VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z1519/2024
	
CATCHWORDS	
Review and Regulation List – Local Government Act 2020 (Vic) s 311, 312 – preliminary review of election result – attempted and actual interference – no effect on result of election 	

APPLICANT:	Victorian Electoral Commission	
FIRST RESPONDENT:	Yvonne Allred 	
SECOND RESPONDENT:	Samantha Gilchrist	
THIRD RESPONDENT:	Peter Lockwood	
FOURTH RESPONDENT: 	Gary Saultry	
FIFTH RESPONDENT: 	Andrew Church	
WHERE HELD:	Melbourne	
BEFORE:
	Vice President Judge English
 	
HEARING TYPE:	Review on the papers	
DATE OF ORDER:	5 June 2025	
CITATION	Victorian Electoral Commission v Allred (Review and Regulation) [2025] VCAT 498	

Having conducted a review of the declaration of the result of the election on the application by the Victorian Electoral Commission under section 311(c) of the Local Government Act 2020 (Vic) by undertaking a preliminary review under section 312(1)(g), the Tribunal makes the following orders:
Order
1	The Tribunal declares under section 312(1)(i) of the Local Government Act 2020 (Vic) there was attempted and actual interference with the election held for the Knox City Council, Baird Ward on 26 October 2024. 
2	The Tribunal declares under section 312(1)(i) of the Local Government Act 2020 (Vic), the interference did not affect the result of election held for the Knox City Council, Baird Ward on 26 October 2024. 

Judge English 
Vice President 			

Appearances at directions hearing 6 February 2025:
	
For the applicant:	Mr L. Brown SC with Ms E. Smith of Counsel	
For the first respondent:	In person	
For the second respondent:	In person	
For the third respondent:	Mr G. Lake of Counsel	
For the fourth respondent:	No appearance 	
For the fifth respondent:	No appearance	
Reasons
Background 
1	On 26 October 2024, local council elections were held in Victoria. Voting was conducted by post. This decision concerns the Knox City Council (Knox Council) Baird Ward.
2	Five candidates, being the respondents in this proceeding, nominated for a single vacancy in the Baird Ward of Knox Council. The first preference votes received by each of the candidates were as follows; Yvonne Allred: 2,964 votes, Samantha Gilchrist: 784 votes, Peter Lockwood: 3,612 votes Gary Saultry: 1,524 votes and Andrew Church: 1,201 votes. 
3	As no candidate had an absolute majority, meaning more than half the vote, the count proceeded to distribution of second, third and fourth preferences. After distribution of preferences, Mr Lockwood received 5,222 votes and Ms Allred received 4,845 votes. 
4	Prior to the election being declared, the Victorian Electoral Commission (VEC) identified irregularities on a number of declaration envelopes that were suspicious. 
5	On 11 November 2024 at 2.30 pm the election manager declared Mr Lockwood to be elected as councillor for the Baird Ward. Despite concerns by the VEC there was attempted or actual interference with the election, the VEC was required by law to proceed to declare the result of the election.
6	This decision concerns the Tribunal’s review of the declaration of the result of the election namely whether there was interference with the election and, if so, what was the effect.
Proceeding chronology
7	On 13 November 2024, the VEC applied to the Tribunal under section 311(c) of the Local Government Act 2020 (Vic) (LG Act) for a review of the declaration of the result of the election. Section 311 requires an application be made within 14 days of the declaration of the election result. The orders sought included a finding there was interference with the election, and that subject to the Tribunal finding any interference with the election affected the result of the election, a declaration that the election is void. The application also sought orders there be a preliminary review and further information be provided relating to the application.
8	The VEC filed an affidavit of Mr Nidal Sayegh dated 21 November 2024. On 22 November 2024, the Tribunal made orders to facilitate the production of suspicious ballot and suspicious returns. These orders timetabled for production and redaction of these materials and for the respondents to sign confidentiality undertakings. The proceeding was listed to return before the Tribunal on 6 February 2025 for directions hearing. 
9	On 6 February 2025 the VEC made an oral application that the Tribunal undertake a preliminary review pursuant to s 312(1)(g) of the LG Act. On conducting a preliminary review, the VEC sought the Tribunal make the following findings:
A declaration that the Tribunal has the power to determine that there was attempted or actual interference with the Election (under s 312(1)(i) of the LG Act).
A finding that there was attempted and actual interference with the Election; 
A finding that the interference did not affect the result of the Election.
10	Ms Allred, Ms Gilchrist and Mr Lockwood did not oppose the declaration and findings sought. There was no appearance by Mr Saultry or Mr Church.
11	The VEC filed an affidavit of Mr Sutherland dated 30 January 2025 with the Tribunal and did not seek to rely on any further evidence. Ms Allred, Ms Gilchrist and Mr Lockwood submitted they did not seek to file evidence with the Tribunal.
