VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative Division
Review and Regulation List	VCAT Reference: Z885/2020	

CATCHWORDS

Evidence – Review of election under s312 Local Government Act (Vic) 2020 – production of ballot papers in possession of Victoria Police to parties in the review proceeding – whether those papers should be produced to all parties and on what terms

APPLICANT:	Victorian Electoral Commission	
FIRST RESPONDENT:
SECOND RESPONDENT:
THIRD RESPONDENT:
FOURTH RESPONDENT:
FIFTH RESPONDENT:
SIXTH RESPONDENT:
SEVENTH RESPONDENT:
EIGHTH RESPONDENT:
NINTH RESPONDENT:
TENTH RESPONDENT:
ELEVENTH RESPONDENT:
TWELFTH RESPONDENT:
THIRTEENTH RESPONDENT:
FOURTEENTH RESPONDENT:
FIFTEENTH RESPONDENT:
SIXTEENTH RESPONDENT:
SEVENTEENTH RESPONDENT:	Oscar Yildiz
Mohamad Elmustapha
Georgios Karantzalis
Shaun Minehan
Helen Davidson
Daniel Taylor
Milad El-Halabi
Monica Harte
Praveen Kumar
Catherine Bonacci-Roca
Baris Duzova
Chris Miles
Alesio Mulipola
Darren Leslie Grindrod
Lou Tenace
Shanaka Perera
Angelica Panopoulos	
BEFORE:	Vice President Judge Marks	
HEARING TYPE:	Directions Hearing	
DATE OF HEARING:	9 November 2021	
DATE OF ORDER:	15 November 2021 	
CITATION:	Victorian Electoral Commission v Yildiz (No 2) (Review and Regulation) [2021] VCAT 1362	
ORDERS

A claim for public interest immunity was made by Victoria Police in respect of some of the information covered by the Proposed Orders referred to in the Ruling given on 20 October 2021: Victorian Electoral Commission v Yildiz (Review and Regulation) [2021] VCAT 1206. Some issues were raised in submissions in the directions hearing on 9 November 2021 in respect of the operation of sections 54 and 56 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in respect of the claim pressed by Victoria Police (the Jurisdictional Question).

The Tribunal orders that:
1	Pursuant to section 312(1)(f) and (h) of the Local Government Act 2020 (Vic) and section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), Victoria Police is directed to produce copies on 6 December 2021 (and no earlier) of the 83 general mail-out ballot papers which were contained in the 83 general mail-out returns referred to at paragraph 11 of Ms Williams’s affidavit dated 29 January 2021 (the 83 Suspicious Ballot Papers).
2	On and from 6 December 2021, copies of the 83 Suspicious Ballot Papers be made available to the parties of the proceeding for inspection (including copying) on the basis that:
(a)	the material may only be used for the purposes of this proceeding; and
(b)	those inspecting first provide undertakings to keep the information disclosed by the release of the 83 Suspicious Ballot Papers confidential. 
3	Victoria Police file and serve any further written submissions on the Jurisdictional Question relating to the Proposed Orders and provide copies of authorities relied on, by 4 pm on 19 November 2021.
4	The Applicant file and serve any further written submissions on the Jurisdictional Question relating to the Proposed Orders and provide copies of authorities relied on, by 4 pm on 30 November 2021.
5	The Seventh Respondent file and serve any further written submissions on the Jurisdictional Question relating to the Proposed Orders and provide copies of authorities relied on, by 4 pm on 9 December 2021.
6	Any other Respondent wishing to be heard further on the Jurisdictional Question relating to the Proposed Orders file and serve written submissions, and provide copies of authorities relied on by 4 pm on 20 December 2021.
7	Any party wishing to respond to any matters raised in the written submissions of any other party may file and serve any reply written submissions by 4pm on 21 January 2022.
8	The remaining matters relating to the application for production be listed for a directions hearing before Vice President Judge Marks on a date not before 27 January 2021.
9	Liberty to apply.

Judge Marks
vice president 			

REASONS

1	On 20 October 2021 the Tribunal handed down a ruling: Victorian Electoral Commission v Yildiz (Review and Regulation) [2021] VCAT 1206 (the 20 October Ruling.)  These reasons assume a familiarity with that Ruling, and use the same definitions.
2	On 9 November 2021, a directions hearing was held to consider the proposed orders contained at 20 October Ruling [25].
3	A claim for public interest immunity was made by Victoria Police in respect of some of the information covered by the Proposed Orders.  Some issues were raised in submissions in respect of the operation of sections 54 and 56 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in respect of the claim pressed by Victoria Police (the Jurisdictional Question). Those issues will be determined following the filing of further submissions. Orders allowing for the filing of those submissions are made.
4	No public interest immunity claim was made over the 83 Suspicious Ballot Papers in the possession of the Victoria Police. 
5	All parties other than the Seventh Respondent (El-Halabi) agreed that these could be made available to the parties for inspection on the basis that the information only be used for the purposes of this proceeding.  
6	El-Halabi submitted that if they were to be produced at all, the 83 Suspicious Ballot Papers should only be produced to the VEC. In an email sent by his solicitor on 11 November 2021, it was submitted that:
This is because the whole basis of the order for release of the suspicious ballots was to enable VEC to conduct comparison of the pattern of preferences marked on those ballot papers with ballots cast in the election in the manner set out in [25] to [31] of the affidavit of Glenda Frazer dated 8 November 2021.  These proposed orders achieve the purpose put forward for the release of the suspicious ballots at the directions hearing. 
There is no basis for this order to extend to release of the suspicious ballots to the other parties at this time. To do so would run a serious and unnecessary risk of compromising the confidentiality of these highly sensitive and potentially highly prejudicial documents in circumstances where this proceeding is the subject of significant media attention. 
If an order is made for release of the suspicious ballots beyond the VEC then the Seventh Respondent submits that access should be limited to:
a.	Where a party is represented, by the legal representative(s) of that party;
b.	Where a party is not represented, by the party personally;
c.	Where a party intends to have any elector’s name or address divulged to an expert, by the expert;
and that undertakings be required from such persons to:
a.	Keep the information disclosed by release of the ballot papers confidential.
7	The VEC already has copies of the 83 Suspicious Ballot Papers: it sent them to the Police in the first place. There are no names and addresses on the Ballots, and the VEC and Police confirmed at the hearing that there is no identifying material on them.  
8	I consider that access to the 83 Suspicious Ballot Papers should be provided to all parties on the basis they may only be used for the purposes of this proceeding, and  provided those accessing it give undertakings to keep the information disclosed by the release of the ballot papers confidential. 

vice president 
Judge Marks