Special update on City of Melbourne Cr vacancy

December 8, 2016

The City of Melbourne vacancy situation is reaching an interesting stage, which warrants an update.

The history is that Brooke Wandin, who ran under the "Indigenous Voice for Melbourne" banner, was declared elected 6th out of 9 councillors but then declined to be sworn in and later withdrew from the race after it became apparent her enrollment at the home of former Labor councillor Richard Foster was not valid.

Victorian Electoral Commissioner Warwick Gately then made this application to the Municipal Electoral Tribunal to determine how Brooke should be replaced as the 11th councillor (the Lord Mayor and deputy Lord Mayor are the extra two).

I was finally provided with a copy of the VEC's application at 5pm on December but it was apparent watching proceedings before Magistrate Smith on Monday December 5 that Commissioner Gately wants to do a recount as if Brooke Wandin had withdrawn from the contest well before election day.

If this were to happen, the votes would be counted as if Brooke was not in the contest, but the preferences would continue to flow to her number two on the ticket, Nic Frances, and then on to other candidates.

Cr Rohan Leppert has calculated that such a scenario would give Team Doyle a majority because it would see former deputy Lord Mayor and No 4 on the Team Doyle ticket, Susan Riley, elected, along with Nic Frances. Phil Cleary's councillor candidate Michael Caiafa, a Queen Victoria Market trader, would find himself being unelected in this scenario, something Magistrate Smith was very keen to avoid on Monday.

Magistrate Smith rejected this proposal by the VEC and instead ruled that the VEC should conduct a countback, which assumes Brooke Wandin has been serving as a councillor and then resigned.

When this happens, the Local Government Act prescribes that the exiting councillor is replaced by whoever gets a majority of the redistributed votes that were used to elect the departing councillor.

As Greens councillor and elections expert Rohan Leppert explains in this document, that would lead to Nic Frances being offered the position. If he declined, as has been speculated by the Herald Sun and others, it would flow to Joseph Sarraf from the Melburnian Voice ticket, as we explained in this earlier Mayne Report email edition.

Both Joseph Sarraf and Nic Frances would make good solid councillors and are worthy of support.

No one from Team Doyle attended the Tribunal hearing on Monday but the Lord Mayor is right across the detail. Here is the transcript of an exchange with independent journalist Shane Scanlan (publisher of CBD News, Docklands News and Southbank News) from last night's City of Melbourne committee meeting:

Shane Scanlan: This is just a question of your views Lord Mayor, I was wondering whether you had any comments or observations regarding the outcome of yesterday's Municipal Electoral Tribunal?

Lord Mayor: My view would be, Shane, that 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 7 days of the tribunal's decision and I will await those developments.

Shane Scanlan: I suppose that leads to a question of whether you would contemplate that yourself?

Lord Mayor: I am not able to, I am not materially affected. The Deputy Lord Mayor and myself have both been duly elected. This is only about the councillors election. 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.

Shane Scanlan: Perhaps I could ask the other councillors if they have anything to add to the same question?

Lord Mayor: Does any councillor wish to add to what I've said? Remember that when you ask anybody but the Deputy Lord Mayor, to some extent they are impacted and therefore conflicted because of future decisions that may occur. So I would be counselling them not to speak on this matter as they may be affected by this matter.

Shane Scanlan: Further then to your views Lord Mayor, do I deduce then that your preference would be a recount rather than a countback?

Lord Mayor: It would, but I would also like a judgment on whether certain blocks of votes were eligible to be included in that as well.

Shane Scanlan: And your view on you the eligibility of the Wandin block of votes?

Lord Mayor: That is a matter for the Electoral Commissioner and it is a matter before the Inspectorate at the moment and I am absolutely certain that as a quite separate process, the Inspectorate will take a very very close look at this with the very considerable penalties and powers that they have.

ends

There is an issue here about access to information and knowledge about the system.

I've had very little information from City of Melbourne officers and haven't been able to persuade the VEC to send me a copy of their application to the Tribunal.

The two hour hearing on Monday was fascinating and all the relevant parties should be given a copy of the transcript. The Magistrate has advised that people who aren't party to the hearing can access a recording by paying $55 and seeking approval from the Chief Magistrate.

