The Art of Delegation and Register Reporting

The City of Melbourne is required under the Local Government Act to review its list of delegations within 12 months following the Municipal election. 

There is ongoing concern at the misuse and abuse of decisions made under delegation.  Whilst there is a requirement for a register of delegations there is no mandatory requirement to maintain or publish  a register of decisions made under the instrument of delegations.  This leaves the whole system of governance wide open to misuse and abuse. No one knows who and when a decision is made and under what authority the decision had.

Individual Councillors under the terms of the Local Government Act and the Councillors “Code of Conduct” can not direct Council Staff in the performance of their duty or in exercising any decisions made under delegation. It is unclear if that applies to decisions made by the Council as a whole. (Section 76E (3) of  LG Act) By inference a Council can direct the CEO to take certain action within some limits.  

The power of delegation is limited  to expressed delegations made to the Chief Executive Officer, a member of staff and or special committee or advisory board. A person or bodies who have been delegated authority can not further delegate to someone else or another body powers or duties delegated to them. If this is required this would have to be done by way of amending the substantive authority of delegation.

It sounds a bit convoluted but it is designed to ensure that there is a clear line of responsibility and authority.  Untangling the web of delegations is an art form unto itself.

Understanding the process is made that much more difficult when decisions are made under delegation and there is no central database or record of those decisions.

We have raised the issue of delegation  and the need for a register of decisions made under delegation with the Lord Mayor and Councillor Stephen Mayne, who is chairman of the Council’s Governance Portfolio. We hope this issue will be looked into and addressed when the new Council finally gets around to reviewing the register of delegations.

From our past experience this will be one of those last minute decisions that the Council administration will present to the Council at the last minute giving them  little time to seriously pick though the list of delegations and understand exactly what powers they are delegating.

A register of decisions made under delegations, if properly designed and implemented, would give Councillors a better understanding and oversight of the delegated process.

Do not hold your breath.  Previous Councils have not got around to reviewing the process properly and we do not expect, although we remain hopeful, that this council will  get it right either. 

Maybe Stephen Mayne will be the one. Somehow I think not.

Another issue but semi related to the question of governance there is a requirement that Council must record and register any “Assembly of Councillors”

Section 3 of the Local Government Act -Definitions, states:

assembly of Councillors 

(however titled) means a meeting of an advisory committee of the Council, if at least one Councillor is present, or a planned or scheduled meeting of at least half of the Councillors and one member of Council staff which considers matters that are intended or likely to be- 

(a) the subject of a decision of the Council; or 
(b) subject to the exercise of a function, duty or power of the Council that has been delegated to a person or committee- but does not include a meeting of the Council, a special committee of the Council, an audit committee established under section 139, a club, association, peak body, political party or other organisation;

It should be noted that there have been a number of assemblies of Councillors that have taken place this term that have not been listed on the City Council’s published register But we are  noting them and recording the details along with keeping a close eye on Councillor expenses, interstate and  overseas travel.

Pitchford offered only two more years question raised about legality of re-appointment

Melbourne City Council has offered incumbent CEO, David Pitchford only two more years in what is normally a three to five year contract.

The decision of Council was to agree to a limited extension indicating that David Pitchford has effectively been put on notice that he should seek alternative employment. A similar provision was adopted for Michael Malouf whose contract was effectively terminated early with the City Council cutting the term of the contract from five years to three.

There a a number of question of legality still outstanding.

It is understood that David Pithford’s current contract expires on September 30 2007. If this is correct then the contract is outside the six months statutory period in which the Council can resolve to extend the contract.

The City Council has not advertised its intention to re-appoint the CEO for a further two years nor has the position been advertised. Given that the decision of the Council is outside the six month period prior to date of expiry of the current contract there is serious concern that the contract may be void under section 94 (7) of the local Government Act.

Melbourne City Councillors have been reassured by Councils in-house legal advisers that the reappointment does comply with the terms of the Local Government Act.

The City Council is due to finalise the arrangements at its meeting scheduled for March 27, 2007 which is still outside the six month statutory period.

Section 94 clause (4) of the Local Government Act requires that the City Council must provide 14 days public notice of its intention to renew the CEO’s contract if the decision is made within 6 months of the CEO contract expiring. The council was advised by the Council’s in-house legal officers that they did not have to provide public notice as the decision to re-appoint the CEO was outside the six months statutory period.

However

Section 94 clause (7) of the Local Government Act states that

A contract of employment as Chief Executive Officer between a Council and a person is void if it is made—

(a) in circumstances that are contrary to this section; or

(b) while a current contract of employment as Chief Executive Officer with the person exists and that current contract is not due to expire for at least another 6 months (regardless of whether or not the Chief Executive Officer’s position has been readvertised);

David Pitchford and the City Council could be on very thin ice indeed.

UPDATE: We have just been informed that David Pitchfords current contract expires on 22nd September, not Septemeber 30 as we previously thought, in which case the comments about compliance with the Local Government Act do not apply.
However The fact that David Pitcford’s contract has been limited to only two years is still an indication of Mr Pitchford’s standing in the Council.

David Pitchford has presided over a corrupt administration which resulted in the City Council being investigated by the State Ombudsman whose report found that the Council had acted inappropriately in the management of its traffic services.

The Melbourne City Council’s governance department acting on advice on advice by Alison Lyons had actively sought to cover-up and avid the investigation by the Ombudsman Department/ This was not the first time the City of Melbourne Governance department and the Traffic management department have acted in a corrupt questionable manner. (Prior to David Pitchford’s appointment)

We continue to ask on what basis has Melbourne’s CEO been offered bonus payments given the extent of allegations and the cover-up following the Ombudsman’s review.

Pitchford offered only two more years question raised about legality of re-appointment

Melbourne City Council has offered incumbent CEO, David Pitchford only two more years in what is normally a three to five year contract.

