Conduct of local government elections

Types of local government elections

There are 3 principal types of elections under the Local Government Act 1995.

Ordinary local government elections

Local government elections are held every 2 years. Councillors, and mayors or presidents elected by electors, are elected for 4-year terms. One half of the councillors retire from each district or ward at each election.

Extraordinary local government elections

In cases where a councillor (or a mayor or president elected by electors) dies, resigns or is disqualified during his or her period of office, an extraordinary election may be held to fill the vacancy. In such cases, a person is elected for the remainder of the term of the former councillor, mayor or president.

Inaugural local government elections

When a local government is newly established, an inaugural election must be held to elect the first council.

Who conducts local government elections?

A returning officer runs each local government election. By default, this is the CEO of the local government, but the council may (with the approval of the Western Australian Electoral Commissioner) appoint another person. An alternative returning officer could be another staff member, a CEO from another local government, the Electoral Commissioner or any other person approved by the Electoral Commissioner.

If the election is to be a postal election, then the Electoral Commissioner will conduct the election and appoint a returning officer.

Who can vote in local government elections?

An elector will come from one of 3 groups of people who are eligible for enrolment:

• residents who are on the Legislative Assembly roll for a residence within the district or ward (the electorate)
• non-resident owners or non-resident occupiers of rateable property within an electorate who are on a State or Commonwealth Government electoral roll for a residence outside the electorate
• non-resident owners or non-resident occupiers of rateable property within an electorate who are not on a State or Commonwealth Government electoral roll (not Australian Citizens) but who
• were enrolled on the last completed owners and occupiers roll of the local government before the introduction of the Local Government Act 1995
• have owned or occupied rateable property within the district continuously since that roll was prepared.

Residents

Residents on a State or Commonwealth Government roll for the district are automatically enrolled, while owners and occupiers of rateable property must apply for enrolment.

Owners of rateable property

Once owners of rateable property have made a successful application for enrolment, their enrolment will continue for as long as they own the relevant property.

Occupiers of rateable property

For non-resident occupiers of rateable property, a successful application for enrolment will only operate for 2 ordinary elections before a new application needs to be made. Occupants will have 6 months after the second ordinary election to re-apply.

To be a non-resident occupier, a person must have a right of continuous occupation under a lease, tenancy agreement or other legal instrument. The right of continuous occupation must extend for a period of at least three months from the time the person claims enrolment.

Co-owners and co-occupiers

Where rateable property is owned or occupied by 2 persons, both are eligible to be enrolled. If property is owned or occupied by more than 2 owners or occupiers or the owner or occupier is a company, only 2 people can be nominated to enrol. The same 2 people must be nominated for all the properties within the district that are owned or occupied by the company or people concerned. This ensures that in any election, a company or multiple owners or occupiers have no greater voting rights than a couple who own or occupy rateable property.

Properties in more than one local government district

If an elector’s property is divided by local government district boundaries, a person can go on to the roll for each district. If property is divided by ward boundaries, a person is entitled to be enrolled only for the ward they nominate. If they fail to nominate for a ward, the CEO will do so.

If there are separate occupancies within a building or property, up to two people can be enrolled for each occupancy.

Important to note: electoral rolls close at 5.00pm on the 50th day before polling day. Refer to the full election timetable.

Method of voting in local government elections

Each local government can choose to conduct an election as either a voting in-person election or as a postal voting election.

Voting in-person elections

The principal method of casting votes is by the elector personally voting at a polling place in the local government district on election day. However, votes can also be cast in person before election day at a polling place in the local government district (early vote), in person at another local government district up to 4.00pm on the fourth day before election day (absent vote) or by post (postal vote).

Voting on election day

Voting in person at an appointed polling place on election day is between the hours of 8.00am and 6.00pm.

Casting an early vote

An early vote can be cast as soon as the election notice is published state-wide. The notice will be published as soon as the preparations for the election have been made. This could be any time after nomination day (36 days before the election) and not later than 19 days before election day.

