1. At issue is whether Mr Benjamin Smits was eligible to nominate for election in the Ward.

1. Until 30 July 2016 Mr Smits' principal place of residence was in Mt Alexander Road which is within the City, but outside the Ward[2].

1. The voters' roll for the election was compiled on 26 August 2016. Using the language of the legislation this was the "entitlement date" - the date Mr Smits is taken to have claimed to be entitled to enrol as a voter. By 26 August 2016 (and on 20 September 2016, when he lodged his nomination form for election) Mr Smits' principal place of residence was in Mirams Street, which is within the Ward.

1. Accordingly, as at 26 August 2016, the "entitlement date", Mr Smits had lived within the Ward for less than a month. Section 22(1) of the Electoral Act 2002 says that a person is enrolled at the address which has been their principal place of residence for at least one month immediately before their claim for enrolment.

1. Ms Iser was another candidate in the election in the Ward. In a proceeding in the Municipal Electoral Tribunal[3], she obtained a declaration that Mr Smits was ineligible to nominate for the election.

1. I gather that this resulted in the votes cast for him being recounted on the basis of each voter's next preference, and that whilst the recount has occurred the results are effectively sealed pending the outcome of this VCAT proceeding.

1. The Municipal Electoral Tribunal held that Mr Smits was ineligible because the combined effect of provisions of the Local Government Act 1989 and the Electoral Act 2002 was that to be eligible to nominate for the election in the Ward Mr Smits had to have lived in the Ward for at least one month before the entitlement date.
2. The Victorian Electoral Commission ("VEC") has sought a review of the Municipal Electoral Tribunal's order. The VEC seeks to ensure that the relevant statutes are properly applied and that the integrity of the electoral roll is maintained. Whilst I will expand on the VET's position, in essence it says that the voters' roll is conclusive. Whilst there are mechanisms elsewhere for a person who claims to be entitled to vote to be challenged (and which were not used in relation to Mr Smits), it is sufficient for Mr Smits to have been registered in Mirams Street on the entitlement date.

1. Mr Smits has chosen not to participate in this proceeding[4].

1. The review raises issues about the relationship between the Local Government Act 1989 and the Electoral Act 2002. Clearly the issue of whether a person's entitlement to vote can be challenged after the voters' roll has been prepared, or whether the challenge must be made beforehand, is of long standing. The legislation has also been amended many times and the relevance of old authorities is somewhat diminished.

1. Affidavits were filed by the VEC in the Municipal Electoral Tribunal proceeding, referring to the information kept by the Commission and exhibiting documents such as the voters' roll for this election.

1. In her affidavit affirmed 13 January 2017 in the Municipal Electoral Tribunal proceeding, Melanie Jane Davidson of the VEC deposed to the way in which the voters' roll for a local government election is compiled, and the procedures under the Electoral Act 2002 for people to enrol as an elector, and for people to object to another person's enrolment. Ms Davidson is the Registrar for the municipal voters' rolls in respect of all local government elections other than for those of the Melbourne City Council. There are several defined terms in the legislation but if I may simplify the language without departing from the legislation, the scheme of the legislation is as follows:

(a) Voting is compulsory. Australian citizens who attain the age of 18 must enrol to vote. When a citizen enrols in Victoria with the VEC, he or she gives their name and address, and they are enrolled for that address.

To be accurate, Ms Davidson deposes, at paragraph 6: "A person is qualified to be enrolled as an elector for an address in Victoria, and be included on the electoral register, once the Victorian address for which the

person is claiming their entitlement has been the person's principal place of residence for at least one month immediately before the person's claim (see section 22(1) of the Electoral Act)"[5].

The address dictates the electorate in which they vote. This information is collected by the VEC in the "register of electors" (also called the "electoral register"). The information may be shared between the VEC and its Federal counterpart, the Australian Electoral Commission ("AEC"). Because people's circumstances change between elections (for example, people might move, die, or attain the age of 18) information must be updated. If an elector updates their information with the AEC, the information-sharing arrangement will cause the updated information to be recorded by the VEC in the register of electors.