The decision of Council was to agree to a limited extension indicating that David Pitchford has effectively been put on notice that he should seek alternative employment. A similar provision was adopted for Michael Malouf whose contract was effectively terminated early with the City Council cutting the term of the contract from five years to three.

There a a number of question of legality still outstanding.

It is understood that David Pithford’s current contract expires on September 30 2007. If this is correct then the contract is outside the six months statutory period in which the Council can resolve to extend the contract.

The City Council has not advertised its intention to re-appoint the CEO for a further two years nor has the position been advertised. Given that the decision of the Council is outside the six month period prior to date of expiry of the current contract there is serious concern that the contract may be void under section 94 (7) of the local Government Act.

Melbourne City Councillors have been reassured by Councils in-house legal advisers that the reappointment does comply with the terms of the Local Government Act.

The City Council is due to finalise the arrangements at its meeting scheduled for March 27, 2007 which is still outside the six month statutory period.

Section 94 clause (4) of the Local Government Act requires that the City Council must provide 14 days public notice of its intention to renew the CEO’s contract if the decision is made within 6 months of the CEO contract expiring. The council was advised by the Council’s in-house legal officers that they did not have to provide public notice as the decision to re-appoint the CEO was outside the six months statutory period.

However

Section 94 clause (7) of the Local Government Act states that

A contract of employment as Chief Executive Officer between a Council and a person is void if it is made—

(a) in circumstances that are contrary to this section; or

(b) while a current contract of employment as Chief Executive Officer with the person exists and that current contract is not due to expire for at least another 6 months (regardless of whether or not the Chief Executive Officer’s position has been readvertised);

David Pitchford and the City Council could be on very thin ice indeed.

UPDATE: We have just been informed that David Pitchfords current contract expires on 22nd September, not Septemeber 30 as we previously thought, in which case the comments about compliance with the Local Government Act do not apply.
However The fact that David Pitcford’s contract has been limited to only two years is still an indication of Mr Pitchford’s standing in the Council.

David Pitchford has presided over a corrupt administration which resulted in the City Council being investigated by the State Ombudsman whose report found that the Council had acted inappropriately in the management of its traffic services.

The Melbourne City Council’s governance department acting on advice on advice by Alison Lyons had actively sought to cover-up and avid the investigation by the Ombudsman Department/ This was not the first time the City of Melbourne Governance department and the Traffic management department have acted in a corrupt questionable manner. (Prior to David Pitchford’s appointment)

We continue to ask on what basis has Melbourne’s CEO been offered bonus payments given the extent of allegations and the cover-up following the Ombudsman’s review.

Pitchford offered only two more years question raised about legality of re-appointment

Melbourne City Council has offered incumbent CEO, David Pitchford only two more years in what is normally a three to five year contract.

The decision of Council was to agree to a limited extension indicating that David Pitchford has effectively been put on notice that he should seek alternative employment. A similar provision was adopted for Michael Malouf whose contract was effectively terminated early with the City Council cutting the term of the contract from five years to three.

There a a number of question of legality still outstanding.

It is understood that David Pithford’s current contract expires on September 30 2007. If this is correct then the contract is outside the six months statutory period in which the Council can resolve to extend the contract.

The City Council has not advertised its intention to re-appoint the CEO for a further two years nor has the position been advertised. Given that the decision of the Council is outside the six month period prior to date of expiry of the current contract there is serious concern that the contract may be void under section 94 (7) of the local Government Act.

Melbourne City Councillors have been reassured by Councils in-house legal advisers that the reappointment does comply with the terms of the Local Government Act.

The City Council is due to finalise the arrangements at its meeting scheduled for March 27, 2007 which is still outside the six month statutory period.

Section 94 clause (4) of the Local Government Act requires that the City Council must provide 14 days public notice of its intention to renew the CEO’s contract if the decision is made within 6 months of the CEO contract expiring. The council was advised by the Council’s in-house legal officers that they did not have to provide public notice as the decision to re-appoint the CEO was outside the six months statutory period.

However

Section 94 clause (7) of the Local Government Act states that

A contract of employment as Chief Executive Officer between a Council and a person is void if it is made—

(a) in circumstances that are contrary to this section; or

(b) while a current contract of employment as Chief Executive Officer with the person exists and that current contract is not due to expire for at least another 6 months (regardless of whether or not the Chief Executive Officer’s position has been readvertised);

David Pitchford and the City Council could be on very thin ice indeed.

UPDATE: We have just been informed that David Pitchfords current contract expires on 22nd September, not Septemeber 30 as we previously thought, in which case the comments about compliance with the Local Government Act do not apply.
However The fact that David Pitcford’s contract has been limited to only two years is still an indication of Mr Pitchford’s standing in the Council.

David Pitchford has presided over a corrupt administration which resulted in the City Council being investigated by the State Ombudsman whose report found that the Council had acted inappropriately in the management of its traffic services.

The Melbourne City Council’s governance department acting on advice on advice by Alison Lyons had actively sought to cover-up and avid the investigation by the Ombudsman Department/ This was not the first time the City of Melbourne Governance department and the Traffic management department have acted in a corrupt questionable manner. (Prior to David Pitchford’s appointment)

We continue to ask on what basis has Melbourne’s CEO been offered bonus payments given the extent of allegations and the cover-up following the Ombudsman’s review.

Boys with Toys VEC once again seeks to use computers to limit public scrutiny of election count

Reports coming in from scrutineers and candidates indicates that the Victorian Electoral Commission is once again proposing to use a computerised counting system for the Mooney Valley City Council By-election scheduled to be counted this weekend.

Under dispute is the need to conduct a computerised count for the election of a single member when a manual count would be quicker and require less resources and more important would be more open and transparent.

