Applicant v First Respondent

HUMAN RIGHTS - Charter of Human Rights and Responsibilities - Right to take part in public life - Whether countback provisions to fill local council extraordinary vacancy infringed that right - VCAT proceedings - Application to refer Charter question to Supreme Court to seek declaration of inconsistent interpretation - Application for leave to appeal VCAT's refusal to refer question - Charter of Human Rights and Responsibilities Act 2008 ss 18, 32, 33 and 36.

1 In October 2016, the applicant, Dr Julian Fidge, stood for election in the City of Wangaratta general council election ('the election'). Four Councillors were elected but Dr Fidge was not. Although he received the third highest number of first preference votes, after preferences were counted, he came in fifth place with 1734 votes and did not reach the quota of 1971 votes required to be elected.

2 One of the candidates elected as a Councillor, Ms Ruth Amery, died a year after the election creating an extraordinary vacancy in the office under s 69(1)(b) of the Local Government Act 1989 ('the LG Act').

3 The vacancy was filled in accordance with Part 2 of Schedule 3A of the LG Act, which regulates countback procedures for filling extraordinary vacancies. Ms Ashlee Fitzpatrick, who in the October 2016 election received 1296 votes, was the successful candidate. Dr Fidge was unsuccessful.

4 The ballot papers counted in the countback were those relating to Ms Amery, the person who had vacated the office of Councillor. As was required by the countback procedures in cls 11 and 12 of Schedule 3A, only the ballot papers that contributed to Ms Amery's election were counted and redistributed to other candidates.

5 Dr Fidge accepts that the countback was conducted in accordance with the provisions of the LG Act, but is aggrieved that not all of the votes cast in the 2016 election were counted and that a candidate, who after the initial vote count in the 2016 ballot, received less first preference votes than him and less votes than him after preferences were distributed, was elected.

6 Dr Fidge challenged the countback procedures in both the Municipal Electoral Tribunal ('the MET') and later the Victorian Civil and Administrative Appeals Tribunal ('the Tribunal' or 'VCAT'). He claimed that provisions governing that countback were contrary to the Charter of Human Rights and Responsibilities Act 2006 ('the Charter') and were unconstitutional. He sought to have questions relating to those claims referred to this Court, one under s 33 of the Charter and others under s 96 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). The Tribunal refused to refer the questions and subsequently dismissed his application for review of the MET decision.

7 Dr Fidge now seeks leave to appeal on questions of law from the orders of the Tribunal refusing to refer the questions to this Court.

8 There were 10 candidates standing in the 2016 election, for four positions on the Council. Voting was carried out according to the following proportional representative system. In order to be elected to the position of Councillor, a candidate had to obtain 1,971 votes. Each candidate first received the ballots that listed them as the first preference. After that allocation, the candidate holding the fewest first preference votes was excluded, and the votes that they had been allocated were distributed to the remaining nine candidates in accordance with the second preference listed on each ballot. The candidate with the least amount of votes after that redistribution was then excluded. Any first preference votes allocated to them were then distributed to the candidate who was the second preference on the ballot paper, and any second preference votes allocated to them were allocated to the candidate who was the third preference on that vote and so on.

9 This process continued for fifteen rounds of voting until four candidates had each reached 1,971 votes. This process resulted in five candidates being excluded. Dr Fidge finished in fifth place in the election, so was not elected a Councillor. However, the four successful candidates each reached 1,971 votes before Dr Fidge was formally excluded and his votes redistributed between them. He was the only candidate who was neither excluded nor elected.

The 2017 countback to fill the extraordinary vacancy

11 On 5 October 2017, Ms Amery died. This created a vacancy in her seat on the Council.[1] Accordingly, a countback election was conducted on 13 November 2017, in accordance with the LG Act. The countback applied the procedure stipulated in sch 3A of the LG Act and recounted the votes that elected Ms Amery. The purpose of the countback was to determine the candidate to whom the majority of voters for Ms Amery had given their next preference.

12 Therefore, the only votes counted in the countback were the 1,971 that elected Ms Amery, 920 of which were first preference votes for her and 1051 of which were preference votes from excluded candidates. Each of those 1,971 countback votes was distributed in order of preference to the participating countback candidates, being those unsuccessful candidates in the Council election who were still eligible to stand for office. When none of those countback candidates had an absolute majority of the redistributed countback votes, the countback candidate with the least amount of countback votes was eliminated, and their countback votes were redistributed in order of next preference to the remaining countback candidates. This process continued until one countback candidate attained a majority.

13 Applying these countback procedures, Ms Ashlee Fitzpatrick was elected to fill the extraordinary vacancy. Despite Dr Fidge having a greater number of first preference votes (1271-876), and a greater number of votes after the allocation of preferences (1,734-1,296), Ms Fitzpatrick had a greater share of the 1,971 votes that were used to elect Ms Amery.

14 This outcome was in part due to the fact that Dr Fidge was never formally excluded from the original election, and the 1,734 votes eventually distributed to him were never re-allocated to other candidates. Each countback candidate might have received some countback votes from Ms Amery's 920 first preference votes if they were the next preference countback candidate. Each other countback candidate except for Dr Fidge would have received a number of countback votes from the 1051 preference votes that Ms Amery received from them when they were excluded. For example, in the October 2016 election a share of first preference votes from Ms Fitzpatrick would have been allocated to Ms Amery when Ms Fitzpatrick was excluded from the count, and all of those votes would have flowed back to her in the countback election. But Dr Fidge, having never been excluded, and having had none of his votes reallocated to Ms Amery, did not have this benefit and was therefore at a disadvantage.

15 On 13 November 2017, when the countback occurred to fill the extraordinary vacancy, the relevant provisions of the LG Act were:

Schedule 3A - Provisions with respect to filling extraordinary vacancies

Part 1 - Preliminary matters

1 Definitions

In this Schedule -

eligible candidate means a person who -

(a) was a candidate at the relevant election; and

(b) did not withdraw or retire from, and was not elected at, that election; and

(c) is still eligible to be elected as a Councillor;

relevant election means the election at which the vacating Councillor was elected;

vacating Councillor means the person whose departure created the extraordinary vacancy (even if that person never became a Councillor).

2 Exclusion of candidate

(1) The returning officer must exclude from participation in a countback any candidate which the returning officer knows has died or has otherwise ceased to be eligible to be elected as a Councillor.

(2) An exclusion under subclause (1) may be made -

(a) before the public notice is published under clause 6; or

(b) after the public notice is published under clause 6 unless the countback procedure has been commenced.

1. Procedure if there is more than one eligible candidate

(1) This clause applies if there is more than one eligible candidate.

(2) Within 14 days of the extraordinary vacancy occurring, the returning officer must -

(a) publish a public notice in accordance with subclause (3); and

(b) give written notice in accordance with subclause (3) to each eligible candidate at their last known address.

(3) The public notice and the written notice must specify -

(a) the date, time and place for the conduct of the countback;

(b) that an eligible candidate is entitled to appoint scrutineers for the countback;

(c) the contact details of the returning officer.

(4) The date for the conduct of the countback must be the date which is at least 14 days after the date of the public notice which in the opinion of the returning officer is the earliest practicable date to conduct the countback.

(5) The countback must be conducted in accordance with Part 2.

Part 2 - Countback procedure

11 Relevant ballot-papers to be ascertained

The following ballot-papers must be brought together -

(a) if the vacating Councillor obtained a quota on first preferences, all the ballot-papers on which those preferences are marked; or

(b) if the vacating Councillor was elected after a transfer or transfers of ballot-papers -

(i) all the ballot-papers counted to the vacating Councillor at the time that she or he was elected; and

(ii) if the vacating Councillor was declared elected under clause 11B(19) of Schedule 3 following the exclusion of a candidate, all of the ballot-papers that -

(A) were not transferred to her or him from that candidate or those candidates because it was unnecessary; and

(B) showed a next available preference for the vacating Councillor.

1. Votes to be transferred from vacating Councillor to eligible candidates

(1) Those ballot-papers must then be transferred to the participating eligible candidates in accordance with the next available preference shown on the ballot-papers, at their respective transfer values, beginning with the ballot-papers with the highest transfer value and ending with the ballot-papers with the lowest transfer value, and must be transferred as follows -

(a) the total number of ballot-papers of a particular transfer value that show the next available preference for a particular participating eligible candidate must be multiplied by that transfer value; and

(b) the number obtained under paragraph (a) (disregarding any fraction) must be credited as votes to that candidate; and

(c) all those ballot-papers must be transferred to that candidate.

