The results of three New South Wales council elections hang in the balance after the Supreme Court was told the polls should be declared void because of "defect or irregularity" in the electronic iVote system.
The NSW Electoral Commission is seeking to strike down the results in Kempsey, Singleton, and Shellharbour Ward A after the agency's server was impacted by two disruptions on the December 4 polling day.
Almost triple the number of voters had used iVote on the day compared to previous elections.
The commission's investigation into the problems found "there is a possibility that, if all individuals who registered to use iVote on election day had been able to vote, a different outcome might have occurred".
The commission found:
- Of the 22,812 voters in Kempsey there were 1,790 iVote ballots, 34 failed
- Of the 17,137 voters in Singleton were 2,467 iVote ballots, 55 failed
- Of the 15,740 voters in Shellharbour Ward A there were 2,772 iVote ballots, 54 failed.
In response, and to protect the "integrity of the electoral system", the Electoral Commissioner has applied to the Supreme Court to scrap the results and allow a fresh vote.
At the start of a two-day hearing, the commission's counsel, James Emmett, told the court there was a miscarriage in relation to elections.
"And a legal question arises as a consequence of that is that the election of one or more candidates is void."
Mr Emmett stressed the naming of 22 defendants in the case was not a reflection of their conduct.
"Some of the defendants feel singled out. Such criticism is unwarranted," he said.
He also argued the NSW Electoral Commission had not broken the law.
"This is not a case where anyone deliberately breached the legislation, it is not even a case where someone misunderstood the terms of the legislation and so misapplied it," Mr Emmett said.
"The commissioner endeavoured to ensure the legislation was complied with, but in relation to the issues it did not succeed.
"The Electoral Commissioner did not withhold his permission nor did anybody on the Electoral Commissioner's behalf, rather the necessary electronic facilities were not made available.
"It may be a matter for another day for the court to consider where the fault lies."
Distressed councillors
Kempsey Deputy Mayor Alexandra Wyatt told the court the situation was more about "principle and ethics".
"I am contesting that if the iVote is invalid in these three elections, then it should be invalid in all 200 elections," Cr Wyatt said.
She also become emotional and broke down crying while questioning NSW Electoral Commission official Simon Kwok.
"There is no intention to upset or cause any reputational issues and I don't think any public statements would lead anyone to believe that would be case," Mr Kowk said.
Kiama MP Gareth Ward was representing Shellharbour councillor Kellie Marsh and said his client should not be "dragged into" the case after receiving a high personal vote.
Mr Ward also pointed to a previous failures of the iVote system that allowed for the election of an Animal Justice candidate to the NSW Legislative Council.
Counsel for the commission indicated it would consider financial compensation for three councils.
The hearing will continue tomorrow.
Government warned about ageing system
At the November state budget estimates, Commissioner John Schmidt took aim at government for "piecemeal funding" of his authority.
He told estimates his agency needed emergency grants for security operations, and concern at the lack of funding for the commission's ageing system.
It came after several previous warnings about cyber security risks.