The use of a computerised count in a single member constituency can not be justified. The time and resources required to undertake a computerised count is much more then it would be if the election was manually counted. Any time saved is only at the expense the public scrutiny by cutting corners reducing the overall quality of the count.

Computerised counting was not used to count the results of the Victorian Legislative Assembly (Lower-house) election in November.

The Victorian Electoral Commissions conduct of the Victorian Legislative Council (Upper-house) election in November 2006 demonstrates that VEC’s computerised counting system has some major problems. Information obtained under FOI indicates that the software used by the Victorian Electoral Commission has not been fully certified and that there is insufficient checks and balances in the system to ensure that the results of the computerised count are accurate and correct.

The Victorian Local Government Act Schedule 3, Part 3 subclause 10 (c) (ii) requires that the VEC undertake a preliminary sort of ballot papers into parcels based on the allocated first preference vote.

The VEC claim that they are exempt from this provision of the act where the election is conducted by post and a computerised counting system is used.

The election is expected to take 24 data-entry operators two hours to count., That’s 48 man hours. A manual count would take four people approximately 4-5 hours to count a net savings of 28 man hours. So where is the benefit of a computerised count, and at what costs,. A computerised count is virtually impossible to effectively scrutinise.

The tally of the 2006 Victorian Legislative Council also required that the Victorian Electoral Commission presort ballot papers into parcels based on the first preference allocation.

This is an important part of the scrutiny of the ballot. Without this provision scrutineers are limited in their ability to undertake a proper scrutiny of the counting of the election. Ballot paper preferences are keyed in a random fashion and scrutineers are unable to focus on a particular candidates preferences.

The VEC electronic shell game

There is further concern that the Electoral Commission refuses to provide copies of the recorded preference data file for independent analysis and review, further denying the opportunities and ability to undertake a proper scrutiny of the count.

This is akin to the con-mans game of three shells and a pea where the returning officer declares the results of the game by lifting up one shell showing that the pea is not there but refuses to show what’s underneath the other two shells.

Use of computerised counting of single member constituencies should be prevented until such time as full and comprehensive review of the electronic voting systems has been undertaken,

A Manual count would facilitate an open and transparent scrutiny of the ballot and would be preferable then the proposed computerised count,

The Victorian Electoral Commission is more interested in playing with its latest toy then it is about public accountability and the maintenance of open and transparent electoral system.

Given the experience of recent past events the VEC management of the electronic count can not be trusted.

The fact that the VEC is prepared to misrepresent the facts in respect to the legislative requirements in order to cut corners is further evidence for a major review of the functions and operation of the Victorian Electoral Commission.

What’s also interesting

In reading the Victorian Local Government Election regulations clause 110 (4) states “Before calculating the result, the returning officer must reconcile the electronic record of ballot papers with the total number of ballot-papers received”.

This is something that was clearly missing from the November 2006 Victorian State Election.

Had the VEC reconciled the electronic record of ballot papers with the total number of ballot-papers received the significant number of errors in the conduct of the election count would not have occurred. A complete lack of due diligence on behalf of the Victorian Electoral Commission

The total number of ballot papers recorded in the final Western Metropolitan count had up to 470 ballot papers missing from the previous count.

There is little to wonder as to why the VEC does not want to publish the polling place details of the 2006 Legislative Council results as it prevents public review and independent analysis of the dodgy electronic election count.

Hopefully these errors in administration will not occur in the NSW State Election count and that copies of preference data-files and polling place results are readily available prior to the declaration of the poll.

Victorian Local Government Act 1989 (version 085)
Schedule 3, Part 3 clause 10 (c) ((ii)
Requires that the ballot papers must be sorted into parcels based on the allocated first preference

PART 3 RESULT WHERE ONLY ONE COUNCILLOR IS TO BE ELECTED

9. Only two candidates
If only 1 Councillor is to be elected and there are only
2 candidates the result is to be determined as follows
(a) the candidate who has received the greater number of
first preference votes is to be declared elected by the
r
eturning officer;

(b) if the 2 candidates have received an equal number of
votes the result is to be determined by lot by the
returning officer.

10. More than two candidates

If only 1 Councillor is to be elected and there are more than
2 candidates the result is to be determined as follows
(a) the candidate who has received the greatest number of
first preference votes if that number constitutes an
absolute majority of votes is to be declared elected by
the returning officer;
(b) “Absolute majority of votes” means a number of
votes greater than one-half of the total number of
ballot-papers (excluding ballot-papers which are
rejected) and if necessary includes the vote by lot;
(c) if no candidate has received an absolute majority of
votes, the returning officer upon receipt of the several
sealed parcels from any authorised person and with
the assistance of any authorised persons and in the
presence and subject to the inspection of any
1 scrutineer, if present, appointed by each candidate
but of no other person, must
(i) open all the sealed parcels containing used
ballot-papers; and
(ii) arrange such ballot-papers together with the
allowed postal ballot-papers, if any, by placing
in a separate parcel all those on which a first
preference is indicated for the same candidate
and preference votes are also duly given for all
the remaining candidates, omitting ballot papers
which are rejected; and
(iii) declare the candidate who has received the
fewest first preference votes a defeated
candidate; and
(iv) distribute the ballot-papers counted to the
defeated candidate amongst the non-defeated
candidates next in order of the voters’
preference; and
(v) after the distribution again ascertain the total
number of votes given to each non-defeated
candidate;
(d) the candidate who has then received the greatest
number of votes if that number constitutes an absolute
majority of votes is to be declared elected by the
returning officer;
(e) if no candidate then has an absolute majority of votes
the process of declaring the candidate who has the
fewest votes a defeated candidate and distributing the
ballot-papers counted to the defeated candidate
amongst the non-defeated candidates next in order of
the voters’ preference is to be repeated until
1 candidate has received an absolute majority of votes
and is declared elected by the returning officer;
(f) if on any count 2 or more candidates have an equal
number of votes and 1 of them has to be declared a
defeated candidate, the result is to be determined
(i) by declaring whichever of those candidates had
the fewest votes at the last count at which those
candidates had a different number of votes to be
defeated; or
(ii) if a result is still not obtained or there has been
no count, by lot by the returning officer;

Boys with Toys VEC once again seeks to use computers to limit public scrutiny of election count

Reports coming in from scrutineers and candidates indicates that the Victorian Electoral Commission is once again proposing to use a computerised counting system for the Mooney Valley City Council By-election scheduled to be counted this weekend.