12	The Tribunal made orders requiring the VEC to make a formal application for the conduct of the review to be by undertaking a preliminary review and invited the parties to file submissions in response and any proposed findings or declarations they sought the Tribunal make.
13	On 12 February 2025, the VEC filed submissions in support of the application for the Tribunal to undertake a preliminary review of the application pursuant to section 312(1)(g) of the LG Act. No other submissions were received. 
Relevant legislation
14	Section 270 of the LG Act provides:
Validity of election 
(1)	The validity of an election is not affected by any defect in the appointment of any person for the purpose of holding the election.
(2)	The validity of an election is not affected by— 
(a)	any irregularity in any of the proceedings preliminary to voting; or 
(b)	any failure to hold the election at any place appointed; or 
(c)	any failure to comply with any directions as to the holding of the election or the counting of the votes; or
(d)	any mistake in the use of any forms— 
if the election was conducted in accordance with the principles in this Act and the irregularity, failure or mistake did not affect the result of the election.
15	Division 11, section 311 of the LG Act provides:
Application to VCAT for review 
Within 14 days of the declaration of the result of an election— 
(a)	a candidate in that election who disputes the validity of the election; or 
(b)	10 persons who were entitled to vote at the election who dispute the validity of the election; or 
(c)	the VEC— 
may apply to VCAT for a review of the declaration of the result of the election.
16	Section 312 of the LG Act provides the following:
Powers of VCAT
(1)	VCAT has the following powers in conducting a review under section 311— 
(a)	to declare that any person declared elected was not duly elected; 
(b)	to declare any candidate duly elected who was not declared elected;
(c)	to declare an election void; 
(d)	to dismiss or uphold an application in whole or in part; 
(e)	to amend or permit the amendment of an application; 
(f)	to order the inspection of, and permit copying of, documents used in connection with an election, subject to such terms and conditions as it considers appropriate;
(g)	to undertake a preliminary review of an application; 
(h)	to require any further information relating to an application; 
(i)	to make any declaration in relation to its powers under this section as VCAT considers appropriate in the circumstances. 
(2)	VCAT may impose a financial penalty not exceeding the amount prescribed for the purposes of this section. 
(3)	VCAT cannot order a recount of the whole or any part of the ballot-papers unless VCAT— 
(a)	is satisfied that a recount is justified; and
(b)	has advised the VEC of its intention. 
(4)	If VCAT has declared an election for a ward to be void, an extraordinary vacancy in each office of Councillor for the ward is caused by the declaration of VCAT on the day which the declaration is made.
17	Section 100(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) provides that:
The Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without the appearance of the parties or their representatives or witnesses, unless a party objects to all or part of the proceeding being conducted in this manner.
Section 312(1)(g) Preliminary review of an application
18	The VEC submitted the Tribunal should determine this proceeding on a final basis by conducting a preliminary review under section 312(1)(g) of the LG Act.
19	The VEC noted the orders sought in its application dated 13 November 2024 included that there be a preliminary review. 
20	The application was not opposed by the other parties. 
21	The Tribunal invited submissions from the parties and received a submission from the VEC. Mr Lake made oral submissions at the directions hearing.
The submissions 
22	The VEC submitted it is appropriate for the Tribunal to proceed by way of preliminary review for the following reasons.
23	The Tribunal has the power in conducting a review under section 311 to undertake a preliminary review of an application under section 312(1)(g).
24	The VEC notes this is the first application under section 312(1)(g), possibly because the Tribunal has only conducted a small number of section 311 reviews since the LG Act commenced in 2020.
25	A preliminary review would enable the Tribunal to decide the matter on the papers after considering the VEC statement of contentions dated 31 January 2025, the affidavit of Benjamin Sutherland and exhibits affirmed 30 January 2025, and the oral submissions made by the parties at the directions hearing on 6 February 2025.
26	It is submitted that it is an appropriate course as the evidence of Mr Sutherland is not disputed and none of the parties sought to file submissions, call evidence or cross-examine Mr Sutherland.
27	The parties were given notice of the VEC application by the VEC email dated 5 February 2025. The VEC noted the following positions of the parties at the 6 February 2025 directions hearing; Ms Allred agreed with the relief sought by way of preliminary review, Ms Gilchrist did not oppose this course, and Mr Saultry and Mr Church did not appear at the directions hearing.
28	Mr Lake, who appeared on behalf of Mr Lockwood, also supported the conclusions reached in the VEC statement of contentions and submitted that the matter be dealt with as soon as possible. 
29	In oral submissions at the 6 February 2025 directions hearing, Mr Lake firstly submitted that he was doubtful that what had taken place so far could constitute a preliminary review for the purposes of section 312(1)(g) of the LG Act. Mr Lake submitted that what had taken place was simply the VEC providing evidence and materials to the Tribunal in relation to identified irregularities in the election process. 
