CoRBA Reply to Premiers Department
What follows is CoRBA’s detailed reply to the State Government in reply to the letter from Dan O’Brien. CoRBA believes that comments in the Dan O’Brien letter, downplayed or understated the issues, prompting CoRBA members to set out their concerns in detail. The document is contains a lot of detail, it runs for about nine pages when printed, but if you want to know what the issues really are you should read on.
Detailed response to the letter sent by Dan O’Brien, Chief of Staff, Premier of Victoria on June 5, 2008, in answer to CoRBA-Melbourne letter of May 6, 2008.
For easy reference, all points from Dan O’Brien’s document have been paraphrased or repeated in full and appear in blue. Each point is immediately followed by CoRBA’s detailed response in black. The replies are edited compilations of views submitted by CoRBA members.
1. Your First General Point
Many of the issues CoRBA raises were dealt with as part of the 2001 review and are now specifically dealt with by that Act. The fact that Parliament has so recently dealt with these issues places Melbourne in a different category from other municipalities.
CoRBA Response
Your statement actually supports the argument for an immediate review
This is because many of the changes introduced by Parliament in 2001 are unique to the City of Melbourne, and they are not working as intended.
CoRBA notes that the 2001 review led up to the City of Melbourne Act. It was a review of systems in place prior to the Act. We understand that a Ministerial Advisor to a junior inexperienced Minister conducted this review. There were no clear Terms of Reference and nor was a final report made available.
No comprehensive review of current system has been carried out and it is clearly overdue.
The 2001 review cannot be described as “recently considered”
In fact, it is well beyond a reasonable time to look back and see how well the City of Melbourne Act 2001 has worked. CoRBA notes that the Government has reviewed and amended many Acts that are more recent than the City of Melbourne Act 2001 (for example, the Owners Corporation Act 2006 was amended within weeks of commencement). CoRBA also notes that the Government has given commitments that other Acts will be reviewed after two-years of operation (for example, the Owners Corporation Act 2006 and the Conveyancers Act).
It is unreasonable to argue that the City of Melbourne (CoM) be regarded as “in a different category” from other municipalities in relation to proper process
Your statement suggests that rules applying to all other municipalities regarding equity and fair representation are inappropriate for Melbourne.
You also appear to be saying that the City of Melbourne Act 2001 successfully removed all difficulties to do with governance and fair representation. Given the level of community concern this is clearly not the case. CoRBA believes that the Government has a responsibility to create conditions by which democracy can be preserved, whether in a capital city council or in any other category of social organisation. We urge that, when it is carried out, the review we are calling the methodology should be open and transparent, unlike the 2001 review.
2. Your Second General Point
Many CoRBA issues relate to the balance of representation of businesses, property owners and ratepayers, and residents. The 2001 legislation intended to give all voters a direct and equal say in the election of Lord Mayor, Deputy Lord Mayor and Council.
CoRBA Response
The fact that the legislation “intended to give all voters an equal say” is not relevant
Since there appeared to be no reference to equal or balanced representation in the earlier Kennett reforms nor in the 2001 review, it is not surprising then that the representation of residents in the CoM electoral processes has declined. CoRBA questions whether this “intention” was clear at the time. Even if it was an ‘intention’, clearly the legislation has failed to deliver and should be reviewed now before we once again lock in destructive outcomes for another term. It was never an ‘intention’ that the electoral system would give a team of councillors the ability to vote as a bloc with the Lord Mayor, on every issue before the Council.
CoRBA approves of “direct and equal say for all voters” and would like to see it reintroduced at COM
In addition to making changes that give voters an equal say, the legislation must deal with the prohibitive cost faced by ordinary citizens wishing to stand for Council. It is important that ordinary citizens can successfully stand as they give other ordinary citizens a voice.
The government must also accept that the small number of successful women candidates and councillors over the years is a powerful indication of the lack of equal access. Melbourne has only ever had two women Lord Mayors, both elected under the previous Cain Governments, when more democratic systems were in place.
CoRBA stresses that giving companies two votes, versus just one vote for residents, is not providing an “equal say”. Nor can it ensure that those citizens who do not have postal addresses are not disenfranchised.
3. Your Third General Point
The proportional voting arrangement was intended to result in the election of councillors in proportion to their level of support amongst voters of all categories. The voting systems used are similar to those used for the State and Federal Parliaments.
