragraph 55

How is the Materiality of the Irregularity in an Election to be

One Candidate’s Election Invalidated or all Candidates’ Election

Discretion: Community Disruption_Toc98140371 - paragraph 106

Discretion: Personal and Financial Toll on Candidates_Toc98140372 -

Other Submissions_Toc98140373 - paragraph 118

Future Progress and Potential Cross-claims_Toc98140374 - paragraph

2 At the outset it is necessary to emphasise that nothing in these proceedings

3 By a summons filed on 11 January 2022, the Commissioner applied for

7 To explain these conclusions, it is first necessary to describe the nature of the

Proportional Voting System and the Council Elections

8 The method of counting votes under the proportional system of voting is

“The proportional representation system is described in Schedule 5 of the

BITSCHKAT, 425 425

LABOUR 546 269

EDWARDS 269 4,392

Kempsey Shire Council

17 Neither Mr McNamara nor Mr Scott reached a quota. Mr Scott’s progressive

The “iVote” System and its failure

19 Technology assisted voting is regulated by Part 11 Division 7A of the General

“333E Electoral Commissioner to determine applications

The Effect of the Failure of the iVote system

26 This analysis resulted in the identification of seven local council elections in

33 The cross-examination of Mr Kwok by counsel for Shellharbour City Council,

34 The other defendants, including Ms Wyatt, Ms Edwards and Ms Marsh, were

38 Dr Teague’s principal complaint with Mr Kwok’s analysis concerns the utility of

39 Dr Teague gave oral evidence reinforcing her criticism of the assumptions in

40 Dr Teague rejected Mr Kwok’s approach of seeking to address the effect of the

41 Based on this analysis, Dr Teague contended that invalidating “the three

42 Dr Teague’s evidence raises an important matter of principle in relation to the

The Breach of the LGA in the Conduct of Council Elections

“285 Voting system for election of councillors

“291A Countback to be held instead of by-election in certain

47 The procedure for a “countback election” is to be found in Schedule 9A to the

49 Part 6 of Chapter 10 addresses how elections are to be conducted. Sections

“A contested election for a civic office is to be conducted as prescribed by the

53 The combination of s 310 and regulation 333E means that it is a statutory