Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series); pp. 265-281
Richmond, an inner suburb of Melbourne, was constituted as a municipality in 1855. From the outset, its politics were characterised by something less than genteel civility. At the first municipal election, one of the returning officers was himself elected, along with six non-residents of the district, including the British Secretary of State. In the aftermath of the election, angry residents petitioned the Governor of Victoria to disallow the returns, alleging that many electors were debased with drink, and that supporters of both sides in the contest had impersonated voters (Barrett 1979).
During the 19th century, Richmond became a classic working-class Australian suburb, known colloquially as Irish Town. It remained a close-knit community for the best part of 100 years. Even after the postwar influx of southern and eastern European migrants, Richmond still retained much of its character. It remained a Labor stronghold, surviving the split of 1955. Richmond politics, and power in the city council, became synonymous with the O'Connell family. O'Connells and their relatives through marriage held seats on the city council and numerous positions of employment with council.
The Richmond City Council was described as a 'feudal feifdom' (Victoria 1982, p. 78). Indeed, it embodied many of the characteristics of the 'political machines' which grew up in American cities during the 19th and early 20th Centuries extreme social conservatism and a strong element of reciprocity, where political favours were dispensed in return for continued electoral support.
The Richmond dynasty was to pass, but only after a prolonged and bitter struggle.
The O'Connell machine was able to adapt to the influx of European and later, Vietnamese migrants; these groups were very much working class, politically quiescent, and took little interest in local politics. The real challenge to machine politics came with a development familiar throughout urban Australia; the 'gentrification' of working class inner suburbs. Middle-class 'trendies', as they were contemptuously described, constituted more than a symbolic affront to the traditional values of old Richmond - they were a real threat. Many of the new arrivals took what the rulers of Richmond regarded as an unhealthy interest in local politics. They began to question the ways in which the Council had gone about its business, and it was not long before independent candidates began to contest Council elections.
In doing so, they posed an explicit threat to the only source of power, prestige and in some cases, economic well-being which was available to the rulers of Richmond and their followers. The latter, in turn, responded with the only resources available to them.
It has been said of Richmond that it is the only place in Australia where dead men voted. In 1975 an employee of the Council was fined $1,500 after having been found guilty of having voted twice under another person's name. The case merely confirmed the general suspicions which surrounded Richmond elections. No less a person than a former Deputy Prime Minister of Australia, Dr Jim Cairns, remarked that old-timers in Richmond did not regard multiple voting as criminal, but rather as a kind of game (Victoria 1982, p. 65).
The first independent was elected to Richmond City Council in 1978. By 1981 the Council comprised five independents and ten members of what was termed 'the ruling group'.
Electoral fraud in Richmond took two basic forms. The first was good old-fashioned multiple voting. This involved the impersonation of individuals whose names were on the electoral rolls, but who for various reasons, such as the fact that they had died or had moved away from the municipality some years before, were disinclined to vote.
The second type of fraud involved tampering with ballots. On two occasions, there was evidence of seals having been broken on bags containing ballots. In both of these elections non-labor candidates who appeared to have won, lost their seats after a recount.
The time-honoured practice of ballot box stuffing was also common in Richmond. This involved the insertion of false ballot papers into the ballot box, and the removal of a sufficient quantity of valid papers to reconcile the numbers. On occasion, those engaged in this practice demonstrated some lack of finesse. In 1981 the presiding officer in the East Ward reported having counted eleven more ballots than he had issued (Victoria 1982, p. 97).
Tampering with postal votes was yet another form of electoral malpractice. Here, envelopes containing postal votes were opened, and false ballot papers substituted for the votes actually cast. To this end, one of the major electoral strategies of the Richmond ruling group was to encourage postal voting.
It was also common for candidates and their supporters actually to fill out ballot papers for voters, in violation of the law. Indeed, a board of inquiry was later to conclude that
the Mayor, his wife, another councillor, and a Council officer were ready to admit to the wholesale commission of criminal offences as a means of providing a defence to the more serious charge of ballot forgery and substitution (Victoria 1982, p. 115, emphasis in original).
Such practices in fact were against the law. Regulation 4(c) of the Postal Voting (Elections of Municipal Councillors) Regulations 1980 states
No person shall persuade or induce or associate himself with any person in persuading or inducing a person to make application for a postal ballot paper.
The penalty for contravention was a fine of up to $200 or imprisonment for a term of up to three months.