30	Mr Lake noted the VEC had now concluded there was no basis for the election to be declared void. He submitted the preferred course would be for the Tribunal to strike out the proceeding and make notations summarising key matters, namely the consent position of the parties that, on the basis of the materials provided by the VEC, the result of the election has not been affected by irregularities.
31	Mr Lake submitted this was his client’s preferred course of action and also submitted his client did not oppose the proposed course or contest the Tribunal’s power to undertake a preliminary review as proposed by the VEC. However, he raised doubts whether the ‘notice’ that had been given was sufficient for the Tribunal to undertake and conclude a preliminary review at the directions hearing.
32	Mr Lake also submitted that it was of particular importance to his client that there is nothing in the material which suggests that his client was involved in any actual or attempted tampering with the election, or that he benefitted in any way, and that this be made clear.
33	VEC opposed the proposal to strike out the proceeding and rejected the circumstances under section 75(1) of the VCAT Act were applicable for the following reasons.
34	The VEC properly commenced the proceeding under section 311 of the LG Act due to clear evidence of attempted fraudulent interference with the election.
35	The VEC has standing under section 311(c) to apply to the Tribunal ‘for a review of the declaration of the result of the election’ in contrast to candidates or voters who only have standing if they ‘dispute the validity of an election.’ The VEC submitted this supports the view they can apply for a review of the declaration of a result of an election where there is evidence of attempted or actual interference with the election, even if the evidence shows the interference did not invalidate the election result. This enables the Tribunal to exercise its information gathering powers under section 312(1)(f)-(h) and make findings of fact. 
36	The VEC submitted there is strong public interest in the Tribunal conducting a review under section 311 in such circumstances to alleviate public concerns about election interference and promote confidence in the democratic process even if the Tribunal does not exercise its powers to affect the result of an election. This supports the VEC’s submission that the Tribunal declare it has powers under section 312(1)(i) of the LG Act to determine there was attempted or actual interference with an election.
37	The VEC also submitted the Tribunal should reject the submission there has been no preliminary review. On 22 November 2024, the Tribunal made orders to produce the suspicious ballots, which was important to enable findings of a fraudulent scheme. Further, the Tribunal process has enabled the respondents to participate in the proceedings and has provided opportunity for evidence and submissions to be filed.
38	A preliminary review and deciding the matter on the papers will enable the review to be finalised as expeditiously as possible where the VEC submits the factual findings are available on the filed material.
Consideration
39	There do not appear to be any cases considering section 312(1)(g) of the LG Act or its equivalent under the old Local Government Act 1989 (Vic), section 46(1)(g). 
40	The Local Government Acts in other states (including NSW, QLD and SA) do not appear to have an equivalent section for ‘conducting a preliminary review’ nor does the Commonwealth Electoral Act 1918 (Cth). 
41	The explanatory memoranda and first reading speeches for both the old and current LG Act make no mention of the legislature’s intended aim of a preliminary review. 
42	Neither ‘preliminary review’ nor ‘review’ is defined in the LG Act. 
43	In Victorian Electoral Commission v Yildez, the Tribunal concluded section 311 of the LG Act conferred original jurisdiction and stated the Tribunal makes the original decision without there having been an earlier ‘decision’ made by a ‘decision maker’ which it is reviewing. 
44	Section 41 of the VCAT Act provides original jurisdiction is the jurisdiction of the Tribunal other than its review jurisdiction. When exercising original jurisdiction, the nature of the Tribunal’s role varies, depending on the statutory context and facts of the proceeding. The Tribunal is often conferred with disciplinary or regulatory functions in the exercise of original jurisdiction. The meaning of the relevant enabling enactment, section 311 and 312 of the LG Act, are to be determined according to ordinary principles of statutory interpretation. 
45	Section 311(c) provides the VEC may apply to the Tribunal for a review of the declaration of the result of the election. Unlike section 311(a) and (b) the VEC does not need a reason, namely disputing the validity of an election, to apply for a review.
46	Section 312(1) details the powers the Tribunal has when conducting the review of the declaration of the result. The Tribunal has declaratory powers in section 312(1)(a) – (c). Section 312(1)(d) and (e) concern the Tribunal’s powers in terms of the application itself. Section 312(1)(f) – (i) contain powers relevant to the review itself, such as ordering the inspection of documents. Section 312(1)(h) empowers the Tribunal to ‘require any further information relating to an application.’ The power under 312(1)(g) to undertake a ‘preliminary review’ suggests a review in preparation of or a precursor to conducting a review. A review, as distinct from a preliminary review, could be when the Tribunal exercises the powers in section 312(1) in conducting a review and uses the aspects of the adversarial process to the extent that parties call evidence that is tested through cross-examination and submissions are made.
47	Justice Kyrou when considering section 25(1) of the Estate Agents Act 1980 (Vic), which refers to ‘the holding of an inquiry’, stated the section ‘…contemplates that a proceeding under that section will have some inquisitorial features. That is not to say, however, that the scope of the inquiry is “at large” or that the protections afforded by the adversarial system do not apply.’