Under dispute is the need to conduct a computerised count for the election of a single member when a manual count would be quicker and require less resources and more important would be more open and transparent.

The use of a computerised count in a single member constituency can not be justified. The time and resources required to undertake a computerised count is much more then it would be if the election was manually counted. Any time saved is only at the expense the public scrutiny by cutting corners reducing the overall quality of the count.

Computerised counting was not used to count the results of the Victorian Legislative Assembly (Lower-house) election in November.

The Victorian Electoral Commissions conduct of the Victorian Legislative Council (Upper-house) election in November 2006 demonstrates that VEC’s computerised counting system has some major problems. Information obtained under FOI indicates that the software used by the Victorian Electoral Commission has not been fully certified and that there is insufficient checks and balances in the system to ensure that the results of the computerised count are accurate and correct.

The Victorian Local Government Act Schedule 3, Part 3 subclause 10 (c) (ii) requires that the VEC undertake a preliminary sort of ballot papers into parcels based on the allocated first preference vote.

The VEC claim that they are exempt from this provision of the act where the election is conducted by post and a computerised counting system is used.

The election is expected to take 24 data-entry operators two hours to count., That’s 48 man hours. A manual count would take four people approximately 4-5 hours to count a net savings of 28 man hours. So where is the benefit of a computerised count, and at what costs,. A computerised count is virtually impossible to effectively scrutinise.

The tally of the 2006 Victorian Legislative Council also required that the Victorian Electoral Commission presort ballot papers into parcels based on the first preference allocation.

This is an important part of the scrutiny of the ballot. Without this provision scrutineers are limited in their ability to undertake a proper scrutiny of the counting of the election. Ballot paper preferences are keyed in a random fashion and scrutineers are unable to focus on a particular candidates preferences.

The VEC electronic shell game

There is further concern that the Electoral Commission refuses to provide copies of the recorded preference data file for independent analysis and review, further denying the opportunities and ability to undertake a proper scrutiny of the count.

This is akin to the con-mans game of three shells and a pea where the returning officer declares the results of the game by lifting up one shell showing that the pea is not there but refuses to show what’s underneath the other two shells.

Use of computerised counting of single member constituencies should be prevented until such time as full and comprehensive review of the electronic voting systems has been undertaken,

A Manual count would facilitate an open and transparent scrutiny of the ballot and would be preferable then the proposed computerised count,

The Victorian Electoral Commission is more interested in playing with its latest toy then it is about public accountability and the maintenance of open and transparent electoral system.

Given the experience of recent past events the VEC management of the electronic count can not be trusted.

The fact that the VEC is prepared to misrepresent the facts in respect to the legislative requirements in order to cut corners is further evidence for a major review of the functions and operation of the Victorian Electoral Commission.

What’s also interesting

In reading the Victorian Local Government Election regulations clause 110 (4) states “Before calculating the result, the returning officer must reconcile the electronic record of ballot papers with the total number of ballot-papers received”.

This is something that was clearly missing from the November 2006 Victorian State Election.

Had the VEC reconciled the electronic record of ballot papers with the total number of ballot-papers received the significant number of errors in the conduct of the election count would not have occurred. A complete lack of due diligence on behalf of the Victorian Electoral Commission

The total number of ballot papers recorded in the final Western Metropolitan count had up to 470 ballot papers missing from the previous count.

There is little to wonder as to why the VEC does not want to publish the polling place details of the 2006 Legislative Council results as it prevents public review and independent analysis of the dodgy electronic election count.

Hopefully these errors in administration will not occur in the NSW State Election count and that copies of preference data-files and polling place results are readily available prior to the declaration of the poll.

Victorian Local Government Act 1989 (version 085)
Schedule 3, Part 3 clause 10 (c) ((ii)
Requires that the ballot papers must be sorted into parcels based on the allocated first preference

PART 3 RESULT WHERE ONLY ONE COUNCILLOR IS TO BE ELECTED

9. Only two candidates

If only 1 Councillor is to be elected and there are only
2 candidates the result is to be determined as follows
(a) the candidate who has received the greater number of
first preference votes is to be declared elected by the
r
eturning officer;

(b) if the 2 candidates have received an equal number of
votes the result is to be determined by lot by the
returning officer.

10. More than two candidates

If only 1 Councillor is to be elected and there are more than
2 candidates the result is to be determined as follows
(a) the candidate who has received the greatest number of
first preference votes if that number constitutes an
absolute majority of votes is to be declared elected by
the returning officer;
(b)