(b) Victorians who are citizens vote in local government elections, Victorian State elections, and Federal elections. Leaving aside the arrangements for voting in the Legislative Council and Senate, each citizen's address will be in a Ward, a State electorate (in respect of the Legislative Assembly) and a Federal electorate (in respect of the House of Representatives).

(c) Because both State and local government elections can be held on dates that cannot be predicted, at a time which is appropriate for each election a voters' roll for that election must be compiled. In respect of local government elections, the voters' roll is compiled on the day 57 days before the election. That day is called the "entitlement date". Compiling the voters' roll on the entitlement date enables the voters' roll to be up to date for any given election. The voters' roll is not an ongoing register like the electoral register, but is only compiled for an election.

(d) The data in the voters' roll for a local government election comes from the "roll of electors for the Legislative Assembly". Ms Davidson deposes, at paragraphs 10 - 12, how the voters' roll is prepared by extracting data from the roll of electors for the Legislative Assembly: "The compilation of the voters' roll is provided by s24 of the Local Government Act. As Registrar, I receive and process [data from the roll of electors for the Legislative Assembly] and minimise any manual intervention. The Local Government Act does not require any further assessment in relation to the currency of

the data, including, for example, the residency status of electors enrolled in accordance with the Electoral Act and section 12 of the Local Government Act". Of course, Ms Davidson is here deposing to the steps that are taken, not definitively as to the meaning of the legislation. If she was the arbiter of the meaning of the legislation, her words "enrolled in accordance with the Electoral Act" would seem to signify the need for a person to be validly enrolled.

1. In his affidavit affirmed 13 January 2017 Keegan Bartlett of the VEC exhibited Mr Smits' Nomination Form dated 20 September 2016[6]. Mr Bartlett is a Program Manager employed in the VEC. Nomination Forms are printed forms which have spaces to be 'filled in'. Once completed, they contain declarations by the candidate, witnessed by the returning officer, and they warn of the penalties for a false declaration and unlawful nomination.

1. The Nomination Form has a space for the candidate to insert their "Address on the voters' roll", "Residential address (if different from above)" and "Postal address (if different from above)". This recognises, then, that the first two addresses might be different.

1. Mr Smits completed only the "Address on the voters' roll", thus conveying that his residential and postal addresses were also the same. Accordingly Mr Smits declared that, on 20 September 2016, his address on the voters' roll was in Mirams Street (ie within the Ward).

1. There is no text in the printed Form, or any empty space, which calls for the candidate to insert their address as at one month before the entitlement date. As a person would only nominate for election after an election was called, it would not be oppressive to require candidates to provide this information.

1. Page 2 of the printed Form contains printed declarations, which the candidate makes by "ticking" them and then signing the document in the presence of the Returning Officer. The declarations include that the candidate has read and understood sections 28, 28A, 28B, 29, 30, 52(2), 70(2), 70(2A), 70(3), 70(4) and 70(5) of the Local Government Act 1989; and the more generally expressed declarations that the candidate is "qualified to be a candidate under the Local Government Act 1989", "capable of becoming a Councillor under the Local Government Act 1989", and is "aware that it is an offence under the under the Local Government Act 1989 for a person who is not qualified to be a candidate and is not capable of being a Councillor to submit a nomination form".

1. Thus Mr Smits' declarations did not refer specifically to section 22(1) of the Electoral Act 2002, or to sections 12 or 24 of the Local Government Act which are referred to by Ms Davidson, but by referring to his qualification and capability to be a Councillor, the general declarations at least allude to them[7].

(a) 30 July 2016: For a period up to, and then including, this date, Mr Smits had lived within the City, but outside the Ward. Some time after this date, and by 26 August 2016, he moved to Mirams Street which is an address within the Ward.

(b) 26 August 2016 was the "entitlement date", 57 days before the election[8]. On this date the voters' roll for the election was compiled. At this date Mr Smits' principal place of residence was Mirams Street, within the Ward, and he was on the voters' roll for the Ward[9].

