Kempsey Shire Councillor Alexandra Wyatt speaks out on Supreme Court decision

Cr Alexandra Wyatt said she feels 'institutionally abused' and, after studying the statistics, cannot understand the judge's decision.

"I feel this is a bit of institutional or bureaucratic bullying to a degree," Cr Wyatt said.

"I think they knew there was a problem with the iVote system beforehand. So I feel aggrieved that we have been made to be collateral damage."

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Following Kempsey's most recent Council elections, the Australian Electoral Commission said 34 iVote ballots lodged had "failed".

A total of 16,204 formal votes were counted, and 18,493 people voted for 22 candidates on December 4, 2021.

In January this year, the electoral commission commenced proceedings in the Supreme Court of NSW "seeking a ruling about the validity" of the election. The proceedings were heard in the Supreme Court on 22 and 23 February 2022.

As well as Kempsey, the court case examined results for Singleton Council and one of four wards in Shellharbour City Council.

"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," His Honour Robert Beech-Jones said when he reached his decision on March 17.

"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."

Cr Wyatt said she could not 'wrap her head around' the judge's decision.

"The judge said that in the interest of the integrity of the electoral system, the whole thing would be declared void, and I find that incredibly offensive and hypocritical," Cr Wyatt said.

"If you're going to be maintaining integrity, then you should get rid of the entire local government election of 2021 and recall it because there were 48,000 people who didn't have access to the iVote, and they did a statistical analysis that came up with the three council areas where there was an impact.

"I understand that, but don't say that's integrity because integrity is one in all in, as far as I'm concerned."

The other finding Cr Wyatt said she finds confusing is that she was acknowledged as elected yet is expected to go back on the hustings.

"The statistical analysis done by the Election Commission said only the last position was affected, and the other six were okay," Cr Wyatt said.

"So they are saying we know Alex, you got 1874 votes in your own right, we know that you are not part of the statistics that could have affected the outcome; however, we're going to cast you out anyway," Cr Wyatt said.

"They've acknowledged that we were elected and that we are impacted, but they're going to throw it out anyway. I'm really struggling to deal with that."

Cr Wyatt said she also felt democracy and the majority's wishes had been turned upside down looking at the local numbers.

"In the Kempsey Shire, more than 16,000 people voted, and 34 didn't, so you're basically saying those 16,000 are irrelevant," Cr Wyatt said.

"It will not be the same elections next time around. We will not be voting for the same people, and it will be a brand new election. So those 16,000 people have had their right to cast their vote denied as well."

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

The other councillors were 'shattered' too, Cr Wyatt said, and of four possible outcomes, this was the worst.

"None of us expected this," she said.

"I think the very least we expected was a by-election for three positions or a by-election for one, but not for all of us to be made void."

The case was restricted to the election of eight councillors, not the separate ballot for mayor won by Leo Hauville.

His Honour Robert Beech-Jones noted an election would 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," he said.

The community had been through so much in the last three years, Cr Wyatt said.

"Fire, droughts, floods, COVID, rising homelessness, unemployment - they deserve better than to be made a political point of," she said.

While the Electoral Commission named the eight councillors as defendants, it said at the time this "involved no suggestion of any wrongdoing or impropriety on their parts".

Yet it is uncertain if they will be compensated for the thousands of dollars spent campaigning in 2021.

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".

"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," His Honour Robert Beech-Jones stated.

"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."

Cr Wyatt believes it is a simple case of not delivering a service that was paid for, and compensation is a no brainer.

"If I ran a business, and I failed my customers and my clients, I would fully expect to have to give them a refund under consumer law," Cr Wyatt said.

"But I don't have any faith that will occur, and that is why I feel institutionally abused."

When the new election will occur and if councillors will be reimbursed will be determined in the Supreme Court at the next hearing on April 5.

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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