One week and a half after the story appeared in the local media, what is the Electoral Commissioner doing to ensure that the people of Newcastle don't have to foot the bill for an unnecessary second election in Ward 3?
Below is a letter sent to the Commissioner urging action.
Newcastle NSW 2300
1 September 2008
NSW Electoral Commission
c/- Cathy Cole
Newcastle Returning Officer
Shop 1, 473-475 Hunter Street
Newcastle NSW 2300
Re: Request for Urgent Action on the Eligibility of Ms Margot McAlary, Newcastle Ward 3 Candidate
I am writing on behalf of the Newcastle Greens to request you to take urgent appropriate action in relation to the apparent ineligibility of Ms Margot McAlary, who is the third candidate on the Group D ticket headed by John Tate for Ward 3 of Newcastle City Council.
Whilst we accept that the Commission is not in a position to undertake detailed checks of the qualification of all candidates at the time of the nomination process, we believe that the Commission has a responsibility to undertake such checks if/when they become aware of circumstances that raise reasonable doubt about a candidate’s qualification, and to take appropriate consequent action.
Media coverage of Ms McAlary’s candidacy has indicated that she is an undischarged bankrupt, a fact Ms McAlary herself has publicly acknowledged (“Tate team gaffe - Bankrupt candidate rocks mayor's election campaign”, The Herald, August 21, 2008, pp.1 & 2).
Section 275 of the NSW Local Government Act 1993 states that:
(1) A person is disqualified from holding civic office:
(h) while disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001 of the Commonwealth.
Part 2D.6 [Section 206B (3)] of the Commonwealth Corporations Act 2001 states that:
(3) A person is disqualified from managing corporations if the person is an undischarged bankrupt under the law of Australia, its external territories or another country.
Section 306 (2) of the NSW Local Government Act 1993 states that:
To be duly nominated for election as a councillor for an area, or for election as mayor of an area by the electors of an area, a person must be enrolled as an elector for the area, and must be qualified to hold that civic office, at the closing date for the election.
If Ms McAlary is an undischarged bankrupt, she is clearly not qualified to hold the civic office for which she has nominated.
The Newcastle Herald article cited above provides clear grounds for reasonable doubt as to Ms McAlary’s eligibility, and we believe that the Commission would now be remiss in its public duty if it did not act on this matter.
Clearly, the election of a candidate who is ineligible to be a councillor would expose the election result to almost certain legal challenge.
Indeed, a significant risk of legal challenge exists even if such a candidate is not elected, if the presence of the ineligible candidate in the ballot count influences the final result via the flow of preferences. In our view, such a challenge is highly likely to be successful, and would have the consequence of either invalidating the entire ward election, or of necessitating a by-election.
The democratic and financial costs involved here would be much more considerable than preventative action before the election.
To prevent such a risk, and to ensure that voters in the Ward 3 ballot are provided with a choice of qualified candidates on the ballot paper, we respectfully request that you undertake urgent action to formally ascertain Ms McAlary’s eligibility, and that you then consider the options available to you under the relevant statutory and regulatory instruments, including any appropriate changes to, or reprinting of, ballot papers.
We would appreciate an expeditious response to this request, given the imminence of materials registration deadlines and the election date itself.