How the roll came to record Mirams Street as Mr Smits' address on 26 August 2016 is somewhat obscure on the evidence available to me. Section 23(1) of the Electoral Act 2002 requires an elector who changes address to notify the AEC within 21 days. In her Affidavit affirmed 13 January 2017 Ms Davidson does not refer to Mr Smits giving this notice in July or August 2016, or lodging the proper "Form D" at all, but in the context of referring to Ms Iser objecting to Mr Smits' enrolment in October 2016 she exhibits at MJD 8 a copy of Mr Smits' drivers licence showing the Mirams Street address, but unfortunately not showing the date on which that address began[10], and an extract from a real estate agents' document in which joint tenants may record a change of shared tenancy, which has been completed to the effect that Mr Smits and another tenant were vacating Mount Alexander Road on 30 July 2016. Ms Davidson deposes that the VEC received these documents from Mr Smits in November 2016.

(c) 20 September 2016 was the day Mr Smits lodged his nomination form for election[11]. In the form he stated that his principal place of residence was Mirams Street, the address within the Ward.

(d) 22 October 2016 was election day. The "election period" ended at 6.00pm on 22 October 2016.

(e) 24 October 2016 Mr Smits returned to his employment from leave[12].

(g) 3 November 2016 the election result was declared.

1. Whilst I will not refer to all the authorities that the parties mentioned, I note that I have examined all of the contents of the Tribunal book dated 13 June 2017 (141 pages which includes the parties' written submissions) and the joint list of authorities and legislation also dated 13 June 2017 (45 tabs) and that I have considered the very thorough oral submissions made by the parties in the hearing.

1. I do not propose to set out all of the parties' respective submissions in this decision.

1. Whilst the Local Government Act 1989 speaks of the "voters' roll" by reference to the "roll of electors for the Legislative Assembly", that roll is prepared under the Electoral Act 2002, and there is no provision in either Act that says definitions in one apply in the other.

1. In setting out my reasons I seek to exclude extraneous detail. One may be enrolled on the voters' roll as a resident or as a ratepayer (eg a company which owns rateable property). Mr Smits nominated for election as a resident, and I leave aside the provisions on ratepayers. The parties have also taken me through the many amendments to the Local Government Act over the years, and to aspects of Second Reading Speeches and Explanatory Memoranda, but whilst there are circumstances in which extraneous material can assist in the construction of statutes, I am not so assisted in this proceeding and I will not refer to them.

1. I have also sought to simplify the language. For example, whilst the Local Government Act is concerned with whether Mr Smits was a resident of the City, the Electoral Act uses words such as "lived at an address in Victoria that is the person's principal place of residence". If I describe Mr Smits as a "resident" I am not seeking to stray from the legislation. The same applies if I speak of a voter being "automatically enrolled" instead of saying "enrolled without application".

1. Section 28 of the Local Government Act 1989 deals with a person's qualification to be a Councillor - to stand for election and to remain a Councillor if elected[13].

1. Section 28(1) says:

A person is qualified to be a candidate for the office of Councillor if he or she has an entitlement referred to in section 11.

1. Section 28(1A) says:

A person is qualified to become and continue to be a Councillor at a particular time if, were that particular time the entitlement date and a voters' roll prepared, subsection (1) would apply to that person.

1. In other words, under section 28(1A) in order to continue to be a Councillor once elected, a Councillor must continue to have an entitlement referred to in section 11.

1. Section 28(1AA) applies to residents[14]. It says:

For the purposes of subsection (1A), if the only entitlement that a person has is an entitlement to be enrolled as a resident of the municipal district, the person ceases to be qualified to continue to be a Councillor at a particular time if at that particular time the person's principal place of residence is not located within the municipal district. (emphasis added; again, the City - and not the Ward - is a "municipal district").

