Victorian Electoral Commission v Municipal Electoral Tribunal
[2017] VSC 791
•21 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03481
| VICTORIAN ELECTORAL COMMISSION | Plaintiff |
| v | |
| MUNICIPAL ELECTORAL TRIBUNAL | First Defendant |
| ROSE MARY ISER | Second Defendant |
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JUDGE: | Garde J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 November 2017 |
DATE OF JUDGMENT: | 21 December 2017 |
CASE MAY BE CITED AS: | Victorian Electoral Commission v Municipal Electoral Tribunal |
MEDIUM NEUTRAL CITATION: | [2017] VSC 791 |
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CATCHWORDS
ELECTIONS – Duty and powers of Victorian Electoral Commission – Commission’s powers and responsibilities – Register of electors – Objections to enrolment – Principal place of residence – Electoral Act 2002 (Vic) ss 21, 22(1), 23, 26, 27, 38(4), 42(1), 138.
LOCAL GOVERNMENT – Local government elections – Residency entitlement to stand for election as a councillor – Whether candidate can only nominate in the ward in which the candidate resides – Entitlement to vote in municipal elections – Conclusivity of register of electors – Objection not sustained – Local Government Act 1989 (Vic) ss 11-15, 28(1), 28(1AA), 45, sch 2 cl 6(3A).
JUDICIAL REVIEW – Appeal on questions of law from decision of Victorian Civil and Administrative Tribunal on appeal from Municipal Electoral Tribunal – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gory | Victorian Government Solicitors Office |
| For the First Defendant | No appearance | |
| For the Second Defendant | In person |
HIS HONOUR:
Introduction
This proceeding raises an issue of general importance in local government about the entitlement of a candidate to stand for election as a councillor when the candidate resides within the municipal district of the council but outside the ward in which the candidate wishes to stand. Assuming that the candidate is not qualified to stand as a ratepayer of the council, must the candidate reside in the ward in which the candidate proposes to stand for election, or merely in the municipal district of the council concerned?
The Victorian Electoral Commission (‘the Commission’) seeks leave to appeal under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) and, if leave is granted, appeals from the decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) declaring that Benjamin Smits was not eligible to nominate for the election held on 22 October 2016 (‘2016 election’) for the Myrnong Ward of the Moonee Valley City Council (‘the Council’).[1] The VCAT decision upheld a decision to like effect of the Municipal Electoral Tribunal (‘MET’).[2]
[1]Victorian Electoral Commission v Municipal Electoral Tribunal [2017] VCAT 1156 (‘VCAT decision’).
[2]Iser v Victorian Electoral Commission and Smits (Unreported, Municipal Electoral Tribunal, Magistrate M Smith, 29 March 2017) (‘MET decision’).
Ms Iser, who appeared in person, objects to Mr Smits’ candidature for election as a councillor for the Myrnong Ward. Ms Iser and Mr Smits were unsuccessful candidates in the 2016 election. In an application made to the MET on 16 November 2016, Ms Iser sought either a declaration that the election in the Myrnong Ward was void or an order for a recount. On 29 March 2017, the MET ordered the Commission to carry out a recount of the vote in the Myrnong Ward with Mr Smits’ name removed, in accordance with sch 2 cl 8 of the Local Government Act 1989 (Vic) (‘LG Act’).
The Commission sought review of the MET decision by VCAT. VCAT refused the Commission’s application, declaring that Mr Smits was ineligible to nominate for election in the Myrnong Ward.
Background
The municipal district of the Council is subdivided into three wards.[3] Each has three councillors. There were eleven candidates for the Myrnong Ward at the 2016 election.
[3]The wards are named Rose Hill, Buckley and Myrnong.
The facts concerning the residency of Mr Smits prior to the 2016 election are simply stated. He was at all material times a resident but not a ratepayer of the Council. He has lived at an address in Mirams Street, Ascot Vale from time to time over a number of years. He returned to live there on 30 July 2016 after vacating a dwelling in Mount Alexander Road, Ascot Vale. He was overseas from 30 August to 20 September 2016, again returning to live at Mirams Street. The premises at Mirams Street and at Mount Alexander Road are both within the municipal district of the Council. The premises in Mirams Street are within Myrnong Ward, while those in Mount Alexander Road are in Buckley Ward.[4]
[4]MET decision, 1.