The latest an early vote can be cast is by 4.00pm on the day before election day. The places and times for early voting will be published in the election notice.

Casting an absent vote

As with an early vote, an elector will be able to cast an absent vote as soon as the election notice is published. An absent vote can be cast at any local government office other than the office of the local government for which the elector wishes to vote.

The latest they will be able to do so will be 4.00pm on the fourth day before election day.

Casting a postal vote in a voting in-person election

Electors can make an application for a postal vote at any time, but the latest they will be able to apply will be 4.00pm on the fourth day before election day.

Postal voting papers will be sent to all electors who have applied for a postal vote after the election notice is published.

Completed papers can be returned to the local government or one of its polling places at any time up to 6.00pm on election day but some post offices will be closed on election day (Saturday).

A postal vote can be cast as soon as the election package is received (this could be any day after the 37^th day before election day).

Important to note: an election candidate who applies undue influence on an elector to apply for a postal vote, interferes with an elector while they are applying for a postal vote, or takes custody of an envelope in which there is a postal vote commits an offence.

Postal elections

Each local government can choose to conduct an election as a postal election in preference to a voting ‘in person’ election. All postal elections must be conducted by the Western Australian Electoral Commission (WAEC). Postal voting is more expensive but removes a lot of the administrative requirements usually performed by the local government.

A postal voting election package is sent to all electors on the local government’s roll automatically. The package can be sent as soon as practicable after the close of nominations.

The postal voting package contains:

• voting instructions
• candidate profiles (reproduced in such form as the returning officer determines)
• a ballot paper
• a ballot paper envelope
• an elector’s certificate
• a pre-paid envelope for return of the papers to the returning officer.

Completed postal voting papers can be checked by the returning officer at any time prior to the close of polling, and candidates may be present.

Important to note: an election candidate who communicates with, assists or interferes with an elector while the elector is marking a ballot paper from a postal voting package, commits an offence.

A candidate or a person assisting a candidate should ensure that they do not take possession of a postal voting envelope containing postal votes.

System of voting in local government elections

Optional preferential voting system

In accordance with Schedule 4.1 of the Act, votes in the local government elections are conducted using the optional preferential voting system. Preferential voting is the same method used in state and federal elections. Optional preferential voting requires that electors only need to register a first preference on their ballot papers by placing a 1 in the square alongside the candidate of their choice for their votes to be counted. Electors who wish to register one or more additional preferences among the remaining candidates are able to do so, using consecutive numbers in the remaining squares up to the number of vacancies to be filled.

The result of an election is determined by counting the number of votes received by each candidate in the count.

In cases where there is a single vacancy, the candidate must receive enough votes to reach an absolute majority. An absolute majority is 50% + 1 of all formal votes cast in the election. In a single vacancy election, if a candidate has an absolute majority after the distribution of preferences, that candidate will be declared as elected.

For elections where there is more than one vacancy, the successful candidates must reach a quota. The quota is calculated using the formula: 

Quota = (number of formal votes ÷ number of vacancies +1) +1

After the first preferences are counted there may be candidates who have reached quota and they are declared elected. If a candidate receives more than the required quota, it means they have a surplus and this surplus is transferred to the remaining candidates in accordance with elector preferences.

If the required number of vacancies are not filled after the count of first preferences and after distributing any surpluses, the candidate with the lowest number of votes is excluded. Each ballot paper from the excluded candidate will be distributed to the candidates remaining in the count according to the elector’s next preferences.

If all vacancies have not been filled, further exclusions and distributions will take place until all vacancies are filled.

In relation to persons who stand for both mayor or president and for councillor, section 4.73 provides:

• A person can stand for election as both mayor/president and councillor but can only be elected to one office;
• The result of the mayoral/presidential election will be ascertained first;
• If the candidate for both mayor/president and councillor is elected as the mayor/president then:
  • the first preference votes for that person as a councillor are disregarded; and
  • the ballot paper is transferred to the next available preference, if any, and will be treated as the first preference vote for that next candidate; and
  • if a preference vote during a transfer was expressed for the elected mayor/president candidate, it is to be disregarded and proceed to the next preference, if any, after that successful mayoral/presidential candidate.

