Shellharbour residents in Ward A will be going back to the polls, with the NSW Supreme Court finding that elections held in December 2021 were void because of the iVote system crashing.
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The decision means that councillors Kellie Marsh and Maree Edwards be up for election.
In a judgement that was critical of the iVote system that the NSW Electoral Commission used to conduct the local government elections, Chief Justice Robert Beech-Jones said the legislation left him no choice but to rule the elections invalid.
"The court finds in the failure of the iVote system for December 2021, meant that each election was not conducted in accordance with the general regulation as was required by section 310 in the Local Government Act," Chief Justice Beech-Jones said.
The decision culminates a process that has left councillors Marsh and Edwards in limbo since council elections in December last year.
Cr Edwards said she the decision left her devastated on behalf of the voters.
"Sending them back to the ballots is pretty cruel, especially with an upcoming federal election," she said.
Deputy Mayor Marsh said she felt similarly.
"The hardest pill to swallow is we've done nothing wrong. The voters have done nothing wrong, none of us have done anything wrong. It was purely the Electoral Commission's fault," she said.
The iVote system used by the NSW Election Commission crashed on election day, causing 54 votes to be lost.
Cr Marsh said she believed that the missing votes would have enabled her running mate, Shane Bitshkat to be elected. Both will be running again when voters go back to the polls.
Cr Edwards said she was unsure whether she would run again.
"When you campaign, it's a great amount of time, and money that you put in yourself."
Shellharbour Mayor Chris Homer said the outcome did no one any favours.
"It just could have been a lot more compassionate and allowed the councillors involved to move forward in such a way that they didn't have to put so much time and energy into getting even this result. It's just disappointing," he said.
The next hearing is scheduled for April 5, with the court requiring the NSW Electoral Commissioner to provide submissions about how and when to hold fresh elections. Elections must be held within three months of April 5.
An issue for the court was the recovery of costs by candidates and councils in holding new elections. While the court did not reach a decision, Chief Justice Beech-Jones indicated that if fresh elections were to significantly financially impact candidates this would be a poor outcome.
"The failure of the iVote system resulting in fresh elections is likely to cause a loss of faith in the electoral process. That loss of faith will be exacerbated if candidates cannot nominate because they cannot recover at least some of the resources expended in the December 2021 election," Chief Justice Beech Jones said.
Cr Homer said that Shellharbour Council would be seeking to recover costs.
"The failure of this system that wasn't anything to do with Shellharbour council, and then to re conduct an election and pay for that again, in anyone's language, that doesn't sound right."
Cr Marsh said she would be seeking a full repayment for the costs of her election campaign in 2021.
"I work hard, I have a full time job, I'm a single parent. It's our bread and butter that we put up as candidates to run for election and to bear those costs."
Cr Edwards said she would not be seeking to recover costs from the NSW Electoral Commission, and would instead focus on continuing to work on council.
"We've been a really good council already doing really good work together and I don't want to be the cause of any further delays or disruptions. The next election will be enough of a disruption."
Decisions around costs and reimbursements will be discussed at the next hearing on April 5.
Both councillors will continue to be on council until the caretaker period ahead of the next election begins
Kiama MP Gareth Ward, who represented Cr Marsh during the proceedings, was scathing of the NSW Electoral Commission.
"This decision is a direct result of the failure of the iVote voting system administered by the Electoral Commission," he said.
"The Electoral Commission has a very important job, and that is to safeguard democracy and democratic processes. If anything, this judgement is a condemnation of the Electoral Commission and their failure to do exactly that."
The Electoral Commissioner said he regrets the inconvenience caused but welcomes the resolution of the matter.
"The Electoral Commissioner has indicated to the Court that the councils involved will not have to pay for two elections."
On March 16, the NSW Electoral Commissioner announced that it would no longer use the iVote system at local or state elections, after numerous failings.
The Commissioner said it would recommend telephone voting for blind and low vision voters while it pursues alternative internet voting methods.
Mr Ward, who is legally blind and oversaw changes to allow electronic voting in NSW, said that the iVote fiasco would be to the detriment of voters with various abilities.
"This failure is going to set back people's faith and trust in that system."
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