Supreme Court gives final orders on Kempsey Shire election with NSW Electoral Commission to name date

The NSW Supreme Court made the announcement on Tuesday after it handed down its orders on the successful application by the NSW Electoral Commission to void the result of the local government election in three shires, including Kempsey on Thursday, March 17.

The Supreme Court ruling is that the election of the eight councillors will be declared void effective May 3 2022, requiring a by-election within 3 months of that date, with a day to be set by the NSW Electoral Commission.

Read more: "I am very disappointed by this decision": Kempsey residents to go back to the polls

The court has also ordered the NSW Electoral Commission to pay council's legal costs.

However if councillors will be compensated for their campaign costs in 2021 is not yet clear.

On May 17, the Supreme Court decision noted that council and the Electoral Commissioner "had agreed in principle to the reimbursement of the latter's expenses in the event that any elections were voided" but the NSW Electoral Commission has not yet confirmed it will do this. It has also still not determined a date for the by-election.

The Kempsey mayoral election was not materially impacted and the election of Kempsey Shire Mayor Leo Hauville was not challenged by the Electoral Commission. As such he will remain in office until the next local government election in 2024.

The current councillors will continue to serve until the day of the by-election.

Read more: "We were collateral damage": Councillor speaks out on iVote fail

The Court previously emphasised that there was no wrongdoing on the part of the candidates who were named as defendants and noted that they regrettably would bear the burden of the failure of the iVote system.

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

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

Analysis of the potential outcome of those 34 votes is what promoted John Schmidt, the Electoral Commissioner to seek a declaration that the councillor election be declared void.

The Electoral Commission has announced that it will not use the iVote System for any election between July 1, 2022, and March 25, 2023.

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