Alice Springs Town Council forced into by-election backflip after NT government gives dud legal advice

A Northern Territory council that faced the resignation of one of its elected members opted to fill the vacancy via by-election, but had to abort plans to hold the vote. Here’s why.

Alice Springs Town Council has been forced to reverse its resolution to hold a by-election to fill a casual vacancy. Picture: Alex Treacy

A Northern Territory council left with a vacancy from an elected member has had been forced to cancel a by-election to fill the position after incorrect advice from the NT government.

Alice Springs Town Council (ASTC), which has to fill the casual vacancy created by the departure of Councillor Steve Brown for medical reasons, will now appoint someone to the role without going to ratepayers, after the government issued updated advice and a mea culpa.

Mr Brown resigned from the council in March, citing health and personal reasons.

According to the council’s most recent published agenda, the council sought advice from the Department of Chief Minister and Cabinet’s Local Government Unit on how to fill the vacancy, in circumstances where it was less than 18 months, but not less than six months, before the next local government election.

On March 19, the council was told it had the discretion to either appoint someone to fill the vacancy, or seek a mandate from ratepayers via a by-election.

On that advice, the council debated the matter on April 23, and determined to hold a by-election (going against the advice of their officers, who recommended an appointment due to the cost of hosting a by-election).

However, on May 24, the government recanted its advice, admitting it got it wrong.

“Pursuant to subsection 54(2)(a) of the [Local Government] Act, the council must fill the casual vacancy through the council appointing someone to the vacancy,” the Local Government Unit wrote in an email.

“The vacancy cannot be left open.

Retiring Alice Springs Councillor Steve Brown. Picture: ASTC

“I acknowledge Council has made a resolution to progress with a by-election and apologise for any inconvenience that may have been caused by our initial response.

“We note that s54(2)(a) will be looked at as part of a wider set of amendments to be made to the Act, which will be done through consultation with the sector.”

The council has now rescinded its motion to hold a by-election, and will advertise the councillor role publicly before appointing an applicant internally.

The council’s governance manager said it was an avoidable situation.

“It is unfortunate that the initial advice that was relied upon to decide on a by-election has changed, and that Council is now required to remedy this and manage the expectations of the community on this matter,” she said.

In a statement, an NT government spokesman said the initial advice to the council, that it could hold a by-election to fill the vacancy if it wished, was “based on a reasonable interpretation of the relevant provision”.

“Further legal advice was subsequently sought which indicated that the Act does not provide an option for a by-election in this circumstance,” he said.

“The advice to ASTC was corrected immediately once clarified.”

In the Northern Territory, if vacancies occur greater than 18 months before a local government election, a by-election must be held.

If the vacancy occurs less than six months from the election, the position can be left vacant, or a person appointed to the role.