The voters roll for the 2016 election was compiled on 26 August 2016 (‘the entitlement date’). At the entitlement date, and when he nominated as a candidate in the Myrnong Ward, Mr Smit’s principal place of residence was in Mirams Street.[5] This was the address he included when completing his nomination form on 20 September 2016.
[5]VCAT decision, [3]–[4], MET decision.
Mr Smits appeared before the MET, but not before VCAT. There is no evidence as to whether he submitted notices of change of address to the Commission when he moved to and from the premises at Mt Alexander Road.[6] The Commission’s records contain no entry that suggests that he did.
[6]See Electoral Act 2002 (Vic) s 23(4) (‘Electoral Act’).
The MET decision
The MET held that when compiling a Council electoral roll, the Commission is not required to verify the addresses of the voters. However, to be eligible for nomination as a candidate, a person must be entitled to vote in the ward in which they are seeking to be elected.[7] As Mr Smits could not demonstrate that he had lived at the Mirams Street address for a period of one month prior the entitlement date, under s 22(1) of the Electoral Act 2002 (Vic) (‘the Electoral Act’), he was ineligible to stand for election in Myrnong Ward.[8]
[7]MET decision, [8].
[8]Ibid 5–7.
The VCAT decision
VCAT upheld the decision of the MET. It agreed that as the Mirams Street address had not been Mr Smits’ principal place of residence for a period of at least one month immediately before the entitlement date, he could not meet the requirements of s 22(1) of the Electoral Act and was ineligible to nominate for election in the Myrnong Ward.[9]
[9]VCAT decision, [5], [39]–[48].
Grounds of Appeal
The Commission relies on two grounds of appeal:
(1) VCAT erred in holding that s 12(1) of the LG Act requires that a person be enrolled on the register of electors in respect of an address that has been his or her principal place of residence for at last one month in accordance with s 22 of the Electoral Act.
(2) VCAT erred in affirming the decision of the MET, which had found that ss 11, 12 and 28 of the LG Act provide that a person is only qualified to stand for election in the ward in which he or she resides.
The grounds of appeal raise three issues of law. The issues are whether, as at the entitlement date for the 2016 election:
(a) Mr Smits was entitled to be enrolled on the register of electors for Victoria maintained under the Electoral Act at the address in Mirams Street, Ascot Vale; and
(b) the entry of Mr Smits in the register of electors is conclusive; and
(c) Mr Smits was entitled to nominate as a candidate in the Myrnong Ward.
Ground 1 – the register of electors
The Electoral Act provides the legal basis on which the register of electors is compiled.[10] The register of electors is used in the compilation of the voters’ roll for a local government election together with the voters’ list of ratepayers maintained by the Council.
[10]See Electoral Act pt 3 div 1.
In Murphy v Electoral Commissioner, Kiefel J said:
The Roll is at the centre of the Commonwealth electoral system. Electors are defined as those persons whose names appear on the Roll. Enrolment is the single qualification for voting on polling day, or by pre-polling or postal vote. Claims to enrolment are required to be made within a short time of a person becoming eligible for enrolment, on pain of penalty. Claims for enrolment are investigated and determined and objections to enrolment dealt with.[11]
[11]Murphy v Electoral Commissioner (2016) 90 ALJR 1027, 1044 [66] (Kiefel J) (citations omitted).
Under the Electoral Act, it is the responsibility of the Commission to establish, maintain and regularly update a register of electors for Victoria containing the names and addresses of all electors and the required particulars.[12] The Commission is also required to regularly review the register, and ensure that the details entered in it are accurate.[13]
[12]Electoral Act ss 8–9, 21.
[13]Ibid s 27.
The information on the register of electors is compiled from a number of sources, including a joint enrolment process and exchange of information with the Commonwealth;[14] claims for enrolment that are required to be made by persons qualified to vote;[15] and by information obtained by the Commission from the Registrar of Births, Deaths and Marriages, public service body heads, councils, public statutory authorities, police officers, electricity distributors and retailers and electors generally.[16]
[14]Ibid s 20.
