Clarke's pending resignation, which takes effect in three weeks time, will cause grief for the City Council and the Victorian Electoral Commission (VEC). The VEC must contact all candidates within 14 days of the vacancy occurring to ascertain who is willing and able to continue be elected in a count back of the 2008 City of Melbourne Council ballot. They then have a further 14 days in which to determine the winner and results of the election.
This sounds fine and in theory should be a straight forward exercise given that all the preference votes were transcribed and recorded electronically, but it is not as straight forward as some might think. It is unclear if in fact the VEC has designed, developed and tested its software to process the count back as required under Schedule 3A of the Local Government Act .
The method of calculating the results of a count back are messy in deed.
Analysis of the provision of Schedule 3A has highlighted a number of discrepancies in the way the Count back is to be counted. With votes being redistributed at an overall higher value then should be. Some votes will be counted twice in the process of determining who is elected.
The problem lies in the drafting of the rules and the formula used to determine the transfer value of ballot papers deemed to have contributed to the quota that elected Peter Clarke back in 2008. How ever drafted the rules should be sacked and never allowed to get near the legislative drafting computer again. The main problem being the interpretation of clause 12. Another problematic clause is clause 10 (3) and the definition of "necessary".
It will be interesting to see what changes the VEC will try and implement to facilitate an electronic count and if those changes are in fact necessary or just desirable. Of course if it can be established that the changes implemented were not necessary in order to conduct a computerised count then they cannot be adopted without causing a jurisdictional error - which could lead to possible challenges in the courts.
Preliminary Analysis indicates that there are two main contenders for the vacancy that will be created. First is Dr Jackie Watts, who was second on Peter Clarke ticket, the other possible contender is a second Green's candidate - Rohan Leppert.
We will wait with baited breath to see just how open and transparent the recount process is and if Candidates will have the same rights to appoint scrutineers to oversee the recount process. A scrutineer can only do their job if they are given access to the detailed information records and transfers of the votes. Thankfully copies of the preference data-files were published back in 2008 so it should be possible to independently verify the results of the count back election before hand.
HOW MUCH WILL IT COST
It depends on how much the Victorian Election Commission will charge the City of Melbourne for the recount. This is another issue that is worth watching more closely.
Given that the VEC is the only organisation that can conduct the count they can overcharge the City of Melbourne, as they did when the rate payers were slugged $200,000 to develop the counting software in the first place back in 2002.
Thanks to a poorly negotiated contract by Alison Lyons, the City of Melbourne retained no IP rights or value for its investment. It was just money transferred from the General Rate Revenue to the VEC developers pockets.