Integrity of elections

PIAC represented Ms Cheryl Borsak in proceedings in the NSW Administrative Decisions Tribunal, against Ms Karin Cheung, a recently elected Councillor of Ashfield Council. Ms Borsak sought an order that Ms Cheung be dismissed from office pursuant to section 329(1) of the Local Government Act 1993 (NSW), on the basis she was not a resident of the Ashfield Local Council area and was therefore not eligible to be elected.

The case related to the integrity of democratic elections and in particular whether candidates must live in the area where they are seeking election. PIAC argued that the correct interpretation of certain sections in Part 6 of the Local Government Act is that a person may be a ‘resident’ of only one place.

Ms Borzak was successful in her application to have Ms Cheung dismissed from office as a consequence of an irregularity in the manner of her election. In its decision, the Administrative Decisions Tribunal (ADT) found that residence in a municipality at the time of nomination is a fundamental requirement for election in that municipality.

The ADT highlighted the need to read the nomination provisions of the Local Government Act in light of the Commonwealth Electoral Act 1918 (Cth) (CEA) and Parliamentary Electorates and Elections Act 1912 (NSW) (PPEA). The ADT was of the view that these laws are interconnected and the practicalities of elections require the observance of obligations contained in all three.

The ADT found that the CEA and PPEA make residence in the electorate one of the requirements to be entitled to vote, that is, to be an ‘elector’. The Local Government Act bases eligibility for election on entitlement to be enrolled as an elector. As a consequence, the ADT found that the entitlement to nominate for election under the Local Government Act also requires residence in the municipality.

Applying this interpretation of the Local Government Act to the facts of the case, the ADT found that as Ms Cheung was not resident in the Ashfield area at the time of her nomination or election as a local councillor her election was invalid.

Sean Docker acted as counsel in the matter.

Read the decision

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