In addition to direct interference with ballots, supporters of the Richmond ruling group engaged in a variety of unorthodox campaign techniques. In August 1981 motor cars belonging to two independent councillors were firebombed. A prominent supporter of independent candidates received a pamphlet stained with human blood. Three men were attacked and beaten while delivering how-to-vote cards for independent candidates. One was struck in the face and sustained a broken jaw. Another was beaten unconscious. Local newspapers containing unfavourable editorial comment about the sitting Council were stolen from letter boxes. A brick was thrown through the window of a house whose occupants displayed a poster supporting an independent candidate.
Rowdyism and bullying outside polling places was not uncommon. Supporters of independent candidates were subject to pushing, insults and menacing remarks. How-to-vote cards were snatched away and occasionally burned. Activities on the occasion of an extraordinary election in April 1981 were such that a board of inquiry later remarked:
The scene outside the polling booth on the day of this election might be thought to be more appropriate to a menagerie (Victoria 1982, p. 217).
Resuming the classic understatement which is typical of the legal profession in Victoria, he said, in reference to supporters of the Richmond machine:
I do not regard the persons associated with this particular group as being capable of great subtlety in their approach to political problems (Victoria 1982, p. 252).
In addition to the above electoral irregularities, Richmond Council experienced difficulties of a financial nature. In addition to the traditional local government concerns of 'rates, roads, and rubbish', the municipality of Richmond owned an abattoir. In 1961, Richmond Council entered into a leasing arrangement with a company, Protean Enterprises Pty. Ltd., to operate the abattoir under terms which could only be regarded as a windfall for the lessee. They involved, among many other things, the leasing of land at a very low fixed rent, based on 1961 values, for a period expiring in 1991.
Subsequent variations to the lease increased the advantage to the lessees still further. The annual rent was low to begin with, and the Council undertook to make costly improvements for which it borrowed funds. On one occasion, it committed an additional $100,000 in return for a rental increase of $5,000 per year. The 5 per cent return on borrowed capital was considerably less than the interest which the Council was paying for the loan.
In August 1967 the Council agreed to spend an additional $400,000 on the abattoir in return for a rental increase of $11,675 per year, commencing three years after completion of the improvements. This represented nil return to the Council while the improvements were being undertaken (or for three years thereafter), then 3 per cent on capital for the next seventeen years, then nothing. It was hardly an astute business arrangement from the Council's point of view. Indeed, in 1979 counsel for the City of Richmond were to describe the situation brought about by these variations to the original Protean lease as 'wholly oppressive to the Council if not scandalous' (quoted in Victoria 1982, p. 591, emphasis in the original).
It was not unusual for local governments in Victoria to own and to lease abattoirs. What was unusual was the extent to which the ratepayers of Richmond were subsidising private enterprise. It was estimated that during the course of the arrangements with Protean, an estimated $4.2 million in revenue was lost. At the same time, Richmond Council was faulted for providing inadequate or inefficient services to the poor and elderly residents of the municipality.
The difficulties which beset the municipality of Richmond arose from a number of factors. Perhaps most striking was the tribalism which characterised municipal administration. No less than two brothers, two sons, two nephews, one niece, one sister-in-law and one cousin of the mayor were employed by the Council; several other Council employees were themselves former councillors. Nepotism and the Richmond Council were synonymous. The close family relationships between Council employees and elected officials led to a situation where perpetuation of the political status quo was seen by Council staff as in their best interests.
Despite widespread allegations of electoral misconduct, Council officials themselves undertook no investigations. Indeed, the pattern of behaviour seemed to indicate that the misconduct was condoned, if not encouraged, by the ruling group.
In 1975 one Council employee was charged and convicted of voting more than once and voting under another persons's name. Members of Council were something less than indignant about the criminal acts. The person in question retained his position with the Council and the fine was paid after colleagues at the Council passed the hat. By contrast, an Assistant Town Clerk who informed police of a case of multiple voting was excluded from further Council electoral duties and was ostracised by Council officers.
The person responsible for the overall administration of municipal government in Richmond was the Town Clerk. Charles Eyres served as Assistant Town Clerk for ten years, before becoming Town Clerk in 1958. He was to hold the position for twenty-two years. A member of his local branch of the Australian Labor Party (ALP), Eyres was closely allied with the ruling group in Richmond City Council. Eyres went about his duties with a certain lack of integrity and competence.
Charles Eyres' partisan inclinations were reflected in the manner in which he administered the electoral process in Richmond. As Returning Officer he was vested with significant power under the Local Government Act 1958 (Vic) to take action against rowdyism and bullying by supporters of the Richmond machine. He never did.