48	Undertaking a preliminary review appears to constitute a consideration by the Tribunal of the content of the investigation by the VEC that has taken place to date, and what it has yielded. Prior to the directions hearing in this proceeding the Tribunal made an order under section 312(1)(f) for the inspection of documents (ballot papers). Section 312(1)(f) is part of the suite of three investigative type powers in section 312(1).
49	The Tribunal’s powers in conducting a review of the declaration of the result of the election under section 312(1) includes undertaking a preliminary review. In my view, this includes a consideration of the evidence and submissions filed by the VEC, undisputed by the parties. I am satisfied section 312(1)(g) enables the preliminary review to be conducted by way of a consideration of the evidence that has been filed. 
50	The Tribunal has the power under section 100(2) of the VCAT Act to deal with a matter on the papers.
51	The orders sought by the VEC are consistent with the Tribunal’s declaratory powers in section 312(1)(a) - (c) and with section 312(1)(i).
52	I consider there is a public interest in dealing with the matter by undertaking a preliminary review without the expense and time involved with a further hearing. Given the alleged interference with the democratic process, there is a public interest in assessing the filed material against the relevant standard of proof. If I am satisfied to the requisite standard there is evidence of fraudulent interference or attempted interference with the electoral process, transparency of process and public confidence in the electoral process weighs towards declaring this publicly. This is consistent with the responsibilities and function of the VEC, provided for in section 8 of the Electoral Act 2022 (Vic) as being ‘responsible for the administration of the enrolment process and the conduct of parliamentary elections and referendums in Victoria.’ This will maintain public faith in the local government electoral process, as well as the VEC for identifying the potentially fraudulent behaviour and the role of the Tribunal exercising its original jurisdiction by conducting a review of the declaration of the result of the election. 
53	I reject the submission by Mr Lake the application be struck out under section 75 of the VCAT Act. For the above reasons I am not of the view the proceeding is frivolous, vexatious, misconceived or lacking in substance, or otherwise an abuse of process. 
54	For these reasons the VEC’s application for a review of the declaration of the result of the election to proceed by way of the Tribunal undertaking a preliminary review under section 312(1)(g) of the LG Act, to be dealt with on the papers, is granted. 
55	For the purposes of conducting a review of the declaration of the result of the election under section 311, I undertake a preliminary review of the application by considering the filed evidence, submissions and relevant legislation.
The evidence 
56	On 31 January 2025, the VEC filed an affidavit of Mr Benjamin Sutherland, Director of Event Strategy and Delivery, dated 30 January 2024. 
57	This evidence was undisputed and outlined the following electoral process and anomalies identified.
Benjamin Sutherland
Election process by postal vote
58	Knox Council is divided into nine wards each with a single councillor. The VEC prepares and certifies the voters’ roll for each ward. Five candidates nominated for a single vacancy in Baird Ward.
59	The election was held by post, which meant each voter was sent a postal ballot envelope containing:
a declaration envelope;
a ballot paper;
a prepaid envelope for the return of the declaration envelope and ballot paper;
instructions on how to vote;
notice of how and when the ballot paper must be returned by;
candidate statements for the ward;
instructions on how to access the questions and answers on the (optional) candidate questionnaire; and 
a multilanguage voting instruction leaflet.
60	The procedure for a postal vote is such that a voter places their ballot paper into the declaration envelope which has a removeable declaration flap. The voter must sign and date the declaration flap before returning the declaration envelope to the election manager. The declaration flap has a box for the voter’s date of birth, however, validity of the declaration flap is not dependent on this. 
61	When postal votes are received, before a ballot paper is removed from the declaration envelope, the declaration flap is first removed. Each declaration envelope is scanned into the VEC’s management system, and election officials inspect the declaration. Those with a declaration compliant with the Local Government (Electoral) Regulations 2020 (LG Regulations) are stored securely until after the close of voting. Those without a valid declaration are set aside as ‘rejected’ envelopes that contain disallowed ballot papers, and the ballot papers are not admitted to the count.
Replacement votes
62	Voters may request a replacement vote at any time prior to the closing of the vote. In submitting such a request, they are required to complete a declaration to confirm they were entitled to apply for a replacement vote. Therefore, the declaration envelope for a replacement vote is different to the declaration envelope for a general mail out vote.
63	When the VEC receives an online replacement vote application, the VEC locates the voter requesting the replacement vote in its election management system and checks the voter’s details. When a replacement vote is issued a ‘pending return’ is entered in the election management system. It ceases to be a pending return when either it is found to be a multiple return or if, on reconciliation, it is the only declaration envelope received.
Multiple returns
64	The VEC uses the term ‘multiple return’ if it receives more than one declaration envelope in the name of the same voter.