(2) The transfer value of a ballot-paper is -

(a) in the case of a ballot-paper received by the vacating Councillor as a first preference - 1;

(b) in the case of a ballot-paper received by the vacating Councillor after the count of first preferences, but before the transfer at which she or he was elected - the transfer value at which it was received by the vacating Councillor;

(c) in the case of a ballot-paper received by the vacating Councillor at the transfer at which she or he was elected - the number obtained by dividing the number of votes by which the vacating Councillor, immediately before that transfer, was short of the quota, by the number of ballot-papers transferred to the vacating Councillor at that transfer;

(d) in the case of a ballot-paper specified in clause 11(b)(ii) - the transfer value at which the ballot-paper would have been transferred to the vacating Councillor if a transfer had been necessary.

(3) For the purposes of this clause -

(a) a preference expressed for one of the following people is to be disregarded -

(i) the vacating Councillor; or

(ii) a person elected at the relevant election or at a countback of votes; or

(iii) a person who is not participating in the countback of votes; and

(b) a preference that has been disregarded is to be taken to be substituted for the next available preference on the ballot-paper that is not for a person listed in paragraph (a)(i), (ii) or (iii); and

(c) a first preference for a participating eligible candidate who was excluded at the relevant election that appears on a ballot-paper that was transferred to the vacating Councillor is to be counted for that candidate.

13 Countback to be stopped if absolute majority obtained

(1) After the transfers required by clause 12 have been completed, if a participating eligible candidate has an absolute majority the returning officer must declare that candidate to be elected.

(2) For the purposes of this clause, a candidate has an absolute majority if the number of votes credited to that candidate is more than 50% of the total number of votes credited to all the participating eligible candidates after the transfers.

14 Next stage (if necessary)

(1) If no participating eligible candidate has an absolute majority of votes, the participating eligible candidate with the fewest votes must be excluded.

(2) The excluded candidate's ballot-papers must be transferred to the continuing participating eligible candidates in accordance with the preferences shown on those ballot-papers, at their respective transfer values, beginning with the ballot-papers with the highest transfer value and ending with those with the lowest transfer value, as follows -

(a) the total number of ballot-papers received by the excluded candidate at a particular transfer value and expressing the next available preference for a particular continuing eligible candidate must be multiplied by that transfer value; and

(b) the number obtained under paragraph (a) (disregarding any fraction) must be added to the number of votes of that continuing candidate; and

(c) all those ballot-papers must be transferred to that continuing candidate.

(3) The transfer value of a ballot-paper for the purposes of this clause is the same as the transfer value set out in clause 12(2).

(4) After doing this in respect of each continuing participating eligible candidate, if a candidate has an absolute majority the returning officer must declare that candidate to be elected.

(5) For the purposes of this clause, a candidate has an absolute majority if the number of votes credited to that candidate is more than 50% of the total number of votes credited to all the continuing participating eligible candidates after the transfers and additions required by subclause (2).

16 Dr Fidge applied to the Municipal Electoral Tribunal pursuant to s 45 of the LG Act for an inquiry into the countback. While acknowledging that the countback had been conducted in accordance with the LG Act, he sought orders declaring that cls 11 and 12 of Schedule 3A of the LG Act ('the countback provisions') were invalid. He sought orders from the MET under s 46 of the LG Act that the election be declared void and that the extraordinary vacancy be filled by using the method of vote counting used in the initial election. He also sought orders declaring that he and not Ms Fitzpatrick was the successful candidate in the countback. The MET summarised his complaint about the countback procedures in the LG Act as follows:

The gravamen of the applicant's complaint concerning this procedure is that votes case for some candidates in the original election are not effectively included in the countback procedure. Specifically, votes cast for candidates who were neither excluded by virtue of having their preferences distributed to candidates ultimately elected, or as in this case of the applicant failing to reach a quota. In essence, the applicant's objection is that although he is an eligible candidate to be elected on the countback, ballots cast for him would not be included in the count.[2]

17 The MET dismissed Dr Fidge's application because the Electoral Commissioner had followed the countback procedures prescribed in the LG Act.

18 Dr Fidge sought review of the MET's decision by VCAT. He again accepted that the countback had been conducted according to the provisions of the LG Act, but argued that those provisions were inconsistent with the Charter and otherwise invalid. During the VCAT proceeding, he sought to have questions referred to this Court, one under s 33(1) of the Charter and three others under s 96 of the VCAT Act. The Tribunal refused to do so for reasons summarised below.

19 The dispute has now come to this Court after Dr Fidge commenced two proceedings seeking leave to appeal on questions of law from the Tribunal's decision not to refer his questions to this Court. The first concerns the refusal to refer the Charter question and the second the refusal to refer the other invalidity questions.

20 The first proceeding arose from VCAT's refusal to refer the following question to this Court:

Are sections 11 and 12 of Schedule 3A of the Local Government Act 1989 capable of being interpreted compatibly with the human rights contained in section 18 of the Charter.

21 In his application to VCAT, Dr Fidge stated that the MET decision was incorrect and sought declarations that he, rather than Ms Fitzpatrick, was duly elected as a Councillor to fill the extraordinary vacancy. He conceded that the countback process prescribed in the LG Act had been followed, but he made submissions about the validity of those provisions. He requested that the Tribunal refer his Charter question to this Court where he could request a declaration of inconsistent interpretation under s 36 of the Charter, being that the countback provisions could not be interpreted consistently with the human right contained in s 18 of the Charter. Section 18(2)(a) states that every eligible person has the right, and is to have the opportunity, without discrimination to 'vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors'.

22 Dr Fidge argued in VCAT that the countback provisions, by limiting the votes counted, restricted the Charter human right to vote and to be elected and the guarantee that municipal elections would be the free expression of the will of the electors. He submitted that those restrictions could not be justified as a reasonable limitation of that right,[3] and that the referral of his Charter question to the Supreme Court would promote a 'dialogue of rights protection' and contribute to the 'ongoing review and reform of the LG Act'.[4]

23 The Attorney-General, who was joined as the second respondent, argued that the referral of the question would not achieve the 'dialogue' that Dr Fidge sought because, even if the Court made a declaration of inconsistent interpretation, it would not provide the remedies he sought and would not invalidate the provisions of the LG Act that he challenged.

24 The Tribunal refused to refer Dr Fidge's Charter question to this Court. The Deputy President decided that to do so would have 'no bearing on the current proceeding'[5] and stated:

It is clear that a referral would not and could not determine the issue between the parties. A declaration of inconsistent interpretation could not alter any relief that would otherwise be granted to Dr Fidge by this Tribunal. A declaration of inconsistent interpretation would not and could not affect the validity of the countback provisions for the purposes of the proceedings before the Tribunal. The Tribunal would still be obliged to apply those provisions.[6]

...

It will be a rare circumstance where a referred question which is purely hypothetical will be an appropriate one for this Tribunal to refer to the Supreme Court. This case is not such a circumstance.[7]

...

The concerns raised by Dr Fidge are therefore known and are being considered by the legislature. This is appropriate. Nothing more would be served by the Supreme Court making a declaration of incompatibility in the circumstances.

I am not satisfied that the referral is appropriate in the circumstances of this case.[8]

25 The Deputy President relied on the Court of Appeal decision of De Simone v Bevnol Constrictions and Developments ('De Simone'),[9] in which VCAT had referred a Charter question to the Supreme Court. The Court of Appeal declined to express an opinion on the referred question because it was 'a question not conditioned on any facts found or assessed or conclusion of law reached by a primary judge'.[10] The Court stated:

Yet the premise of the question is an accepted power to stay a civil proceeding, the exercise of which must turn on the facts of the particular case considered in the light of the applicable law including so far as was necessary a consideration of relevant statutory provisions. Notwithstanding that, the referred question bypasses any facts and asks a purely hypothetical question. Moreover the answer to the question would not determine the issue between the parties who would have to return to the tribunal for the hearing and determination of the stay application. With respect, this is a further reason why the stay application should have been determined and the reference not made.[11]

26 The Deputy President also agreed with the Attorney-General that it was unnecessary for the Tribunal to discuss whether the countback provisions were compatible with s 18 of the Charter, as reforms addressing that issue had last year been introduced into the Victorian Parliament in the Local Government Bill 2018.

27 The relevant provisions of the Charter are as follows:

6 Application

(2) This Charter applies to -

...

(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3;

18 Taking part in public life

(1) Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.

(2) Every eligible person has the right, and is to have the opportunity, without discrimination -

(a) to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors; and

(b) to have access, on general terms of equality, to the Victorian public service and public office.

33 Referral to Supreme Court

(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if -

(a) a party has made an application for referral; and

(b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not -

(a) make a determination to which the question is relevant while the referral is pending; or

(b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court or by the County Court, the referral is to be made to the Court of Appeal.