“Absolute majority of votes” means a number of
votes greater than one-half of the total number of
ballot-papers (excluding ballot-papers which are
rejected) and if necessary includes the vote by lot;
(c) if no candidate has received an absolute majority of
votes, the returning officer upon receipt of the several
sealed parcels from any authorised person and with
the assistance of any authorised persons and in the
presence and subject to the inspection of any
1 scrutineer, if present, appointed by each candidate
but of no other person, must
(i) open all the sealed parcels containing used
ballot-papers; and
(ii) arrange such ballot-papers together with the
allowed postal ballot-papers, if any, by placing
in a separate parcel all those on which a first
preference is indicated for the same candidate
and preference votes are also duly given for all
the remaining candidates, omitting ballot papers
which are rejected; and
(iii) declare the candidate who has received the
fewest first preference votes a defeated
candidate; and
(iv) distribute the ballot-papers counted to the
defeated candidate amongst the non-defeated
candidates next in order of the voters’
preference; and
(v) after the distribution again ascertain the total
number of votes given to each non-defeated
candidate;
(d) the candidate who has then received the greatest
number of votes if that number constitutes an absolute
majority of votes is to be declared elected by the
returning officer;
(e) if no candidate then has an absolute majority of votes
the process of declaring the candidate who has the
fewest votes a defeated candidate and distributing the
ballot-papers counted to the defeated candidate
amongst the non-defeated candidates next in order of
the voters’ preference is to be repeated until
1 candidate has received an absolute majority of votes
and is declared elected by the returning officer;
(f) if on any count 2 or more candidates have an equal
number of votes and 1 of them has to be declared a
defeated candidate, the result is to be determined
(i) by declaring whichever of those candidates had
the fewest votes at the last count at which those
candidates had a different number of votes to be
defeated; or
(ii) if a result is still not obtained or there has been
no count, by lot by the returning officer;

Boys with Toys VEC once again seeks to use computers to limit public scrutiny of election count

Reports coming in from scrutineers and candidates indicates that the Victorian Electoral Commission is once again proposing to use a computerised counting system for the Mooney Valley City Council By-election scheduled to be counted this weekend.

Under dispute is the need to conduct a computerised count for the election of a single member when a manual count would be quicker and require less resources and more important would be more open and transparent.

The use of a computerised count in a single member constituency can not be justified. The time and resources required to undertake a computerised count is much more then it would be if the election was manually counted. Any time saved is only at the expense the public scrutiny by cutting corners reducing the overall quality of the count.

Computerised counting was not used to count the results of the Victorian Legislative Assembly (Lower-house) election in November.

The Victorian Electoral Commissions conduct of the Victorian Legislative Council (Upper-house) election in November 2006 demonstrates that VEC’s computerised counting system has some major problems. Information obtained under FOI indicates that the software used by the Victorian Electoral Commission has not been fully certified and that there is insufficient checks and balances in the system to ensure that the results of the computerised count are accurate and correct.

The Victorian Local Government Act Schedule 3, Part 3 subclause 10 (c) (ii) requires that the VEC undertake a preliminary sort of ballot papers into parcels based on the allocated first preference vote.

The VEC claim that they are exempt from this provision of the act where the election is conducted by post and a computerised counting system is used.

The election is expected to take 24 data-entry operators two hours to count., That’s 48 man hours. A manual count would take four people approximately 4-5 hours to count a net savings of 28 man hours. So where is the benefit of a computerised count, and at what costs,. A computerised count is virtually impossible to effectively scrutinise.

The tally of the 2006 Victorian Legislative Council also required that the Victorian Electoral Commission presort ballot papers into parcels based on the first preference allocation.

This is an important part of the scrutiny of the ballot. Without this provision scrutineers are limited in their ability to undertake a proper scrutiny of the counting of the election. Ballot paper preferences are keyed in a random fashion and scrutineers are unable to focus on a particular candidates preferences.

The VEC electronic shell game

There is further concern that the Electoral Commission refuses to provide copies of the recorded preference data file for independent analysis and review, further denying the opportunities and ability to undertake a proper scrutiny of the count.

This is akin to the con-mans game of three shells and a pea where the returning officer declares the results of the game by lifting up one shell showing that the pea is not there but refuses to show what’s underneath the other two shells.

Use of computerised counting of single member constituencies should be prevented until such time as full and comprehensive review of the electronic voting systems has been undertaken,

A Manual count would facilitate an open and transparent scrutiny of the ballot and would be preferable then the proposed computerised count,

The Victorian Electoral Commission is more interested in playing with its latest toy then it is about public accountability and the maintenance of open and transparent electoral system.

Given the experience of recent past events the VEC management of the electronic count can not be trusted.

The fact that the VEC is prepared to misrepresent the facts in respect to the legislative requirements in order to cut corners is further evidence for a major review of the functions and operation of the Victorian Electoral Commission.

What’s also interesting

In reading the Victorian Local Government Election regulations clause 110 (4) states “Before calculating the result, the returning officer must reconcile the electronic record of ballot papers with the total number of ballot-papers received”.

This is something that was clearly missing from the November 2006 Victorian State Election.

Had the VEC reconciled the electronic record of ballot papers with the total number of ballot-papers received the significant number of errors in the conduct of the election count would not have occurred. A complete lack of due diligence on behalf of the Victorian Electoral Commission

The total number of ballot papers recorded in the final Western Metropolitan count had up to 470 ballot papers missing from the previous count.

There is little to wonder as to why the VEC does not want to publish the polling place details of the 2006 Legislative Council results as it prevents public review and independent analysis of the dodgy electronic election count.

Hopefully these errors in administration will not occur in the NSW State Election count and that copies of preference data-files and polling place results are readily available prior to the declaration of the poll.

Victorian Local Government Act 1989 (version 085)
Schedule 3, Part 3 clause 10 (c) ((ii)
Requires that the ballot papers must be sorted into parcels based on the allocated first preference

PART 3 RESULT WHERE ONLY ONE COUNCILLOR IS TO BE ELECTED

9. Only two candidates
If only 1 Councillor is to be elected and there are only
2 candidates the result is to be determined as follows
(a) the candidate who has received the greater number of
first preference votes is to be declared elected by the
r
eturning officer;

(b) if the 2 candidates have received an equal number of
votes the result is to be determined by lot by the
returning officer.