1. In other words, under section 28(1AA) a Councillor who was entitled to vote as a resident, but who ceased to be a resident of the City, could not continue to be a Councillor. The subsection does not mean 'ceases to be a resident of the Ward'. This is not surprising given that elected persons are City Councillors, not councillors of their Ward.

1. Section 11(1) says:

A person can only be enrolled on the voters' roll of a Council if the person is a resident in the municipal district of the Council or a ratepayer to the Council exercising an entitlement under and in accordance with this Division.

1. In other words, residents of the City are automatically on the voters' roll.

1. Again, whilst being a resident or being a ratepayer are distinct ways of being able to be enrolled, I am not dealing with ratepayers. Some ratepayers are automatically on the roll [s11(5)(a)] but some ratepayers must apply to be enrolled [s11(5)(b)]. Section 11(5) says:

A person can only be enrolled on the voters' role if -

(a) the person has an entitlement as a resident or ratepayer to be enrolled without application as at the entitlement date; or

(b) the person is entitled as a ratepayer to apply to be enrolled and the application [is made in proper form and accepted].

The VEC says that Mr Smits fell within section 11(5)(a), being a resident who was automatically on the roll ("enrolled without application").

1. The legislation seeks to use the electoral roll compiled for the Legislative Assembly as the basis of the voters' role for the Ward. Section 12 is headed "Residents entitled to be enrolled without application", and says:

(1) A person who on the entitlement date would be an elector in respect of an address in a ward if a roll of electors for the Legislative Assembly was compiled from the register of electors, is entitled as a resident without application to be enrolled on the voters' roll in respect of that address. [emphasis added]

1. The VEC submits that there is no anomaly arising from section 12(1) saying "ward" and sections 11(1) and 28(1AA) saying "municipal district". It says the electoral roll for the Legislative Assembly is not concerned with local government wards: State electorates are entirely different areas. The VEC submits that section 12(1) simply reflects the fact that in local government elections, voters vote in wards.

1. Similarly, the VEC submits that section 12(1) says "if a roll of electors for the Legislative Assembly was compiled" in recognition of the fact that there will be a different entitlement date for each election.

1. I must say, though, that the VEC's submission ignores the words in section 12(1) "would be an elector in respect of an address in a ward". As an expression of the future, "would be" might be used in section 12(1) in recognition of the fact that there will be a different entitlement date for each election. However, as Ms Davidson deposed, a person is qualified to enrol as an elector for an address in Victoria, and be included on the electoral register, once the Victorian address for which the person is claiming their entitlement has been the person's principal place of residence for at least one month immediately before the person's claim. So, the words "would be" not only contemplate that there will be entitlement dates from time to time, but also that a person can validly become an elector in respect of different addresses from time to time.

1. Section 22(1) of the Electoral Act 2002 says:

A person who is qualified to enrol as an elector for the (Legislative) Assembly and (Legislative) Council under the Constitution Act 1975 and has lived at an address in Victoria that is the person's principal place of

residence for at least one month immediately before the date of the person's claim for enrolment as an elector is entitled in respect of living at that address to enrol on the register of electors.

1. Section 22(1) deals with two concepts: being qualified to enrol as an elector (for example, by being a citizen aged at least 18 years), and being enrolled at a particular address. The words "entitled in respect of living at that address to enrol" reflect the presence of different electorates, and electors living (and voting) in their own electorate.

1. The words "qualified to enrol" in section 22(1) of the Electoral Act and "would be an elector" in section 12(1) of the Local Government Act are consistent in that both refer to persons entitled to vote.

1. The difficulty with section 22(1), in relation to Mr Smits, is the word "immediately". If I break down section 22(1) and apply it to Mr Smits, it shows that the words "for at least one month immediately before the entitlement date" simply do not work for him: whilst immediately before the entitlement date he lived in Mirams Street, he had not lived there for a month; and alternatively whilst he lived at Mount Alexander Road for at least a month, he did not live there immediately before the entitlement date.

1. If you could construe section 22(1) by deleting "immediately" Mr Smits would be entitled to enrol in respect of Mt Alexander Road, which is not within the Ward. He would be ineligible to enrol in the Ward.

