Council election court ruling casts doubt over four seats
There are calls for some councillors to stand down after a court found the 2022 Adelaide City Council election was affected by “illegal practices”.
District Court Judge Michael Burnett ruled that illegal practices did impact the 2022 Adelaide City Council election, with several instances where ballot papers were handled or not filled in by the lawful voters.
“I am satisfied on the balance of probabilities that more than 24 votes were cast in favour of the second respondent where there had been illegal practices,” the judgement read.
“On the evidence before the Court, the more probable inference is that these votes would not have otherwise been cast.
“It follows that I am also satisfied on the balance of probabilities that the result of the election was affected by the illegal practice, given that the margin in the election was 24 votes.”
Jing Li was elected as a Central Ward councillor at the last council election in November 2022, while Hyde, a former Deputy Lord Mayor, lost his seat.
Hyde’s petition to the court, lodged in December 2022, was to void the result alleging it was not a “free and fair” election.
Judge Burnett did not call the election void but said the court does have the power to do so.
He said the parties “should have the opportunity to make submissions as to the appropriate orders to be made”.
The matter will return to court in April.
Three other members were elected to Central Ward in 2022, Deputy Lord Mayor David Elliott and councillors Carmel Noon and Simon Hou.
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Elliott, Noon or Hou have not been accused of any wrongdoing.
InDaily understands that at tonight’s council meeting, councillor Henry Davis will give notice that he’ll call a special council meeting to rescind Elliott’s appointment to the Deputy Lord Mayor position and Noon’s role as chair of the council’s City Planning, Development and Business Affairs Committee.
These roles are remunerated, and Davis said it would be “unfair” for the councillors to continue in roles of authority when a byelection could be called.
“They cannot continue in these positions given the serious doubt regarding the legitimacy of their elections,” Davis said.
“It is unfair for the Deputy Lord Mayor to continue to hold a position which has higher public profile when he could well face an election in the coming month.”
Elliott said elected officials who hold higher positions are always subject to re-election.
“At no point during this investigation, to which I am not a party, has my behavioural conduct been subject to scrutiny from the Court of Disputed Returns,” Elliott said.
Noon said it was inappropriate to comment on the judge’s determination, as the final orders will be delivered in early April.
“I respect the Court’s decision; however, I want to make it clear that I have done nothing wrong,” she said.
“My involvement in this matter is purely due to electoral boundaries, and no illegal voting ballot contained my name. I received the highest number of votes in my Ward, and I firmly believe this would not have changed the outcome.
“While some may argue that justice and democracy have prevailed, if I were required to renominate, it would be an injustice to me personally.”
Lord Mayor Jane Lomax-Smith said that the council “must now wait for the court to make its orders”.
“It is a relief to have a judgement after such a long time and we respect the decision of the court,” she said.
“In the meantime, it’s important to assure our constituents that the functions of council continue, and services will continue to be delivered.”
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Davis is also seeking an agreement from the council that should the Central Ward election be declared void the council move into caretaker mode.
“With four positions out of 12 possibly up for election, we cannot continue to govern the City of Adelaide properly,” he said.
The next council election is due in November 2026. Typically, the council goes into caretaker mode ahead of the election, and in 2022 caretaker mode began in early September.
Legislative Council member Frank Pangallo has called for Jing Li to stand down or resign and said Davis’ move is “in the interests of good governance”.
Li has declined to comment as it would not be appropriate while the matter is still before the court.
“At the moment there’s a lot of doubt over the validity of those candidates to be able to sit in council and that has to be addressed pretty quickly,” Pangallo said.
“There are some important decisions that still need to be made between now and the next council election in 2026. Any decisions that have been made by these councillors could be compromised because of the outcome of this court case.
“In the meantime I think they need to stand aside and perhaps recuse themselves from future council meetings until it’s resolved.”
Pangallo is also calling for a parliamentary inquiry into the Electoral Commission of SA’s (ECSA) handling of complaints about illegal practices after the 2022 council elections.
“ECSA knew there were irregularities a few days after the polls closed and said so publicly but it has taken three years to reach this stage,” he said.
“There doesn’t seem to be a lot of urgency in trying to adjudicate complaints during election campaigns, we need to know why, we also need to know if the Electoral Commission is adequately resourced to be able to undertake these campaigns, and also then the complaints that may arise as a result.”
ECSA has declined to comment as the final court orders have not yet been made.
Pangallo introduced a bill in November last year to reform voting in council elections, making it compulsory and requiring voters to be Australian citizens. Currently, non-citizens can vote in council elections.
The bill will be voted on later this month.
In a statement on Friday, Hyde said the judgment has “serious implications”.
“This is a win for democracy but serious questions still linger,” Hyde said.
“This judgment, among other things, means that a capital city election in Australia was stolen through illegal activities involving predominantly Chinese foreign nationals.
“Moreover, this result casts a shadow over the moral legitimacy of everything this council has done.”
