The City of Melbourne elections were meant to be wrapped up by early November, along with all other local government democratic processes in Victoria.

Alas, we’ve now got the Victorian electoral commissioner appealing a decision by a magistrate in the Municipal Electoral Tribunal in what is turning into quite a saga over who the 11th councillor will be.

The history is that Brooke Wandin, who ran under the “Indigenous Voice for Melbourne” banner, was declared elected sixth out of nine councillors but then declined to be sworn in and later withdrew from the race after it became apparent her enrolment at the home of former Labor councillor Richard Foster was not valid.

Victorian Electoral Commissioner Warwick Gately then made this application to the Municipal Electoral Tribunal to determine how Brooke should be replaced as the 11th councillor (the lord mayor and deputy lord mayor are the extra two).

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Gately wants to do a recount as if Brooke Wandin had withdrawn from the contest well before the October 22 election day, even though it was only confirmed she wasn’t eligible to be enrolled on November 10.

City of Melbourne Greens councillor Rohan Leppert has calculated that such a scenario would increase lord mayor Robert Doyle’s numbers from five to six, giving him a majority. This is because a recount would result in the election of former deputy lord mayor and No. 4 on the Team Doyle ticket Susan Riley, along with Nic Frances, the former Brotherhood of St Laurence CEO who was No. 2 on Brooke Wandin’s ticket.

However, this scenario would also unelect current councillor Michael Caiafa, a Queen Victoria Market trader who was aligned with former federal MP and lord mayoral candidate Phil Cleary, something magistrate Michael Smith was keen to avoid — given such an outcome would be highly disruptive and unconventional — when he convened the hearing at the Municipal Electoral Tribunal last Monday.

This is largely why Smith rejected the VEC’s application and instead ordered a count-back, which would deliver the seat to Nic Frances.

However, Nic Frances has told interested parties that he won’t be taking up a position on council if it is offered.

If he was deemed eligible and won the first count-back, it would trigger another count-back, which deliver a very different outcome of Ricky Muir proportions because it would elect Joseph Sarraf from the Melburnian Voice group, the candidate who got the lowest primary vote of the 14 ticket leaders.

(The minor player preference flows which cause this outcome are explained here.)

City of Melbourne councillor elections are very much like the old Senate voting system with more than 90% of preferences delivered from group to group in big chunks courtesy of group voting tickets.

When a councillor vacates, the Local Government Act prescribes that the exiting councillor is replaced by whoever gets a majority of the redistributed votes that were used to elect the departing councillor. This makes Brooke Wandin’s preference decision the key driver.

No one from Team Doyle attended the tribunal hearing last Monday, but the lord mayor is right across the detail. The transcript of an exchange with independent journalist Shane Scanlan (publisher of CBD NewsDocklands News and Southbank News) from last Tuesday’s City of Melbourne committee meeting is most interesting, with the key quotes as follows:

Lord Mayor: I don’t think this matter is at a close. I think the Electoral Commissioner indicated that the process was tainted. I am not sure that the Electoral Tribunal has resolved that issue by simply saying “please proceed” and I will await to see whether the Electoral Commissioner himself, or indeed any of the 44 candidates who missed out on election (it was 35, nine were declared elected), chooses to appeal that decision to VCAT, which in fact is possible within seven days of the tribunal’s decision and I will await those developments.

Shane Scanlan: I suppose that leads to a question of whether you would contemplate that yourself?

Lord Mayor: I think the comment by the tribunal that this may affect councillors who have already been elected is irrelevant, to be honest. That is my personal view. The result should be beyond reproach. I have no doubt that the result, at the moment, is not beyond reproach and I would wish to see that all councillors were elected with the full confidence of the community, that due process has been followed and that the electoral process has not been deliberately perverted.

Shane Scanlan: Perhaps I could ask the other councillors if they have anything to add to the same question?

Lord Mayor: to some extent they are impacted and therefore conflicted because of future decisions that may occur. So I would be counselling them not to speak on this matter as they may be affected by this matter.

Shane Scanlan:
 Further then to your views Lord Mayor, do I deduce then that your preference would be a recount rather than a countback?

Lord Mayor:
 It would, but I would also like a judgment on whether certain blocks of votes were eligible to be included in that as well.

Shane Scanlan: And your view on you the eligibility of the Wandin block of votes?

Lord Mayor: That is a matter for the Electoral Commissioner and it is a matter before the Inspectorate at the moment and I am absolutely certain that as a quite separate process, the Inspectorate will take a very very close look at this with the very considerable penalties and powers that they have.

There is also the additional scenario contemplated in the Leppert document, which is that VCAT declares the entire Indigenous Voice for Melbourne ticket ineligible but still allows the preferences to flow on to other candidates.

If that happens, Leppert reckons I’m back in. This is a position that we’ll be putting to VCAT (the Victorian Civil and Administrative Appeals Tribunal) during the VEC appeal in the coming weeks, particularly now that Nic Frances has made it clear he won’t be serving as a councillor.

Phil Cleary’s man, Michael Caiafa, is also making it clear that a Supreme Court challenge will be launched if he is removed from office three months into his four-year term, so if the magistrate’s decision is overturned by VCAT, it could be months before the final make-up of the council is determined.

It would also be a highly contentious way for Robert Doyle to secure majority control at City of Melbourne.

*Former City of Melbourne councillor Stephen Mayne was not paid for this item.