CoRBA Response
Your comment supports CoRBA’s call for a return to the “Ward” system
Based on what you have said, the CoM should have the equivalent of electorates, (i.e. is Ward) or a balance of Wards and City-wide Councillors elected by some sort proportional representational poll. You cannot argue that the 2001 legislation is good because it introduced voting systems that are similar to State and Federal Parliaments and, at the same time, reject CoRBA’s argument for a return to the Ward system (the equivalent of State and Federal electorates)
Councillors need to be far more knowledgeable about and responsive to local issues
Constituents want their elected representatives to independently support local issues and not get caught up in “follow-the leader” decision-making in the City of Melbourne that the current legislation supports. Despite the fact that the municipality has capital city status, there are many local matters that need to be dealt with effectively. These are primarily concerned with the provision of services.
4. Your Comment on Postal Voting
There are arguments in favour of both attendance and postal systems. The decision to use postal or attendance voting is left with each individual council to determine. The Government does not believe that the postal system is open to large-scale abuse or electoral fraud.
CoRBA Response
Your comment provides no evidence or comfort that electoral fraud does not exist
Voters are entitled to more rigour in policy evaluation than mere “belief” on the part of the government. Research into electoral systems in the UK indicates that postal voting is the system most open to abuse and fraud.
The fact that the “government does not believe the postal system of voting is vulnerable to large-scale abuse or electoral fraud” is certainly not a valid reason for rejecting an electoral review so that the matter can be properly addressed. CoRBA would like to see some factual basis to support the Government’s position. Even the Minister has provided no justification or factual evidence for supporting his stance on postal voting.
Evidence of fraud or abuse of postal voting cannot be collected
The Victorian Electoral Commission admits that the postal voting system cannot be effectively audited, and considers it is therefore a poor system. If abuse or fraud were to take place during an election it would not be detected.
There is well-documented and substantial anecdotal evidence of fraud or abuse. Members of CoRBA have consulted with the VEC on these matters and are dismayed that there are actually legal obstacles that prevent the gathering factual evidence.
There is a need for preventative action once the potential for abuse is identified
Just as citizens do not wait to be robbed before putting locks on their doors, government should not wait until fraud is committed before minimising the opportunities for fraud. Given that the UK government recently examined postal voting and decided not to proceed with it, what information does the State Government of Victoria have to contradict the UK study?
CoRBA’s research of electoral systems indicates that postal voting is the system most open to abuse and fraud, particularly amongst groups who can be manipulated or coerced into handing over their postal vote for someone else to submit.
The Councillors want Attendance voting to be reintroduced
The Finance and Governance Committee in Council has twice voted in favour of a return to Attendance voting and twice the Lord Mayoral bloc has overturned this decision at full Council. To substantiate its current position on postal voting, Council conducted a bogus and statistically invalid telephone survey. A town hall meeting was also held where not one speaker defended postal voting. The outcome of the meeting was ignored.
5. Your Comment on Returning to the Ward System
It is a generally accepted principle in Australian municipal government that, as they are funded mainly by rates levied on property owners, those being taxed should have a voice in the government that levies and spends those rates.
Wards, along the lines CoRBA proposes, could result in a relatively greater representation of councillors from residential areas relative to their electoral support across the municipality. Conversely, CBD electors would have lesser representation on Council relative to their electoral support. The representation of views on Council should be proportionate to the level of support for those views amongst voters of all categories.
The majority of councillors to be elected across the State in November will be elected under proportional representation.
CoRBA Response
There is now a much higher level of community disenchantment with the Council
CoRBA accepts that the change away from the Ward system was aimed at giving businesses in the CBD a fair level of representation on Council. But the cost has been very high. Residential voters no longer feel that councillors have any concern for local issues. These local issues are diverse and the councillors are few in number. Constituents struggle to convince any Councillor to address a local issue because of their current ‘portfolio style’ allocation of duties. Local residents associations are forced into acting as de facto Ward Councillors.
The full effect of Kensington and Docklands becoming part of COM is yet to be felt
The additional 9000 constituents in Kensington and Docklands have a right to adequate representation. When they receive this right the workload of Council will inevitably increase, adding further to the lack of adequate local representation. The Docklands area alone is the size of the CBD and needs proper representation in its own right. This almost certainly means that the number of councillors needs to be increased.
