By Shane Scanlan
The City of Melbourne is no closer to having it’s 11th councillor following a Victorian Civil and Administrative Tribunal (VCAT) hearing into the matter on February 21.
VCAT President Greg Garde heard arguments from the Victorian Electoral Commission (VEC) on how votes should be counted but adjourned the case before hearing counter arguments from Cr Michael Caiafa and former councillor Stephen Mayne.
President Garde indicated that he was loath to rule on a voting counting method before the effects were known. However, he stopped short of ordering the VEC to run the numbers on its computer and he then retired to consider his position.
In what he called a “stepped” process, he said it was important that people affected by the counting method be able to make submissions to him.
It was unclear whether he will nominate his preferred vote counting method as well as how many vote counting scenarios he will ask the VEC to calculate. President Garde did not give himself a timeline but said a suggestion that he might do so by February 24 was “ambitious”.
The VEC prefers a “recount”, which is widely tipped to cost Cr Caiafa his position on council. Last December the Municipal Electoral Tribunal (MET) determined that a “count back” was the legal way to settle the matter, but the VEC appealed this decision to VCAT.
Apart from these two scenarios, former councillor Stephen Mayne proposed a third option that he believed would favour his re-election chances.
When this matter first came before VCAT for a directions hearing on December 19, Mr Mayne asked that the VEC be ordered to run various scenarios, a suggestion that the VEC successfully opposed.
On February 21, the VEC tried to persuade President Garde not to order any scenarios. VEC counsel Liam Brown contended that the president’s task was simply to determine the proper process by which the election could be finalised “and not selecting from a grab bag of options”.
However, it appears likely that President Garde will order the VEC to run at least the numbers to determine the effect of a “recount” before he reconvenes the case.
The city has had just 10 councillors since the October election, with observers noting that this had affected crucial decisions as well as council’s ability to maintain quorum.
The problem stems from the disqualification of successful candidate Brooke Wandin who was found to be incorrectly enrolled. Electoral fraud charges against her and former councillor Richard Foster are before the courts.
The VCAT hearing heard that Ms Wandin’s running mate Nic Francis Gilley, previously thought to be uninterested, has had a change of heart and is now interested in accepting the position should it be offered.
Mr Mayne said since learning that Mr Francis Gilley was interested in serving on council, he was less interested in contesting the VCAT case.
Nevertheless, he said, he would like to know the effect on vote counting if both Mr Francis Gilley and Ms Wandin’s votes were excluded from a recount.
It is predicted that under the other two scenarios under consideration, Mr Francis Gilley will become a councillor.
Should the VEC win its case for a recount, it is predicted that Cr Caiafa will be replaced by former deputy lord mayor and Team Doyle member Susan Riley.
The VEC is putting a lot of time, effort and money contesting the case. Mr Brown contended to President Garde that, although the legislation was silent on the specifics of this case, it should be determined on the basis of the “common law of elections”.
He presented a folder of case law to support his position that Magistrate Michael Smith had made the wrong decision at the MET on December 5.
The VEC contends that votes cast for Ms Wandim were “tainted” and need to be removed before a recount is conducted.
Mr Brown said VCAT’s role was to “give effect to the intentions of the electors” and order a recount.
“Any other method would frustrate the purpose of the Act,” he said.
In his December 5 decision, Magistrate Smith specifically rejected this method: “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.”