Eyres had a statutory duty to post out notices to those on the electoral rolls who had not voted in any given election. He failed to do so. Inclined to ignore complaints from non ALP sources, he was quick to respond to complaints about independent candidates and to forward these to the state Department of Local Government. Eyres appointed a traffic officer, whom he knew to be corrupt, to be the Council officer in charge of postal voting. The administration of postal voting in general was exercised with an almost total lack of security precautions. Keys to rooms containing voting material were readily accessible; the postal voting room in any event, was often left unlocked.
In keeping with the tradition of nepotism which characterised personnel management at Richmond Council, Eyres' son Carl was appointed rate collector in 1970. Among his responsibilities was that of keeper of the electoral rolls. Carl Eyres was less than impressive in the discharge of his duties:
It is difficult to imagine Mr Eyres being appointed to any responsible office in any Organisation and were he not the son of Mr Charles Eyres I doubt that he would even have been employed at Richmond. He appears to have demonstrated a degree of incompetence, both as a rate collector and as the keeper of the electoral rolls . . . My own observation of him leads me to doubt whether he would have the capacity to detect the most obvious type of electoral malpractice if it was to occur in front of him, in the unlikely event that he had the inclination to do so. For the purposes of those engaged in electoral fraud, he no doubt was and is an ideal person to be holding a responsible electoral position (Victoria 1982, p. 54).
Under the guiding hands of Charles and Carl Eyres, the system of electoral administration in Richmond left much to be desired. The electoral rolls were poorly maintained, and badly out of date. A considerable number of persons left on the rolls had died or had long since moved out of Richmond. If it did not constitute an open invitation to voter impersonation, the state of the electoral rolls certainly facilitated the practice.
Under normal democratic criteria the operations of government are accessible to the public. Not so with the Richmond Council. Indeed, throughout the 1960s and 1970s it was common practice to conceal council business from the public deliberately. No notice papers or agendas were available to enable members of the public to follow council meetings. It was not uncommon for meetings to be adjourned immediately after they commenced, to enable Labor councillors to caucus privately, thus excluding both the general public and independent councillors from their basic deliberations. Minutes of council meetings were not even circulated to councillors. The government of Richmond was government by men in the back room.
The financial affairs of Richmond Council were in no less a state of disarray than were the electoral rolls. There was a history of non-compliance with municipal accounting regulations and members of the Council were routinely denied elementary financial information. The terms of agreements which the Council entered into with Protean were never fully disclosed. Documents relating to the transactions remained under lock and key, and were not made available to councillors outside the abattoir committee. No proper records were kept of how Council funds were spent on the abattoir.
In theory, the activities of local government are subject to oversight by the state minister, through the Department of Local Government. In practice, state government oversight was ineffective. Traditionally, the government of Victoria regarded municipalities with a degree of deference, as independent organs of government. State authorities were content that electoral accountability would be realised through the democratic process. This avoidance of paternalism on the part of state government was reflected in the size and operating style of the inspectorate of municipal administration within the Department of Local Government. There were some five inspectors to oversee some 211 local governments, all of whom conducted elections at the same time each year.
The inspectorial style was one of considerable tolerance. Perhaps understandably, given their lack of resources, inspectors did not usually initiate investigations of their own motion but rather responded to complaints from aggrieved members of the public. They approached their investigative tasks with strict legalism but with something less than messianic zeal. Inspectors would confront Council officials with allegations of misconduct, which the officials would promptly deny. The inspectors would then find that there was insufficient evidence to substantiate the allegation and advise the complainant accordingly.
In part, the task of inspectors was made more difficult by the ethic of silence which characterised the Richmond community. It was quite simply unthinkable to divulge incriminating information to the authorities. One gentleman, who had been assaulted with a broken beer bottle by the brother of the then Mayor, and who as a result required thirty stitches to his face, made no complaint to police. In the words of the former state member for Richmond and later Federal Minister for Aboriginal Affairs, Clyde Holding:
... you can't give people up. I mean between 1955 and '65 in Richmond, if I walked into a hotel and someone from the DLP said 'There's Holding', and he had a few beers in him and landed one on me, the one thing I couldn't do would be to report it to the police (Victoria 1982, p. 59).
But it seemed that there was on the part of the inspectorate a reluctance to pursue allegations or indeed, to enforce the law. It was alleged in one case of suspected voter impersonation, an inspector 'suggested off the record that it was very difficult to get prosecutions in these cases, and that his advice would be to press the matter no further and to not give the names' (Victoria 1982, p. 123, emphasis in the original).
