Landmark Decision in the Court of Disputed Returns
As our readers may be aware, the Electoral Commissioner of SA (the ECSA) announced in December 2023 that two (2) Councillors at the Adelaide Plains Council had been wrongly declared as elected at the November 2022 Periodic Elections. This was said to be due to human and computer error on the part of the ECSA.
Under the Local Government (Elections) Act 1999 (SA) (the LGE Act), the ECSA is permitted to use computer software to count votes in an election, being the technology used for both this ‘wrong declaration’, as well as 25 of the 184 counts during the 2022 Periodic Elections.
However, due to the incorrect settings on the computer software, the Election counting for the Adelaide Plains Council resulted in the two (2) Councillors being wrongly declared elected. Subsequently, an additional Councillor who was declared elected to fill a casual vacancy in 2023, under the new recount provisions, was also impacted by the ECSA error.
Upon discovering the error in early December 2023, as a result of a challenge in another council area, and over a year after the Councillors had been declared elected, the ECSA wrote to inform the affected parties (the Council and the three (3) Councillors).
The Petitions
On 5 February 2024, some 445 days after the conclusion of the November 2022 Periodic Elections and 62 days after the error was discovered, the ECSA filed two (2) petitions with the Court of Disputed Returns (the Petitions). The Petitions disputed the validity of the Election results on the basis of an error in counting of the votes.
However, under the LGE Act, such Petitions are required to be lodged within 28 days after the conclusion of the elections.
Disappointingly, whilst the error was not discovered for nearly one (1) year, the ECSA then took a further 62 days to file the Petitions with the Court. This latter delay alone was more than double the strict 28-day limitation period!
The Extension of Time
The LGE Act does not make provision to extend the strict, 28-day time limitation period. This may be considered to be the case on the basis that the time limitation is underpinned by strong public policy rationale to ensure that electoral disputes are resolved promptly and expeditiously, and to provide certainty in the election process.
Consequently, the ECSA was required to seek an extension of time in which to file the Petitions. This occurred, not under the LGE Act but under section 48(1) of the Limitation of Actions Act 1936 (the Limitations Act), which provides a general power for the Courts to extend prescribed time-limits for instituting an action as the justice of the case may require.
The position that the general power to extend time provided by the Limitations Act was applicable to the LGE Act, was endorsed by the Court of Disputed Returns in the case of Hyde v Electoral Commissioner of SA [2023] SADC 143.
The Challenge
The affected Councillors argued the length of the extension sought by the ECSA was excessive and the Court should not permit the strict 28-day statutory limitation be avoided by recourse to the Limitations Act.
The position taken by the affected Councillors is consistent with all other State jurisdictions in Australia, where there is no statutory opportunity to seek an extension of time to lodge such a Petition. Whilst a 40-day time limit exists under s 355(e) of the Commonwealth Electoral Act 1918 (Cth), likewise, this cannot be extended and is, thereby, unable to be challenged.
This means that South Australia is the only jurisdiction in Australia in which recourse to time limitation legislation permits an extension of time to challenge election results.
The Decision to Extend Time
The Court determined it was in the interests of justice to exercise its discretion to grant the extension of time to allow the ECSA to file the Petitions. This was regardless of the strict 28-day time limit in the LGE Act, despite the fact the terms of Office of the affected Councillors were almost at the half-way point, and despite the fact that the ECSA could be considered to have been less than diligent in attending to the filing of the Petitions following the discovery of the error.
In making its decision to grant the extension of time, the Court had regard to what it said are five (5) paramount considerations:
- the length of the delay;
- the explanation for the delay;
- the hardship to the ECSA if the Petitions were dismissed;
- the prejudice to the affected parties if the Petitions were accepted; and
- the conduct of the respondents in the litigation.
The decision to extend the time-limit was reached on the basis that the interests of the Election and the objective that the results reflect the interests of those voting in the Election, weighed strongly in favour of granting the extension, so the Court could determine whether the Election result should stand or be declared void.
In the judgment, the Court stressed that the error in the counting and declaration of votes was solely the responsibility of the ECSA – there was, and there should not be, any reason to consider that any actions of the former Councillors had brought about their removal from Office, nor that they had not been fulfilling their functions as Councillors with anything less than enthusiasm and diligence.
Further Outcomes
On Monday 2 December 2024, some 748 days after the conclusion of the 2022 Periodic Elections, the Court made Orders, with the consent of all parties, to declare that the two (2) Councillors elected were not ‘duly elected’ and, instead¸ the two (2) candidates who would, otherwise, have been elected, but for the error, were duly elected.
The unfortunate result of this decision is that the two (2) Councillors, who were recognised by the Court as having committed to their roles with enthusiasm and the utmost professionalism, were removed from their roles halfway into their term.
This extraordinary, and unexpected, decision of the Court to extend the statutory time-limit by a further 740 days must be considered, at least, as having the potential to result in significant, detrimental, consequences. That is for both the Adelaide Plains Council, as well as the affected Councillors who had conducted themselves diligently and professionally in giving effect to their roles over a two-year period.
The granting of the extension of time might, at least on its face, be considered to be entirely inconsistent with the statutory objects and purposes of key provisions under the LGE Act, as well as the policy rationale underlying the strict and limited statutory time period determined by Parliament.
Filling the Casual Vacancy
The Court was then required to deal with the single Councillor who had been elected in 2023 through the new recount provision to fill a casual vacancy. Due to the incorrect candidates being elected at the Election in the first instance, the candidates considered at the time to fill the vacancy were also incorrect, as two (2) of them had already been elected.
As a result of the second Petition and in line with its reasoning in the first Petition, the Court declared this Councillor was not duly elected. The Court was then required to decide whether the casual vacancy, arising from the removal of this Councillor, should be filled by way of a supplementary election, or by conducting a repeat of the ‘recount’ but now with the ‘correct’ candidates in the pool.
The Court ultimately determined the casual vacancy was to be filled by way of conducting a recount with the correct candidates, after ascertaining which still wished to be considered, given the vacancy had arisen some time previously.
The ECSA then undertook a recount of the votes cast in the 2022 Periodic Elections to determine which of the four (4) candidates who advised their willingness to be considered in the casual vacancy would be elected.
On 9 January 2025, Cr Terry-Anne Keen, one of the two (2) councillors removed as a result of the first Petition, was elected to fill the casual vacancy. The election of Cr Keen concluded this longstanding affair, now more than half-way through the 4-year election term.
Who Foots the Bill?
Although the Petitions were not dismissed, even with the excessive time delay, the Court, nevertheless, found the circumstances were so exceptional that the Councillors should have their costs reimbursed by the ECSA, on an indemnity basis.
The Council, being in a different position to the Councillors, was awarded its costs, but only the standard scale.
These exceptional and unexpected circumstances, including the consequential significant cost impacts, should weigh heavily on both the ECSA and councils at the next Periodic Elections cycle in 2026. At the very least, we can expect a significant increase in scrutiny from all stakeholders to ensure these types of mistakes are not repeated and the election objectives are not, again, thrown into disarray.
For any questions please contact:
Michael Kelledy on 8113 7103 or mkelledy@kelledyjones.com.au or
Nicholas Sonza on 8113 7107 or nsonza@kelledyjones.com.au