(4) Despite anything contained in any other Act, if a question arises of a kind referred to in subsection (1), that question may only be referred to the Supreme Court in accordance with this section.

(1) This section applies if -

(a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or

(b) the Supreme Court has had a question referred to it under section 33; or

(c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a).

(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

(3) If the Supreme Court is considering making a declaration of inconsistent interpretation, it must ensure that notice in the prescribed form of that fact is given to the Attorney-General and the Commission.

(4) The Supreme Court must not make a declaration of inconsistent interpretation unless the Court is satisfied that - (a) notice in the prescribed form has been given to the Attorney-General and the Commission under subsection (3); and (b) a reasonable opportunity has been given to the Attorney-General and the Commission to intervene in the proceeding or to make submissions in respect of the proposed declaration of inconsistent interpretation.

(5) A declaration of inconsistent interpretation does not - (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

(6) The Supreme Court must cause a copy of a declaration of inconsistent interpretation to be given to the Attorney-General -

(a) if the period provided for the lodging of an appeal in respect of the proceeding in which the declaration was made has ended without such an appeal having been lodged, within 7 days after the end of that period; or

(b) if on appeal the declaration is upheld, within 7 days after any appeal has been finalised.

Example

If the Trial Division of the Supreme Court makes a declaration of inconsistent interpretation (based on a referral of a question from VCAT) and on appeal the Court of Appeal upholds the declaration, a copy of the declaration must be sent to the Attorney-General within 7 days after the Court of Appeal's decision.

(7) The Attorney-General must, as soon as reasonably practicable, give a copy of a declaration of inconsistent interpretation received under subsection (6) to the Minister administering the statutory provision in respect of which the declaration was made, unless the relevant Minister is the Attorney-General.

28 Dr Fidge's questions of law in the first proceeding are:

1. Whether the Tribunal erred in law when considering whether to refer a question to the Supreme Court under section 33(1)(a) of the Charter by:

1. taking into account irrelevant considerations, namely the Tribunal's finding that the referred question was 'purely hypothetical' (Reasons at [40]) and that the referral 'would not and could not determine the issues between the parties' (Reasons at [36]); and or 2. failing to take into account a mandatory relevant consideration being the importance of the 'Charter dialogue' process established by the Charter, the role given to Courts and Tribunals in that process and the central role that referrals under s 33(1)(a) play in that process (Reasons at [42]); and/or

1. implicitly finding that there was no evidence that the Applicant's rights or interests were affected by the referral when finding that the referred question was 'purely hypothetical' (Reasons at [40]) and that the referral 'would not and could not determine the issue between the parties' (Reasons at [36]).
2. Whether the Tribunal breached section 6(2)(b) of the Charter by failing to apply the rights relevant to the exercise of its function under s 33(1)(a) (which is one of the functions of Courts and Tribunals in Division 3, Part 3 of the Charter) in considering the request for a referral pursuant to section 33(1)(a) of the Charter.

29 Dr Fidge's grounds and submissions in respect of Question A in summary were as follows. Dr Fidge argued that the Tribunal erred in deciding that referring the Charter question to this Court would not, and could not, determine any issue between the parties. It overlooked that in issue was not just whether he should be declared the elected Councillor, but also whether the LG Act could be interpreted by the application of s 32(1) of the Charter consistently with the human right in s 18. He sought to enliven a dialogue about that question and about reform of the countback provisions in the LG Act. He submitted that, unlike the question in De Simone, his Charter question was 'conditioned on... facts found or assessed or conclusions of law reached by a primary judge',[12] as the Deputy President had reached conclusions of law. He contended that he had placed squarely before the Tribunal the issue of whether the LG Act could be interpreted in accordance with human rights.

30 Secondly, Dr Fidge contended that the Tribunal had failed to take into account the importance of dialogue and the important role that the Supreme Court played. Dr Fidge sought to use that dialogue to contribute to the review and reform of the LG Act in circumstances where a Local Government Bill had been tabled in Parliament last year. The Bill followed a report by the Local Government Electoral Review Panel which recommended that the countback procedures be changed to include all ballots cast at the election, not just those that elected the vacating Councillor.[13]

31 Dr Fidge submitted that the Tribunal failed to take into account the purpose of the Charter, which included the promotion and protection of human rights;[14] the importance of the 'Charter dialogue' and the role given to courts and tribunals in that dialogue process. He noted that it could be said that all referred Charter questions were hypothetical to some extent, but that it was contrary to the purpose of the Charter to rely upon that feature to refuse a referral. The Tribunal wrongly relied upon s 36(5) of the Charter as a reason not to refer his question to this Court. If the outcome of all referral requests turned on whether they would affect the validity, operation or enforcement of the statutory provision in question, all would fail.

32 He relied upon Bell J's statement in Kracke v Mental Health Review Board & Ors that:

It is very important for all courts and tribunals to consider human rights arguments as part of the case if that is at all possible. It is the responsibility of courts and tribunals to do so, for thereby they uphold the rule of law and carry out their functions under the Charter.

...

Finally, I have decided it is important to exercise the tribunal's power to make a declaration of breach of human rights. Mr Kracke is entitled to vindication and the tribunal needs to express its disapproval of the breach. I also took into account the interest of the community in seeing that human rights are upheld, for this contributes to the maintenance of the rule of law in democratic society. The declaration will also bring attention to the need to address the general issue of delay in conducting reviews of the involuntary treatment of mentally ill people.[15]

33 Thirdly, Dr Fidge submitted that the Tribunal's finding that the referral was 'purely hypothetical' ignored the impact of the question on his rights and interests. The Tribunal's finding was akin to a finding that there was no evidence that the answer to the question would impact his rights or interests, whereas his s 18 rights had been breached and he wished to bring about law reform of the countback provisions. A declaration of inconsistent interpretation would 'provide him with no small measure of vindication and reassurance' that his Charter rights had been breached and that he had contributed to a change that would minimise the likelihood of a similar outcome occurring in the future.[16]

34 The Tribunal should have considered the merits of his argument that the challenged provisions of the LG Act were inconsistent with his s 18 human right. But instead it wrongly used the 'very nature of the Charter itself as a reason not to refer the question'.[17]

35 The Attorney-General submitted that the Deputy President had properly exercised her discretion to refuse Dr Fidge's referral application. The Tribunal was entitled to decide the factors relevant to the proper exercise of its discretion having regard to the 'subject-matter, scope and purpose of the [Charter]', provided they were not extraneous to it.[18]

36 The Attorney-General relied upon the decision in De Simone, and particularly the following passage, to demonstrate the width of the s 33 discretion:

A central feature of s 33(1) of the Charter is the presence of the discretion whether to refer. Thus, even if the conditions that enliven the discretion are satisfied, the court or tribunal has an overriding discretion whether to refer the question. The section does not specify the criteria to be considered in determining how to exercise the discretion. The discretion is thus unfettered although, like all judicial discretions, it is to be exercised in light of the relevant facts and circumstances, including such considerations as may be contained in and drawn from the Charter.[19]

37 The Attorney-General submitted that factors relevant to the exercise of the discretion included the general importance of the question to be referred to the parties and the public; the merits of the arguments to be put to the Supreme Court and the effect that any answer to the question would have on the pending proceedings.[20]

38 The Tribunal gave particular weight to the last of these factors and acknowledged that there may be cases where purely hypothetical questions, the answer to which could not affect a proceeding, were appropriate to refer to the Court under s 33, but that this was not such a case. The Tribunal had not erred by taking into account the fact that any answer that the Supreme Court might give to the referred Charter question could not affect the VCAT proceeding.

39 The Attorney-General accepted that not all s 33 referrals would be hypothetical and that questions about the proper interpretation of a statutory provision under s 32 of the Charter would often be determinative of the underlying proceeding. So too would the referral of a question involving a challenge to the conduct of a public authority on the ground that its action had been incompatible with a human right within the meaning of s 38 of the Charter. But the referral of a question under s 33 of the Charter seeking only to obtain a declaration under s 36 would always be hypothetical.

40 The Attorney-General submitted that the considerations Dr Fidge identified as relevant to the exercise of the discretion were not mandatory. In any event the Tribunal had had regard to those considerations, as the Deputy President referred to Dr Fidge's wish to enliven the dialogue process and to the objectives of the Charter, and emphasised the significance of the mechanism contained in s 36(2).

41 The Attorney-General submitted that the Tribunal was not required to, and did not in fact, make any evidentiary findings in the proceeding. The only issue to be resolved by the proposed referral was whether the countback provisions were compatible with the right to participate in public life recognised in s 18. That question did not engage Dr Fidge's rights, but even if it did, the Tribunal correctly found that his interests and rights would not be affected by the referral of the Charter question. This was because the Tribunal was obliged to apply the countback provisions and to refuse the relief that he sought whatever the outcome of the referral of his question to this Court.

