The NSW Electoral Commission has been accused of damaging the reputation of election candidates after its online voting system crashed and a Supreme Court battle was triggered.
Thousands of voters who tried to cast a ballot using the online iVote system reported being denied access and several ended up not voting in the NSW local government elections last year.
The Commission investigated the technology failure and found if the iVote system did not crash it would not have affected the results in most council elections, with the exception of Shellharbour, Kempsey and Singleton.
After declaring the election of 19 councillors across those three local government areas, the Commission launched Supreme Court action to determine if Shellharbour, Kempsey and Singleton results should be declared void.
At a hearing on Tuesday to determine if fresh elections will be needed, Simon Kwok, the Commission’s executive director of elections tasked with investigating the iVote scandal, was grilled by councillors whose local government careers are under a cloud.
Kempsey council’s deputy mayor Alexandra Wyatt burst into tears as she suggested the debacle had potentially damaged the reputations of successful candidates.
“What would you do to ensure that our local communities and the public of NSW are fully aware that being a xjmtzywdefendant in the Supreme Court does not cause us reputational damage or that we are responsible for this?” she asked Mr Kwok.
“What will the Electoral Commission do to inform the public of NSW and our communities of Kempsey that this is not a reflection on us and that we have not done any wrongdoing?
“I’d really like the Commissioner to think of how you can protect us in this reputational damage.”
Mr Kwok said he did not believe any of the Commission’s public statements about the scandal would have led people to believe council election candidates had done anything wrong.
“Obviously with the problem that has occurred, it is a matter that needs to be examined and reviewed,” he told the court.
“There’s no intention from the Commission to upset any candidates or to cause any reputational issues.”
Mr Kwok fumbled when Shellharbour councillor Maree Edwards asked if the Commission had any contingency plans in place for if the iVote system crashed on election day.
“There were a number of contingencies in place where if the system is down we would look at advising the affected people, but in terms of whether we are talking about whether we are talking about system contingency I think it would show there is obviously certain system outages that we would not be able to continue service,” he said.
Former NSW Government Minister and Kiama MP Gareth Ward, who is representing former Shellharbour mayor Kellie Marsh in the case pro bono, asked Mr Kwok to explain a series of previous iVote system outages at the 2015 and 2019 state elections.
Mr Kwok said while he could not be sure for certain, he believed an iVote ballot paper “error” in 2015 meant the Animal Justice Party voting squares would not display.
Mr Ward responded, asking “what action did the Electoral Commission take legal or otherwise with respect to that failure?”.
After Mr Kwok responded by saying he did not know, Mr Ward said “in spite of that failure Mr Mark Pearson was elected” and the court later heard Mr Kwok was not aware of any legal proceedings stemming from the 2015 iVote failures.
James Emmett SC, the barrister acting for the Commission, said the hearing was not about allocating fault or blame.
“This was no fault of the defendants … this problem arose because of the system that was put in place by the Commissioner and that system failed,” he said.
“As the authorities indicate, miscarriages and errors and irregularities in elections do happen from time to time, happily not very often, it ought to be conducive to public confidence, we hope, that the Commissioner has taken this step and the court will rule on it according to law.”
The court heard the Commission was giving “careful consideration” to resolving potential cost claims affected councils or councillors have raised.
The hearing before Justice Robert-Beech Jones continues.