1. Alternatively, if you could construe section 22(1) by deleting "for at least one month" Mr Smits would be entitled to enrol in respect of Mirams Street, but I must say that deleting those words would do real violence to the section.

1. If you could construe section 22(1) of the Electoral Act by deleting the word "immediately", and turned your attention to section 12(1) of the Local Government Act as if it specifically applied to Mr Smits, and was drafted for the specific Moonee Valley City Council election on 22 October 2016, it would say:

A person [Mr Smits] who on the entitlement date [26 August 2016] would be an elector in respect of an address in a ward [Mt Alexander Road] if a roll of electors for the Legislative Assembly was compiled from the register of electors, is entitled as a resident without application to be enrolled on the voters' roll in respect of that address [Mt Alexander Road].

1. Alternatively, if you could construe section 22(1) by deleting "for at least one month", and turned your attention to section 12(1) of the Local Government Act as if it specifically applied to Mr Smits, and was drafted for the specific Moonee Valley City Council election on 22 October 2016, it would say:

A person [Mr Smits] who on the entitlement date [26 August 2016] would be an elector in respect of an address in a ward [Mirams Street] if a roll of electors for the Legislative Assembly was compiled from the register of electors, is entitled as a resident without application to be enrolled on the voters' roll in respect of that address [Mirams Street].

1. Again though, deleting "for at least one month" would not be "construing" section 22(1) of the Electoral Act, it would be redrafting it.

1. It follows that on a plain reading of the legislation, Mr Smits was ineligible to nominate for election in the Ward.

1. I turn to the VEC's submissions that the roll of electors for the Legislative Assembly is conclusive, to see if any of the ways it was put persuades me that the plain reading of the legislation is incorrect.

Section 12

1. The submission is that having regard to the heading of section 12 of the Local Government Act, "Residents entitled to be enrolled without application", the purpose of the section is to convey that a person who is on the role of electors for the Legislative Assembly is automatically on the voters' roll for local government elections.

1. Section 12 (1) does not have additional words, that is, it does not say "A person who on the entitlement date would be an elector in respect of an address in a ward if a roll of electors for the Legislative Assembly was compiled from the register of electors and the person complies with section 22 of the Electoral Act, is entitled as a resident without application to be enrolled on the voters' roll in respect of that address".

1. I reject this submission. You cannot emphasise the heading over the words of the section. The absence of a specific requirement of compliance with section 22 is irrelevant because section 12(1) itself refers to a person's entitlement to be registered at their address.

Section 24(2)

1. In addition, section 24(2) of the Local Government Act which deals with preparation of voters' rolls, says:

The Registrar must compile a voters' roll containing the prescribed particulars of persons entitled to be enrolled as at the close of the role from -

(a) a roll of electors for the Legislative Assembly compiled from the register of electors in accordance with s12 ...

1. VEC admitted that by compelling the Registrar to adopt the roll of electors for the Legislative Assembly, it prevents the Registrar from excluding anyone on that roll, such as Mr Smits in this case.

1. The roll of electors for the Legislative Assembly is maintained under the Electoral Act, and not under the Local Government Act. There are detailed provisions in the former relating to objections to persons being enrolled, but there are no such provisions in the latter. Whilst section 24A of the Local Government Act provides that

(1) A voters' roll may be amended by the Registrar if -

(a) there is any error in the preparation, printing or copying of the voters' roll; or

(b) there is any misnomer or any inaccurate description of any person, place or thing on the voters' roll ...

that does not specifically refer to incorrect addresses.

1. VEC admitted that the power to amend the roll does not confer a power to remove an elector from the roll. Division 4 of the Electoral Act deals with objections to enrolment, requires the person who is the subject of the objection to be advised of it and to be given an opportunity to respond; provides for the VEC to determine the objection and for an appeal to VCAT from the VEC's determination. The Local Government Act does not contain these sorts of important machinery provisions, which suggests that the legislative scheme is that objections must be dealt with under the Electoral Act.