10. More than two candidates

If only 1 Councillor is to be elected and there are more than
2 candidates the result is to be determined as follows
(a) the candidate who has received the greatest number of
first preference votes if that number constitutes an
absolute majority of votes is to be declared elected by
the returning officer;
(b) “Absolute majority of votes” means a number of
votes greater than one-half of the total number of
ballot-papers (excluding ballot-papers which are
rejected) and if necessary includes the vote by lot;
(c) if no candidate has received an absolute majority of
votes, the returning officer upon receipt of the several
sealed parcels from any authorised person and with
the assistance of any authorised persons and in the
presence and subject to the inspection of any
1 scrutineer, if present, appointed by each candidate
but of no other person, must
(i) open all the sealed parcels containing used
ballot-papers; and
(ii) arrange such ballot-papers together with the
allowed postal ballot-papers, if any, by placing
in a separate parcel all those on which a first
preference is indicated for the same candidate
and preference votes are also duly given for all
the remaining candidates, omitting ballot papers
which are rejected; and
(iii) declare the candidate who has received the
fewest first preference votes a defeated
candidate; and
(iv) distribute the ballot-papers counted to the
defeated candidate amongst the non-defeated
candidates next in order of the voters’
preference; and
(v) after the distribution again ascertain the total
number of votes given to each non-defeated
candidate;
(d) the candidate who has then received the greatest
number of votes if that number constitutes an absolute
majority of votes is to be declared elected by the
returning officer;
(e) if no candidate then has an absolute majority of votes
the process of declaring the candidate who has the
fewest votes a defeated candidate and distributing the
ballot-papers counted to the defeated candidate
amongst the non-defeated candidates next in order of
the voters’ preference is to be repeated until
1 candidate has received an absolute majority of votes
and is declared elected by the returning officer;
(f) if on any count 2 or more candidates have an equal
number of votes and 1 of them has to be declared a
defeated candidate, the result is to be determined
(i) by declaring whichever of those candidates had
the fewest votes at the last count at which those
candidates had a different number of votes to be
defeated; or
(ii) if a result is still not obtained or there has been
no count, by lot by the returning officer;

CEO deliberations To advertise or not to advertise that is the question

While the City 0f Melbourne contemplates its CEO’s contract and its deliberations it is worth noting the requirements under the Victorian Local Government Act 1989 (extract from version 85 dated July1, 2006. copy below)

Section 94 (3) of the Local Government Act places a obligation on the City of Council to advertise the position and consider considered all applications received by it .

There is a provision of an opt-out clause (sub section 4) stress being on op-out, where the Council can within 6 months of the CEO’s contract date of expiry the Council give notice and resolve to extend the current CEO’s contract without advertising the position but not before hand. The City of Melbourne’s current CEO contract expires on September 30, 2007.

Clearly the obligation is for the Council in the first place to advertise the appointment of its CEO and consider all applicants, including the incumbents application for a renewal, on their merit.

The Council can resolve to extend the CEO contract for a maximum period of 12 months without having to re-advertise the position (sub section 4A).

— Extract of the Victorian Local Government Act 1989 (version 85) —

94. The Chief Executive Officer
(1) A Council must appoint a natural person to be its
Chief Executive Officer.
(2) The Chief Executive Officer is a member of
Council staff.
(3) A Council may only appoint a person to be its
Chief Executive Officer after it has invited
applications for the position in a notice in a
newspaper circulating generally throughout
Victoria and has considered all applications
received by it that comply with the conditions
specified in the notice.
(4) Sub-section (3) does not apply if—
(a) in the 6 months immediately before the
person’s contract as Chief Executive Officer
is due to expire, the Council passes a
resolution to reappoint that person as its
Chief Executive Officer; and
(b) at least 14 days before the resolution is
passed, public notice was given of the
intention to put the resolution; and
(c) the public notice contained—
(i) a statement that the passing of the
resolution would result in the
reappointment of the Chief Executive
Officer without the position being
advertised; and
(ii) any other details required by the
regulations.
(4A) Sub-section (3) also does not apply if a Council
appoints a person to act as its Chief Executive
Officer for a period of not more than 12 months.
(5) A Council must not remunerate in any way a
person who has filled the Chief Executive
Officer’s position on an acting basis for 12 months
for anything the person does in respect of that
position after that 12 month period (unless the
person is appointed after the Council has complied
with sub-section (3)).
(6) If a Council passes a resolution to reappoint a
person as its Chief Executive Officer without
advertising the position, the Council must make
details of the person’s proposed total remuneration
as Chief Executive Officer under the new contract
available for public inspection within 14 days
after the passing of the resolution.
(7) A contract of employment as Chief Executive
Officer between a Council and a person is void if
it is made—
(a) in circumstances that are contrary to this
section; or
(b) while a current contract of employment as
Chief Executive Officer with the person
exists and that current contract is not due to
expire for at least another 6 months
(regardless of whether or not the Chief
Executive Officer’s position has been
readvertised); or
(c) before a general election for a term that
continues after the general election and the
contract of employment was entered into
following a variation made to the Chief
Executive Officer’s then current contract of
employment that reduced its term.