[15]Ibid ss 22–23.
[16]Ibid s 26.
In the case of Mr Smits, the Commission’s records of his enrolment history show that he was first registered without application at the address at Mirams Street on 19 February 2014. That address has subsequently remained his address on the register of electors.
Relevant provisions of the Electoral Act
The purposes of the Electoral Act relevantly include that it ‘sets out the enrolment process and provides for the collection and dissemination of enrolment information’ and ‘specifies who is entitled to vote and how voting may occur.’[17]
[17]Ibid s 1(2).
Section 3 defines ‘register of electors’ to mean:
… the register of electors for Victoria established and maintained under section 21 that contains the names and addresses of all electors and the particulars required under the Act.
Section 8(1) of the Electoral Act sets out the responsibility of the Commission as being for ‘the administration of the enrolment process and the conduct of parliamentary elections and referendums in Victoria.’
The Commission has extensive powers under s 9 of the Electoral Act to:
(a) ‘do all things necessary or convenient to be done for or in connection with the performance of its responsibilities and functions’; and
(b) ‘make and issue directions for or with respect to the enrolment process, elections and election procedures’.
Section 21 of the Electoral Act requires the Commission to ‘establish, maintain and regularly update a register of electors for Victoria’.
Section 22(1) declares the entitlement of an elector to be enrolled in certain circumstances. It provides:
A person who is qualified to enrol as an elector for the Assembly and Council under the Constitution Act 1975and 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.
Section 23 requires persons who are entitled to enrol on the register of electors to claim enrolment. It also requires persons who are enrolled on the register to notify the Commission of changes of address:
(1) A person who is entitled to enrol on the register of electors (other than under section 22(3), 22(4) or 22(5)) and whose name is not on the register of electors must within 21 days of becoming so entitled—
(a) complete and sign a claim for enrolment in the prescribed form in accordance with the directions on the form; and
(b) forward the claim for enrolment to the Commission.
…
(4) If a person who is enrolled on the register of electors changes the address of his or her principal place of residence, the person must notify the Commission in writing of the person's new address within 21 days after becoming entitled to be enrolled on the register of electors in respect of living at that new address.
Under s 27, the Commission is required to regularly review the register of electors and to ensure that the details entered in it are accurate.
Section 38 provides for an elector to object to the enrolment of a person on two grounds: that the person is not entitled to be enrolled; or that the address for which a person is enrolled is not the person’s principal place of residence.
VCAT has jurisdiction to oversee the enrolment process. Section 42(1) provides:
Any person—
(a) who has forwarded a claim for enrolment or a claim for provisional enrolment and has not been enrolled; or
(b) who has forwarded a notice regarding his or her change of address of enrolment and whose address has not been changed on the register of electors; or
(c) whose name the Commission refused to include on the register of electors under section 25; or
(d) whose name has been removed from the register of electors by the Commission after an objection under section 38—
may apply to the Tribunal for review of the Commission's decision.
Section 87 provides for a person to be entitled to vote in an election in accordance with the Electoral Act if the person is qualified to enrol as an elector under the Constitution Act 1975 (Vic) and, relevantly, ‘is enrolled as an elector under Part 3 of [the Electoral Act]’.
As the High Court said in Snowdon v Dondas (No 2):
There can be no right to vote without enrolment and enrolment depends upon being on the Roll of the District in which the person lives.[18]
[18]Snowdon v Dondas (No 2) (1996) 188 CLR 48, 74 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow JJ).
To the same effect, Hansen JA said in Mulholland v Victorian Electoral Commission:
In Muldowney, Brennan CJ observed that ‘the only right to vote conferred by the Act is that conferred by s 93(2) and that the right depends on the elector’s name being on the Roll for a Division’. That is, the division in which they lived.[19]
[19]Mulholland v Victorian Electoral Commission (2012) 36 VR 167, 186 [90], quoting Muldowney v Australian Electoral Commission (1993) 178 CLR 34, 39.
