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VLGA Update
Yee v Victorian Electoral Commission

Members may have heard about the decision handed down at the Victorian Magistrates Court on 30 June 2017. In brief, Magistrate M Smith found that:

 In accordance with s46.(1)(c) the election held on 22 October 2016 for the Koonung Ward of the City of Manningham is declared void.

  1. A further election for the Ward of Koonung be held in accordance with s.46(4) of the Act.

 What was the case about?

The case was brought by Ms. Yee, an unsuccessful candidate at the October 2016 council elections. She contends that; the public notice produced by the Victorian Electoral Commission (VEC) either failed to inform, or actively misled a particularly category of voter being resident non-citizen rate payers.

In handing down his decision, His Honor stated the following:

 Ratepayers who reside in the city or ward but who are not citizens are eligible to vote but will not be automatically enrolled by the VEC on the electoral roll. They must make application in order to be enrolled.

  • The number of non-citizen residential ratepayers was estimated to be between 2750 and 3382 in the Koonug Ward, and the margin between the third successful candidate and the nearest unsuccessful candidate was 224.
  • The decision rested on two considerations:

1. The publication of the notice was a matter preliminary to voting; and
2. If a significant number of non-citizen residential ratepayers were effectively disenfranchised or “prevented from quoting” (sic) then on the balance of probabilities, this would have affected the outcome of the election.  

  • The Applicant (Ms. Yee) submitted that an error was made by the VEC, the result of that error deceived or mislead or failed to inform persons (non-citizen residential ratepayers) as to their eligibility to vote, and thus they have been “prevented” from voting or “not permitted to vote”, in accordance with common law tests.
  • The public notice produced by the VEC was found to be “not a model of precision and clarity” if it is read by non-citizen residential ratepayers in the City of Manningham and within the ward concerned, as it did not alert or inform these voters to their eligibility.
  • The only section in the VEC public notice that can be said to apply to these voters is the part stating, “If you are not on the roll for this election, but do pay rates in the City of Manningham, you may be eligible to apply to be enrolled with council”.
  • While the VEC exhibited materials such as questions and answers on social media showing access to the relevant and required information, the question was asked as to why the public notice itself did not state it with the same clarity.
  • Therefore, a conclusion was drawn that “while some eligible persons might not be misinformed by the lack of precision and latent ambiguity, other fairly might be”.
  • It was further concluded that “such voters were effectively prevented from voting” as per common law tests, and that, “on the balance of probabilities the outcome of the election was affected in that the election could not therefore be said to have resulted in a free and fair election of the candidates preferred by the majority of voters”.

 Both the City of Manningham and the VEC has since issued separate media statements.

 The Electoral Commissioner Warwick Gately has stated that he is “completely satisfied that the notice complies with the legislative requirements and remain strongly of the view that the notice does not ‘actively misled’ any person”.

The VEC will shortly apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision to void the election.

 The City of Manningham stated that: “Manningham’s Koonung Ward councillors will remain as elected officials pending the outcome of that appeal”.

 Where to from here?

As the decision is for review by VCAT, the VLGA will not be commenting on this specific case. The VLGA will maintain an active interest in this case and inform members of any developments and their possible implications.

 

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