42 The Attorney-General relied on the High Court's decision in Momcilovic v The Queen ('Momcilovic')[21] for the following propositions: the High Court rejected the description of the Charter model as a 'dialogue'; VCAT's conclusion that the Charter question was hypothetical and could not affect the parties' rights was correct; and the impact that a Charter question would have on the parties to the dispute before the Tribunal is a relevant consideration in exercising the s 33 discretion. She relied on the following passage:

The determination of the question of inconsistency with the Charter and a declaration giving expression to that determination does not establish any right, duty or liability. The purposes of a declaration do not involve the administration of the law, but rather its possible alteration.[22]

Section 36(5) of the Charter establishes that a declaration of inconsistent interpretation does not determine any issue in dispute, nor affect the legal rights of parties to a dispute.

43 The Attorney-General also argued that Momcilovic established that VCAT did not have the power to refer the Charter question to this Court because it would not have jurisdiction to determine whether the impugned LG Act provisions were inconsistent with the s 18 Charter right. Crennan and Kiefel JJ had made clear that the making of a declaration of inconsistent interpretation was valid only on the basis that it was 'incidental' to judicial power:

A declaration of inconsistency is not an order of the Supreme Court of Victoria... it is no more than a statement by the Supreme Court that, following upon its interpretation of a statutory provision in the context of the Charter, it has found the provision to be inconsistent with one or more Charter rights.[23]

...

A declaration under s 36(2) is not directed to the determination of a legal controversy and has no binding effect. It is not an exercise of judicial power. The declaration of inconsistency for which s 36(2) provides is in the nature of a statement, made by the Supreme Court following upon its interpretation of a statutory provision in the context of the Charter, that an inconsistency between the two statutes is evident, and of which the Attorney-General is notified. In that sense it constitutes a conclusion but not an advisory opinion of the kind with which this Court was concerned in In re Judiciary and Navigation Acts and which the Court was required by those Acts to give. It is a formal conclusion arising out of the exercise undertaken by the Supreme Court in respect of s 32(1). That exercise under s 32(1) is integral to the resolution of the 'matter' between the appellant and the first respondent. Standing alone, s 36 could not give rise to any 'matter' within the meaning of Ch III of the Constitution.[24]

44 The Attorney-General argued that an s 36 declaration could not be made in a vacuum and required that some feature of the challenged provision had led to a dispute or a matter. No such dispute existed here. A declaration of inconsistent interpretation must attach to a judicial dispute and be connected to the carrying out of a judicial function.

45 Momcilovic is the only case in which an s 36 declaration has been made; although that declaration was set aside on appeal. The Court of Appeal declared that s 5 of the Drugs, Poisons and Controlled Substances Act 1981 could not be interpreted compatibly with the human right in criminal proceedings to the presumption of innocence stated in s 25(1). On appeal, the High Court set aside the declaration of inconsistent interpretation.

46 A 4-3 majority of the High Court upheld the validity of s 36 declarations. French CJ, with Bell J agreeing, did so on the basis that, although the power to make a declaration of inconsistent interpretation was not judicial nor incidental to it, it was not incompatible to the institutional integrity of the Court and did not offend the Kable principle.[25] Crennan and Kiefel JJ decided so on the basis that the power was incidental to judicial power and was thus valid. Of the minority, Gummow and Hayne JJ found that the s 36 power was incompatible with the institutional integrity of the Court and thus infringed the Kable principle, whereas Heydon J found that the whole Charter was invalid as conferring legislative functions on courts.

47 The majority's rationale for upholding the validity of s 36 declarations was premised upon an s 36 declaration arising as a consequence of carrying out the s 32 interpretative exercise within a judicial controversy.

48 The other case to which the Tribunal referred, and on which the Attorney-General relied, was De Simone, which was decided before the High Court's judgment in Momcilovic. The case concerned a s 33 Charter question referred by a Vice-President of VCAT to the Supreme Court.

49 The context of that referral was that the applicant had been charged with offences that arose out of matters that were the subject of the counter-claim against him in VCAT proceedings. He had requested that VCAT stay the proceedings against him until the determination of the criminal charges. A Vice President referred the following question to the Court for the purpose of resolving that issue:

Given that the Tribunal has an implied statutory power to stay a civil proceeding, whether the McMahon v Gould guidelines applicable to that power should be revised in light of the Charter of Human Rights and Responsibilities Act 2006, and in particular ss 24 and 25 of that Act, and, if so, how?[26]

The McMahon v Gould[27] guidelines provided for the matters to be considered by a Court in exercising a discretion as to whether civil proceedings should be stayed to prevent prejudice to concurrent criminal proceedings concerning the same subject matter.

50 Redlich, Mandie and Hansen JJA declined to express an opinion on the referred question because they considered that it was not an appropriate question to refer to the Supreme Court nor appropriate for the Court to answer. They stated:

When the vice president considered whether to exercise the discretion to refer the question to the Supreme Court, it was necessary for him to consider the nature and scope of the question and the circumstances in which it arose for consideration. Without a determination of Mr De Simone's application for a stay there were no findings and no consideration of the issues. Nor was there even a statement of agreed facts. That meant that the question was raised in the air, so to speak...

What is clear is that mere difficulty of a question, or its importance to the parties or the public, or a conflict of authorities, or that the parties have stated they will appeal whatever the decision at first instance, are but factors among others to be considered when deciding to refer a question to the Court of Appeal. As Brooking J said in Collins v Black, 'everything depends on the circumstances of the particular case'. A further significant point, and one that is relevant in the present case, is that when a primary decision-maker refers a question to the appeal court, that court is deprived of the benefit of the primary decision-maker's judgment on the issues arising for determination. Of course, in this case the initial reference was to the Trial Division, but the point remains the same. The matters we have mentioned were to be considered by the vice president as the primary decision-maker.

These considerations are apposite in the present case. In our view, in the circumstances that the vice president did not rule on the stay application and having regard to the terms of the question, the reference was neither appropriate to make nor appropriate for this court to answer.[28]

51 In my view, it is of particular importance that the Deputy President was exercising a discretion conferred by s 33 of the Charter. The conferral of a discretion rather than the imposition of a duty means that the Deputy President had a choice to exercise in accordance with the purposes of the Charter. Dr Fidge did not have a right to obtain a referral of his question to the Supreme Court. Section 33(1) applies to two situations: where a question of law arises that relates to the application of the Charter, or where a question arises with respect to the interpretation of a statutory provision in accordance with the Charter.

52 When Dr Fidge requested the referral of his Charter question, VCAT was conducting a review of the MET's decision and in doing so was obliged to apply the countback provisions. There being no dispute that their application resulted in the election of Ms Fitzpatrick, VCAT was obliged to affirm the MET's decision. The Deputy President was entitled to conclude that the outcome of the review proceeding would not be altered by the referral of the question. If VCAT had referred the question, it would not have been permitted to make a determination to which the question was relevant while the referral was pending.[29]

53 I accept that Dr Fidge had an interest in the question of whether the countback provisions were inconsistent with the s 18 Charter right because of the effect that the countback provisions had on his candidacy and on council elections. But that question could have no effect on the VCAT review. It was open to the Deputy President to consider that, in those circumstances, it was not appropriate to refer the Charter question. Otherwise, VCAT proceedings for review could be used as a vehicle to attempt to obtain a Supreme Court ruling on a question that had no bearing on the VCAT proceeding, but rather had a bearing on the political or public debate about the merits of the particular issues. Generally, the referral of questions to a higher court will be done to obtain an answer to questions that need to be answered in the proceeding. The dialogue spoken of in respect of the Charter is a dialogue about a Charter issue that arises in the determination of a proceeding.

54 Putting the matter another way, the Deputy President was entitled to take into account that the Supreme Court would have been asked to decide the question in a vacuum, in the sense that there was no matter or dispute that the countback provisions did not entitle Dr Fidge to be elected to fill the vacancy on Council. The answer that the Court may have given to the question, had it been referred, would have had no effect on the proceedings because Dr Fidge could not have been declared elected.

55 Neither the High Court decision in Momcilovic nor the Court of Appeal decision in De Simone suggest that the Tribunal erred in exercising the discretion to refuse to refer Dr Fidge's question. Whatever the ratio of Momcilovic may be, it does not provide any support for the referral of Dr Fidge's question to this Court. The Tribunal was entitled to take into account the fact that the referred question was hypothetical in the sense that it did not attach to a judicial controversy. Applying its discretion under s 33(1)(b) of the Charter, the Tribunal was entitled to be unpersuaded that the question was not appropriate for determination by this Court.