65	A voter enrolled in an election may only vote once.
66	Where it appears to the election manager that a voter has returned more than one vote, they must determine which – if any – of the multiple returns will be admitted to the count. If it appears the voter has signed each of the returned declarations, the election manager admits the earliest dated return and disallows the other(s). If two or more declaration envelopes bear the name of the same voter but appear to have been signed and returned by different people, then the election manager must disallow all returns, and none will be admitted to the count. 
67	For each return that is disallowed, the declaration flap and envelope are kept intact, and the return is recorded as ‘rejected’ in the VEC election management system. Disallowed envelopes are not opened.
68	Mr Sutherland stated in his experience, some voters who do not receive their general mail out voter pack do not request a replacement vote, however, could not provide figures on the extent that this occurs. 
Voting and the count
69	There were 10,366 votes cast in the Baird Ward, which represents 83.32% of the total enrolment. Of these votes, the election manager declared 299 ballot papers to be informal and these were not included in the count. Therefore, 10,067 formal votes were counted in the election.
70	The voting system was preferential. This system required the voter to write number ‘1’ in the box of their most preferred candidate and number all remaining boxes according to preference. The successful candidate wins by absolute majority on first preference votes or following the distribution of preferences.
71	Five candidates in the Baird Ward nominated for the single vacancy. After first preferences, as indicated above, Yvonne Allred received 2,946 votes, Samantha Gilchrist received 784 votes, Peter Lockwood received 3,612 votes, Gary Saultry received 1,524 votes and Andrew Church received 1,201 votes.
72	As no candidate had an absolute majority, the count proceeded to the distribution of preferences from Ms Gilchrist as the first candidate excluded. As no candidate had an absolute majority following this distribution, the preferences from Mr Church were then distributed. As no candidate had an absolute majority after the distribution of Mr Church’s preferences, Mr Saultry was excluded, and his votes were distributed amongst the two remaining candidates. After preference distribution, Mr Lockwood received 5,222 votes and Ms Allred received 4,845 votes.  
73	Counting for the election proceeded in three phases. 
74	The first phase, Group A, comprised extraction and sorting into first preference of the returned votes from the general mail out declaration envelopes not categorised as multiple returns or pending returns. Group A votes were extracted and sorted on 29 October 2024. 
75	The second phase, Group B, involved the extraction and sorting into first preference of any declaration envelopes received and accepted after the close of voting, multiple returns, pending returns and unenrolled votes accepted during reconciliation. Group B votes were extracted and sorted on 6 November 2024. 
76	The final phase involves amalgamation of Group A and B and a preference distribution of formal votes, which occurred on 8 November 2024.
Anomalies identified
77	During the 2024 local government elections, the VEC established a specialised team to identify anomalies that may indicate postal vote interference. 
78	On 6 November 2024, Mr Sutherland was advised that the team had reviewed the scans of multiple returns and pending returns for Baird Ward and had found a pattern of incorrect dates of birth and similar styles of handwriting on the declaration flaps. He agreed for the VEC to conduct a review of all the declaration flaps in Group A and all the declaration flaps in Group B. 
79	On 6 November 2024, the Local Government Inspectorate was notified of suspected ballot tampering and on 7 November 2024 the VEC referred the matter to Victoria Police for investigation.
80	On 7 November 2024, the VEC conducted a review of Group A and Group B votes. The review checked the date of birth given on declaration flaps against the voter’s actual date of birth as recorded in a spreadsheet of voter’s details from the roll. If the date of birth on the declaration flap did not match the voter’s actual date of birth, the signature on the declaration flap was compared to any signature specimen on the enrolment record. The review was concluded on 12 November 2024.
81	Where a date of birth on a declaration flap was incorrect and the signature was inconsistent with any enrolment signature specimens or otherwise contrary to information provided to the VEC, the declaration flap was termed ‘suspicious’.
82	If a date of birth on a declaration flap was incorrect or not provided and the signature on the declaration was not able to be compared with a signature specimen or there was no information held by the VEC, the declaration flap was termed ‘possibly suspicious’.
83	At the conclusion of the review the total number of ‘suspicious’ and ‘possibly suspicious’ declaration flaps were as follows:
10 multiple returns;
49 declaration flaps from Group A; and
3 declaration flaps from Group B.
84	The declaration flaps from the suspicious and possibly suspicious multiple returns (totalling ten declaration flaps) remain attached to their respective declaration envelopes because the envelopes were disallowed and the ballot papers contained in the envelopes did not enter the count.
85	As stated above, despite concerns regarding interference, the VEC declared Peter Lockwood to be elected on 11 November 2024.
86	On 13 November 2024, the VEC applied to the Tribunal for a review of the declaration of the election result. Following Tribunal orders and involvement of the Victoria Police Financial Crime Squad, Economic Crime Division, on 7 January 2025 the suspicious multiple return votes were opened and their contents extracted and photographed by Victoria Police. These images were provided to the VEC. 
87	In his affidavit, Mr Sutherland states he further reviewed the ten multiple returns, and 52 declaration flaps identified as suspicious and possibly suspicious to identify the number of declaration flaps the VEC considered to be fraudulent.