Issues that may follow local government elections

Courts of disputed returns

Any person can make a complaint to a Court of Disputed Returns (Magistrates Court) within 28 days after notice is given of an election result. The 28 days is calculated from the publication of the notice in a local newspaper.

The court has the power to declare that:

• an election is invalid
• a candidate should be declared elected in place of another candidate
• the term of office of a candidate should be longer or shorter than the term determined by the returning officer
• the result is tied, and lots need to be drawn to determine the result
• the invalidity complaint is rejected.

Complaints to the returning officer or Electoral Commission

Rather than make a complaint to a Court of Disputed Returns, a person may complain to the returning officer or the Electoral Commission. The returning officer or the Electoral Commission can investigate any complaint of electoral misconduct, malpractice or maladministration. An investigation could also be carried out regardless of whether there has been a complaint.

Candidates’ deposits

After the time that a Court of Disputed Returns can deal with a complaint, the returning officer should ensure that nomination deposits are returned to eligible candidates.

Backfilling extraordinary vacancies

During a council term, a number of things can happen that can create a vacancy. Common reasons for this to occur include when a council member:

• becomes mayor or president after being elected by the electors
• resigns from their office
• moves out of the district
• becomes a member of Parliament.

A vacancy can also occur when a council member is disqualified or dismissed in accordance with the Local Government Act 1995 (the Act), or when a council member passes away.

The introduction of optional preferential voting as part of the Local Government Amendment Act 2023 has made it possible to identify the overall order in which electors would prefer candidates to be elected. Vacant positions can now be filled based on the results of an election that has taken place within the previous 12 months. 

Schedule 4.1A and 4.1B of the Act provides for the filling of vacancies using backfilling provisions. 

Guidance is provided below on example scenarios in line with the Act:

• Scenario 1 — split term election and council member with four-year term resigns
• Scenario 2 — candidates decline offer to fill vacancy
• Scenario 3 — no candidates to backfill at election
• Scenario 4 — position becomes vacant more than 12 months after election
• Scenario 5 — office becomes vacant due to council member being elected as mayor by electors.
• Scenario 6 — office of mayor (elected by electors) becomes vacant
• Scenario 7 — office of president (elected by council) becomes vacant
• Scenario 8 — council member elected prior to October 2023 resigns after the October 2023 ordinary election

While each of these provides guidance on possible scenarios, it is important to still consider each situation in line with the Act. Advice can be requested by phone to 1300 762 511 or by email at lghotline@dlgsc.wa.gov.au.

Scenario 1 — Split term election and council member with 4-year term resigns

An election is held to fill 2 councillor positions, one with a 4-year term and one with a 2-year term. There are 3 candidates in the election — person A, person B and person C. At the count, in accordance with counting methods, person A reaches the quota first and is elected to the 4-year term position. Person B is then elected to the position with a 2-year term. Person C is declared the first candidate to backfill.

6 months later, person A sells their property, moves to another district and updates their address on the State electoral roll. This disqualifies them from holding their position, so they give notice to the chief executive officer and resign.

The term of office remaining in person A’s vacated position at the point of resignation is 3 years and 6 months. 

Person B was elected to the position with a shorter term at the same election as person A. Person B’s term does not automatically extend because person A resigns from a position with a longer term. Person B will always have the term that they were elected to serve.

Because person C is the first candidate to backfill, person C can be offered the position vacated by person A. If they accept, person C will be appointed for the remainder of the term of person A’s position, despite this being longer than person B’s term. The terms of incumbent council members are not reassigned.

Scenario 2 — Candidates decline offer to fill vacancy

A council member resigns 6 months after being elected as a council member. Because the vacancy arises within 12 months of that election, backfilling provisions apply. 

