Victorian Electoral Commission v Municipal Electoral Tribunal and Yee (Review and Regulation) (Corrected) [2017] VCAT 1910

1. Under section 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998, the decision of the Respondent dated 30 June 2017 to declare the election held on 22 October 2016 for the Koonung Ward of the City of Manningham void is set aside.

1. On 22 October 2016, an election was held for the Koonung Ward of the Manningham City Council. Ms Yee was one of seven candidates seeking election. She was an unsuccessful candidate.
2. On 30 June 2017, following a challenge made by Ms Yee to the Municipal Electoral Tribunal, ("the MET"), the MET declared the election held in the Koonung Ward of the City of Manningham to be void under s. 46(1)(c) of the Local Government Act 1989, ("LGA"), and ordered that a further election for the Ward of Koonung be held in accordance with s. 46(4) of the LGA.
3. The basis for the decision of the MET was threefold:

(a) the public Notice required to be published under section 23A(5) of the LGA ("the s. 23A Notices") effectively failed to properly inform, or may have actively misled, noncitizen resident ratepayers as to their eligibility to be enrolled to vote;

(b) such voters were effectively prevented from voting; and

(c) on the balance of probabilities the outcome of the election was affected in that the election could not be said to have resulted in a free and fair election of the candidates preferred by the majority of voters.

1. On 3 July 2017, the Victorian Electoral Commission, ("the VEC"), sought that this Tribunal review that decision under s. 48 of the LGA.
2. The MET took a Hardiman-style position and did not actively participate in the proceedings, other than to provide the Tribunal with its file.
3. Ms Stella Yee, however, was joined as a party to the proceedings under s. 60 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") on 17 July 2017. She acted as contradictor in the proceedings. As the original applicant to the MET for an inquiry, she was well equipped to do so.
4. Cr Mike Zafiropoulos, who was a successful candidate in the October 2016 Elections, also sought to be joined and was joined as a party to the proceedings on 1 August 2017.
5. The matter proceeded to hearing before me on 28 September 2017.

1. Ms Yee contended that the MET decision with respect to the Koonung Ward should be upheld; and further that I should declare the election void in respect of the 2 other Council Wards in the City of Manningham, namely Heide and Mullum Mullum. Ms Yee contended, that as a candidate for election in the City of Manningham, she was an eligible person to make an application for an Inquiry in relation to each of the wards in the municipality.
2. The VEC submitted that I did not have the jurisdiction to make the orders sought by Ms Yee in relation to the Wards of Heide and Mullum Mullum.
3. The VEC contended that:

(a) the original application for an Inquiry made by Ms Yee to the MET was confined in its ambit to a challenge to the validity of the election for the Koonung Ward;

(b) s.45(1)(a) of the LGA limits the persons who may make an application to the MET for an Inquiry to (relevantly), a candidate for that election. Ms Yee as a candidate for the Koonung Ward was not a candidate for the election in either of the Wards of Heide and Mullum Mullum; and

(c) in any event Ms Yee has not sought to review the decision of the MET within the 7 day review period specified in section 48(3) of the LGA .

1. Ms Yee's application to the MET for an Inquiry was headed:

"A request for Inquiry by Municipal Election Tribunal into recent council election for the City of Manningham".

1. The detail provided within Ms Yee's application did not limit the request to the Koonung Ward. It referred specifically to The City of Manningham. The impugned s. 23A Notice also covered each of the Wards in the Manningham City Council elections.
2. Nevertheless, it is clear, that the MET interpreted Ms Yee's application for an Inquiry as being limited to an application for an Inquiry into the election in the Koonung Ward.
3. This is evidenced by the fact that:

- documentation and correspondence sent by the MET to Ms Yee made reference only to the Koonung Ward;

- the orders of the MET only declared void the election held on 22 October 2016 for the Koonung Ward of the City of Manningham;

- the Reasons for Decision of the MET refer only to the election held in the Koonung Ward; and

- the decision of the MET only affected the outcome of the Ward of Koonung election.

1. Section 45(1) of the LGA identifies the persons eligible to make an application for an Inquiry. It reads as follows:

(1) within 14 days of the declaration of the result of an election-

(a) a candidate in that election who disputes the validity of the election;

may apply for an inquiry into the election by a municipal electoral tribunal.

1. Ms Yee was clearly an eligible person to make an application for an Inquiry as a candidate in the election for the Ward of Koonung who "disputes the validity of the election" .
2. "Election" is not defined in the LGA.
3. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 the majority of the High Court said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole".