56 As mentioned, Dr Fidge wishes to commence a dialogue about the adverse effect of the countback provisions on the human right contained in s 18. But the Act conferred a discretion on VCAT to decide Dr Fidge's application and I am not persuaded that the discretion was wrongly exercised. Dr Fidge can participate in debate about amendments to the LG Act, but not in this Court in circumstances where no dispute about the application of the existing countback provisions exists.

57 Dr Fidge's next question of law is that the Tribunal erred by contravening s 6(2)(b) of the Charter, which provides as follows:

6 Application

(2) This Charter applies to -

...

(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3;

58 With respect to this question of law, Dr Fidge's grounds and submissions contended that, in refusing his referral application, the Tribunal was exercising a function under Division 3, Part 3 of the Charter, and that therefore s 6(2)(b) obliged it to apply those human rights relevant to the exercise of that function. Those rights were: s 8 the right to recognition and equality before the law, s 24 the right to have a proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing, and s 18 the right to take part in public life. He says that the Tribunal failed to apply those rights in refusing to refer the Charter question to this Court.

59 Dr Fidge argued that, although the s 33 discretion is not expressly subject to limitations or mandatory considerations, it is nonetheless not 'unbridled' and must be exercised in accordance with the rights relevant to the exercise of its function in the Charter. While acknowledging that a list cannot be made of the rights in respect of which courts and tribunals have functions within the meaning of s 6(2)(b), he submitted that the refusal to refer the question to the only body with jurisdiction to provide him with the relief he sought, had the effect of failing to protect him from discrimination on the basis of his political beliefs and the beliefs of others whose votes were discarded by the countback procedures.

60 Dr Fidge submitted that the Tribunal, in exercising the s 33 discretion, was performing a function in respect of the above rights and in doing so had to take them into account. By not doing so, the Tribunal contravened s 6(2)(b) of the Charter and failed to exercise the discretion contained in s 33 in accordance with the Charter.

61 The Attorney-General submitted that of the human rights identified by Dr Fidge, only the s 24 right to a fair hearing was relevant to the functions of a court or tribunal when exercising the s 33 discretion.[30] The Attorney-General also argued that the content of the s 24 right required no more than that the Tribunal exercise the s 33 discretion validly.

62 The authorities establish that the intermediate construction of s 6(2)(b) of the Charter applies, and that the s 24 right to a fair hearing is relevant to the function of a court or tribunal in the exercise of its power.[31] The other two rights identified were not.

63 The Court of Appeal in Slaveski v Smith,[32] in dealing with a discretion in the Legal Aid Act 197, described the limits of the Charter's effect on the exercise of a statutory discretion as follows_:_

In summary, the power conferred on [Victoria Legal Aid] by s 24(1) of the Legal Aid Act is in terms discretionary; the apparent statutory purpose of the section is that the power be discretionary; and the qualified conditional terms of s 25(2)(d) and (f) of the Charter imply that it was not intended to alter that position. In our view, the Charter does not seek to extend the obligation to grant legal aid beyond the discretionary power conferred by the Legal Aid Act.[33]

64 I do not accept Dr Fidge's contention that any of the rights he nominated were breached by the Tribunal. Section 33 grants to a 'court or tribunal' a broad discretion to refer Charter questions to this Court if the court or tribunal 'considers that the question is appropriate for determination by the Supreme Court'. VCAT is competent to hear and determine applications to refer a Charter question to this Court by the exercise of this broad discretion. Dr Fidge claimed that VCAT was not competent to deal with that proceeding because it could not make a declaration under s 36. But, Dr Fidge had no automatic entitlement to a hearing in the Supreme Court of any Charter question that he wished to raise.

65 In exercising its discretion under s 33, VCAT acted as the gatekeeper to any question raised in a VCAT proceeding reaching this Court by the referral of a Charter question. Provided that VCAT validly exercised that discretion, the s 24 right to a fair hearing was not breached. Dr Fidge received a fair hearing and I consider that VCAT did validly exercise its discretion.[34]

66 Therefore, in the first proceeding, leave to appeal is refused and the proceeding is dismissed.

67 In the second proceeding, Dr Fidge contended that the countback provisions in clauses 11 and 12 of Schedule 3A of the LG Act were invalid. He argued that the provisions do not provide for 'democratically elected' councils and are inconsistent with Pt IIA of the Constitution Act 1975 and ss 1(3) and 3B of the LG Act, and infringe his freedom of political communication implied in the Commonwealth Constitution.

68 He seeks leave to appeal from VCAT's refusal to refer these three questions to this Court pursuant to s 96 of the VCAT Act.

69 The three questions which Dr Fidge asked VCAT to refer to this Court are:

1. Are sections 11 and 12 of schedule 3A of the LG Act invalid because they are contrary to sections 1(3) and/or 3B of the LGA?
2. Are sections 11 and 12 of schedule 3A of the LGA invalid because they are contrary to sections 74A (1) and/or 74 (1A)(b) of the Constitution Act 1975 (Vic)?

1. Are sections 11 and 12 of schedule 3A of the LGA invalid because they are contrary to the implied right of political communication in the Commonwealth of Australia Constitution Act?

70 Dr Fidge argued that the Tribunal had to decide only whether these questions raised an arguable case for the consideration of the Supreme Court, and could not decide whether the countback provisions were invalid.

96 Referral of questions of law to Court

(1) The Tribunal, with the consent of the President, may refer any question of law arising in a proceeding to the Trial Division of the Supreme Court or the Court of Appeal for decision.

(2) A referral may be made under subsection (1) on the application of a party or on the Tribunal's own initiative.

(3) If a question of law has been referred to the Trial Division or the Court of Appeal, the Tribunal must not -

(a) make a determination to which the question is relevant while the referral is pending; or

(b) proceed in a manner or make a determination that is inconsistent with the opinion of the Trial Division or Court of Appeal on the question.

1 Preamble

...

(3) It is necessary to ensure that the Councillors who comprise each Council are democratically elected by persons entitled to vote at municipal elections and that the Council is responsible and accountable to the local community.

...

3B How is a Council constituted?

A Council consists of its Councillors who are democratically elected in accordance with this Act.

Legislative history of the LG Act and the Constitution Act

73 The Constitution Act was assented to on 22 October 1975. On 20 June 1979, Part IIA of the Constitution Act, which deals with local government, was inserted into the Constitution Act by the Constitution (Local Government) Act 1979. One section of the new Part IIA was s 74A, which at that time provided that:

There shall be a system of local government for the mainland of Victoria and Phillip Island which shall provide for the constitution of an elected body (in this Part called a "municipal council") with such powers as the Parliament deems necessary for the peace, order and good government of the district in respect of which the body has been constituted.

74 Part IIA was then further amended in 1983 by the Constitution (Local Government) Act 1983, and again in 1998 by the Constitution (Local Government) Act 1988, which amended the text of s 74A(1) to read as follows:

There is to continue to be a system of local government for Victoria consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.

75 The LG Act received Royal Assent on 9 May 1989 and, 9 years later, was amended by the Local Government (Amendment) Act 1998 to include the first version of the countback provisions that are the subject of this dispute.

76 Part IIA was then amended again by the Constitution (Parliamentary Reform) Act 2003 to its current form, in which s 74A(1) provides that:

Local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.

77 Finally, at a later date in 2003, ss 1(3) and 3B were inserted into the LG Act by the Local Government (Democratic Reform Act) 2003.

78 The Tribunal decided that none of the proposed questions of law had a basis or reasonable prospect of success, and refused to refer them to this Court.

79 I will next describe the submissions made and the Tribunal's reasoning on each proposed question.

Question A: Are sections 11 and 12 of schedule 3A of the LG Act invalid because they are contrary to sections 1(3) and/or 3B of the LG Act?

80 Dr Fidge argued that the countback procedures were undemocratic and did not comply with ss 1(3) and 3B of the LG Act. This contention raised a question of statutory interpretation which he submitted had to be determined by this Court.

81 The Tribunal, however, held that Dr Fidge had failed to identify any principle of law upon which he could argue this case before this Court, and had accordingly provided no appropriate basis on which VCAT could refer his question. The Tribunal agreed with the Attorney-General's submission that an inconsistency between provisions of an Act did not render them invalid, but rather required the interpretation of the Act as a whole.

82 Dr Fidge submitted that the Tribunal exceeded its jurisdiction by making the determination that 'there is no principle by which one provision of a statute is invalid by reason that it is (arguably) inconsistent with another provision of the same statute.'[35]

Question B - Are sections 11 and 12 of schedule 3A of the LG Act invalid because they are contrary to sections 74A(1) and/or 74(1A)(b) of the Constitution Act 1975 (Vic)?