88	The ballot papers from the declaration envelopes for the ten multiple returns indicated a first preference for Mr Church. The postal addresses for each of these were within a 2.5 square kilometre area in the Baird Ward.
89	A further review of the suspicious and possibly suspicious declaration flaps removed those declaration flaps where there was no date of birth, the date of birth was recorded as the date of voting and where the ballot paper was signed by an authorised person.
90	Following the review process outlined above, the conclusions reached by the VEC are that there were:
10 fraudulent ballots that were multiple returns, and therefore not admitted to the count;
29 fraudulent ballot papers that were admitted to the count in Group A and Group B, after their declaration flaps were removed from the declaration envelope and the ballot papers were extracted from the declaration envelopes; 
Therefore, a total of 29 fraudulent ballot papers were admitted to the count for the election.
Submissions
Victorian Electoral Commission
91	On 31 January 2025, the VEC filed a statement of contentions seeking the orders referred to above at [9].
92	The VEC submits the Tribunal should find 39 returned declaration envelopes stolen, fraudulently completed and then returned to the VEC to be part of a scheme to affect the result of the election. Of these, 29 fraudulent votes were admitted for counting and ten fraudulent votes were excluded from the count. This means ten genuine votes were excluded from the count owing to the rules of managing multiple returns from or purporting to be from the same voter. One of the genuine votes was informal meaning nine genuine formal votes were excluded because of the fraudulent scheme. Further, 29 voters who may have otherwise voted were denied the opportunity to vote because their postal ballot material was stolen.
93	Due to the secrecy of the ballot, there is no direct evidence as to which candidate or candidates benefitted from the 29 fraudulent votes admitted to the count, however, it is known that the ten fraudulent votes that were excluded from the count identified Mr Church as first preference. The VEC submits the evidence shows the 29 were part of the same fraudulent scheme as the ten excluded fraudulent votes and seeks the Tribunal to draw the inference that the 29 fraudulent votes included in the count also nominated a first preference for Mr Church.
94	The VEC does not submit that Mr Church was responsible for, or involved in, the fraudulent scheme and notes this is not an issue for the Tribunal to decide.
95	As Mr Church was the second eliminated candidate with a margin of 417 votes between him and the first eliminated candidate, the including of the 29 fraudulent votes would not have affected Mr Church’s elimination.
96	The VEC submitted no fraudulent scheme can be attributed to the second or third preference votes. The ten fraudulent votes excluded variously identified Ms Allred, Mr Lockwood or Mr Saultry as the second preference. 
97	Following the elimination of Mr Church, the margin by which each candidate was eliminated was greater than the total votes affected by the fraudulent scheme therefore the fraudulent scheme could not have affected the result of the election.
98	Following the commencement of this proceeding on 13 November 2024, the VEC undertook a further review of ten multiple returns and 52 suspicious or potentially suspicious declaration flaps to determine whether there was any reason to redetermine that classification. In the statement of contentions this is referred to as ‘VEC Tribunal Re-assessment’, in the affidavit of Benjamin Sutherland, he refers to conducting a ‘further review’ to assist the Tribunal.
99	Upon the re-review undertaken by the VEC, 52 declaration flaps were identified as suspicious or possibly suspicious. The declaration flaps were all irregular because they did not provide the voter’s correct date of birth. The VEC identified one declaration flap was for an address outside Baird Ward, seven incorrect dates of birth appeared to be innocent mistakes (same date as the date of voting), one declaration flap appeared to be completed by an authorised person and 14 declaration flaps provided no dates of birth at all. Therefore, the VEC considers these 23 declaration flaps do not form part of the fraudulent scheme involving the ten fraudulent multiple returns.
100	The remaining 29 declaration flaps have strong similarities to the ten fraudulent multiple returns, such as incorrect dates of birth and the handwriting on a number of the 29 declaration flaps appear similar to each other. 
101	The statement of contention submits the Tribunal should find, consistent with the conclusions upon their initial review outlined above at [90], that:
…39 ballot papers were completed fraudulently and submitted by a person or persons other than the person entitled to vote as part of a scheme devised to affect the result of the election … which comprise:
10 fraudulent multiple returns, which were not admitted to the count; and 
29 fraudulent votes that were admitted and counted.
102	The statement of contentions contends the election result was not affected by the 29 fraudulent counted votes and the ten fraudulent multiple returns.
103	The final result was that, after the distribution of preferences, Mr Lockwood won by 377 votes.
104	Withholding the ten ballot papers extracted from genuine envelopes (as required by the LG regulations) would not have caused any candidate’s position to change at any stage of the count.
105	If the Tribunal infers the 29 fraudulent votes were cast for Mr Church (as the ten fraudulent multiple returns were) this would not change the election result as Mr Church would still remain the second candidate to be excluded. The remaining candidates were excluded by margins far in excess of 29 votes.