Once notified of the resignation, the chief executive officer writes to person B, the first candidate to backfill from the previous election to offer them the vacant position for the remainder of that position’s term. Person B considers the offer but declines.

A second candidate to backfill was next-in-line after person B at the previous election — person C. As person B declined the offer, the chief executive officer must offer the vacant position to person C. Person C considers the offer but also declines. 

As person C declined and backfilling provisions only apply to the first and second candidates to backfill, an extraordinary election must be held to fill the vacancy. 

Scenario 3 — No candidates to backfill  

2 candidates are elected unopposed at an ordinary election due to the number of candidates being the same as the number of vacant positions.  

8 months after the election, person A resigns from their office. Because the vacancy arises within 12 months of the election, backfilling provisions would usually apply. 

However, as there were no other candidates contesting the election, there were no candidates to backfill. This means backfilling is not possible.  

An extraordinary election must be held to fill the vacancy. 

Scenario 4 — Position becomes vacant more than 12 months after election 

Person A is disqualified as a council member 13 months after being elected. This creates a vacant council member position.  

As the position becomes vacant more than 12 months after the election, backfilling provisions do not apply.  

An extraordinary election must be held to fill the vacancy, unless the local government receives the approval of the Electoral Commissioner to defer the vacancy to the next ordinary election, if that is possible in the circumstances. 

Scenario 5 — Office becomes vacant due to council member being elected as mayor by electors 

2 years after being elected to the office of council member, an ordinary election takes place and person A is elected by the electors to the office of mayor. This means they are no longer eligible to also hold office as a council member.  

At the same election, there are 5 candidates for 2 council member positions. At the count, in accordance with counting methods, person B achieves the quota first and is elected as a council member for a 4-year term. Person C is elected next to the second council member position for a 4-year term. Person D receives the third highest number of votes and would normally be the first candidate to backfill. 

However, as a third council member position becomes vacant due to person A being elected to the office of mayor, backfilling provisions of Schedule 4.1B apply, and person D is automatically elected to the position vacated by person A. Person D will be elected as a council member for 2 years (the remainder of the term of person A’s position). The remaining 2 candidates, person E and person F, would then become the first and second candidates to backfill in accordance with Schedule 4.1A. 

Scenario 6 — Office of mayor (elected by electors) becomes vacant 

6 months after being elected to the office of mayor by the electors, the mayor resigns from their office. This results in the office of mayor becoming vacant. 

Because the vacancy arises within 12 months of that election, backfilling provisions apply.  

Once notified of the resignation, the chief executive officer writes to the first candidate to backfill from the previous mayoral election, to offer them the vacant mayor position. They accept the position and become mayor for the remainder of the resigning mayor's original term.  

Scenario 7 — Office of president (elected by council) becomes vacant 

6 months after being elected as a council member by the electors and voted in as president by the council, person A resigns from their office. This results in a council member vacancy and the office of president not being filled. 

Because the council member vacancy arises within 12 months of that election, backfilling provisions apply to the council member vacancy only. 

Once notified of the resignation, the chief executive officer writes to person B, the first candidate to backfill from the previous election, to offer them the vacant council member position. Person B accepts the position and becomes a council member for the remainder of person A’s original term. 

The council must elect a new president from within the council at the first ordinary meeting of the council after the extraordinary vacancy occurs (or otherwise a special ordinary meeting if the ordinary council meeting is more than 3 weeks away). Once council votes on the new president, and the president has made their declaration, they are elected to the office of president in addition to their role as a councillor. 

Scenario 8 — Council member elected prior to October 2023 resigns after the October 2023 ordinary election

A council member who was elected in October 2021 with a term of office expiring in 2025 resigns 2 months after the October 2023 elections.

As the position becomes vacant more than 12 months after the day that the council member was elected, being 26 months in this instance, and backfilling provisions do not apply to any election prior to 21 October 2023, backfilling provisions do not apply. 

An extraordinary election must be held to fill the vacancy.