The removal of Wards and the introduction of the current “deeming” provisions have enhanced the CBD business vote excessively
The intent of the deeming provisions, to increase input from business (in and outside Melbourne) is well known. Indeed this deeming system is unique in Australian municipalities. The actual consequence, of what amounts to a social experiment, has been the suppression or inadvertent exclusion of resident input. This imbalance has huge implications for decisions about transport, heritage and parkland, planning, real estate development, etc.
It is not just residential voters who are concerned about having no voice
Melbourne business groups have aligned themselves with resident groups to form CoRBA so that, combined, the call for a review of the CoM might be heard. This suggests that only part of the business vote (above point) is being heard.
The Ward system is needed to cover the varying requirements of the municipality
The needs and views of Victorians differ from one side of the State to another just as the needs of greater Melbourne residents differ from Frankston to Essendon. State electoral boundaries acknowledge these differing needs and views. The needs and views of the CoM residents and businesses also vary significantly across the municipality but, since the Ward system was dismantled in 2001, these varying needs are not being catered for. Adequately. CoRBA argues that a review is needed to investigate and recommend a new structure. It does not have to be all Wards or all district Councillors. There are workable alternatives.
Property qualification is no longer the basis for voting entitlement in Australia
You refer to the entitlement to vote as “proportionate to the level of support” and that “it is a generally accepted principle in Australian municipal government that, as councils are funded mainly by rates levied on property owners, those being taxed should have a voice in the government that levies and spends those rates”.
You appear to argue that property provides more rates to Councils and is therefore entitled to more influence or level of support. We note that the Cain government changed the law so that residents and ratepayers, rather than property, became the focus and even immigrant /non-citizens may vote in Local Government elections.
We also note that Minster Wynne does not agree with your position as he is currently proposing to amend the legislation to remove voting rights from certain types of property owners in the municipality.
CoRBA finds it extremely unreasonable to compare 78000 diversely based (living, working, owning property, running businesses etc) constituents of the City of Melbourne with the 98,000 residentially based electors in the Federal Electorate of Melbourne. The nature of the campaigning to these two groups would obviously need to be completely different
6. Your Comment on Moving Away From Direct Elections
I note your comments in relation to the relative advantage of candidates with substantial campaign funds. This is a comment that could be made of all electoral systems. Given the number of voters in the City of Melbourne, it is practicable for a candidate with significant community support to stand successfully. The total enrolment for the City of Melbourne at the 2004 election was a little under 76,000 electors, compared with around 98,000 voters in the federal electorate of Melbourne for the 2007 election.
CoRBA Response
Direct election of the Lord Mayor and Deputy does not deliver the most equitable outcome
Personal campaigning requires considerable funding and therefore remains the preserve of the wealthy. CoRBA disagrees entirely with your assertion that it is “practicable for a candidate with significant community support to stand successful”. Given that 63% of current eligible voters live outside the municipality, the promotional costs to candidates of campaigning by post or advertising is prohibitive. Melbourne based meetings with candidates are no longer sufficient to provide access to all constituents
The current system, where the Lord Mayor comes to power via direct election, together with the recruitment of other candidates on the mayoral “ticket”, is particularly dangerous for democracy. The problem is exacerbated when the incumbent Lord Mayor has had access to Council advertising/promotional funds to self-promote for months prior to the election. CoRBA argues that an independent review will determine the extent to which this type of misappropriation can occur.
If direct election is such a good idea, why don’t we directly elect the Premier and Deputy Premier?
We are wasting talent within our municipality
CoRBA argues that candidates who stand for Lord Mayor or Deputy Lord Mayor should not be automatically excluded from becoming councillors.
Although the City of Melbourne Act 2001 specified this form of direct election, with the intention of providing all voters an equal say in the election of the Lord Mayor and Deputy Lord Mayor, CoRBA cannot see how the system delivers the optimum outcome for the municipality as a whole, since it depletes the City of available talent. Only a thorough and independent review can determine the merits and deficiencies of this system.
7. Your Comment on the Abolition of Deeming
I note CoRBA’s comments about the undesirability of voters being deemed to be without their knowledge. My understanding, however, is that the City informs persons who have been enrolled as voters.
There do not appear to be grounds for assuming that enrolments under this arrangement are more likely to result in fraudulent voting than amongst other classes of voters.
