A man at the centre of a neighbourhood spat in Melbourne's east has become the catalyst for change to local government election law. The existence of what Victorian Local Government Minister Jeanette Powell calls a ‘‘loophole’’ could mean 29,179 registered voters in the City of Manningham’s Mullum Mullum ward are forced back to the polls for another round of council elections. ... The 521 votes unsuccessful candidate David Muscat received in the October 2012 election were deemed informal on April 4 after a complaint from fellow unsuccessful candidate, Bob Beynon, that Mr Muscat was not eligible to stand due to a criminal conviction.
In 2011, Mr Muscat was fined and convicted for recklessly causing injury when he head-butted a neighbour, shoved another and blasted them in the face with a leaf-blower near his Park Orchards home. According to the Local Government Act, people convicted of an offence which can carry a five-year jail term, such as recklessly causing injury, cannot run in council elections for seven years.The Victorian Electoral Commission (VEC) and the state's Local Government Inspections &Compliance Inspectorate were reportedly "tipped off" prior to the election but were unable to delete Mr Muscat from the ballot because he did not formally withdraw. People who are precluded by a criminal conviction from serving as local government councillors can currently stand as candidates and be elected.
The VEC site highlights
To stand in an election you need to first nominate as a candidate. Every eligible person has the right to stand to election, as formalised in Section 18 of the Charter of Human Rights and Responsibilities Act 2006. "Every eligible person has the right, and is to have the opportunity, without discrimination ... to have access, on general terms of equality, to the Victorian public service and public office."before going on to state that
To become a candidate you must be enrolled as a voter in the municipality in which you wish to stand. You are not eligible to stand for election if:
- you are an undischarged bankrupt; your property is subject to control under the law relating to bankruptcy;
- you are of unsound mind;
- you have been convicted of certain criminal offences (within seven years of the election);
- you work for the council in which you intend to become a councillor; y
- ou are a councillor with another council; or
The Government has indicated that it will seek to exclude people with certain criminal convictions from getting onto the ballot.
- you are are a Federal Member of Parliament or a Member of Parliament in any state or territory.
The Age reports that
In the October election, Mr Muscat’s votes were channelled to other candidates as preferences and, given the close nature of the result, Mr Beynon claims they influenced the outcome. Mr Beynon, a former Manningham mayor, began court action against the VEC last year and said he was not motivated by sour grapes. “I’ve been focusing on these ridiculous laws. There are so many things which could be changed, such as introducing a mandatory police check for candidates,” Mr Beynon said. “At the end of the day, I shouldn’t have to pay court costs to seek democracy.”
At a Municipal Electoral Tribunal hearing on April 4, Magistrate Michael Smith gave the VEC until April 19 to recount the Mullum Mullum ballots without Mr Muscat’s votes. If the elected councillors - Meg Downie, Sophy Galbally and Paul McLeish - do not win their seats then voters in that ward would be ordered back to the polls, Mr Smith ruled. But if a new election is ordered, it is likely at least one of the three councillors will appeal the decision to VCAT. Mr Smith said it was unacceptable that the VEC did not have the power to remove a candidate from the ballot paper if they believed he was ineligible. “It’s an unsatisfactory situation…and the VEC can do nothing about it. It was known well before the election that [Mr Muscat] was almost certainly not eligible to stand,” Mr Smith said. VEC spokeswoman Sue Lang said the VEC, and therefore the taxpayer, would likely foot the bill for the court action.
Meanwhile, Mr Muscat yesterday vowed to fight a separate court battle with the inspectorate for alleged breaches of the Local Government Act. He faces charges of nominating as a candidate when he was not qualified to do so and knowingly providing a false declaration to the Victorian Electoral Commission. The maximum penalty is a two-year jail term or a $50,000 fine.