"ward means a subdivision of a municipal district and includes a riding".

5B Constitution of Council

(2) a Council may be constituted so that it consists of:

(a) only councillors elected to represent the municipal district as a whole; or

(b) only councillors elected to represent individual wards into which the municipal district is divided.

1. Ms Yee was not a candidate standing to represent the municipal district as a whole. She was a candidate standing to be elected to represent the individual ward of Koonung.
2. Ms Yee was not a candidate for election in the wards of Heide and Mullum Mullum. They were separate elections.
3. Section 45(1)(a) gives the right to apply for an Inquiry to a candidate in "that election"
4. On a plain reading of the section the use of the word "that" appears to restrict the term "election" to the election in which the candidate was a candidate.
5. If s. 45(1)(a) were construed more broadly than the interpretation I have given to it, Ms Yee could, hypothetically without even challenging the result in her own Ward, seek, as she now does, to challenge the result of an election in other wards.
6. There is nothing in the LGA to suggest that it was the intention of the legislature that the MET or this Tribunal should have the jurisdiction to declare the entirety of a municipal election void on the application of a candidate for election in a different ward.
7. I agree with the submission of the VEC that I should interpret s. 45(1)(a) of the LGA as enabling only a candidate for the particular ward to apply for an Inquiry into the election.
8. I am satisfied that Ms Yee was not able to make an application for an Inquiry to the MET in relation to the Heide and Mullum Mullum elections. She cannot then seek to expand the jurisdiction on review before this Tribunal.
9. In any event, I also agree with the submission of the VEC that Ms Yee did not raise this issue until filing her written submissions on 11 September 2017. She has never herself made an application to this Tribunal to review the decision of the MET, which confined itself to the Koonung ward. Under s. 48(3) of the LGA, such an application, had Ms Yee wished to make it, needed to have been made within 7 days of the copy of the decision being given to the parties to the application. It was not.

1. I am satisfied that this review is accordingly limited in its scope to a review of the decision of the MET made on 30 June 2017 in relation to the election held in the Koonung Ward in the City of Manningham.

Did the public notice comply with Section 23A(5) of the LGA?

1. The first issue for my consideration is whether or not the Notices required to be published under s. 23A (5) of the LGA were defective. The impugned Notice is attached to these reasons.
2. Section 23A(5) states[1]:

(5) the registrar must at least 10 days before the entitlement date publish a public notice stating-

1. The registrar is defined in s.3 of the LGA to mean the Electoral Commissioner or a person appointed in writing by the Electoral Commissioner who is appointed under the Electoral Act 2002.
2. "Public notice" is also defined in s. 3 of the LGA. It means, (relevantly), a notice published in a newspaper generally circulating in the municipal district of the council chosen for the purpose by the registrar.
3. The VEC is responsible for conducting elections and polls under the LGA. (LGA Schedule 2, clause 1). The s. 23A Notice was published by the VEC within the timeframe required under the LGA.
4. On 8 August 2016 the VEC caused the s. 23A Notice to be published in the Manningham Leader newspaper
5. On 6 August 2016, the VEC caused the s. 23A Notice to be published in the Age newspaper in a text-only version.
6. Section 23A was inserted into the LGA by s. 11 of the Local Government Democratic Reform Act 2003 (Vic). The explanatory memorandum stated (at 6), that the provision "provides for notifications in regard to the electoral rolls... Public notice must be given in relation to enrolment rights and applications"
7. It was contended by Ms Yee that the s. 23A Notice failed to state fully and properly who could apply to enrol to vote in the election and how they could so apply.
8. Me Yee contended that the s.23A Notice:

- was misleading in that it gave the impression that only citizens must enrol to vote by 4pm on 26 August 2016;

- was misleading in emphasising that citizens could check their enrolment but not making it equally clear that noncitizen resident ratepayers could also check their enrolment;

- did not inform all persons with an entitlement to enrol to vote that they may enrol and how they may do so, in particular those persons who are resident ratepayers and not citizens, (the noncitizen resident ratepayer);

- wrongly delegated to the Council the task of informing persons not on the roll but who pay rates to the City of Manningham about whether they may be enrolled or entitled to apply to be enrolled with the Council.

1. The VEC contended, as did Cr Zafiropoulos, that the published Notice complied with s. 23A(5) of the LGA and did properly inform all voters, including noncitizen resident ratepayers of the matters required under s. 23A(5) of the LGA.
2. I turn then to an examination of each of the components of s. 23A (5) in the context of the impugned Notice.