Was Mr Smits entitled to be enrolled on the register of electors at the Mirams Street address?
I now turn to the first issue of whether Mr Smits was entitled to be enrolled on the register of electors at the Mirams Street address, as at the entitlement date for the 2016 election.
Ms Iser’s submissions
Ms Iser contended that it is not sufficient that a person’s name appear on the register of electors; he or she must be validly enrolled at the address, at which they have resided for one month before the entitlement date. She submitted that the inaccuracy in Mr Smits’ address should result in his disqualification as a candidate.
Ms Iser referred to the history of the relevant provisions and previous legislation. She submitted that the decision of Cussen J in In re Hollins; Ex parte Daly,[20] to the effect that the roll was conclusive, was of limited applicability given subsequent changes to local government legislation.
[20][1912] VLR 87.
Commission’s submissions
The Commission submitted that Mr Smits was properly entered in the register of electors. It relied on In re Hollins; Ex parte Daly, where Cussen J said on the basis of the legislation operative in 1911 that ‘the roll should not be opened’ and that the roll was conclusive as to a person’s entitlement to vote.[21]
[21]Ibid 91.
The Commission contended that its construction of the relevant statutory provisions would provide certainty as to the qualification necessary to be elected as a councillor. It would be unfair to disqualify a person if, for example, the person had inadvertently omitted to update his or her enrolment address after moving house, but remained a resident of the municipal district.
Principles of construction of statutory provisions
The principles of construction relating to statutes are well established. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Heydon JJ said:
... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[22]
[22]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Heydon JJ) (citations omitted).
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), Hayne, Heydon, Crennan and Kiefel JJ said:
This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself ... Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text ... The language which has actually been employed in the text of legislation is the surest guide to legislative intention ... The meaning of the text may require consideration of context, which includes the general purpose and policy of a provision ... in particular the mischief ... it is seeking to remedy.[23]
[23]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 46–47 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).
In the same decision, French CJ said:
[It] must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.[24]
[24]Ibid 31 [4] (French CJ) (citations omitted).
These principles are to be applied in the construction of the relevant provisions of the Electoral Act and the LG Act.
The Commission’s duties and powers
The establishment, maintenance and regular update of the register of electors is a principal responsibility of the Commission and is pivotal to the conduct of elections at all levels of government. Not only is the Commission empowered to establish, maintain and regularly update the register of electors, it has the statutory duty to do so.[25] It has been given all necessary powers to carry out this task. It also has duties to regularly review the register of electors, and ensure that the details entered in the register of electors are accurate.[26]
[25]Electoral Act s 21.
[26]Ibid s 27.
A person’s name can be entered on the register of electors by application to the Commission under s 22(1) of the Electoral Act. To succeed, the applicant must show that he or she is qualified to enrol as an elector for the Assembly and Council under the Constitution Act 1975 (Vic), and has lived at an address in Victoria for at least one month immediately before the date of the person’s claim for enrolment as an elector. Section 23 requires persons who are entitled to enrol on the register of electors to make a claim for enrolment to the Commission in the prescribed form within 21 days of becoming entitled to do so. In the event of an elector’s change of address, a notice of change of address must be forwarded to the Commission within 21 days of becoming entitled to be enrolled on the register at the new address. It is an offence for an elector not to submit a claim for enrolment or a notice of change of address within the prescribed time, albeit with a penalty of only one penalty unit.[27]
[27]Ibid s 23(1), (4).
The rights of a person to be enrolled, or to have a change of address recorded on the register of electors, are protected by s 42(1) of the Electoral Act. Section 42(1) gives VCAT jurisdiction to review various classes of decisions of the Commission on their merits.
Mr Smits’ position
On the undisputed evidence, Mr Smits was entered on the register of electors as far back as 2006. His electoral history shows his subsequent addresses as being in Traralgon, Pascoe Vale South and, from 19 February 2014, at Mirams Street. The evidence does not permit me to say with finality whether these changes to the register occurred by the action of the Commission or by a notification of change of address submitted by Mr Smits. No forms submitted by Mr Smits were put in evidence before the MET or VCAT. As far as I can say, the changes appear to have occurred as the result of actions by the Commission rather than Mr Smits, although in the end result it does not matter.
