By Shane Scanlan
Melbourne could be without an 11th and final city councillor for months, thanks to an attempt by the Victorian Electoral Commission (VEC) to overturn a decision made by a magistrate last year.
On December 5 magistrate Michael Smith ruled that the councillor vacancy be resolved by countback, which would likely have resulted in Southbank’s Joe Sarraf being offered the position.
But on December 8 the VEC appealed his decision to the Victorian Civil and Administrative Tribunal (VCAT) and the matter is due to be heard on February 21.
VEC Commissioner Warwick Gately and Lord Mayor Robert Doyle appear to share the same view on how the matter should be resolved – a recount which would likely also see Mr Sarraf added but Cr Michael Caiafa lose his position in favour of former deputy lord mayor Susan Riley. Team Doyle would acquire a majority under this scenario.
Mr Gately says Cr Doyle phoned him twice – the first time, on November 9, to gain an understanding of the implications of the vacancy and the second time on December 6, commenting on the outcome of Magistrate Smith’s decision.
A spokesperson for Mr Gately said: “The Electoral Commissioner listened to the Lord Mayor and explained that he was considering his options, had not reached a position and would comment no further.”
Cr Doyle acknowledges the conversations but says their content is confidential.
When ruling on the matter on December 5, Magistrate Smith said what the VEC was asking for was “simply not tenable”.
The final councillor position remains unfilled following the discovery that elected candidate Brooke Wandin was ineligible to stand because she was not correctly enrolled.
Ms Wandin and former councillor Richard Foster were due to front court in late January charged with the unlawful nomination and false declaration by Ms Wandin during the October elections.
On August 24, Ms Wandin enrolled herself at Mr Foster’s Kensington address. The VEC was alerted to the matter on October 22 via a complaint from Mr Foster.
Documents released via Freedom of Information reveal that Mr Foster told the VEC: “Ms Wandin has never resided at the address in question, nor is it likely that she would ever reside at the address in question. I believe this to be the case as this is my residential address which I have occupied for approximately three and a half years.”
Ms Wandin was supposed to enroll in the Lord Mayoral section of the election as part of Mr Foster’s team but ended up running against Mr Foster by mistake.
On December 5 Magistrate Smith formally declared Ms Wandin “not duly elected”. Another part of his Municipal Electoral Tribunal (MET) ruling was that the vacancy should be filled using procedures associated with an extraordinary vacancy.
Under this method, voters who chose Ms Wandin would have their next preference counted, with running mate Nic Frances Gilley expected to be offered the position.
CBD News understands that Mr Frances Gilley has removed himself from the roll and is no longer eligible or interested. The most likely next in line is Mr Sarraf (who polled 805 votes between himself and his team mate Miroslav Zverina).
Commissioner Gately wants VCAT to endorse a counting method which has been predicted to disenfranchise Cr Caiafa and reinstate Ms Riley as a councillor.
Mr Gately has asked: “that a ‘special count’ of the votes cast in the election be undertaken as if Ms Wandin was a retired or deceased candidate within the meaning of clause 8 and 9 or Schedule 2 of the Local Government Act 1989.”
In his December 5 decision, Magistrate Smith specifically rejected this method: “At no time did Ms Wandin retire. Once the poll has been declared the relevant provisions concerning the powers of a returning office upon the retirement of a candidate no longer apply. That candidate, eligible or otherwise has been declared elected. … There is, moreover, a legislative basis in the Act for proceeding in accordance with sections 46(1)(a) and 46(3). Of the alternatives discussed I am clearly of the view that this is the better of them.”
Neither Magistrate Smith, nor anyone else from the MET, will be attending VCAT to defend his decision.
Cr Caiafa will be represented and has flagged that, should the VEC win and he loses his councillor position, he will be appealing to the Supreme Court. If this happens, it will be months before the 11th councillor position is determined.
Former councillor Stephen Mayne is also involved. Mr Mayne has a chance to be offered the position should VCAT take the view that the whole Indigenous Voice team be disqualified.
Commissioner Gately says a recount without Ms Wandin’s votes included is the best way to determine the outcome.
A spokesperson told CBD News: “That suggested by Magistrate Smith removes Ms Wandin’s first preferences only. The other preferences of those who voted for her would follow Ms Wandin’s how-to-vote card would still be in play and could thus be considered tainted.”
“Mr Gately’s suggestion removes all of the votes for Ms Wandin entirely as if she had never stood (given she was not entitled to stand), thereby removing any potential tainted votes.”
In his public comments, Mr Gately said: “Although the tribunal addressed Ms Wandin’s declaration, its decision neither addressed, nor resolved, broader matters associated with the election.”
On the same day he spoke with Mr Gately (December 6), Cr Doyle told CBD News: “I don’t think this matter is at a close. I think the Electoral Commissioner indicated that the process was tainted. I am not sure that the Electoral Tribunal has resolved that issue by simply saying ‘please proceed’ and I will await to see whether the Electoral Commissioner himself, or indeed any of the 44 candidates who missed out on election, chooses to appeal that decision to VCAT, which in fact is possible within seven days of the tribunal’s decision and I will await those developments.”
“I think the comment by the tribunal that this may affect councillors who have already been elected is irrelevant, to be honest. That is my personal view. The result should be beyond reproach. I have no doubt that the result, at the moment, is not beyond reproach and I would wish to see that all councillors were elected with the full confidence of the community, that due process has been followed and that the electoral process has not been deliberately perverted.”