Did the s. 23A Notice state (a) the entitlement date?

1. The entitlement date is 57 days before the date of the elections (s. 3 LGA). There was no dispute between the parties that the entitlement date was 26 August 2016, the election date being 22 October 2016.
2. The entitlement date appears 4 times on the s. 23A Notice. It appears in clear bold letters stating "Enrol before 4.00pm on Friday 26 August 2016". It also appears under the headings: "You must be enrolled to vote" and "How do I enrol?"
3. I am satisfied that the public s. 23A Notice stated the entitlement date.

Did the s. 23A Notice state:- (d) when the voters' roll will close?

1. The close of the (voters') roll is 4pm on the entitlement date (s. 24(1) LGA).
2. Once again, the time of close of the voters' roll appears 4 times on the s. 23A Notice. It appears in clear bold letters stating "Enrol before 4.00pm on Friday 26 August 2016".
3. It also appears under the headings "You must be enrolled to vote" and "How do I enrol?"
4. I am satisfied that the public s. 23A Notice stated when the voters' roll would close.

Did the s.23A Notice state (e) who can apply to enrol?

1. In council elections there are numerous entitlements relating to enrolment set out in Division 1 of Part 3 of the LGA. Some residents are entitled to be enrolled without application (s. 12 LGA). Some owner ratepayers are entitled to be enrolled without application (S. 13 LGA). Some owner ratepayers may apply for enrolment (S. 14 LGA). Some occupier ratepayers may apply to be enrolled (s. 15 LGA). Some corporations may be able to apply to appoint a person to represent the corporation at council elections (s. 16 LGA).
2. For some categories of voters, enrolment is automatic. Others must apply to be enrolled. For some categories of voters, voting is compulsory. For other categories of voters, voting is optional. The provisions in the LGA relating to enrolment entitlements are not straightforward. They are subject to numerous exceptions and cross-references.
3. It is in this context that s. 23A Notices must state who can apply to enrol.
4. The s. 23A Notice is required to inform all voters.
5. The focus of my attention in this discussion is the "noncitizen resident ratepayer", there being no suggestion that the s. 23A Notice was defective with respect to any other class of voter.
6. "Noncitizen resident ratepayers" fall under section 14 of the LGA. They are not obliged to vote. They may be entitled to vote by virtue of their status as ratepayers, but they are not automatically enrolled by the VEC on the electoral role. They must make application in order to be enrolled.
7. Under the heading "Am I enrolled to vote?" the s. 23A Notice gave information advising some categories of voters that they were already automatically enrolled for the election. The s. 23A Notice went on to state:

You may also be enrolled to vote for these elections if you pay rates for a residence or corporation within the city of Manningham.

1. I am satisfied that the words "you may also be enrolled" are the equivalent of saying "you can be enrolled" or "you are permitted to be enrolled" or "you can apply to be enrolled".
2. The s. 23A Notice clearly refers to an entitlement to enrol where the potential voter pays rates for a residence or corporation within the City of Manningham.
3. I am satisfied that this part of the s. 23A Notice told the "noncitizen resident ratepayer" that he/she can apply to enrol to vote. The s. 23A Notice went on to say:

If you enrolled directly with Manningham City Council for a previous election you will need to renew your application if you wish to be enrolled for these elections.

1. The s. 23A Notice thereby also alerted those who had previously enrolled to the fact that they would need to re-enrol.
2. Under the heading "How do I enrol?" the s.23 A Notice stated:

If you are not on the roll for this election, but you do pay rates in the city of Manningham, you may be eligible to apply to be enrolled with Council.

1. I am satisfied that this part of the s.23A Notice once again stated to the "noncitizen resident ratepayer" that they could apply to enrol.
2. Whilst the words "may be eligible" precede the words "to apply to be enrolled", this is accurate insofar as it applies to noncitizen resident ratepayers because s.15(2) of the LGA only permits 2 joint occupiers to be enrolled in respect of each rateable property.
3. I am satisfied that the s. 23A Notice does tell the "noncitizen resident ratepayer" that they can apply to enrol.
4. I am satisfied that the Notice stated who can apply to enrol in accordance with s. 23A(5) of the LGA.
5. The s. 23A Notice was not defective in this respect.

Did the public s. 23A Notice state (f) how they can apply to enrol?

1. As discussed above, under the heading "How do I enrol?" the following words are found:

If you are not on the roll for this election, but you do pay rates in the City of Manningham, you may be eligible to apply to be enrolled with Council.

