I was very concerned to learn late yesterday that a significant number of council members, 46 to be exact, have failed to lodge their campaign returns to the Electoral Commissioner of South Australia, and that therefore their positions as council members are likely to become vacant.

It is a basic requirement of the Local Government (Elections) Act 1999 that all candidates must complete returns that describe gifts that they have received during their campaigns.

This requirement ensures that councils’ constituents are aware of gifts their members have received, and who has provided them. It is fundamental to the proper transparency and accountability of council members’ decision making. It is also not onerous.

Gifts that are under $500 in value are not required to be recorded and members who do not receive any gifts simply have to return a statement to that effect – that is, a nil return.

That is why I am disappointed that so many elected members have not met this requirement, despite receiving advice on 12 occasions; including information from the initial candidate handbook, correspondence after nominations closed, information on the Electoral Commission website and multiple post-election reminders from the Electoral Commissioner, including registered mail.

I met with the Electoral Commissioner earlier today, and he confirmed that the letter sent by registered mail to all these elected members made the point that their position would be vacant if they did not submit their returns within a month of the lodgement date – 30 days after the conclusion of the election.

To emphasise, the registered mail followed information that had been provided to all candidates and councils on the requirements for donations disclosure. Yet these returns were still not provided.

I am advised that the Local Government (Elections) Act 1999 was changed in 2021 to require campaign donations returns to be provided to the Electoral Commissioner.

Prior to these elections, candidates sent their returns to the relevant council chief executive officer. I understand that this change was requested by the local government sector, as it was the view of the sector that this process is more properly managed by the Electoral Commissioner – as is the case for candidates in State elections, and that it was resource intensive for councils.

It is important to remember that the link between not providing the return and a member’s position becoming vacant has been part of the Act since its commencement more than 20 years ago. To date, this scenario has not occurred in previous elections.

Of course, given these events, I will be looking very closely at the legislation to make sure that this does not happen again at future local government elections.

The regrettable but necessary next step is that, where a member's office becomes vacant because of the member's failure to submit a return -
*SACAT, the South Australian Civil Administrative Tribunal may, on application made within one month after the vacation of office, restore the member to office, if satisfied that the failure arose from circumstances beyond the member's control.
*proceedings for a supplementary election to fill the vacancy must not be commenced until the period for making an application has expired or, if there is an application, until the application is determined; and
*the member cannot be nominated as a candidate for the election to fill the vacancy unless he or she has submitted to the chief executive officer the return that was required to be submitted.
ECSA is now concerned that the ‘window’ for these members (whose position is, now vacant), to go to SACAT is closing – as the month when they must do so is ending soon.

ECSA has made the decision today to alert all relevant council CEOs to this issue and advise them the names of the members affected and inform them that their office is now vacant.

I emphasise, however, and it should not be forgotten that primarily it is the responsibility of each and every elected representative – whether from this place or from councils – to ensure that they meet all of the legislative requirements that apply to them. It is deeply disappointing that so many members of councils and the councils themselves are at this juncture.