Victorian Electoral Commissioner Warwick Gately sat through two hours of hearings at the Victorian Civil and Administrative Appeals Tribunal (VCAT) yesterday as his lawyers strongly recommended Supreme Court judge Greg Garde make the unprecedented decision of removing a sitting City of Melbourne councillor, Michael Caiafa, four months into his term, based on a recount.

The judge himself said this had never happened before, at any level of Australian politics.

I gave the judge, who is also president of VCAT, this 4000-word submission opposing the move and spent about 40 minutes at the bar table urging his honour to go in one of several different directions, including even calling a whole new election.

The history of the case on ineligible indigenous candidate Brooke Wandin being declared elected and then withdrawing has been explained in these two Crikey stories.

The Herald Sun produced the only mainstream coverage of yesterday’s hearing, although expect much wider treatment next week if we really do see a judge deliver the triple-whammy of giving Robert Doyle majority control, removing popular Queen Victoria Market trader Michael Caiafa and also electing Nicolas Frances Gilley, who received only 14 primary votes and was No. 2 on the ineligible “An Indigenous voice on council” ticket.

At one level, the case is something about nothing. The VEC failed to persuade magistrate Graeme Smith at the Municipal Electoral Tribunal to stop the standard count-back when a vacancy is created.

But when the VEC successfully appealed to VCAT and later pushed the button on its preferred (but not yet official) recount with Brooke Wandin treated as if she had withdrawn before the election, we still got Frances Gilley elected to council.

But, and it’s a very big but, the VEC approach also leads to the key change of removing unrelated councillor Michael Caiafa and replacing him with Susan Riley, the very loyal and reliable former deputy lord mayor who was rather unfairly relegated to No. 4 on the Team Doyle ticket at last year’s council election.

The VEC keeps talking about trying to make a decision that best reflects the true intentions of the voter, but they’ve got a big problem here because the Riley victory over Caiafa only happens because of my preference decision and I don’t want that outcome.

They can’t tell me what to think, although VEC barrister Liam Brown did tell the judge yesterday I was trying to “re-write history”.

Garde pointed out the debate and outcome was about reflecting the collective decision of individual voters but this ignores the group voting ticket system where voters effectively delegate their preferencing decision.

Let’s go to the key parts of my written submission on this point:

Community and political support for the old Senate-style voting system dissipated as candidates were elected with very low primary votes. Think Ricky Muir with 0.5%. The Senate voting system was changed in 2016 but the City of Melbourne councillor elections still run the same system which gives disproportionate voting power to backroom preference deals rather than individual voters. Given that system, VCAT should give weight to the preferences expressed both on how to vote cards and in submissions to VCAT by candidates because it is the candidates, not the voters, who allocate the preference with the 92% of votes which are cast above the line. Remember that point, more than 12 out of 13 voters left their preference allocation to the lead candidate of each Group.

The preference numbering I lodged included Brooke Wandin at 3, Philip Le Liu at 14, Susan Riley at 18, Nicolas Frances Gilley at 22 and Michael Caiafa at 28. This proved to be decisive as I was the last candidate eliminated in both counts, triggering a cascade of preferences which determined the last 4 councillors elected. Therefore, my preferences were crucial and Susan Riley would not have been elected under the VEC’s recount scenario if I hadn’t placed her at 18 on my preference card, above Nicolas Frances Gilley at 22 and Michael Caiafa who was at number 28.

I received 3619 first preference votes and 3098 of these were above the line where the voter fully delegated the preference allocation to me. If I had preferenced Michael Caiafa or Nicolas Frances Gilley at 18 and Susan Riley at 28, not one above the line vote would have changed, but the result would have changed.

 Therefore, VCAT should absolutely take into account now that my clear preference is, firstly, for Cr Caiafa to remain in office and, secondly, for Team Doyle not to achieve a majority with the election of Susan Riley courtesy of my preferences and a controversial VEC and judicial intervention. This is no way reflects on the capability of Susan Riley, a former deputy Lord Mayor, but reflects my strongly held view that the Lord Mayor works best for Melbourne when reaching across the aisle building Coalitions rather than holding unchecked power in his own right.

 Voters who supported the “Stephen Mayne: transparency, independence, accountability, experience” ticket understood that very clearly as my 250 word statement (p.8 in the voting booklet provided to his honour) included the following: “By all means support the Lord Mayor, as Cr Mayne often does. He does a great job. But too much power through a majority would be dangerous!” I’m asking VCAT to resist the VEC application for it to intervene in a way which would utilise my preferences to deliver Team Doyle a majority — the very thing I warned against.  

 You might say that preferences can’t be changed but I would have submitted a different preference card at the time if I’d known Brooke Wandin had been withdrawn. My preference strategy was to put Susan Riley as high as possible whilst ensuring I didn’t personally deliver Team Doyle a majority. Brooke Wandin was a key part of this strategy and my preferences did indeed elect her 6th in the first count. If Brooke had been eliminated, I preference 3 other at risk but viable candidates (Cathy Oke, Philip Le Liu and Jackie Watts) ahead of Susan Riley to ensure there was no Team Doyle majority. If Brooke Wandin had been eliminated, I would almost certainly have preferenced Nicolas Frances Gilley (and possibly Michael Caiafa) ahead of Susan Riley.

 Clearly, Garde finds himself in a most invidious situation and we’ll probably know which way he jumps some time next week.

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