1. I am not persuaded by this submission. The power to amend is enlivened if there is any inaccurate description of any person or place, which is directly relevant to Mr Smits' situation. As Mr Smits had not been living in Mirams Street for at least a month before the entitlement date, the inclusion of that address is both an inaccurate description and something which disqualified him to nominate for election in the Ward under section 22(1) of the Electoral Act. An amendment based on these matters would have to include removing Mr Smits from the voters' roll. A less important inaccuracy (say, Mr Smits giving Mirams Street as his address when he actually lived elsewhere in the Ward) would lend itself to a different amendment, correcting his address but not his removal.

1. I also question whether the VEC's characterisation of this issue as a debate about Mr Smits being removed from the roll, rather than being about Mr Smits' entitlement to nominate, miscasts the issue.

Local Government Act, Schedule 2 clause 6

1. In its Application for review, the VEC stated that the Local Government Act "does not specify that a candidate can only nominate for the ward in which he or she resides, despite entitlement as a voter being restricted to voting in one ward of the municipal district. The entitlement to qualify as a candidate is provided for in sections 28(1), 28(1A), 28(1AA) and Schedule 2 clause 6, which refer to being a resident within the municipal district, not within a particular ward".

1. I have dealt with sections 28(1), 28(1A), 28(1AA) above and I do not consider that the VEC has made the correct submissions in relation to these provisions, because the submission ignores section 12(1) of the Local Government Act.

1. Schedule 2 clause 6(1) is somewhat similar in intent to section 24A of the Local Government Act, in that it says:

A person is not eligible to be a candidate for election if -

(a) the nomination form is not properly completed; or ...

1. Whilst clause 6(2)(b) says that the returning officer can only reject a nomination if "clause 5 has not been complied with", it seems to me that Mr Smits did not comply with clause 5.

A candidate must be named in a nomination form by specifying the surname and the given name, ... and the address under which the candidate is on the voters' roll.

1. Accordingly clause 5(2) refers back to s22(1) of the Electoral Act which says a person who is qualified to enrol as an elector and has lived at their principal place of residence for at least one month immediately before the entitlement date is entitled in respect of living at that address to enrolled. As Mr Smits had not lived at Miram Street for a month before the entitlement date, he did not comply with clause 5(2).

1. In re Hollins, Ex parte Daly [1912] ArgusLawRp 1; [1912] VLR 87, Cussen J dealt with a challenge to the outcome of a local government election, brought on the basis that some underage persons had managed to vote. Broadly speaking, it is apparent that the basic mechanism for that election was similar to current local government elections: under the Local Government Act 1903 the municipal clerk made the voters' list, advertised that it was available for inspection, dealt with objections, and after all objections have been heard by the Revision Court, issued and printed a certified roll, and then the election took place. At page 91 Cussen J said the question he had to decide was whether, having regard to the fact that the allegedly underaged persons' names were on the printed roll, the roll "can be opened either by the returning officer or his deputy at the election or by (the Supreme) Court afterwards by an application for ouster". His Honour pointed to contradictory passages in sections 119 and 120 of the Local Government Act 1903, the former saying that every person of full age was entitled to vote, and the latter saying that every person whose name was inscribed on the roll shall be entitled to vote. On its face section 120 was to the effect that the roll was exclusive.

1. His Honour noted the difficulty of discerning Parliament's intention from the words used in the 1903 Act, but said at page 93 that great practical difficulties could be encountered if the voters' roll could be interfered with after it had been certified. His Honour considered a range of authorities and concluded that they did not compel him to arrive at a conclusion that was different from that which arose from the Act itself. His Honour found that section 120 dictated the outcome, that the roll was conclusive even if it contained an error, saying at page 97 that he appreciated all the difficulties which his decision may occasion, but thought that more difficulties would occur if he came to the contrary conclusion. The challenge to the outcome of the election was lost.

1. The effect of His Honour's decision was that whilst a person's entitlement to vote could be challenged, it had to be challenged in the right way, which was before the roll was certified.

