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Statement: Supreme Court judgement concerning iVote and the 2021 Local Government elections

On 17 March 2022, the Supreme Court of NSW delivered judgment in relation to an application brought by the NSW Electoral Commissioner around the operation of the iVote system in three local government elections held in December 2021. This application was brought by the Electoral Commissioner in the public interest, to support the integrity of the election system.

The Court has decided that the problem that occurred for some internet voters in these areas was a material irregularity and the elections in Kempsey, Singleton and Shellharbour Ward A are void.

The Electoral Commissioner regrets the inconvenience caused to these councils and their councillors, but he welcomes the resolution of the matter and will now commence preparations for fresh elections.

Fresh elections must be held within three months of the Court making its final orders. The Court has adjourned the proceedings to 5 April 2022 for final orders.

The election date will be determined by the Electoral Commissioner, in accordance with the requirements of section 292 of the Local Government Act 1993, after consulting with the affected councils. The date will need to avoid a clash with the forthcoming federal election.

The Electoral Commissioner has previously made a statement clarifying that no wrongdoing is suggested on the part of councils and councillors referred to as defendants in these proceedings. The issue in these proceedings was the operation of the iVote system. The Electoral Commissioner’s statement on this is published here. The Electoral Commissioner has indicated to the Court that the councils involved will not have to pay for two elections.

The Electoral Commissioner is also giving careful consideration to requests from candidates for the reimbursement of their electoral expenditure in relation to the voided December elections. Any such requests will be assessed as soon as possible. The NSW Electoral Commission will contact candidates in the near future to provide an update about this process.

The Electoral Commissioner also determined on 15 March 2022 not to use iVote at the State general election in March 2023, but this decision was not made in connection with these proceedings. This decision was made due to the short time available to install and test essential new iVote software before the State general election. Further details about the decision are published here.

The Court’s judgment will, however, be carefully considered by the Electoral Commissioner before internet voting is contemplated for use at any future elections.