On another occasion, following allegations of multiple voting and complaints about the operation of tickboards and access by messengers to a polling booth, a departmental inspector reported:
It is generally accepted at municipal elections that provided there is no interference to voters or threat to the orderly conduct of the poll, returning officers and presiding officers cannot prevent the compilation of such lists by scrutineers and do not prevent the passing of such listings to other persons (Victoria 1982, p. 86).
Explicit breaches of the Local Government Act were thus condoned.
In 1978, following a complaint by an independent councillor that Council employees were delivering postal ballots to voters by hand, an inspector
was apparently satisfied with the assurances he received at the Town Hall and did not, in fact, conduct personal interviews with these voters.
This episode highlights a difficulty relating to a number of the Local Government investigations in that Local Government Officers are no doubt used to dealing with officials who are basically honest, and thus in the case of Richmond were, perhaps, over ready to accept assurances given (Victoria 1982, p. 104).
Deference to the decisions of elected local governments also characterised ministerial oversight. Sir Murray Porter, the Minister for Local Government, may have regarded the signing of a 24-year fixed rental lease with Protean as something less than an astute business arrangement. It nevertheless satisfied departmental statutory regulations. The policy of the Local Government Department continued to rest on the principle of not interfering with the commercial judgment of councils.
Financial oversight of Council business by state government authorities was also ineffective. Despite annual audits and directions by the Local Government Department to reduce the deficit, financial irregularities persisted. State authorities did not follow-up to ensure that anomalies were rectified. As far back as 1966 inspectors of the Local Government Department recommended that the Council maintain a record of capital improvements to the abattoir and costs incurred by Protean and the Council respectively, to ensure compliance with the term of the lease. Council failed to heed the advice.
On two occasions during the 1970s inspectors from the Department recommended that a special audit of Council finances be conducted. The special audit provisions of the Local Government Act were regarded as too cumbersome, requiring evidence of either wilful or culpable negligence or misapplication of monies by councillors. The conduct of such audits would entail considerable work and expense to the muni ' cipality. The recommendations were rejected by the Minister.
The windfall for Protean and corresponding financial disaster for the ratepayers of Richmond did not result from either generosity or carelessness on the part of municipal administrators. Charles Eyres acquired considerable wealth during the 1960s. To his eventual embarrassment, Eyres did not offer the time-honoured explanation of uncanny success at the races. Indeed, he failed to provide an explanation to the satisfaction of the authorities. The conclusion reached was that he was the beneficiary of considerable largesse on the part of the company - in the form of bribes.
In the entire history of local government in Victoria, state intervention in local matters was extremely rare. Keilor Council was dismissed in 1975 after intractable divisions. It was replaced by a state appointed commissioner. Following a petition by ratepayers and the report of a public inquiry which identified breaches of the Local Government Act, Sunshine Council was dismissed in 1976. Melbourne City Council was dismissed in May 1981.
In light of these precedents, it is perhaps surprising that the government of Victoria did not intervene earlier into the affairs of Richmond Council. A government backbencher, Morris Williams, had conducted a lengthy crusade against the Council, and had for many years been critical of the comfortable arrangements between the Council and Protean. At one point he presented a petition to Parliament calling for an inquiry. In 1978, the Attorney-General, Haddon Storey, requested that the Victoria Police investigate allegations of bribery. Detectives reported that they had been unable to obtain evidence sufficient to substantiate the allegations.
As the gentrification of Richmond continued into the 1980s, the council machine had to work that much harder to maintain its control over Town Hall. Independent candidates observed that Labor councillors, who usually received between 48 and 52 per cent of the primary vote, were winning in excess of 90 per cent of the postal vote. The contrast was too great not to compound the chronic suspicions surrounding Richmond electoral politics. Following a by-election in April 1981, independent councillor Andrew Alexander sought out voters who had cast postal ballots. He obtained statutory declarations from fourteen people who had voted for an independent candidate - the same candidate who received but five postal votes according to the official tally.