After Mr Smits moved from Mirams Street to Mount Alexander Road, he should have provided a notice of change of address to the Commission. He does not appear to have done so. As Hansen JA put it in Mulholland v Victorian Electoral Commission in relation to two voters in a Commonwealth election:
Further, … the enrolment of the two voters in subdivisions where they no longer lived, and had not lived for at least one month, could have been objected to. If that had occurred, and the Electoral Commissioner was satisfied of relevant matters, he would have been obliged to remove the voters from the roll for the subdivision where they no longer lived.
But the fact is that neither voter transferred his or her enrolment, nor was there any objection to enrolment, hence the two voters remained on the roll for their respective subdivisions.[28]
[28]Mulholland v Victorian Electoral Commission (2012) 36 VR 167, 186 [93]–[94] (Hansen JA) (citations omitted).
I would expect that when Victorians change their place of residence, many do not meet their obligation to notify the Commission of their new address. They may comply with their obligation under the Electoral Act belatedly or not at all. This means that the Commission’s role in maintaining and updating the register of electors is all the more important if elections are to be smoothly and efficiently conducted.
The task before the Commission is a formidable one. Speaking of Australia as a whole, Heydon J observed in Rowe v Electoral Commissioner:
It was earlier noted that as many as 1.4 million people do not enrol at all, for a variety of reasons. It may be because of their inefficiency. It may be because of their apathy. It may be because they have a positive desire not to participate in the electoral process.[29]
[29]Rowe v Electoral Commissioner (2010) 243 CLR 1, 95 [288] (Heydon J).
The Commission has general duties to establish, administer, maintain, regularly review and update the register of electors. The records available in the case of Mr Smits show that it did so. As far as the evidence shows, Mr Smits did not notify the Commission of his change of address from Mirams Street to Mount Alexander Road or his subsequent return to Mirams Street, despite his legal obligation under s 23(4) of the Electoral Act to do so. However, there is no doubt that Mr Smits was an elector shown on the register of electors, had been so at least since 2006, and was entitled and required to be enrolled on the register. Despite Ms Iser’s submission, Mr Smits was not disentitled to be shown as an elector enrolled on the register by reason of the fact that he had failed to comply with his obligation under s 23(4) to notify the Commission of his new address at Mt Alexander Road. It was open to, and was the duty of, the Commissioner to update the register of electors and ensure that it was accurate, regardless of the apparent failure of Mr Smits to submit change of address forms.
As a result, Ms Iser’s submission must fail. As she contends, a person not already on the register of electors who makes a claim for enrolment in respect of an address at which the person has not resided for a month prior will be unsuccessful. However, this has little to do with Mr Smits, who was already on the register of electors and entitled to vote and nominate as a candidate in the 2016 election. He was already enrolled at the Mirams Street address within the municipal district of the Council and had no need to make a claim for enrolment in respect of that address.
Are the entries on the register of electors conclusive?
Relying on In re Hollins; Ex parte Daly,[30] the Commission submitted that the enrolment of a person on the register of electors was conclusive. The position is however more complex. Section 38 of the Electoral Act makes specific provision for objections to enrolment by other persons. An elector can object to the enrolment of another person on the ground that the person is not entitled to be enrolled, or that the address for which the person is enrolled is not the person’s principal place of residence. The objection must be in writing and in the prescribed form. It must be signed by the elector, set out the grounds for objection, and be lodged with the Commission.[31]
[30][1912] VLR 87
[31]Electoral Act s 38(2).
Section 38(4) has two requirements that must be met for an objector to make good on an objection. First, it must be shown that the person objected to does not live at the address. Secondly, it must be shown that the person has not lived at the address for at least one month immediately before the date of objection.
Under the Electoral Act, an election to the Legislative Assembly or Legislative Council may be disputed by means of a petition to the Court of Disputed Returns.[32] In proceedings in relation to a petition, the Court of Disputed Returns is precluded from inquiring into the correctness of any electoral roll or the register of electors.[33] Section 138(b) and (c) of the Electoral Act provide that the Court of Disputed Returns:
(b)may inquire whether persons who voted were entitled to do so and whether their votes were improperly admitted or rejected; and
(c)must not inquire into the correctness of any electoral roll or the register of electors.