83 The second question that Dr Fidge wished VCAT to refer to this Court was whether cls 11 and 12 of Schedule 3A of the LG Act were invalid by reason of conflict with ss 74A(1) and 74A(1A)(b) of the Constitution Act 1975. Those provisions, along with s 74B, provide that:

74A Local government

(1) Local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.

(1A) Subject to section 74B, each Council -

(a) is responsible for the governance of the area designated by its municipal boundaries; and

(b) is constituted by democratically elected Councillors as the governing body which is -

(i) accountable for its decisions and actions; and

(ii) responsible for ensuring good governance; and

(c) includes an administration which -

(i) implements the decisions of the Council; and

(ii) facilitates the performance of the duties and functions of the Council.

(1) Parliament may make any laws it considers necessary for or with respect to -

(a) the constitution of Councils; and

(b) the objectives, functions, powers, duties and responsibilities of Councils; and

(c) entitlement to vote and enrolment for elections of Councils; and

(d) the conduct of and voting at elections of Councils; and

(e) the counting of votes at elections of Councils; and

(f) the qualifications to be a Councillor; and

(g) the disqualification of a person from being or continuing to be a Councillor; and

(h) the powers, duties and responsibilities of Councillors and Council staff; and

(i) any other act, matter or thing relating to local government administration.

84 Dr Fidge submitted that s 74A(1) and s 74A(1A)(b) required democratically elected local councils, whereas the countback procedures were undemocratic because they ignored or discarded the majority of votes cast in the initial election. They were therefore inconsistent with the requirements of s 74A and were invalid.

85 Further, the 1998 LG Act countback provisions were enacted before s 74A(1A) of the Constitution Act was inserted in 2003. This provision was protected by s 18(1)(BA) of the Constitution Act, which was inserted in 2003 and which provided that any Bill attempting to repeal, alter or vary Part IIA must expressly state an intention to so repeal, alter or vary. The Tribunal therefore erred in holding that the entirety of Part IIA of the Constitution Act could have been impliedly amended by the LG Act. He also submitted that such an implied amendment was not possible because Part IIA of the Constitution Act and other relevant parts of the LG Act were amended in 2003, some 5 years after the date on which the Tribunal decided that they were impliedly amended by the introduction of the countback provisions.

86 The Attorney-General submitted that Dr Fidge's second proposed question had no substance and would fail. A provision of a statute is not invalid because it is inconsistent with another statute, including the Constitution Act. To the contrary, in appropriate cases of inconsistency, Acts of Parliament are taken to be amended by later Acts, not invalidated by them.

87 Secondly, the Attorney-General argued that ss 74A and 74B had to be read together, and that it was for Parliament to decide the procedures for the democratic election of Councillors. The Attorney-General referred to the decision in City of South Melbourne v Hallam for the proposition that '[t]he only democratic criterion [imposed by s 74A] is for an election, and even then the franchise is as Parliament prescribes.'[36] The countback procedures in Schedule 3A were one form of democratically filling an extraordinary vacancy. The Tribunal accepted this submission.

88 The Tribunal accepted the Attorney General's submissions that, even if the conflict which Dr Fidge contended did exist, it would not invalidate the countback provisions. Instead, the enactment of those provisions would have had the effect of impliedly amending s 74A. The challenged provisions were introduced by the Local Government (Amendment) Act 1998, which was passed with the necessary majorities to amend the entrenched provisions of the Constitution Act. [37]

89 The Tribunal referred to the Minister's second reading speech for the 1998 Bill introducing the countback provisions,[38] in which he mentioned the costs of a by-election to fill a casual vacancy and stated that:

It has been argued by a number of organisations, including the Australian Electoral Commission, that the holding of a by-election is inappropriate because it is inconsistent with the principles of proportional representation and with accepted methods of filling an extraordinary vacancy where a proportional representation system applies.[39]

... The [countback] system is used for ACT and Tasmanian parliamentary elections, for council elections in Tasmania and Western Australia and for ATSIC Regional Council casual vacancies. In making these changes the government has adopted proposals put to it by the Melbourne City Council and the Australian Electoral Commission. The proposals are the result of extensive research and consultation with interested parties.[40]

90 The Tribunal referred to the concept of representative democracy, which it said could take 'many forms',[41] and stated that the countback procedures were one such form. The Deputy President referred to Gleeson CJ's statement in Mulholland v AEC[42] that_:_

A notable feature of our system of representative and responsible government is how little of the detail of that system is to be found in the Constitution, and how much is left to be filled in by Parliament. In Lange v Australian Broadcasting Corporation, this Court said that, in ss 1, 7, 8, 13, 25, 28 and 30, the Constitution provides for ''the fundamental features of representative government''. In other cases, such as Attorney-General (Cth); Ex rel McKinlay v The Commonwealth, and McGinty v Western Australia, it was pointed out that representative democracy takes many forms, and that the terms of the Constitution are silent on many matters that are important to the form taken by representative democracy in Australia, at a federal or State level, from time to time.[43]

Question C - Are sections 11 and 12 of schedule 3A of the LG Act invalid because they are contrary to the implied right of political communication in the Commonwealth of Australia Constitution Act

91 The third question that Dr Fidge wished to have referred to this Court was whether cls 11 and 12 of Schedule 3A of the LG Act were invalid because they were contrary to the implied right of political communication in the Commonwealth of Australia Constitution.

92 The Tribunal described Dr Fidge's submissions on this question as 'very limited' and as extending only to 'broad statements that cls 11 and 12 of Schedule 3A of the LG Act were invalid because they impermissibly burden the freedom of political communication'.[44] The Tribunal noted the Attorney-General's submissions that the implied freedom of political communication applied to communications capable of affecting voting rather than the act of voting itself, and that the provisions of the Commonwealth Constitution about electing federal representatives did not apply to the States.

93 The Tribunal was not persuaded that there was any basis upon which it should refer the third question to this Court.

94 Dr Fidge made additional submissions in this Court about this third question and his implied freedom of political communication, and contended that voting was a form of political communication.[45] First, he submitted that the Local Government (Financial Assistance) Act 1995 (Cth), permitted the Commonwealth to financially assist local councils, and that they needed to rely on political communication with the Commonwealth to obtain that assistance to help the residents that they represented.

95 Secondly, he submitted that he was prevented from exercising his right to political communication 'by not being allowed to vote,[and] by not being able to be an office bearer'.[46] Because the countback procedures discarded the majority of the votes cast in the initial election, they burdened political communication and were unconstitutional. Electors were disenfranchised or excluded from office for up to 4 years at a time. This occurred despite Parliament having strongly committed to democratic and representative local government.

96 However, the Attorney-General submitted that Dr Fidge's argument about the implied freedom of political communication could not succeed. That right applied to communications about political matters rather than the act of voting itself. The Commonwealth Constitution protected voting rights by the words 'chosen by the people' in ss 7 and 24, and not by the implied freedom of political communication. The High Court decision in Roach v Electoral Commissioner ('Roach'),[47] on which Dr Fidge relied, was a 'chosen by the people' case and not an implied freedom of political communication case. The guarantees of representative government found in the Commonwealth Constitution did not apply to the States.

97 The Tribunal, in effect, found that Dr Fidge's three questions were not arguable. I will next consider the detail of Dr Fidge's questions of law and proposed grounds.

Dr Fidge's questions of law and proposed grounds of appeal

98 Following discussions during the hearing and directions being made, Dr Fidge filed an amended notice of appeal containing his questions of law and proposed grounds of appeal, which are as follows:

1. Did the Victorian Civil and Administrative Tribunal err in law by exceeding their jurisdiction by determining the constitutional validity of Clauses 11 and 12 of Schedule 3A of the Local Government Act 1989?
2. Did the Victorian Civil and Administrative Tribunal err in law by considering irrelevant considerations, those being -
   1. The manner in which State Parliament determined the legislation being determinative to the application?
   2. The existence of other countback provisions in legislation in other jurisdictions?

3. There being many different forms of democracy?

1. Did the Victorian Civil and Administrative Tribunal err in law by failing to consider relevant considerations, those being -
   1. The lack of precedent and the need for guidance from the Supreme Court?
   2. The public importance of this matter and the large number of electors who are affected by the legislation?
   3. The dramatic decrease in costs of conducting countback elections compared to 1991 hand counting of ballots?
   4. The existence of a new bill before State Parliament to alter clauses 11 and 12 of Schedule 3A of the Local Government Act 1989?

