Hidden ways to get elected to Council

By WENDY BACON

Municipal Councils are intended to provide a way for residents to play a role in governing local communities. Councillors are their elected representatives. But many people would be surprised to learn that you can get elected to a local council without either living in or paying rates in the Local Government Area (LGA).

This is exactly what Labor’s Marrickville candidate Zoi Tsardoulias achieved in December 2021 when she narrowly defeated Independent candidate Victor Macri by less than 70 votes. Her win delivered  the Labor team eight Councillors against seven others – 5 Greens Councillors and 2 Independents. This ensured Labor control of the council and Darcy Byrne’s return as Mayor.  

What voters were not told was that Tsardoulias owes her seat on Council to a favour done by Leichhardt Municipal Cafe owner Maurice Portelli, who responded to a request from ‘a friend’ whom he prefers not to name.

To understand the background to this favour, it’s important to understand how the electoral rolls for Local Government work.

Inner West local government elections were held in December 2021. Tsardoulias candidature was announced in June 2021. She has a long association with the NSW Labor Party and worked in the office of the current state MP for Canterbury Sophie Cotsis, for four years. She was promoted as a candidate with strong personal connections to the area through her deceased husband Emanuel Tsardoulias, who was Deputy Mayor on what was previously Marrickville Council, and through her connections to the Greek community. However strong personal and social connections do not entitle you to stand for election as a Councillor. Otherwise local government could easily become not local at all.

To be eligible to stand as a Councillor, you must be entitled to vote in the LGA. There are two ways that you can be eligible to vote in your LGA. The first is that your residential address is on the Australian Electoral Commission roll in the LGA. It doesn’t matter if you don’t live in the ward where you want to stand but you must live in the LGA. For example, Inner West Mayor Darcy Byrne is a Councillor for Balmain ward but lives elsewhere in the LGA. Residential voters make up more than 99 % of voters in the Inner West.

If you do not live in the area, the only other way you can vote is if you nominate to be on the “non-residential roll”. Rate paying land holders and rateable lease holders (usually businesses) can apply to be on the roll. It doesn’t matter how many properties you own or how many people share in a business or a property, they are only entitled to one vote.

The General Manager of each LGA is responsible for maintaining the non-residential roll and staff are expected to check the credentials of those who nominate. In the entire Inner West only 90 ratepayers have nominated to be on the roll. Of these more than 70 are in the Marrickville Ward. In the 2021 Local elections, no one at all nominated in Stanmore or Balmain.

City Hub had been told that Tsardoulias does not live in the Inner West and confirmed this by a property search. So we assumed she must be eligible to be on the non-residential roll as a property owner of a second property or as a rateable lease holder. Councillors are required to disclose ownership of all properties and businesses in which they (and close relatives) have an interest on an annual ‘disclosure of interests’ that are published on Council websites. We checked and found that Councillor Tsardoulias declares no interest in a property or business. 

City Hub was mystified. 

How could a person who was not a ratepayer and did not live in the Inner West stand as a Councillor?

The next step was to inspect the non-residential roll. This seemed like a straightforward task. Under Section 303 of the NSW Local Government Act, members of the public can inspect the non-residential roll. We agreed in advance that residential addresses could be redacted for privacy reasons. But when we arrived at Council chambers to inspect the roll, we discovered that non-residential addresses had been redacted as well. We could see only names of the roll and the ward in which they had nominated. We confirmed that Tsardoulias was one of less than ten names on the roll in the Leichhardt ward but not the address of the business on which her claim was based.

City Hub queried the decision to keep the non-residential addresses a secret. The Inner West Council told us to make a request through GIPA. This is the name for the freedom of information regime in NSW. GIPAs are notoriously slow and requests may not be granted. In any case, the response seemed to defeat the purpose of the right to inspection. 

We sent questions to Councillor Tsardoulias asking her to explain her interest in the Leichhardt Ward that enabled her to be on the roll; why the interest was not declared in her declaration of interest; and whether she had received advice that it did not need to be. Tsardoulias did not reply to the first two questions. Instead she sent a statement:

“I take my responsibilities very seriously and continue to undertake my obligations under the Act in good faith. I have sought legal advice from a suitably qualified solicitor and am confident I have met both my obligations in declaring interests in my annual return of disclosure and the requirements to nominate for and be elected to public office. I look forward to continuing to serve the people of Marrickville-Midjuburi Ward and the Inner West.”

Tsardoulias confirmed that she has no property or leasehold interest in the Inner West. So what were the circumstances that enabled her to be validly elected to Council? 

We sought advice from the Office of Local Government who drew our attention to a little known section (Section 271 Subsection 4A) of the Local Government Act that allows a corporation or trustees that are rate paying lessees of more than one parcel of land in an area, or if joint or several rate paying lessees of one parcel of land in an area are also joint or several rate paying lessees of any other parcel of land in the area, it or they can nominate a person as the rate paying lessee of rateable land only in respect of one of those parcels.

This little known section appears to both allow companies that own more than one property to vote but to restrict the vote to one person. It allows companies with several directors to only nominate one person to the roll.  Had Tsardoulias been nominated by the directors of a corporation based in Leichhardt despite having no other formal connections with it?

There are less than ten names on the Leichhardt non-residential roll. We received information that one of the redacted addresses was for 158 Norton Street.  This address is occupied by a tiny new company started by its sole director and shareholder Maurice Portelli in November 2020. Portelli previously worked in his family’s business at the well known Mezzapica Cafe and Patisserie in Norton Street but left in about 2017. When his ‘no compete’ clause ended, he decided to set up his own cafe a few doors down the street.