CoRBA Response
CoRBA argues that the electoral roll is compromised when names are placed on the roll automatically
Company directors and public officers are deemed to be eligible for voting without their knowledge or consent. Unlike other electoral rolls, in the City of Melbourne such voters make no application to vote. Their names are simply downloaded from ASIC. Please be advised that the City of Melbourne does not notify voters other than to send ballot papers to company addresses.
Anecdotal evidence points to ballot papers going astray
Until VEC statistics detailing fines for non-voting for “deemed” voters and non returned ballots are made available, the degree of wastage cannot be confirmed. Fraudulent voting may or may not be a major issue, but information that could indicate the potential for fraud is not available.
8. You Comment on Company Nominee Provisions
Amendments to the Local Government Act 1989, which have come into force since the last council elections in 2004, now require that a person may not be nominated to vote on behalf of a corporation unless he or she is a director or company secretary of that corporation. I believe this amendment should resolve your concerns.
CoRBA response
Other changes are mooted. CoRBA will respond to these when we receive a briefing. The Minister refuses to provide this to us.
9. Your Comment on Candidates Needing to be on the Roll for Two Years
I understand that your proposal is intended to prevent candidates standing with no serious intent of being elected but merely to garner and channel preference votes to another candidate. However, it is not clear why a newly enrolled voter should be more willing to participate in such a scheme than other voters.
Victoria’s Charter of Human Rights and Responsibilities Section 18 guarantees the right of eligible persons to vote and be elected at State and municipal elections without discrimination. Preventing recently enrolled voters from standing for election would seem to be an unjustifiable curtailment of democratic rights under the Charter.
CoRBA Response
Voting with a ballot paper showing more than 100 mostly unknown candidates is confusing and leads to voter disinterest
The system favours ‘popular’ candidates and such ‘popular’ recognition of candidates tends to be based upon significant advertising and promotion expenditure. Such ‘popular’ recognition is akin to brand recognition and serves to obscure valid qualities in candidates such as capability, sincerity and commitment to the electorate.
The Council cannot function effectively in its current structure
Analysis of voting patterns and numbers in the last election reveals that, given the low tally of most candidates, stronger candidates vied for preferences deals. The current dysfunctional Council is clear testimony to the difficulties the formation of such unrepresentative alliances can create.
CoRBA agrees that to be consistent with the Victorian Charter of Human Rights and Responsibilities, all constituents must be afforded human rights
While human rights in relation to candidates are extremely important, the other side of the equation, the rights of constituents to transparent, fair, equitable and representative local government is of paramount importance. Voters are entitled to a system where they know, as accurately as possible, the intentions, the views and the alignments of all candidates for whom they are voting, before any given election.
The residents of Docklands face discrimination now
The residents of Docklands have had no local government vote for some people for 6 years. They have been denied a basic human right that is actually guaranteed under the Victorian Constitution.
CoRBA is seeking a review so that the entire constituency to have its say before and at the next election
The right to debate and evaluate how well the Council structure and electoral systems are working is another important human right, Under the current system, homeless citizens have no access to postal voting forms and cannot exercise their right to vote. Furthermore, the residents of the CoM feel they have been discriminated against by changes in the Council structure, by the electoral system, by the financial requirements to successfully stand as candidates, and by various State Governments over recent years – despite the requirements of the Victorian Charter of Human Rights and Responsibilities. If the process is flawed then outcomes will be also be flawed.
10. You Comment on a Review Every Two Election Cycles
The reason this arrangement does not apply in Melbourne City Council is that, after extensive review and consultation, special electoral arrangements have been specifically enacted by Parliament. Any change to those arrangements would require amendment of that Act.
Leaving aside the issue of whether there is a case for reviewing again the arrangements that were enacted so recently, it would not be practicable to conduct a review and the extensive consultation that would be required in time for legislation to be passed before the election scheduled in November this year.
CoRBA Response
The fact that the City of Melbourne operates under unique legislation does not negate the need for periodic review of its electoral processes
CoRBA rejects your argument that differences between the CoM and other municipalities negate the need for a periodic review. Surely all constituents in all municipalities have the same rights under the same Constitution and the same Charter of Human Rights?
Are you suggesting that the current electoral arrangements that changed in 2001 were enacted by Parliament and therefore all is well and that a review is not necessary, now or in the foreseeable future? CoRBA believes that, after seven years, a review of the substantial changes that were made in 2001 cannot be delayed until after the 2008 election.