1. In my view it is significant that Cussen J quoted s79(4) of the 1903 Act as saying that persons on the voters' list "were presumed to have been of full age", whereas under the current Act there is no statement of a presumption of validity.

1. In re Berrill's Petition [1976] HCA 50; (1976) 134 CLR 470, a self-represented litigant sought a declaration that no candidate for the Senate election of 1975 in South Australia had been duly elected, on the basis that many people had been wrongly removed from rolls of electors.

1. In my view this case is not of assistance in that Gibbs J said that the Commonwealth Electoral Act 1918 "clearly forbids the Court to enquire into the correctness of any roll", and Stephen J quoted section 190 of that Act which said, "... the Court shall not enquire into the correctness of any roll". Stephen J said that section 190 precluded the Court from entering into the enquiry upon which the petitioner's case depended. Stephen J noted that enrolment may be claimed as a right by those who are qualified, and that Registrars are required to give effect to valid claims, but that there was a mechanism for challenging claims for enrolment and removing persons from the roll. In a similar way to Cussen J's comment about practicality, Stephen J said, "Any electoral system which, instead of providing a means of putting the electoral rolls in order before an election, allows alleged errors in those rolls to ground an attack upon the validity of the subsequent election exposes to risks of dislocation the democratic process which it is designed to serve". (emphasis added).

1. I do not think that it could be said that the words "instead of" apply to the Victorian legislation, and I note that the Victorian legislation does not contain the clear exclusionary words of s190 of the Commonwealth Electoral Act 1918.

1. For the above reasons I agree with the conclusion of the Municipal Electoral Tribunal that Mr Smits was ineligible to nominate for the election, and I refuse the VEC's application for review of its decision.

[1] Section 3 of the Local Government Act 1989, definitions of 'municipal district' and 'ward'.

[2] This was a finding of fact by the Municipal Electoral Tribunal, based on Mr Smits' evidence.

[3] G13175134 Rose Mary Iser v Victorian Electoral Commission and Benjamin Smits.

[4] Mr Smits was notified of this VCAT proceeding and chose not to participate. At the hearing before me the Commission sought an order joining him, and stated that it would not seek an order for costs against him on any outcome, but I declined to join him. It seemed to me that as he had been given the opportunity to become a party to this VCAT proceeding and had elected not to do so, it would be unfair to join him. In addition, in substance he would be bound by the outcome of this VCAT proceeding without being a party, whereas if he was joined as a party, he would have standing to seek leave to appeal even though he had not participated in the VCAT proceeding.

[5] In quoting from affidavits (round brackets) denote text in the affidavit, and [square brackets] denote paraphrasing I have inserted.

[6] Exhibit KSB1 to the affidavit affirmed 13 January 2017.

[7] The nomination form also contains a note to candidates which says "Candidates are obliged to follow the law and should familiarise themselves with the contents of the Candidate Handbook ".

[8] Section 3 of the Local Government Act 1989: entitlement date means the day that is 57 days before the election day.

[9] Exhibit KSB1 to the Affidavit of Keegan Scott Bartlett affirmed 12 May 2017.

[10] The licence expires on 12 May 2017 and there is no suggestion that he lived in Mirams Street when the licence was issued presumably in 2007.

[11] The same document is Exhibit KSB1 to the Affidavit of Keegan Scott Bartlett affirmed 13 January 2017 and KSB3 to the Affidavit of Keegan Scott Bartlett affirmed 12 May 2017.

[12] Ms Iser made the factual point in the VCAT hearing that Mr Smits was an employee of the City, who took leave during the election. This had not been raised in the Municipal Electoral Tribunal proceeding. However Ms Iser did not contend that it was relevant to his eligibility to nominate.

[13] Defined in s3 of the Local Government Act - a person who holds the office of a member of a Council.

[14] As I said, a person can be entitled to be enrolled on the voters' role either by being a resident or a ratepayer but I am not concerned with the latter in this proceeding.