[32]Electoral Act ss 133–135.
[33]Ibid s 138(c); In re Berrill’s Petition (1976) 134 CLR 470, 472; Perkins v Cusack (1930) 43 CLR 70, 74–75.
The Commissioner’s submission as to conclusivity in the case of state elections is given support by s 138(c). It is not open for the Court of Disputed Returns when hearing a petition disputing an election to inquire into the correctness of the electoral roll, or the register of electors.
Ground 2 – eligibility for election in a municipal ward other than one in which the candidate resides
I now turn to the issue of whether Mr Smits was entitled to nominate as a candidate in the Myrnong Ward.
Ms Iser’s objection
On 18 October 2016, Ms Iser objected to Mr Smit’s candidature on the ground that the address for which Mr Smits was enrolled was not his principal place of residence.
In response to the objection, Mr Smits spoke with an officer of the Commission on 3 November 2016, providing a copy of his current Victorian drivers licence as proof of his address.
It is clear on the evidence before the MET and VCAT that at both the entitlement date and the date of Ms Iser’s objection, Mr Smits’ principal place of residence was at the Mirams Street address. As such, Ms Iser’s objection could not satisfy the first requirement of s 38(4). Her objection must inevitably have failed.
The position of Mr Smits under the LG Act
The LG Act makes extensive provision for the conduct of local government elections. Part 3 and schs 2–4 of the LG Act describe how local government elections are to be conducted. It is fundamental to eligibility to stand for election as a councillor at a local government election that the intending candidate be eligible to vote at the election for which the candidate proposes to stand. To this effect, s 28(1) of the LG Act provides:
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.
In Powell v Athanasopoulos, Beach J noted that in order to be qualified under s 28, a person did not necessarily have to be enrolled but merely to have one of the entitlements referred to in s 11.[34] However, sch 2 cl 6(3A) of the LG Act has since been amended to require the returning officer to reject as being void a nomination from a person who is not enrolled on the voters’ roll for the municipality.
[34]Powell v Athanasopoulos (2010) 178 LGERA 79, 91 [25].
There are two categories of voters at local government elections. They are residents who must reside in the municipality and ratepayers who may reside out of the municipality. Section 11 of the LG Act sets out their entitlements to vote:
(1)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.
(2)Despite anything to the contrary in this Division, a person can only be enrolled on the voters' roll for one ward in a municipal district.
(3)Despite anything to the contrary in this Part, a person is only entitled to vote once at any election in respect of a Council, regardless of how many different entitlements the person may have to vote in respect of any ward.
(4)A person is not entitled to elect which right of entitlement conferred by section 12(1), 13(1), 14(1) or 15(1) to exercise.
(5) A person can only be enrolled on the voters' roll 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—
(i) complies with subsection (6); and
(ii) is accepted in accordance with this Division; or
(c)the person is appointed to vote on behalf of a corporation under section 16 and the application for appointment—
(i) complies with subsection (6); and
(ii) is accepted in accordance with this Division.
Part 3 div 1 of the LG Act outlines the different categories of persons who can vote at local government elections. Section 12 makes provision for residents to be enrolled on the voters’ roll without the need for any application at the address shown as their address on the register of electors. Section 13 makes provision for owner ratepayers of rateable property within the municipal district, who are not residents of the municipal district, to be enrolled on the voters’ roll in respect of the rateable property without application. Sections 14 and 15 of the LG Act make provision for owner ratepayers and occupier ratepayers to apply to be enrolled on the voters’ roll. Lastly, s 16 makes provision for corporations who are owners of rateable property within the municipal district to appoint a person to vote on their behalf.
As a resident of the municipal district of the Council for the purpose of the voters’ roll, s 12(1) of the LG Act applied to Mr Smits. This provides:
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.
Mr Smits was an elector in respect of Mirams Street in Myrnong Ward and was entitled as a resident to be enrolled on the voters’ roll without application at that address.