1. Did the Victorian Civil and Administrative Tribunal err in law by making a decision that is so unreasonable in the Wednesbury sense that no reasonable decision maker could have made the decision?
2. Did the Victorian Civil and Administrative Tribunal err in law in that a fair-minded lay observer might reasonably apprehend they did not bring an impartial and unprejudiced mind to the resolution of the question they were required to decide?

Question of law A: Did the Victorian Civil and Administrative Tribunal err in law by exceeding their jurisdiction by determining the constitutional validity of Clauses 11 and 12 of Schedule 3A of the Local Government Act 1989?

99 The proposed grounds of appeal that related to Dr Fidge's first question of law argued that the Tribunal fell into jurisdictional error by determining the validity of legislation as part of deciding that it would be futile to refer his questions to this Court. As he put it, the refusal to refer the questions had 'the effect of determining that the impugned legislation is valid and will continue to be implemented.'[48] He criticised the Tribunal for not limiting itself to deciding whether there was a real question which could be referred to the Supreme Court, but rather deciding whether the questions were likely to succeed. He argued that it thereby substituted itself as decision maker for the Supreme Court. Its function was only to decide if he had an arguable case in respect of the questions. Instead, it had used its conclusion on the validity of the countback provisions as a basis for deciding that it would be futile to refer his questions to this Court. The Tribunal was a creature of statute and did not have the power to decide the validity of legislation. Its approach prevented him from having his question answered by this Court, which was the court of competent jurisdiction. He had not expected that the Tribunal would make final determinations of the validity of the countback provisions.

100 The Attorney-General submitted that the Tribunal could consider the validity of a statute in performing its functions. It relied on Brennan J's statement in Re Adams and Tax Agents Board[49] that:

An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.[50]

101 The Attorney-General submitted that while a Tribunal could not rule on the validity of legislation directly, it could consider the validity of legislation when doing so was necessary to carry out its functions in deciding the case before it. The Tribunal had validly considered the merits of each proposed question in exercising its discretion under s 96 of the VCAT Act, and had considered the validity of cls 11 and 12 of Schedule 3A, but had not definitively ruled on their validity. The Attorney-General argued that if Dr Fidge's arguments were correct, then whenever the validity of a statute was raised before the Tribunal it would have to refer the issue to this Court. That could not be the case.

102 In my opinion, VCAT was entitled to express the conclusion that Dr Fidge's questions were futile and without merit, as part of exercising its discretion under s 96. In effect it was saying that not only were the questions not arguable, they were futile. VCAT can make findings about the validity of legislation for the purposes of carrying out its functions and it did so in this case. It could decide the strength of the point that would be argued if the question was referred to this Court.

Question of law B: Did the Victorian Civil and Administrative Tribunal err in law by considering irrelevant considerations, those being -

1. The manner in which State Parliament determined the legislation being determinative to the application?
2. The existence of other countback provisions in legislation in other jurisdictions?

3. There being many different forms of democracy?

103 Dr Fidge also contended that the above matters were irrelevant to the questions that he had posed, which concerned instead the validity of the countback provisions within the context of the Constitution Act and the introductory sections of the LG Act.

104 In contrast, the Attorney-General submitted that the manner in which the countback provisions were enacted was relevant, as they would have had to have been passed with an absolute majority if they had amended an entrenched provision of the Constitution Act. If the Tribunal had found that the countback provisions were inconsistent with s 74A, that finding would have affected their validity. It was thus proper for the Tribunal to refer to this process in its reasons for decision.

105 The existence of countback procedures in other jurisdictions was also relevant, as it suggested that such procedures were an accepted democratic means of filling an extraordinary vacancy, and that they were therefore not in conflict with s 74A of the Constitution Act or ss 1(3) or 3B of the LG Act. The many forms that democracy could take were relevant for the same reason.

106 In my opinion, each of the three matters referred to by Dr Fidge was relevant for the Tribunal to take into account in the exercise of the discretion conferred by s 96 of the VCAT Act. As the Court of Appeal stated in De Simone concerning the discretion in s 33 of the Charter:

...The section does not specify the criteria to be considered in determining how to exercise the discretion. The discretion is thus unfettered although, like all judicial discretions, it is to be exercised in light of the relevant facts and circumstances, including such considerations as may be contained in and drawn from the Charter...

...

It is not a criticism of the discretion reposed by s 33(1) that it does not state the criteria for its exercise. It is the wisdom of the provision, and other like provisions, that it does not identify the relevant criteria, and thereby risk narrowing by exclusion the scope of its operation.[51]

Those comments are equally applicable to the discretion conferred by s 96 of the VCAT Act.

107 The manner in which the countback provisions were passed by Parliament in 1998 was referred to by the Tribunal in the context of considering whether, as an alternative approach to assessing Dr Fidge's arguments, it might be said that the 1998 LG Act had amended s 74A of the Constitution Act. It was not the primary basis of the Tribunal's decision. In any event, both the LG Act and the Constitution Act were amended in 2003, but the countback provisions remained substantially unamended.

108 When introducing the 1998 amendments to the LG Act, the Minister mentioned that similar countback procedures were used in other jurisdictions. Those similar procedures were of some relevance to show that the procedures were not inherently undemocratic. Also of some relevance was the width of the phrase 'democratically elected'. The Tribunal was entitled to take into account that there were a range of voting systems that might be described as democratic, and it was not suggested that there was only one method of filling extraordinary vacancies that meet the description of 'democratically elected'.

109 I do not accept that the Tribunal erred in considering the three matters identified by Dr Fidge.

Question of law C: Did the Victorian Civil and Administrative Tribunal err in law by failing to consider relevant considerations, those being -

1. The lack of precedent and the need for guidance from the Supreme Court?

1. The public importance of this matter and the large number of electors who are affected by the legislation?
2. The dramatic decrease in costs of conducting countback elections compared to 1991 hand counting of ballots?
3. The existence of a new bill before State Parliament to alter clauses 11 and 12 of Schedule 3A of the Local Government Act 1989?

Dr Fidge's next proposed ground was that the Tribunal had failed to give genuine and realistic consideration to the above matters, which he argued were relevant to the exercise of its discretion.

110 The argument in support of this ground was first that the Tribunal had failed to take into account the 'lack of precedent'[52] on the validity of the countback provisions, and the need for guidance from this Court about their validity. The countback provisions had been used in a number of countback elections this year. Dr Fidge referred to the debate and legislative review leading to the introduction of the Local Government Bill 2018, which would have amended the process for the counting of votes in a countback and provided that all the votes counted in the original election were to be counted.[53] He also contended that the cost of a recount had fallen considerably since the introduction of the countback provisions in 1998, and that recounts of election results now took less time to complete. VCAT failed to consider the relevant provisions of the LG Act, including the Preamble and s1A, and thereby failed to read it as a whole. It also failed to consider the relevant provisions of the Constitution Act in Part IIA.

111 Dr Fidge also submitted that the Tribunal failed to take into account the justice, fairness and public importance of his questions, including that the impugned legislation unfairly discriminated against candidates who were not excluded in the original election, and disenfranchised many voters. This rendered council elections unrepresentative and anti-democratic. His questions were at least arguable and were of substantial general importance. In effect, he was seeking curial review of the validity of electoral legislation that affected all adult citizens of Victoria. Roach established that the franchise is held by adult citizens unless there is a substantial reason for excluding them, and that voting in elections for the Parliament lies at the very heart of the system of Government for which the Commonwealth Constitution provides. The Tribunal failed to recognize its lack of jurisdiction to determine the effect of the Commonwealth Constitution on the validity of the countback clauses.

112 In response, the Attorney-General's contended that Dr Fidge's argument lacked merit, and that the Tribunal was therefore correct to refuse to refer his proposed question.

113 The Tribunal was exercising a broad discretion. It was not obliged to base its decision on those matters that Dr Fidge contends that it omitted to consider. But, in any event, I am not persuaded that the Tribunal did fail to consider the substance of the matters that Dr Fidge raised. It considered that the legislation containing the countback procedures was valid and noted that there was no dispute about their operation. They resulted in Ms Fitzpatrick being elected to fill the extraordinary vacancy. Rather than considering that Dr Fidge had an arguable case, it considered that his case lacked merit. In those circumstances, it would have been wrong for the Tribunal to refer the questions to this Court. It did not have to do anything beyond deciding the application before it and was not obliged to consider the wider effect of its decision. It bears repeating that there was no dispute about the effect of the countback provisions. In those circumstances, amending them is a matter for public debate and then for the Parliament to determine.

114 The provisions of the LG Act to which the Tribunal did not specifically refer, such as the Preamble, did not affect the validity of its decision not to refer the questions to this Court, because there was no dispute that about the meaning and effect of the countback provisions.