There is now general agreement across party lines, in the Upper and Lower Houses, (Upper House 19 /6 and Lower House 26/6) and within the Council (24/6) that a review is warranted.
The only obstacle raised against holding a review before the next election, is that of whether or not there is enough time. CoRBA continues to argue that there is in fact ample time for an objective review. Perpetuating a flawed system is a waste of everyone’s time and endeavors.
The essential point is that all stakeholders agree that a review is necessary. Yet, the Minister will not call for one to be carried out.
Proper democratic processes, rather than legislative difficulties, should be driving the Government’s parliamentary agenda
A review is justified because the constituents of the municipality are entitled to transparent, fair and equitable representation, regardless of the legislative difficulties this may present. The fact that the City of Melbourne Act 2001 creates conditions that render reviews and reforms difficult to implement is no justification for or delaying or dismissing the need for a review.
At no stage has the Minster offered any explanation or justification as to why the absence of the periodic review schedule within the current Act is tolerated. Does this government actually condone such discrimination against the constituents of Melbourne? We still have no good reason why the CoM should be treated differently from all other councils in relation to reviews.
11. Your Comment on the Abolition of Above-the-Line Voting
Part 3 of the City of Melbourne Act 2001 specifically requires the election of seven councillors by proportional voting using the Senate style voting system. This is a voting system that is well understood and familiar to Victorian voters, being used for elections to both the Senate and Legislative Council.
CoRBA’s Reply
Voter familiarity with a system does not mean that it is beyond reform.
Above-the-line voting is not necessarily the best system for local government. Voting systems used in Federal and State Parliaments are designed to support a system of party politics. In local government, as noted above, voters want to elect candidates who are concerned with local issues, not necessarily those aligned political parties or voting blocs. Such blocs are the equivalent of political parties. CoM Council should not be a politically aligned Council.
In any case, there has been considerable debate and dissatisfaction expressed about the way the Senate proportional representational system works. It is often argued that the strength of political parties, in such houses of review, effectively excludes independent voices.
The difficulty in completing a valid ballot where there are 100+ candidates in a local council election is similar to there being 100+ candidates in a Senate election, except that the various groups (parties) in a Senate election are likely to be better known in the electorate. In both the Senate and the CoM the exercise of choice, or the promotion of a democratic choice, is likely to be more effective using a less complex “below the line voting” system. Voters need only place numbers against a limited number of candidates on the ballot paper, equal to the number of positions to be filled.
12. Your Comment on Voting Entitlements and Property Value
I understand your concern in relation to persons potentially enrolled as voters merely on the basis of owning a car parking space in the City of Melbourne. As you would be aware, this issue is currently under consideration by Government with a view to legislation being passed before the November council elections.
CoRBA Response
Recent amendments to the Act only address only part of the overall problem
It would be far more effective to review these voting entitlements at the same time as addressing other problematic issues within the City of Melbourne Act 2001. These other issues may not make the same eye-catching headlines at this time but they are just as worthy of immediate review.
Other strange entitlements to vote continue to come to light
CoRBA argues that all constituents are entitled to equitable representation, not the disproportionate representation that exists currently. In the recent Lower House debate (Hansard June 26) it was argued by some that to remove this right might be unconstitutional. Ad hoc tinkering at the edges is unlikely to uncover or remove all the other unacceptable (inequitable) entitlements within the Act.
Limiting entitlement to property over a certain value is just one approach
Other avenues that need to be considered include the length of time voters reside in the CBD and whether the rateable property is used, or capable of being used, for residential, commercial, or business purposes. The effects of any changes to entitlements on the overall Council structure and systems need to be assessed at this time.
13. Your Comments on Disclosure of Election Funding
CoRBA Response
Individual campaigns funded by specific groups with particular agendas are of concern
CoRBA is keen to see the donations list. But from your statement, it seems it will still be possible for substantial donations to be made outside of the election period (one week before?) without disclosure. The way in which funding data is elicited is problematic. Candidates may honestly declare how much they personally spent but they are under no obligation to disclose funding provided in the form of in-kind goods or related services provided by others. And, to labour a point, nor is the incumbent Mayor held accountable for CoM advertising or promotions prior to the election.
CoRBA will not recommend specific controls on electoral funding because it would be inappropriate to do so. Clearly it is the responsibility of government to adequately address this issue. It alone has the necessary resource to investigate a more transparent system.