Anyway, I've sent the following email to the registrar of the Magistrates Court trying to shake lose some information that will hopefully be made available to all relevant parties in a timely manner:

Hi Peter,

Further to your earlier email, very few people have any idea what is happening and when with this vacancy situation at City of Melbourne so I'm now endeavoring to ensure accurate information is shared with the relevant parties in a timely manner.

As an interested party (incumbent City of Melbourne councillor narrowly defeated) I was a little surprised not to be invited to contribute to Monday's discussion at the Tribunal about what should happen with the Brooke Wandin vacancy.

I spent 4 years as chair of the Finance and Governance committee at City of Melbourne, during which time we became Australia's most open and transparent council, partly by insisting on the timely release of material information in a useable format.

My understanding is that any person affected by the Tribunal's decision is entitled to lodge an appeal with VCAT within 7 days, which might be as soon as next Monday.

In order to make such a decision regarding an appeal, I'd need access to some documents which have so far proven to be elusive.

To that end, do you think you would be able to arrange for the following documents to be emailed to all candidates, the VEC and City of Melbourne as soon as possible:

# VEC application to the tribunal
# written orders by the tribunal
# full transcript of discussion from Monday's tribunal hearing

I also think you should be aware that the Lord Mayor publically discussed the prospect of a VEC appeal during public questions at the end of last night's council meeting.

The audio of those comments should be available in the next hour or two here.

Regards, Stephen Mayne

The response wasn't particularly helpful. Only the VEC and the City of Melbourne will be sent a copy of the "reasons for decision" on Thursday, because they are the only parties. Requests will be made for these public documents to be made public in a timely manner, but we're not holding out breath.

Any unsuccessful candidate can appeal and Cr Leppert has identified 3 different scenarios, including that the VEC proposal would deliver Team Doyle a majority and see Phil Cleary's councillor Michael Caiafa removed.

However, given the speculation that Nic Frances would decline to take up the position, that would potentially add another scenario under the VEC's preferred model which sees Michael Caiafa, Joseph Sarraf or myself added along with former deputy lord mayor Susan Riley.

There is also the additional scenario contemplated in the Leppert document, which is that VCAT declares the entire Indigenous Voice for Melbourne ticket ineligible.

If that happens, Cr Leppert reckons I'm back in. This is hell. Can't we all just have some certainty? A contested VCAT appeal could see this become a saga into 2017. It would probably also involve retaining lawyers. Oh dear!

As it stands, even if no-one appeals Magistrate Smith's decision, the 11th councillor won't be determined until late January because candidates must be given 7 days to appeal, then unsuccessful candidates have 14 days to volunteer whether they are available to be elected in a countback, after which the countback itself can't be conducted for another 14 days.

Finally, this is where the votes stood at count 133 just before I went out causing Brooke, Philip Le Lui, Michael Caiafa and Jackie Watts all to be elected and Susan Riley being left stranded:

Philip Le Lui: 6795
Susan Riley: 6320
Brooke Wandin: 6021
Jackie Watts: 5933
Michael Caiafa: 5812
Stephen Mayne: 5252

If you excluded the 6021 Brooke Wandin votes and allocated the preferences beyond the "Indigenous Voice" ticket as if the whole ticket had been ruled ineligible, it would deliver Brooke's 1245 above the line votes to me, 718 Melburnian Voice (Joe Sarraf) votes to Jackie Watts, 1708 Strengthening Melbourne (Robin Matthews) votes to Phil Cleary's man Michael Caiafa and 1589 Animal Justice votes to Jackie Watts.

After all that, the numbers would be as follows:

Jackie Watts: 8240 (elected as above quota of 7420)
Michael Caiafa: 7520 (elected as above quota of 7420)
Philip Le Lui: 6795
Stephen Mayne: 6497
Susan Riley: 6320

Susan would then be eliminated and her preferences would elect me first, followed by Philip Le Lui from Ken Ong's ticket.

Thanks for reading folks and just keep doing ya best.

Regards, Stephen Mayne

* The Mayne Report is an email newsletter and website which promotes transparency and good governance in the corporate, political and media worlds. It is published by Stephen Mayne, the founder of Crikey.com, shareholder advocate, ASA director and former City of Melbourne councillor. To unsubscribe from this email list, click here.