How people elect parliaments
A complex legal dispute is underway about the proper manner to replace a Melbourne City Councillor, initially declared to be elected in 2016 but later to discovered to be ineligible to run.
The eventual legal precedent – in a dispute which mainly focuses on interpreting the state legislation establishing the Council election procedures – has potential implications for other similar cases across Australia.
Arguments over ineligible candidates are becoming more common in Australia. Already since the 2016 Australian federal election two senators have left office in eligibility-related misadventures.
The City of Melbourne is governed by a democratically elected* assembly – the Council, made up of 11 members.
Two members – the Lord Mayor and Deputy, are elected together as a ticket.
Melbourne Town Hall, home of the Melbourne City Council
The other nine councillors are elected in one pool by the single-transferable vote (STV) preferential voting system.
After the last elections in October 2016 were concluded, and the results had been officially declared, one of the elected councilors – Brooke Wandin – was discovered to be ineligible to have run for election. She resigned before being sworn in, but two subsequent court hearings have declared that she was never duly elected.
The sharp end of the dispute turns on whether the vacancy should be filled by the statute’s ‘count-back’ procedure for filling causal vacancies, or whether the whole original count to select the nine most preferred candidates should be conducted again.
Crucially, the state Electoral Commission (the VEC) has published the vote tallying data online, so people who understand the counting process can calculate for themselves what might happen if any individual candidate is removed from the count.
On the available evidence of the counting results, a full recount would not merely replace the one ineligible councilor, but would bizarrely oust another councilor who has been sitting since November, and bring in two new councilors to join seven others who would retain their places.
The potential twist results from the precise steps taken to sequentially eliminate candidates one by one, which potentially changes for a new count if even a low-placed candidate is removed from the vote count proceedings.
A difference during the count of just a handful of votes can potentially divert the flow of preferences into an alternative sequence, resulting in different candidates winning seats by the end of the count.
The prospect of this happening lay behind a court decision to void the original 2013 election of Senators for Western Australia, after more than 1,000 ballot papers were lost in the weeks following election day.
The anticipated new election result would also change the political balance of the City Council, leading to a variety of partisan interests becoming engaged by the dispute.
At one level, the issue is simply one of careful interpretation of the relevant state electoral statute – the Local Government Act – which governs both the election of councillors as well as later events during the Council’s term of office.
A schedule to the Act sets out in detail the procedures to follow when, during the conduct of the election, a candidate’s eligibility comes into question. There are detailed directions about how the state Electoral Commission (the VEC) should handle the issue.
If the facts emerge after voting has begun – or even after voting has been completed – the course directed is that a full count of every ballot should take place but with the ineligible candidate overlooked by vote counters.
However there are separate provisions in the Act for what to do if a sitting councillor’s eligibility becomes apparent after the election, once the Council has taken office.
The post-election provisions direct that the removal of such a candidate from the Council is to be addressed by a different form of vote counting, known as a count-back, where only the ballots used to elect the departing councilor are re-examined, and a new councilor who is the next preferred choice of those voters becomes the replacement.
This separate legal provision does not distinguish between whether the newly discovered ineligibility has come into existence after the election, or pre-existed but went undiscovered during the election.
The count-back process is also used to deal with ordinary mid-term resignations or other departures from the Council. It leaves the position of all the other elected councilors untouched.
The count-back technique was developed some decades ago in Tasmania and is now used in the ACT and in other jurisdictions in Australia which use the STV election system. It is seen as a more democratic option that simply allowing political parties to select a replacement.
The litigation over the Melbourne City Council has however seen the specific statutory directions of the state Local Government Act become contested and confused.
The legal dispute was first heard in December by a panel termed the Municipal Electoral Tribunal, at which a magistrate ruled that the post-election provisions applied to these facts, and accordingly that the process of count-back of the ballots supporting the removed candidate should be used.
But the VEC then appealed the issue to an administrative review panel (VCAT), which then ordered a different outcome, ruling that the situation should be resolved as if the ineligibility of the candidate had been discovered during the election campaign (which, as a matter of fact, it plainly had not been).
The new ruling drew on the 1988 Australian High Court precedent of Wood, relating to an Australian Senate election. The facts in that case were similar – a minor party candidate had been declared elected, only for it to be discovered after the election that he was ineligible to be elected.
However the Senate electoral legislation did not specify different courses of action in such cases for the ‘during-election’ and ‘post-election’ time periods, as the current Victorian law does. The Senate system also does not offer the count-back option for single vacant positions – these are instead filled by the state parliaments on the nomination of political parties as the national Constitution requires.
The Wood ruling dates from a time when there were fewer minor party nominations and less opportunity to game the group voting ticket process. The High Court favoured a full recount because it seemed at the time to be the most democratic solution available, which it probably was.
In the case of the current Melbourne City Council election dispute, more modern legislative rules have been created. But the second court decision, by VCAT, has not followed them.
The dispute has now been appealed to a higher level of VCAT, and there are threats to take the matter to a fourth – the state Supreme Court.
The persistence of the VEC in trying to re-run the original election count in a ‘perfected’ manner, based on the legal fiction that the problem had been discovered before the election process was completed, is not merely at odds with the state legislation. It threatens to leave future elections open to vulnerability.
If the current ruling stands, it will become possible for unscrupulous players to bury technical landmines within a future election process, and then then trigger them if they detect that doing so would give them an advantageous alternative election result.
The safer course would be to do what the state law clearly provides, which is let elections be decisively settled – and the primary role of electoral commissions officially completed – after the results are declared, and thereafter use less manipulable legal mechanisms to deal with any problems with Council memberships which emerge mid-term.
The desire of the VEC and VCAT to use the full recount procedure may also be influenced by mere timing. The ineligibility was discovered just days after the election results were declared, and before the elected councillors were sworn in. This point of view essentially holds that the ‘real’ set of winning candidates should be the replacement one, and the originally declared set was the wrong one.
But whatever the merits of such a view, that’s not what the current statute law directs.
In passing, it is worth noting that much of this dispute has become possible because the Council electoral system still uses the much-maligned ‘group voting ticket’ mechanism, which allows political parties to lodge preference order tickets controlling how voters’ preferences flow during the counting of votes.
While the ‘alternate outcome’ problem is not created by group voting tickets (it arises, rather, from the fundamental use of sequential elimination), the use of group voting tickets dramatically exaggerates the problem, and leaves the election outcomes entirely open to accusations of partisan manipulation and preference-trading.
Group voting tickets clearly have the power to change election outcomes. One of the engaged parties in the current Melbourne City Council litigation is independent candidate and former Councilor Stephen Mayne, who was placed 5th on the first preference votes at last October’s election but fell to 10th place as other combinations of group voting tickets lifted four other candidates above his vote tally.
Had Mayne been overtaken by individual voter-determined preferences, that outcome would have been entirely fair.
The use of group voting tickets was abolished for elections to the national Senate in 2016, but remains in place for Victorian, South Australian and Western Australian upper house elections as well as the Melbourne City Council elections.
The VCAT appeal hearing into the Melbourne dispute was held in the past week and an announcement of its findings is due in the coming week.
* There are legitimate criticisms of the basis of elector registration for the City of Melbourne, which allows votes for people with business interests as well as physical residents, but that is a separate issue from the current dispute over voting procedures.