95A. Employment of senior officers to be regulated by
contract3
(1) A senior officer may only be employed under a
contract.
(2) The contract must—
(a) specify performance criteria for the purpose
of reviews of the senior officer’s
performance; and
(b) specify the date on which it expires, which
must be a date that is not more than 5 years
after the date it is signed; and
(c) include any other matter that is required by
the regulations.
(3) On the expiry of a senior officer’s contract, the
senior officer may be invited to enter into a new
contract.
(4) Any contract of employment between—
(a) a Council and a Chief Executive Officer; or
(b) a Chief Executive Officer and a senior
officer—
that does not comply with sub-section (2) is void.
(5) This section does not apply to work performed by
a person filling a position on an acting basis for a
period of not more than 12 months.
(6) For the purposes of this section, if a contract
contains an option for renewal, the expiry date of
the contract is the date on which the last option
period ends.
95B. Powers of the Minister concerning the employment
of senior officers
(1) The Minister may, by notice published in the
Government Gazette, exempt a Council or a
Chief Executive Officer from complying with
section 95A.
(2) If the Minister does this, section 95A does not
apply to the Council or Chief Executive Officer
until the Minister revokes the notice by a further
notice published in the Government Gazette.
(3) The Minister may also, by notice published in the
Government Gazette, for a period specified in the
notice, forbid—
(a) a Council from employing a new Chief
Executive Officer, or entering into a new
contract with an existing Chief Executive
Officer, or entering into a contract with a
Chief Executive Officer that expires after a
specified period or date;
(b) a Chief Executive Officer from employing
new senior officers, or entering into new
contracts with existing senior officers, or
entering into any contracts with senior
officers that expire after a specified period or
date.
(4) A Council must comply with a notice under subsection
(3)(a).
(5) A Chief Executive Officer must comply with a
notice under sub-section (3)(b).
6) If a Council or Chief Executive Officer is
forbidden to fill a vacancy by a notice, it or she or
he may only employ a person on an acting basis to
perform the functions assigned to the vacant
position.
(7) Any contract entered into by a Council or Chief
Executive Officer in contravention of a notice
under sub-section (3) is void.

CEO deliberations To advertise or not to advertise that is the question

While the City 0f Melbourne contemplates its CEO’s contract and its deliberations it is worth noting the requirements under the Victorian Local Government Act 1989 (extract from version 85 dated July1, 2006. copy below)

Section 94 (3) of the Local Government Act places a obligation on the City of Council to advertise the position and consider considered all applications received by it .

There is a provision of an opt-out clause (sub section 4) stress being on op-out, where the Council can within 6 months of the CEO’s contract date of expiry the Council give notice and resolve to extend the current CEO’s contract without advertising the position but not before hand. The City of Melbourne’s current CEO contract expires on September 30, 2007.

Clearly the obligation is for the Council in the first place to advertise the appointment of its CEO and consider all applicants, including the incumbents application for a renewal, on their merit.

The Council can resolve to extend the CEO contract for a maximum period of 12 months without having to re-advertise the position (sub section 4A).

— Extract of the Victorian Local Government Act 1989 (version 85) —

94. The Chief Executive Officer
(1) A Council must appoint a natural person to be its
Chief Executive Officer.
(2) The Chief Executive Officer is a member of
Council staff.
(3) A Council may only appoint a person to be its
Chief Executive Officer after it has invited
applications for the position in a notice in a
newspaper circulating generally throughout
Victoria and has considered all applications
received by it that comply with the conditions
specified in the notice.
(4) Sub-section (3) does not apply if—
(a) in the 6 months immediately before the
person’s contract as Chief Executive Officer
is due to expire, the Council passes a
resolution to reappoint that person as its
Chief Executive Officer; and
(b) at least 14 days before the resolution is
passed, public notice was given of the
intention to put the resolution; and
(c) the public notice contained—
(i) a statement that the passing of the
resolution would result in the
reappointment of the Chief Executive
Officer without the position being
advertised; and
(ii) any other details required by the
regulations.
(4A) Sub-section (3) also does not apply if a Council
appoints a person to act as its Chief Executive
Officer for a period of not more than 12 months.
(5) A Council must not remunerate in any way a
person who has filled the Chief Executive
Officer’s position on an acting basis for 12 months
for anything the person does in respect of that
position after that 12 month period (unless the
person is appointed after the Council has complied
with sub-section (3)).
(6) If a Council passes a resolution to reappoint a
person as its Chief Executive Officer without
advertising the position, the Council must make
details of the person’s proposed total remuneration
as Chief Executive Officer under the new contract
available for public inspection within 14 days
after the passing of the resolution.
(7) A contract of employment as Chief Executive
Officer between a Council and a person is void if
it is made—
(a) in circumstances that are contrary to this
section; or
(b) while a current contract of employment as
Chief Executive Officer with the person
exists and that current contract is not due to
expire for at least another 6 months
(regardless of whether or not the Chief
Executive Officer’s position has been
readvertised); or
(c) before a general election for a term that
continues after the general election and the
contract of employment was entered into
following a variation made to the Chief
Executive Officer’s then current contract of
employment that reduced its term.

95A. Employment of senior officers to be regulated by
contract3
(1) A senior officer may only be employed under a
contract.
(2) The contract must—
(a) specify performance criteria for the purpose
of reviews of the senior officer’s
performance; and
(b) specify the date on which it expires, which
must be a date that is not more than 5 years
after the date it is signed; and
(c) include any other matter that is required by
the regulations.
(3) On the expiry of a senior officer’s contract, the
senior officer may be invited to enter into a new
contract.
(4) Any contract of employment between—
(a) a Council and a Chief Executive Officer; or
(b) a Chief Executive Officer and a senior
officer—
that does not comply with sub-section (2) is void.
(5) This section does not apply to work performed by
a person filling a position on an acting basis for a
period of not more than 12 months.
(6) For the purposes of this section, if a contract
contains an option for renewal, the expiry date of
the contract is the date on which the last option
period ends.
95B. Powers of the Minister concerning the employment
of senior officers
(1) The Minister may, by notice published in the
Government Gazette, exempt a Council or a
Chief Executive Officer from complying with
section 95A.
(2) If the Minister does this, section 95A does not
apply to the Council or Chief Executive Officer
until the Minister revokes the notice by a further
notice published in the Government Gazette.
(3) The Minister may also, by notice published in the
Government Gazette, for a period specified in the
notice, forbid—
(a) a Council from employing a new Chief
Executive Officer, or entering into a new
contract with an existing Chief Executive
Officer, or entering into a contract with a
Chief Executive Officer that expires after a
specified period or date;
(b) a Chief Executive Officer from employing
new senior officers, or entering into new
contracts with existing senior officers, or
entering into any contracts with senior
officers that expire after a specified period or
date.
(4) A Council must comply with a notice under subsection
(3)(a).
(5) A Chief Executive Officer must comply with a
notice under sub-section (3)(b).
6) If a Council or Chief Executive Officer is
forbidden to fill a vacancy by a notice, it or she or
he may only employ a person on an acting basis to
perform the functions assigned to the vacant
position.
(7) Any contract entered into by a Council or Chief
Executive Officer in contravention of a notice
under sub-section (3) is void.