The voters’ roll
The voters’ roll for a local government election is compiled from several different sources. The Registrar, who is the Commissioner or a person appointed by the Commissioner, provides the part of the register of electors for the Legislative Assembly that relates to the relevant municipal district.[35] This provides details of the residents who are entitled to be enrolled without application.[36]
[35]LG Act s 24(2)(a).
[36]Ibid s 12.
The Chief Executive Officer of the council provides a voters’ list of the persons who are entitled to be enrolled as owner or occupier ratepayers, including the persons appointed as representatives of corporations who are ratepayers.[37]
[37]Ibid ss 13–16, 24(2)(a), (5).
In order to ensure that the voters’ roll is accurate and up to date, the Registrar has the power to amend the voters’ roll to correct errors, misnomers or inaccurate descriptions.[38]
Can a person qualified for election in one ward of a municipal district of a council stand for election in another ward?
[38]Ibid s 24A(1).
It has long been the position in Victoria that a person qualified for election in one ward can stand for election in another ward of the same municipal district, or remain in office if ceasing to be qualified for the ward in which the councillor was elected, provided that the councillor retains sufficient qualification in another ward.[39]
[39]See R v Langridge; Ex parte Withey (Argus, 13 December 1871).
In 1970, the authors of the Victorian Local Government Handbook said:
If the municipal district is divided into wards or ridings, it is not necessary for all or any of the property from which the councillor takes his qualification to be in the subdivision for which he is elected.[40]
[40]F H Lonie, K H Gifford and I H M Lonie, The Victorian Local Government Handbook (The Law Book Company Limited, 7th ed, 1970) 14.
In 1980, the authors of Local Government Law and Practice in Victoria said:
If the municipal district is subdivided, the property qualification of the councillor need not be in the ward or riding which he represents.[41]
[41]Kenneth H Gifford and P J Bick (eds), Local Government Law and Practice in Victoria (The Law Book Company Limited, 4th ed, 1980) 550/1 [51-27].
Likewise, in New South Wales, the Full Court of the Supreme Court held in 1884 that a person who appears on the electoral roll for one ward and is an elector for that ward may be elected alderman of another ward in the same municipality.[42]
[42]Ex parte Royle; re Hinton (1884) 5 LR (NSW) 468 (Martin CJ and Innes J; Faucett J dissenting).
During argument, Ms Iser said that in the past she herself had been a councillor for 20 months in a ward in which she did not reside. In written submissions, she contended that it was not relevant for the determination of the proceeding to decide whether or not a candidate must be enrolled in the ward in which they stand, as Mr Smits was not enrolled in any ward other than the one for which he nominated. His residency at Mt Alexander Road was in Buckley Ward, but his enrolment to vote was in Myrnong Ward where he nominated as a candidate.
Quite apart from longstanding authority, the current provisions of the LG Act point to the conclusion that a person who resides in the municipal district of a Council (and is not qualified to vote as a ratepayer) is qualified to be elected as a councillor for any ward within that district. There is no requirement for a candidate to be a resident of the ward in which he or she stands for election provided that he or she resides within the municipality. This long standing position is confirmed by the current provisions of the LG Act:
(a) An interpretation where candidates who live within the municipal district can nominate for election as a councillor in any ward is consistent with the democratic election of councils, and the role of a council as providing representative government, taking into account the diverse needs of the local community, and encouraging active participation in civic life;[43]
[43]LG Act ss 3B, 3D(2)(a),(f).