Question of law D - Did the Victorian Civil and Administrative Tribunal err in law by making a decision that is so unreasonable in the Wednesbury sense that no reasonable decision maker could have made the decision?

115 Dr Fidge also relied on an unreasonableness or irrationality argument to challenge the Tribunal's decision. He relied on the effect of the countback procedures which have been mentioned previously: that he was compelled to be a candidate in such a countback election; but that no-one who voted for him in their first three or four preferences would have their votes for him counted; and that therefore he was in the unique position of an unelected but also un-excluded candidate. While Schedule 3A of the LG Act meant that Dr Fidge was automatically a candidate in the countback, the countback provisions disenfranchised him and 1733 other electors. The decision of the Tribunal was unreasonable in the Wednesbury sense and irrational.

116 The Attorney-General did not make separate submissions about this point.

117 In my opinion, the Tribunal's decision was not unreasonable or irrational, but rather involved giving effect to the clear meaning of the legislation. In circumstances where there was no dispute about the meaning of the countback procedures, it was not unreasonable or irrational in the legal sense for the Tribunal to decide not to refer Dr Fidge's questions to this Court.

Question of law E: Did the Victorian Civil and Administrative Tribunal err in law in that a fair-minded lay observer might reasonably apprehend [that] they did not bring an impartial and unprejudiced mind to the resolution of the question they were required to decide?

118 Dr Fidge submitted that it was clear from the Tribunal's reasons that it did not consider his submissions, but merely applied the Attorney-General's submissions instead. He said that the Tribunal did not acknowledge his points about the role of Courts in determining the validity of legislation, nor the relevant precedents he took the Tribunal to, and that the orders made by the Tribunal were 'in large part simply cut and pasted' from the Attorney-General's submissions.[54]

119 The Attorney-General submitted that it was clear from its reasons that the Tribunal was not merely taking dictation. Rather, it considered all submissions and came to its own view, as it was required to. If, after considering both party's submissions, it agreed substantially with the Attorney-General's, that demonstrated only that she was the successful party.

120 I do not accept Dr Fidge's submission. The Tribunal's reasons explain its path of reasoning. The fact that it agreed with one party's submissions and couched its reasons in words that sometimes repeated that party's submissions did not mean that a fair minded lay observer would find that it failed to independently reach its own conclusion, let alone that it failed to use an unprejudiced or impartial mind in doing so.

121 In the second proceeding, leave to appeal will be refused and the proceeding dismissed.

122 My task in deciding the second proceeding was to determine whether leave to appeal should be granted and the appeal allowed based on the questions of law and the proposed grounds of appeal. However, in view of the extensive submissions about whether the three questions were arguable, for the sake of completeness, I consider that I should state my view on that issue, which on one view did not require express determination in considering the questions of law and proposed grounds, which dealt with particular features of the Tribunal's reasons.

123 In my opinion, the first proposed question is without merit. There is no principle by which one provision of an Act invalidates another with which it conflicts or is inconsistent. An Act of Parliament must instead be read as a whole and each provision given meaning. In some cases, general provisions may give way to more specific ones. Accordingly, even if the countback provisions are read as being inconsistent with, or conflicting with, ss 1(3) and 3B of the LG Act, that inconsistency would not invalidate the countback provisions. The Court would first interpret the provisions to see if they could operate coherently.[55] If that was impossible then the general provisions of ss 1(3)and 3B of the LG Act might give way, in the case of countbacks, to the specific procedures in Schedule 3A. But it is unlikely the Court would declare that the countback provisions were invalid because of that.

124 In my opinion, the second proposed question is without legal merit, as it depends on an incorrect approach to statutory interpretation. Where laws conflict the latter may be taken to have repealed or amended the earlier law, although there is a strong presumption that the Parliament intended both Acts to operate.[56] Were the countback provisions inserted in the LG Act in 1998 inconsistent with s 74A of the Constitution Act, that inconsistency would not assist Dr Fidge. In any event, there is no room for a suggested amendment or repeal by implication in this case, as both Acts were amended in 2003 to include provisions concerning democratically elected councils. The countback provisions were not relevantly amended. This suggests that Parliament, having turned its attention to the need for Councils to be democratically elected and inserted provisions to that effect, considered that the countback provisions already in the LG Act were a democratic way of dealing with extraordinary vacancies, and were consistent with the requirement of s 74A(1) of the Constitution Act.

125 In my opinion, the third proposed question is not supported by the implied freedom of political communication. The act of voting and the counting of ballots are not the subject of the implied freedom of political communication. Voting is not itself a kind of political communication. This was confirmed by High Court in Roach, in which one of the unsuccessful challenges to the elimination of voting power from those serving prison sentences was that their disenfranchisement was a denial of their implied right to political communication. This issue in Roach was described in the following passage:

what is at stake on the plaintiff's case is not so much a freedom to communicate about political matters but participation as an elector in the central processes of representative government.[57]

126 Therefore, even if Dr Fidge were correct in arguing that the countback provisions denied voters the right to have their vote counted in the countback, such denial would not be a burden on their freedom of political communication. It would instead be a denial of having their vote counted in a council election countback, a matter which is not governed by the Commonwealth Constitution.

127 In summary, in both proceedings leave to appeal is refused and the proceeding is dismissed.

[1] Local Government Act 1989 s 69(1)(b).

[2] Fidge v Councillor Ashlee Fitzpatrick and Ors, Reasons for decision, 5 April 2018 [5].

[3] Pursuant to Charter of Human Rights and Responsibilities Act 2006 s 7(2).

[9] [2010] VSCA 231; (2010) 30 VR 200 (Redlich, Mandie and Hansen JJA) ('De Simone').

[13] Local Government Victoria Electoral Review Panel_, Local Government Electoral Review: Stage 2 Report_ (July 2014).

[14] Charter of Human Rights and Responsibilities Act 2006 s 1(2).

[15] Kracke v Mental Health Review Board (2009) 29 VAR 1 [857]-[858].

[16] Transcript of Proceedings, Fidge v Municipal Electoral Tribunal & Anor (Supreme Court of Victoria, S ECI 2018 02328 and S ECI 2019 02372, Ginnane J, 8 May 2019), 47 ('T').

[18] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J).

[21] (2011) 245 CLR 1 ('Momcilovic').

[22] Ibid 222-223 (Crennan and Kiefel JJ)

[25] See Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51.

[27] (1982) 7 ACLR 202.

[29] Charter of Human Rights and Responsibilities Act 2006 s 33(2)(a).

[30] The Attorney-General referred to Kracke v Mental Health Review Board (2009) 29 VAR 1, [250] and Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, [37].

[31] Victoria Police Toll Enforcement v Taha [2013] VSCA 37; (2013) 49 VR 1, 80-81 [246], [248] (Tate JA); Cemino v Cannan & Ors (2018) 56 VR 480, 513 [106], 514-515 [110].

[32] [2012] VSCA 25; (2012) 34 VR 206.

[33] Ibid [28] (Warren CJ, Nettle and Redlich JJA).

[34] House v The King (1935) 55 CLR 499, 504-5.

[36] City of South Melbourne v Hallam & Anor [1995] VicRp 17; [1995] VR 247, 258 (Tadgell J).

[37] The Attorney-General referred to the cases of Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 and Broken Hill Proprietary Company Ltd v Dagi [1996] VicRp 62; [1996] 2 VR 117 on this point.

[39] Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 23 April 1998, 1182.

[40] Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 23 April 1998, 1183.

[42] [2004] HCA 41; (2004) 220 CLR 181.

[43] Ibid 188 (citations omitted). The Tribunal also referred to McGinty v Western Australia (1996) 186 CLR 40, 183.

[45] On this point he relied on Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162.

[47] [2007] HCA 43; (2007) 233 CLR 162.

[48] Applicant's submissions in proceeding number S ECI 2018 02372, [49].

[49] (1976) 12 ALR 239.

[50] Ibid 242. The Attorney-General also referred to Sunol v Collier [2012] NSWCA 14, [9] and Porter v Multigroup Distribution Services Pty Ltd [2000] VCAT 2647.

[51] De Simone [2010] VSCA 231; (2010) 30 VR 200, at 208-9 [35]-[36].

[53] Local Government Bill 2018 (Amended print at 22/6/2018) cl 314(2); T 69.

[54] Applicant's submissions in proceeding number S ECI 2018 02372, [39].

[55] See the general principles discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 [69] and P Herzfeld and T Prince, Statutory Interpretation Principles - The Laws of Australia, (Thomson Reuters, 2014), 97-100.

[56] P Herzfeld and T Prince, Statutory Interpretation Principles - The Laws of Australia, (Thomson Reuters, 2014), 97-100, 242-244.

[57] Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162, 186 [43] (Gummow, Kirby and Crennan JJ).