106	Overall, 29 fraudulent votes were included in the count, 9 genuine multiple return votes were excluded, and 29 legitimate voters lost an opportunity to vote by having their ballot papers stolen. This amounts to a maximum of 67 votes that were potentially affected by the fraudulent scheme. Since the lowest margin in the election was 338 (Mr Church was excluded by a margin of 338 votes) the VEC submitted the Tribunal should be confident the fraudulent scheme did not affect the result of the election.
107	No evidence or submissions were received from the candidates, Yvonne Allred, Samantha Gilchrist, Peter Lockwood, Gary Saultry or Andrew Church.
The Common Law of Elections
108	The VEC seeks the Tribunal make findings that; there were fraudulent votes cast and counted in the election, fraudulent votes were cast but not counted which caused legitimate votes not the be counted, and some legitimate voters had their ballot paper stolen and lost the opportunity to vote. However, the number of fraudulent votes counted, and potential legitimate votes not counted, were insufficient to have impacted the result of the election. Therefore, the fraudulent scheme did not affect the result of the election.
109	Mr Brown SC submitted that the fraudulent conduct that occurred in this election does not fall within the circumstances described in section 270 of the LG Act, which therefore has no application in this review.
110	I accept the submission that the circumstances listed in section 270 are not applicable to this review.
111	The exercise of the Tribunal’s powers under section 312 of the LG Act are informed by the common law of elections. In Bridge v Bowen the High Court held that the common law of elections as described in Woodward v Sarsons applies to all classes of elections in Australia.
112	Woodward provides an election can be declared void in only two circumstances.
113	Firstly, where there is ‘no real electing at all’, whereby the constituency did not have a fair and free opportunity to elect the candidate that the majority prefers. Secondly, where the election was ‘not really conducted under the subsisting election laws.’
114	In this case the VEC submits the first circumstance described in Woodward is concerned with conduct that prevents electors from voting, including corruption, intimidation, the provision of false declarations of numbers and ‘other such acts or mishaps’, and that the fraudulent voting that occurred in this election is such a circumstance.
115	In Woodward there are two criteria to determine whether an election involved ‘no real electing at all.’
First limb
116	Firstly, the Tribunal is to consider, on the balance of probabilities, were there acts or mishaps of a nature that could prevent effective voting.
117	The VEC submitted in Bridge v Bowen the High Court considered whether ‘personation’, where a person who votes is not the person whose name appears on the roll, constituted an ‘act’ or ‘mishap’ that fell within the first limb of Woodward. The circumstances in Bridge v Bowen involved votes accepted from ‘personators’ who voted in person and the number exceeded the margin of votes of the successful candidate. However, the majority held individual personation did not necessarily constitute an ‘act’ or ‘mishap’ in this sense. Justice Isaacs stated, general personation has never been regarded at common law as avoiding an election because it ‘…is not infectious or contagious, it does not permeate; no matter how many instances there may be, they remain separate and individual instances.’
118	The VEC submits that a scheme of systematic personation through stealing postal ballot materials and impersonating the vote, can constitute an ‘act’ or mishap’ within the first limb. This is because the principles in Bridge v Bowen regarding personation involving separate and individual instances should be applied in a way that takes into account a modern postal voting system. In Victorian Electoral Commission v Yildez, the Tribunal considered the VEC submissions and stated it was:
…arguable that the common law principles expressed in the first limb of Woodward v Sarsons would be capable of being met by a campaign of personation (by stealing postal ballot materials and forging signatures of those they were addressed to). In other words, that such personation could be an act or mishap of the relevant type.
119	The VEC submits the systemic casting of fraudulent votes is capable of meeting the first limb of Woodward.
Second limb
120	Secondly, the Tribunal is to consider whether these acts or mishaps occurred such that ‘there was reasonable ground to believe that a majority [of voters] might have been prevented from electing the candidate they preferred’, although ‘without being able to say that a majority had been prevented.’
121	The VEC submits the irregularity must have affected the result of the election and there needs to be a causal link between the fraudulent ballots and the result of the election.
122	Majority is a reference to the number of electors by which a majority was declared, that is the number of votes required to alter the result. 
123	The VEC submitted the fraudulent voting scheme identified by the VEC did not prevent a majority of voters electing the candidate they most preferred. Therefore, it is not open for the Tribunal to declare the election void under section 312(c) of the LG Act.
Consideration
124	I accept the standard of proof is the balance of probabilities. I accept the VEC’s submission that the more serious the alleged misconduct the greater the level of satisfaction required. In this case, as fraud is alleged, a higher standard of satisfaction is required.
125	The parties who made appearances at the 6 February 2025 directions hearing agree there was conduct which constituted voter fraud and a finding should be made that there was attempted and actual interference with the election.
126	On the evidence of Mr Sutherland and the statement of contentions, I make the following findings:
39 returned declaration envelopes were stolen, fraudulently completed and returned to the VEC as part of a scheme to affect the result of the election.
