Key ruling prompts council poll questions

Tucked away in a corner of Perth Magistrates Court, an anxious Shaye Mack throws his head back and breathes an audible sigh of relief.

After single-handedly contesting a local government election result shrouded in controversy for more than six months, Mr Mack had been vindicated.

The Court of Disputed Returns ruled the election should be deemed invalid and a fresh election called.

Doubt was cast over the validity of the Shire of Serpentine Jarrahdale election in September last year, when two people connected to a candidate in the North West ward were apprehended and later convicted of stealing dozens of ballot papers.

When a door knock of more than 350 homes indicated the fraud may be more widespread than first thought, Mr Mack, a fellow candidate, called on the Western Australian Electoral Commission to intervene.

But the statutory body tasked with conducting the election staunchly defended the $30,000 exercise, prompting Mr Mack to escalate the matter to court.

When the shire council began assessing whether it should also take action, correspondence obtained by Business News shows Electoral Commissioner Robert Kennedy told it the process had been “marred” but that there was no evidence the impact would warrant an invalidity complaint.

“Obviously, aspects of the election process have been marred by the charging of individuals with stealing voting packages,” Mr Kennedy wrote.

“However, those packages obtained as part of the police investigation were immediately cancelled and re-issued to affected electors.

“In all other aspects, the commission is satisfied that the election in the shire was conducted appropriately.”

The WAEC also warned of “electoral fatigue” if the process was to be repeated, an argument anyone familiar with the history of the area would agree has merit.

A fresh council election would mark the seventh time those constituents had been sent to the polling booth in five years.

This was the same cohort that turned on WA Labor and backed the Liberals when the web of lies incumbent Barry Urban had told about his qualifications unravelled, prompting his resignation and instigating the 2018 Darling Range by-election.

Even Mr Mack conceded that the electors’ faith in the system and its integrity had likely waned in the wake of recent controversies.

In handing down his determination, Magistrate Trevor Darge said he was swayed by the inability of any party involved to determine the extent of the interference and the degree to which the “dedicated if amateurish criminal” behaviour altered the election result.

He pointed to evidence which indicated almost 30 per cent of the total postal votes were received within a 24-hour period, something Magistrate Darge suspects was the product of a thief returning stolen ballot papers in one tranche, as well as confirmation that some of the ballots were forged.

In the judgment, Magistrate Darge said he believed the level of impersonation might have been more widespread than the actions of WA Police had suggested.

Outside the court, Mr Mack told Business News he was relieved to have a ruling which showed there was still some integrity in the democratic process but expressed concern at the lengths he had to go to and the legal costs he had to stump up to have the election result overturned.

“I’ve had to spend nine months of my time fighting this, risking thousands of dollars in court costs that I could have potentially been left with, just to argue that fraud shouldn’t be considered acceptable in an Australian democracy,” he said.

“I do think this issue is potentially a lot more widespread than just the Shire of Serpentine Jarrahdale and it is certainly more widespread than just the northern ward.”

The public battle has raised concerns about whether the postal voting system is robust enough to withstand the risk of interference and the process for investigating suspected electoral tampering is sufficient.

Case raises more issues

The trial unearthed an apparent lack of guidance when it comes to the handling of suspected electoral fraud; both in legislation and within the court system.

The state solicitor’s office highlighted that there was what it described as a ‘lacuna’ or gap in the legislation, whereby no one organisation or body involved in the election had the power to investigate allegations of wrongdoing.

Under the Local Government Act 1995, the only avenue a person dissatisfied with an election result has is to make a validity complaint to the Court of Disputed Returns.

Currently, only a magistrate wields the power to declare an election invalid.

While Local Government Regulations 1997 outline the formalities of dealing with election invalidity complaints, neither piece of legislation provides any guidance on the factors that warrant consideration when making a determination, nor does it have a threshold that needs to be met.

In the absence of any legislation, the court is forced to turn to precedent.

But as Magistrate Darge pointed out during the inquiry, that is problematic in itself, with the chief authorities on the matter now more than a century old.

According to the WAEC, all residents enrolled on the state electoral roll are automatically registered to vote in the corresponding local government election, including those who own or occupy a property in the area.

Under the rules, local business owners can apply to have up to two eligible electors on the roll and electors living in one ward with property in another are allowed to vote twice.

Almost 70 per cent of local government elections administered by the WAEC are now conducted by post, a method that has become synonymous with attracting a higher participation rate by electors.

But the process for the delivery of those ballots, coupled with the fact it is the only tier of government where voting is not compulsory, has raised questions about whether the operating model leaves the system vulnerable to manipulation.

The WAEC was coy when quizzed about whether it believed clarity was required around the process for investigating complaints and whether it should be left to ratepayers to do the leg work, twice repeating it was not for the commission to comment on the current legislation.

It did, however, emphasise that the court did not make any suggestion that the invalidity of the north ward election was attributable to the WAEC’s processes.

Cambridge takes over

The Serpentine Jarrahdale incident and one of its own has been enough to prompt the Town of Cambridge to hold its upcoming by-election in person.

The local government forked out $91,000 to have the WAEC conduct last year’s election.

But Town of Cambridge mayor Keri Shannon said the town was left unsatisfied with its handling, including responses to ratepayer complaints and its refusal to hand over records relating to the election.

Ms Shannon said the council had since written to both the WAEC and Local Government Minister John Carey calling for improvements to the WAEC’s record-keeping obligations and the integrity of the voting process.

“Normal contractors provide records to the town to ensure accountability and audit trail and to comply with the State Records Act,” she said.

“The WAEC suggested the town make a Freedom of Information application.

“The town was also concerned the reduced frequency of the mail service may increase the risk of ballot paper tampering.”

Ms Shannon said the general apathy in local government elections left the door open to ballots being taken without residents being aware they have been impersonated.

Now, the town has vowed to conduct an audit of its own, writing to all ratepayers to confirm receipt of their completed ballots and ensure all those submitted were valid.

WALGA president Karen Chappel told Business News the peak local government body was not aware of any other local governments experiencing election security issues and believed the incident was an isolated one.

She touted the benefits of postal voting, which she said achieved a higher voter turnout than voting in person.

But when asked about the integrity of the postal voting system, she said that was a matter for the state’s electoral commission.

Time for change?

The election controversies coincide with the unveiling of sweeping changes to the 27-year-old Act, spearheaded by Mr Carey – governing everything from behavioural standards for councillors to lease requirements for candidate and voter eligibility.

Among the suite of reforms being floated by the state government is an amendment that would allow for electronic voting to be implemented when the technology is deemed suitable.

But there is little in the way of changes to safeguard the election’s integrity or provide further guidance around the processing of integrity complaints.

And as one industry source pointed out, shifting the elections to cyberspace could pose a security threat of its own.

A state government spokesperson told Business News the act already provided a “broad framework” for how elections were to be held and powers for the investigation of alleged electoral misconduct.

“The Act also sets out the appropriate pathways for election results to be appealed to the Court of Disputed Returns, and that’s what has occurred on this occasion,” the spokesperson said.

“Ensuring safe and secure elections would be a clear focus of any plans to introduce electronic voting in the future.”

But Mr Mack is adamant legislative change is required, vowing to lodge recommendations with the ministers and organisations he believes should pursue that change.

“I think there’s a definite need for change there, and some greater accountability for the commission and a body that actually investigates suspect activity in an election,” he said.

“I understand there are different levels of complaints that get made and the complexities that come with, but I fear that we’ve actually clamped down on people making false claims to the point that valid claims are getting dismissed far too easily.”