(b) The interpretation provides greater opportunities for residents to stand for election, and assists in ensuring that all wards are represented by capable and experienced councillors;
(c) Section 28(1) of the LG Act states that a person is qualified to be a candidate for the office of Councillor if he or she has an entitlement referred to in s 11. The relevant entitlement described in s 11 is for the person to be ‘a resident in the municipal district of the Council’. There is no mention in the LG Act of any requirement for the candidate to live in the ward in which the candidate intends to stand for election. The imposition of such a requirement, were one to be adopted, would be a matter for Parliament;
(d) Under s 11(5)(a) of the LG Act, a person who has an entitlement as a resident is entitled to be enrolled on the voters’ roll without application as at the entitlement date;
(e) Section 28(1AA) of the LG Act provides that if a person who has 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 ‘the person’s principal place of residence is not located within the municipal district’. Again, it is significant that the references are to being ‘a resident of the municipal district’ and the person’s principal place of residence not being located ‘within the municipal district’. There is no reference to the ward in which the councillor resides; and
(f) Schedule 2 cl 6(3A) of the LG Act provides that the returning officer must reject as being void a nomination from a person who is not enrolled on the voters’ roll ‘for the municipality’. An example of such a case is Victorian Electoral Commissioner v Municipal Electoral Tribunal,[44] where a candidate who lived outside the boundaries of the relevant municipality was held not to be entitled to nominate as a candidate for election. Again, the requirement relates to the municipal district – not to any one ward.
[44][2017] VCAT 294.
This outcome is consistent with the position in federal and state elections. There is no requirement that a candidate reside in the electorate in which he or she stands.[45]
[45]Electoral Act ss 69, 70; Commonwealth Electoral Act 1918 (Cth) ss 163, 170.
I conclude that the MET erred when it held that a candidate’s entitlement to nominate as a councillor can only be in respect of the ward which governs the candidate’s entitlement to vote’.[46] In fact, a candidate who is enrolled on the voters’ roll for a municipal district is entitled to nominate as a candidate, and serve as a councillor, for any ward within the municipal district. The VCAT decision refers to his residency at Mount Alexander Road as rendering Mr Smits ineligible to enrol in the Myrnong Ward, concluding that he was ineligible to nominate for election in that ward.[47] Again this is not correct.
[46]MET decision, 4 [8].
[47]VCAT decision, [43], [48].
In truth, Mr Smits had his principal place of residence as shown on the register of electors within the municipal district of the Council. He was entitled to be on the voters’ roll and to nominate as a candidate for election as a councillor in any of the three wards of the Council at the 2016 election.
For these reasons, I conclude that Ms Iser’s objection to Mr Smit’s candidature and address for enrolment, and her application for an inquiry under s 45 of the LG Act must fail. In summary:
(a) Mr Smits is a person whose principal place of residence at all material times was within the municipal district of the Council. As such, he was ‘a resident in the municipal district of the Council’ for the purposes of s 11(1) of the LG Act before and after the entitlement date;
(b) Mr Smits was enrolled as a resident without application on the voters’ roll in respect of an address in the municipal district of the Council;
(c) For the purpose of s 11(5)(a) of the LG Act, Mr Smits had an entitlement as a resident without application as at the entitlement date;
(d) Although Mr Smits appears to have failed to notify the Commission in writing of the change of his principal place of residence from Mirams Street to Mt Alexander Road, and then back to Mirams Street, this did not alter his fundamental eligibility to stand as a candidate for election. When he did relocate back to Mirams Street as his principal place of residence, he was still shown on the electoral register at this address;
(e) On the entitlement date, Mr Smits was ‘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, as such, was entitled to be enrolled on the voters’ roll in respect of his address, as a resident without application under s 12(1) of the LG Act;
(f) As at the entitlement date for the 2016 election, Mr Smits was correctly listed on the register of electors at an address within the municipal district of the Council. His principal place of residence on that date was at the Mirams Street address which was also his address as shown on the register of electors and voters’ roll; and
(g) Either the Mirams Street address or the Mt Alexander Road address was sufficient to establish his eligibility to be entered onto the voters’ roll of the municipal district as at the entitlement date.
Conclusion
I will grant leave to appeal, and the appeal succeeds on the two grounds relied on. Orders will be made generally in the form of the orders sought by the Commission in the originating motion. I have considered whether there is any benefit in remitting the proceeding to VCAT. However, as a consequence of the conclusions I have reached, there is no utility or benefit in such a course of action, as the application of Ms Iser for an inquiry under s 45(1)(a) of the LG Act must inevitably be dismissed.[48]
[48]Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320, 332–333 [20] (French CJ, Gummow and Bell JJ).
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