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Susan Riley favoured to return

28 Feb 2017

By Shane Scanlan

The Victorian Civil and Administrative Tribunal (VCAT) has overturned a magistrate’s decision, potentially paving the way for a return to Melbourne City Council of former Team Doyle councillor Susan Riley.

On February 27, VCAT President, Justice Greg Garde, overturned a magistrate’s ruling which would have resulted in a “countback” of votes cast at the October 22 council election.

Instead, Justice Garde has ordered an alternative method of calculating votes – a “recount” – predicted to favour Ms Riley at the expense of sitting councillor Michael Caiafa.

Cr Caiafa has previously said he would appeal to the Supreme Court if unseated, so it may still be months before the final make up to the council is known.

Election candidate Nicholas Frances Gilley is expected to be offered an 11th councillor position regardless of whether a count-back or recount method is used.

In any event, we don’t have long to wait. Justice Garde has ordered the Victorian Electoral Commission (VEC) to run the recount on its computer by 4pm on Wednesday, March 1, so he can then let interested parties know the outcome before making final orders.

He is giving candidates until Friday, March 3 to register their interest in having their say at a hearing on Tuesday, March 7.

The City of Melbourne has been without its 11th councillor since declared-successful candidate Brooke Wandin was found to be incorrectly enrolled and resigned her position before being sworn in.

Magistrate Michael Smith in the Municipal Electoral Tribunal (MET) on December 5 disqualified Ms Wandin and ruled that the “countback” method be used to determine the outcome.

But Victorian Electoral Commissioner Warwick Gately quickly objected to this methodology and on December 8 appealed the decision to VCAT.

Justice Garde agrees with Mr Gately’s view that a “recount” should be conducted as if Ms Wandin had been a “retired” candidate.

And, although he has not formally made such a declaration, in his February 27 ruling, he listed eight reasons why it was the correct method to use.

Interestingly, Justice Garde came to this conclusion without hearing submissions from Cr Caiafa and former councillor Stephen Mayne who were also parties to a VCAT hearing on February 21.

On that occasion, Justice Garde adjourned proceedings after hearing the VEC’s case and arriving at a decision that the effect of recalculating the votes without Ms Wandin’s presence should be known.

Mr Mayne had argued that recalculations for three “scenarios” be known before the tribunal reconvened – the “recount”, the “countback” and another showing the effect of the disqualification of both Ms Wandin and her running mate, Nicholas Frances Gilley.

But Justice Garde has opted to ask the VEC for only the effects of the “recount” be known, saying the tribunal’s duty was to “determine how the recount is conducted and to make the necessary orders to see that it occurs”.

It was previously understood that Mr Frances Gilley was not interested in the 11th councillor position and it was widely predicted that it would flow to Southbank’s Joe Sarraf.

However, the February 21 VCAT hearing was told he had changed his mind and would now take the role if offered.

The VEC contended that votes cast for Ms Wandin were “tainted” and needed to be removed before a recount was conducted.

Representing the VEC, barrister Liam 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.”

Ms Wandin and former councillor Richard Foster are facing changes for allegedly making false declarations about Ms Wandin’s address.

Their cases are next listed for further mention in the Melbourne Magistrates Court on March 15.

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