Tens of thousands of voters in New South Wales will be forced back to the polls after the Electoral Commission's online voting system crashed at the local government elections in December.
The commission applied to the Supreme Court to scrap the results in Kempsey, Singleton and Shellharbour Ward A "to protect the integrity of the electoral system".
In delivering his judgement on Thursday afternoon, Justice Robert Beech-Jones declared the results in the three council areas void.
"The primary consideration is the interest of the electorate," Justice Beech-Jones said.
"The cost, stress and inconvenience to the elected cannot be elevated above the electorates' interest in having a council elected in accordance with the Local Government Act."
He told the court even though the number of voters who were unable to vote was small their omission had real potential to change the results in all three councils.
"With reluctance, I find that because the system of election for the three councils is proportional representation, it is necessary to declare all of the councillors' elections void.
"Had the court only declared one councillor position void then the result would be a by-election using the optional preferential system of voting which would undermine the manifest purpose of the proportional voting scheme of the Local Government Act," he said.
No ruling was made on who will bear the costs of the failure with additional submissions to be made next month.
'Loss of faith'
Analysis commissioned by the NSW Electoral Commission found 34 voters in Kempsey, 55 in Singleton and 54 in Shellharbour who attempted to use the iVote system were prevented from casting their vote.
During a two-day hearing in February, several councillors told the court of the "reputational damage" caused by the proceedings while some said they would not run again in the event the result was thrown out.
"At present, the successful and unsuccessful candidates will unfairly bear the burden of the failure of the iVote system that was administered by the Electoral Commissioner," Justice Beech-Jones said.
"That loss of faith will only be exacerbated if candidates cannot nominate because they cannot recover some of the resources expected in the December 2021 election," he said.
In a statement, Kempsey Shire Mayor Leo Hauville said he was upset by the court's ruling.
"I am very disappointed by this decision as the eight councillors have impressed me with both their incredibly hard work and the attitude that they have exhibited under exceptional and stressful times," Cr Hauville said.
"Democracy is not easy at the best of times. This decision makes it even more of a challenge for the Kempsey community to participate.
"I would like to thank our current councillors for their efforts and I hope that they will all run for office once more as each of them have much to offer," he said.
The Electoral Commission said the commissioner "regrets the inconvenience caused" and would "commence preparations for fresh elections".
The new ballot must be held within three months of the court making its final orders on April 5.
iVote dropped for state poll
In the wake of the system failure, the Electoral Commissioner has confirmed it will be phasing out the current version of iVote.
The commission said it could not guarantee the new system would be configured and tested before the state election next year.
It also said it would not offer online voting in the March poll.
"The review would consider the framework that governs internet voting, in consultation with the NSW government, to confirm if it remains appropriate for the environment in which it operates and to identify any opportunities for improvement."
Prior to the local government election in December 2021, Commissioner John Schmidt took aim at the government for "piecemeal funding" of the electoral commission during a NSW budget estimates hearing.
He told the estimates his agency needed emergency grants for security operations and expressed concern at the lack of funding for the commission's ageing system.