1. Flowing directly on from these words, in the same paragraph, are the words:

Please contact the Council on (03) 9840 9353 for more information.

It is not to the point that if our notional voters chose to undertake further enquiry and research they may then understand and be informed of their eligibility to vote, albeit those sources are located in social media or on other websites or publications.

The purpose of the notice as required by the Act is to inform each and every class of voter of their eligibility to vote by being placed upon the electoral role, and how they can make application if need be to be put in a position to exercise their right. This notice either conforms with this requirement or it does not.

Viewed within the overall context and structure of this notice, and with reference to the statutory requirements of 23A (5), my conclusion is that while some eligible persons might not be misinformed by the lack of precision and latent ambiguity, others fairly might be.

1. It was submitted by Ms Yee that this analysis was correct and that the s. 23A Notice wrongly delegated to the Council the task of informing ratepayers not on the roll, about their entitlement to apply to be enrolled with the Council.
2. I disagree.
3. The amount of information required to be covered by and conveyed in the s. 23A Notice is potentially vast.
4. It could never have been intended that the s. 23A Notice was meant to give a detailed and comprehensive description of the full enrolment application process to every category of voter.
5. I am satisfied that the words "how they can apply to enrol" mean just what they say. They mean - tell every category of voter how they can apply to enrol.
6. I am satisfied that the s. 23A Notice does tell a "noncitizen resident ratepayer" how they can apply to enrol.
7. The "noncitizen resident ratepayer" can apply to enrol by contacting the Council. That is how they apply to enrol.
8. It is not to the point that the "noncitizen resident ratepayer" may then receive more information or have to complete further steps. Whilst in the modern era, much is done through clicks of buttons, this does not render the s. 23A Notice defective.
9. The s. 23A Notice has not ignored, excluded or misled "noncitizen resident ratepayers".
10. The "noncitizen resident ratepayer" may have preferred detailed instructions, or an answer to potential questions or a link to an enrolment form or a website, but that is not the test. The test is whether the s. 23A Notice told the potential voter how they can apply to enrol. It did.
11. Because there could be another way, even a better way, does not make the Notice non-compliant with s.23A of the LGA.
12. Ms Yee submitted that the Council may have then given inaccurate information, such that voters may have been misinformed. Even if proven, this would not necessarily have rendered the s. 23A Notice defective. In any event there was no evidence before me that in the lead-up to the subject election, any individual was misinformed by the council about how they can enrol to vote. The statements provided by Ms Yee dealt with enquiries made after the enrolment period had ended.
13. I am satisfied that the s. 23A Notice told the "noncitizen resident ratepayer" how they apply to enrol. They phone the Council.

Regulation 14(2) of the Local Government (Electoral) Regulations 2016

1. For the sake of completeness, I record that Regulation 14(2) of the Local Government (Electoral) Regulations 2016 also requires that the Notice state how a person can check their enrolment before the entitlement date.
2. This was also covered on the s. 23A Notice.
3. Under the heading "How can I check my enrolment?" the following words appeared:

If you are an Australian citizen you can check your enrolment details at vec.vic.gov.au at any time, or call 1300 805 478.

If you have any other voting entitlement, contact the Council on (03) 9840 9353.

1. I am satisfied that all voters including the noncitizen resident ratepayer were told how they could check their enrolment. I reiterate my comments set out in paragraphs [66] - [76] of these reasons.
2. I also note that at the bottom of the form, for enquiries in languages other than English the numbers for various interpreting services were provided.

1. It is not the role of this Tribunal to adopt an evaluative approach to consider how well or poorly the s. 23A Notice was drafted. The Tribunal must determine whether the s. 23A Notice satisfies the requirements set out in s. 23A (5) of the LGA. I am satisfied that the s. 23A Notice fulfilled the statutory requirements of s. 23A(5).
2. It was not suggested that any other deficiency existed in the conduct of the election which could lead to a conclusion that there was "an irregularity in the proceedings preliminary to voting" which affected the result of the election. Nor was it suggested that there was any other basis upon which the election could be declared void under the common law of elections.
3. In these circumstances I am satisfied that the decision of the MET should be set aside.
4. Under s. 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998, I will set aside the decision of the MET dated 30 June 2017 to declare the election held on 22 October 2016 for the Koonung Ward of the City of Manningham void.

[1] ss. 5(b) and (c) which related to exhibition of the exhibition roll have been repealed.