VEC orders the removal of Cr Caiafa

By Shane Scanlan and Sean Car

In an unprecedented move, the Victorian Electoral Commission (VEC)  has actively sought the removal of sitting Councillor Michael Caiafa from Melbourne City Council.

It comes after the Victorian Civil and Administrative Tribunal (VCAT) overturned a magistrate’s decision, potentially paving the way for a return to Melbourne City Council of former Team Doyle councillor Susan Riley.

On February 27, VCAT President, Justice Greg Garde, overturned a magistrate’s ruling which would have resulted in a “countback” of votes cast at the October 22 election.

Instead, Justice Garde has ordered an alternative method of calculating votes – a “recount” – predicted to favour Ms Riley at the expense of sitting Cr Michael Caiafa.  

Cr Caiafa has said he would appeal to the Supreme Court if unseated, so it may still be months before the final make up to the council is known.

Election candidate Nic Frances Gilley is expected to be offered an 11th councillor position regardless of whether a count-back or recount method is used.

Justice Garde gave candidates the chance to have their say at a hearing on March 7, where in an unpredecented move by an electoral body, the VEC distributed orders formally requesting that the judge remove Cr Caiafa and replace him with Susan Riley.

The two hour hearing heard a 40-minute submission from former Cr Stephen Mayne, who has long argued for a countback to determine the 11th councillor seat.

The City of Melbourne has been without its 11th councillor since declared-successful candidate Brooke Wandin was found to be incorrectly enrolled and resigned her position before being sworn in.

In his submission, Mr Mayne told Justice Garde that had he known Brooke Wandin was ineligible he would have preferenced Susan Riley lower. He stated that he didn’t want the VEC intervention leading to his preferences handing Team Doyle a majority on council.

As a member of the Lord Mayor’s team, a Susan Riley return would result in Team Doyle taking up six of the 11 council seats.

Justice Garde reserved his final decision on March 7, which he is expected to announce this month.

Magistrate Michael Smith in the Municipal Electoral Tribunal (MET) on December 5 disqualified Brooke Wandin and ruled that the “countback” method be used.

But Victorian Electoral Commissioner Warwick Gately quickly objected to this methodology and on December 8 appealed the decision to VCAT.

Justice Garde agrees with Mr Gately’s view that a “recount” should be conducted as if Ms Wandin had been a “retired” candidate.

And, although he has not formally made such a declaration, he listed eight reasons why it was the correct method to use.

At the February 21 hearing, Justice Garde adjourned proceedings after hearing the VEC’s case and arriving at a decision that the effect of recalculating the votes without Ms Wandin’s presence should be known.

Mr Mayne had argued that recalculations for three “scenarios” be known before the tribunal reconvened – the “recount”, the “countback” and another showing the effect of the disqualification of both Ms Wandin and her running mate, Nic Frances Gilley.

But Justice Garde has opted to ask the VEC for only the effects of the “recount”, saying the tribunal’s duty was to “determine how the recount is conducted and to make the necessary orders to see that it occurs”.

It was previously understood that Mr Frances Gilley was not interested in the 11th councillor position and it was thought it would flow to Southbank’s Joe Sarraf.  

However, the February 21 VCAT hearing was told he had changed his mind and would now take the role if offered. The VEC contended that votes cast for Ms Wandin were “tainted” and needed to be removed before a recount was conducted.

Ms Wandin and former councillor Richard Foster are facing charges for allegedly making false declarations about Ms Wandin’s address. Their cases are next listed for further mention in the Melbourne Magistrates Court on March 15.