29 fraudulent votes were admitted for counting, and ten fraudulent votes were excluded from the count.
Ten genuine votes, corresponding to the ten fraudulent votes that were excluded from the count due to the legislative requirement for managing multiple returns from (or purporting to be from) the same voter, were withheld from the count. One of these was informal, meaning nine genuine votes were excluded from the count.
29 voters who might otherwise have voted were denied the opportunity to vote because their postal ballot material was stolen.
The ten fraudulent votes excluded from the count identified Mr Church as their first preference.
I draw the inference that the 29 fraudulent votes that were included in the count, which the evidence shows forms part of the same fraudulent scheme as the ten excluded fraudulent votes, were also made in favour of Mr Church.
The ten fraudulent votes excluded variously identified Ms Allred, Mr Lockwood and Mr Saultry as the second preferred candidate, therefore no scheme can be inferred regarding second or third preferences. 
The fraudulent scheme was designed to have Mr Church elected on first preferences, however there is no scheme in relation to second and third preferences.
127	I am satisfied on the evidence the attempted and actual interference with the election is made out.
128	I am satisfied from the evidence that ten multiple return votes were fraudulent. I have viewed the copies of the declaration flaps identified in Group A and Group B as ‘suspicious’ or ‘possibly suspicious’ and copies of the fraudulent multiple returns opened by Victoria Police. I accept the evidence from Mr Sutherland that the date of birth on the declaration flaps were incorrect, and the signatures were not consistent with any enrolment signature held by the VEC. I note this is circumstantial evidence and no supporting expert evidence was called. Using my common sense and experience I examined the handwriting on the declaration flaps in exhibit BJES-11 to the affidavit of Mr Sutherland and it appears they have been completed with the same pen and handwriting. Having regard to the missing ballot papers, requests for replacement ballots, the number of declaration flaps with incorrect dates of birth and suspicious styles of handwriting and signatures that did not match with specimens on file, I am comfortably satisfied on the balance of probabilities there was attempted and actual interference with the election.
129	I accept the statement of contentions that the final margin between Mr Lockwood and Ms Allred after the distribution of preferences was 377 votes.
130	The ten fraudulent votes not counted and the ten genuine envelopes removed from the count as a result of the LG Regulations did not change the result of the election, because there were not enough votes to cause any candidates position to change at any stage of the count. 
131	I accept I can draw the inference that the 29 fraudulent votes included in the count would have gone to the same candidate as the ten fraudulent multiple returns. This supports a finding that Mr Church received an additional 29 votes in his favour that were fraudulent. This does not affect the outcome of the election since Mr Church still would have been the second candidate excluded since he had 417 more votes than the first candidate excluded, Ms Gilchrist, and 338 less votes on distribution of her preferences than Mr Saultry, the third candidate excluded.
132	I also accept the acceptance of the 29 fraudulent votes would not have affected the result regarding any other candidate who received preferences after Mr Church was excluded as the margin by which each remaining candidate was excluded was far greater than 29 votes, namely 1726 (when Mr Saultry was excluded over Ms Allred) and 377 (when Mr Lockwood was elected ahead of Ms Allred).
133	The 29 fraudulent votes counted, the 9 genuine votes excluded owing to the rules about multiple returns, and the potential exclusion of 29 legitimate votes of those who lost the opportunity to vote amounts to a maximum of 67 votes potentially affected by the fraudulent scheme. Since the lowest margin was 338, I am confident that the fraudulent scheme did not affect the result of the election.
134	The evidence of the fraud may well go beyond the individual nature and size of the personation in Bridge v Bowen. Bridge v Bowen can be distinguished as in that case the personation comprised ‘separate and individual instances’. In this case the personation has been planned in that it involved the theft of ballot papers from mailboxes within a specific locality in the Baird Ward, the completion and returning of stolen ballot papers and the evidence supports it occurred as a result of a co-ordinated system. A similar fraudulent methodology was used in VEC v Kozmevski and in that case I was satisfied the fraudulent enterprise constituted ‘acts and mishaps’ that could have prevented effective voting.
135	Having conducted a review of the declaration of the result of the election through undertaking a preliminary review of the evidence and considering the submissions, I am comfortably satisfied to the relevant standard of proof that the fraudulent enterprise could constitute ‘acts and mishaps’ that could have prevented effective voting.
136	I make a declaration under section 312(1)(i) of the LG Act that there was attempted and actual interference with the Election.
137	As there is no evidence that the interference affected the result of the election, there is no need for me to further consider the common law of elections and the second limb of Woodward as detailed in the VEC submissions. 
138	The VEC is not submitting the fraudulent conduct affected the election result and is not seeking a declaration the election result is void. The mathematical evidence of the votes for each candidate makes it clear there was no impact on the election result. 
139	I make a declaration under section 312(1)(i) of the LG Act that the interference did not affect the result of the election.

Judge English 
Vice President