On June 7 last year, Inner West Mayor Darcy Byrne opened and endorsed Portelli’s new venture. He was accompanied by Phillippa Scott who was successfully elected as a Labor Councillor in 2021. On the day of the opening, Byrne wrote on Facebook, “Phillipa Scott and I joined Maurice to open his new cafe, he’s returning to Norton Street 4 years after leaving Mezzapicca. I can confirm that Maurice is still singing and his voice hasn’t improved … the coffee is very good though and it’s free all day today to mark the opening. Welcome back Maurice!”  

Byrne and Portelli have been mates since at least 2016. At that time, Byrne was  Mayor of Leichhardt Council. He launched a free Keep Cup anti-domestic violence campaign which featured himself and Portelli at  the Mezzapica cafe. The promotional video which he posted on Facebook ended with Byrne encouraging people to come down to the cafe to pick up a free Keep Cup. 

“Friend’ asked cafe owner to nominate Councillor Tsardoulias

City Hub visited Portelli’s cafe. He confirmed that he had agreed to nominate Councillor Tsardoulias to represent his business on the roll. When City Hub asked why, he replied,  ‘a friend asked me”. “Was that friend Darcy Byrne?” we asked.  Portelli responded,  “I’m unable to say”.

Portelli said that he had asked would anyone know about the arrangement. The ‘friend’  told him that it would it would “not exactly be a secret” and that it was possible that someone “might get to know about it.” This suggests that Portelli knew the arrangement was unorthodox and preferred that it not be public.

The nomination form for the residential roll requires the rate payer to supply details of their rateable interest and the name of the person who will be the voter. This raises two questions: If you want to vote in a LGA, is it possible to simply approach a local business owner and ask them to put you on the roll? Once on the roll, can you stand for Council?

Two weeks ago, we sent questions to Darcy Byrne and his media manager Jonny Browne. They have neither acknowledged receipt as requested nor responded to our correspondence.  

Less than two weeks after Byrne opened Portelli’s Cafe, Matt Howard, the lead candidate for the Marrickville ward  who works in the office of Summerhill MP Jo Haylen, announced that Tsardoulias would be in second place on his ticket. The addition of Tsardoulias gave Labor’s ticket a connection with the Marrickville Greek community, which Independent Councillor Victor Macri had through his number 2 candidate who was also from a Greek background. 

City Hub tried unsuccessfully to contact Councillor Howard and then sent him some questions. Howard understands local government well as he ran unsuccessfully as Labor’s number two candidate in the Marrickville ward in 2017. We asked whether he was aware of the arrangement with Portelli’s Leichhardt cafe when he announced Tsardoulias’ candidature and whether the arrangement was something that voters should know about and if not, why not? We also asked if he had previous experience with this sort of arrangement and whether he was the ‘friend’ who asked Portelli to nominate Tsardoulias or did he know the identify of the friend. We received no acknowledgement or answers.

Is this arrangement legal?

Tsardoulias is no doubt strongly motivated to follow in the footsteps of her late husband in becoming a Councillor but is this arrangement lawful. She has sought advice and has been told it is lawful.

When Section 270 Subsection 4A was enacted, there was no parliamentary discussion of the rationale behind it. It was probably not intended to be used as a device to get people not otherwise entitled to be on the non-residential roll elected as Councillors. But does it provide a loophole that is lawful?

The meaning of laws is often contested through court cases. There has only ever been one court case about the section. That case was about a company that owned more than one property in the Woollahra LGA. One of its directors was approached by a Liberal Party campaign director to nominate a person to the non-residential roll. The campaign director wanted this person who lacked connections with the LGA to stand for Woollahra Council. The company director met with the person who was previously unknown to them and agreed to nominate him to the roll. The candidate was elected. Some time later a resident tested the validity of the nomination in the NSW Civil and Administrative Appeals Tribunal. The Tribunal found that the Councillor was lawfully nominated. This case is different from our Inner West example because it more easily fits within the SubSection 4A which reads as if it was intended to apply to companies owning more than one property or with a number of directors. The Leichhardt Municipal Cafe Pty Ltd is a tiny one person business. Its sole director and shareholder is Portelli. If he did want to vote in the election, why not vote himself?

Should the hidden arrangement be public?

If the arrangement is legal, why has it been kept hidden and why won’t Councillors answer our questions?  Do they hope that this will shut down the story? The reason for the secrecy is that political parties know that most voters prefer their local government candidates to be locals. Recently, this reporter initiated a discussion on a Facebook group called Inner West Council Watch about the criteria candidates should meet to be eligible. Some people thought that candidates should live in the ward where they stand, some thought that that they should just live somewhere in the LGA. There are differences of opinion about whether ratepayers who do not live in the area should be able to vote. No one suggested that a person with no formal connections at all with the LGA should be able to vote or stand as a Councillor.

The reason that such arrangements are hidden is that political party campaigners know that publicity about such behind-the-scenes arrangements would lose them votes. In a close election as this one was, it could have been the difference between winning and losing power. It is noteworthy that the former NSW Labor stronghold of Marrickville seems to be the only ward in the Inner West LGA that has made extensive use of the non-residential electoral roll.

Current discussions about democracy emphasise the importance of transparency. Secrecy is anathema. At best Section 271 Subsection 4A  provides a cloak for party power games. Candidates should either be required to be open about what entitles them to stand for Council, or the section should be repealed.

This is one of a series of articles on transparency and accountability of the Inner West Council. You can read the other articles here and  here and here.

Wendy Bacon was the Professor of Journalism at UTS.  She is not a member or donor of any political party. She supported Greens Councillor Sylvie Ellsmore in the 2021 Local government elections