CEO deliberations To advertise or not to advertise that is the question

While the City 0f Melbourne contemplates its CEO’s contract and its deliberations it is worth noting the requirements under the Victorian Local Government Act 1989 (extract from version 85 dated July1, 2006. copy below)

Section 94 (3) of the Local Government Act places a obligation on the City of Council to advertise the position and consider considered all applications received by it .

There is a provision of an opt-out clause (sub section 4) stress being on op-out, where the Council can within 6 months of the CEO’s contract date of expiry the Council give notice and resolve to extend the current CEO’s contract without advertising the position but not before hand. The City of Melbourne’s current CEO contract expires on September 30, 2007.

Clearly the obligation is for the Council in the first place to advertise the appointment of its CEO and consider all applicants, including the incumbents application for a renewal, on their merit.

The Council can resolve to extend the CEO contract for a maximum period of 12 months without having to re-advertise the position (sub section 4A).

— Extract of the Victorian Local Government Act 1989 (version 85) —

94. The Chief Executive Officer
(1) A Council must appoint a natural person to be its
Chief Executive Officer.
(2) The Chief Executive Officer is a member of
Council staff.
(3) A Council may only appoint a person to be its
Chief Executive Officer after it has invited
applications for the position in a notice in a
newspaper circulating generally throughout
Victoria and has considered all applications
received by it that comply with the conditions
specified in the notice.
(4) Sub-section (3) does not apply if—
(a) in the 6 months immediately before the
person’s contract as Chief Executive Officer
is due to expire, the Council passes a
resolution to reappoint that person as its
Chief Executive Officer; and
(b) at least 14 days before the resolution is
passed, public notice was given of the
intention to put the resolution; and
(c) the public notice contained—
(i) a statement that the passing of the
resolution would result in the
reappointment of the Chief Executive
Officer without the position being
advertised; and
(ii) any other details required by the
regulations.
(4A) Sub-section (3) also does not apply if a Council
appoints a person to act as its Chief Executive
Officer for a period of not more than 12 months.
(5) A Council must not remunerate in any way a
person who has filled the Chief Executive
Officer’s position on an acting basis for 12 months
for anything the person does in respect of that
position after that 12 month period (unless the
person is appointed after the Council has complied
with sub-section (3)).
(6) If a Council passes a resolution to reappoint a
person as its Chief Executive Officer without
advertising the position, the Council must make
details of the person’s proposed total remuneration
as Chief Executive Officer under the new contract
available for public inspection within 14 days
after the passing of the resolution.
(7) A contract of employment as Chief Executive
Officer between a Council and a person is void if
it is made—
(a) in circumstances that are contrary to this
section; or
(b) while a current contract of employment as
Chief Executive Officer with the person
exists and that current contract is not due to
expire for at least another 6 months
(regardless of whether or not the Chief
Executive Officer’s position has been
readvertised); or
(c) before a general election for a term that
continues after the general election and the
contract of employment was entered into
following a variation made to the Chief
Executive Officer’s then current contract of
employment that reduced its term.

95A. Employment of senior officers to be regulated by
contract3
(1) A senior officer may only be employed under a
contract.
(2) The contract must—
(a) specify performance criteria for the purpose
of reviews of the senior officer’s
performance; and
(b) specify the date on which it expires, which
must be a date that is not more than 5 years
after the date it is signed; and
(c) include any other matter that is required by
the regulations.
(3) On the expiry of a senior officer’s contract, the
senior officer may be invited to enter into a new
contract.
(4) Any contract of employment between—
(a) a Council and a Chief Executive Officer; or
(b) a Chief Executive Officer and a senior
officer—
that does not comply with sub-section (2) is void.
(5) This section does not apply to work performed by
a person filling a position on an acting basis for a
period of not more than 12 months.
(6) For the purposes of this section, if a contract
contains an option for renewal, the expiry date of
the contract is the date on which the last option
period ends.
95B. Powers of the Minister concerning the employment
of senior officers
(1) The Minister may, by notice published in the
Government Gazette, exempt a Council or a
Chief Executive Officer from complying with
section 95A.
(2) If the Minister does this, section 95A does not
apply to the Council or Chief Executive Officer
until the Minister revokes the notice by a further
notice published in the Government Gazette.
(3) The Minister may also, by notice published in the
Government Gazette, for a period specified in the
notice, forbid—
(a) a Council from employing a new Chief
Executive Officer, or entering into a new
contract with an existing Chief Executive
Officer, or entering into a contract with a
Chief Executive Officer that expires after a
specified period or date;
(b) a Chief Executive Officer from employing
new senior officers, or entering into new
contracts with existing senior officers, or
entering into any contracts with senior
officers that expire after a specified period or
date.
(4) A Council must comply with a notice under subsection
(3)(a).
(5) A Chief Executive Officer must comply with a
notice under sub-section (3)(b).
6) If a Council or Chief Executive Officer is
forbidden to fill a vacancy by a notice, it or she or
he may only employ a person on an acting basis to
perform the functions assigned to the vacant
position.
(7) Any contract entered into by a Council or Chief
Executive Officer in contravention of a notice
under sub-section (3) is void.