AN election invalidity complaint raised by a Shire of Gingin councillor is expected back in court on Friday, May 15.
Last year Gingin councillor Lincoln Stewart lodged a complaint with the Court of Disputed Returns, which has jurisdiction when the validity of any election or return is disputed with a magistrate having jurisdiction for local government elections.
Cr Stewart filed a formal complaint after witnessing people entering and leaving the counting room on local government election night and again the following morning before counting resumed.
On January 30 Cr Stewart represented himself before Magistrate Trevor Darge while assistant state solicitor Michael Olds appeared for the Western Australian Electoral Commissioner with Shire of Gingin electors Kate Lane and Ed Hartman joined as interested parties.
In a court transcript Magistrate Darge said his role was to determine “whether there was such a problem with the election that either the candidates need to be changed or it needs to be redone so that that problem doesn’t recur”.
Cr Stewart told the magistrate his concern was procedural.
“There’s no allegations of corruption or proof that there was tampering,’’ he said.
“It’s procedural, that the proper processes weren’t followed and there was…potential for ballot tampering.
“There was a lot of unauthorised access to the ballots when they were left out overnight and there was some form of deliberate behaviour when complaints were raised at the time by myself and scrutineers that…weren’t addressed and…it could have been remedied quite quickly.’’
Magistrate Darge asked whether Cr Stewart was “saying that the potential (for ballot tampering) was there if the votes weren’t properly secured – in an area where a certain group of people could have access to them”.
Cr Stewart replied that was correct.
“You’re saying that, really, what I should be considering is that there is such a risk that that could have happened…that that would then lead to a concern that the election itself was not a fair election,’’ Magistrate Darge said.
Cr Stewart agreed that was the main element but also said “and then there’s the returning officer’s handbook… which specifically mentions conflicts of interest.
“There (were) serious conflicts of interest concerns which were again addressed in the electoral commissioner’s letter of response to the four complainants…and failures to disclose interest by the returning officer with one of the candidates.’’
Magistrate Darge said he thought Cr Stewart had listed in his notes that there could be about 14 witnesses, which was a significant time period for a magistrates court so to deal with one matter taking up a whole week, meant they had to try and find time for it within that schedule.
After some discussion they agreed Cr Stewart would file a witness statement first (within 14 days).
Mr Olds was of the opinion the WAEC would need about 10 weeks to be able to respond, to make inquiries of the returning officer, other officers who were present at the time, the shire, who they understood did not wish to be joined as an interested party, but may hold relevant information.
“There may be the need to issue subpoenas and retrieve other types of material, so we just want to make sure that we’ve got a proper opportunity to compile that evidence and put it before the court,’’ he said.
Magistrate Darge said he would allow eight weeks before the matter returned to court because he accepted that if it was necessary to speak to people and prepare evidence on people who might be less than willing to assist it might take longer.
On November 18 the Western Australian Electoral Commission told WAtoday the Shire of Gingin vote would not be recounted
“While this is regrettable and may have impacted confidence in the process, we would like to assure the community that we remain confident the election outcome is unaffected by these issues,” a spokeswoman said.
She said the commission was working with the Shire of Gingin to strengthen processes and prevent similar issues in future elections.