Alexander enclosed the statutory declarations in a letter to the Secretary of the Local Government Department. The state Liberal government, having recently completed a quarter century in power, remained under relentless criticism from the Opposition for alleged irregularities in the acquisition of land for public housing. With an election looming the following year, the opportunity thus presented itself to discredit the ALP. The government was thus moved to abandon its traditional posture of tolerance toward the shortcomings of municipal government. The Minister for Local Government requested that the Victoria police conduct forensic tests on postal ballot papers to determine if they had been interfered with. Indeed, analyses revealed that the envelopes in which postal ballots were enclosed had been opened and resealed with a glue different from that used in their manufacture. On 21 July 1981 the government appointed Alastair Nicholson, Q.C. to conduct an inquiry into electoral irregularities in Richmond. His terms of reference extended to postal voting in Richmond since 1970.
Only a matter of days after the inquiry was established, political tensions in Richmond heightened in the run-up to the annual Council elections. In the aftermath of the firebombings and assaults noted above, the Nicholson terms of reference were widened to include the outbreak of violence preceding the 1981 Council elections. Not long after commencing the inquiry Nicholson began to explore the relationship between the Council and Protean. Arguing that its affairs were outside the inquiry's terms of reference, the company unsuccessfully sought an injunction to stop the hearing of evidence relating to its affairs. Corruption, maladministration and electoral irregularities were in the eyes of many, inextricably linked.
An interim report was tabled in Parliament on 15 December t981. The report noted that the 1980 annual election and April 1981 by-elections were marked by serious electoral frauds, and concluded that a number of ALP councillors might not have been elected had the poll been conducted honestly. Hearings continued into 1982 and more than 250 witnesses eventually appeared before the inquiry, which sat for nearly a year.
On 29 June 1982 the new Labor government tabled the three-volume, 900 page Nicholson Report and introduced legislation to dismiss the Richmond City Council. On 5 July, the Council had its last meeting. At the conclusion, the outgoing councillors who had been members of the ruling group were presented with certificates which specified their services to the municipality. With the dismissal of Richmond Council, the Cain government installed as Administrator a person with accounting qualifications and with wide experience in local goverment.
The Local Government Act 1958 provided that no penalties could be imposed for offences under the Act unless prosecutions commenced within one year of the commission of the offence. By the time the Nicholson Report was tabled, the time available for prosecutions under the Local Government Act had passed. Another of the Report's recommendation was that the time specified be extended from twelve months to four years.
Few prosecutions were brought under the Crimes Act 1958 (Vic). Charles Eyres, a key figure in the alleged irregularities, had fallen ill by the time the Nicholson Report was published, and died soon thereafter. The forensic evidence relating to the alleged forgery of ballot papers, while sufficient to meet the civil standard of proof applied by the Board of Inquiry, was regarded as insufficient to support a criminal prosecution in all but one case. Vasilios Sevastopolous pleaded guilty in the County Court at Melbourne on 31 May 1985 to 32 counts of forgery and 32 counts of uttering relating to postal ballots for the 1978 election in the North Ward of Richmond. He was sentenced to a total of 64 weeks imprisonment.
Three men were charged with perjury committed before the Nicholson Inquiry. One was acquitted at the direction of the trial judge, one pleaded guilty and was sentenced to six months imprisonment, and one was tried and convicted and sentenced to nine months. Both of these sentences were directed to be served at the Prahran Attendance Centre.
Gregory O'Connell, the nephew of the former Mayor of Richmond, was tried in the Country Court at Melbourne in April 1983 on charges of inflicting grievous bodily harm and assault occasioning actual bodily harm. The charges arose out of the alleged assaults against three men who were placing campaign material in letterboxes on behalf of independent candidates in August 1981. O'Connell was acquitted on all counts.
Prosecutions for offences relating to bribery also proved to be unsuccessful. One individual charged with receiving a secret commission of $500 was discharged by the Magistrates Court at the preliminary hearing in July 1983. Another was committed for trial on one charge of attempting corruptly to ,receive a valuable consideration' (an offence at common law). Ultimately, because the evidence against the accused was found to be unsatisfactory, a nolle prosequi was entered.
The third and final volume of the Nicholson Report proposed a number of amendments to the Local Government Act which were designed to improve the conduct of municipal elections.
These included the creation of a court of disputed returns, which would provide for declaring an election void if the outcome were found to have been affected by misconduct. Other recommendations included the creation of an offence of undue influence and intimidation of voters and the power for a returning officer to seek proof of identity from an intending voter. The Nicholson Report also called for the creation of an offence providing up to two years imprisonment for fraudulently altering any official mark or writing on any electoral paper.
In the years following the dismissal of Richmond Council, the Local Government Department was significantly restructured to provide for a new strategy of regulatory oversight. The old reactive, ruiebook approach to inspection was replaced by a more diagnostic style. The provision of technical assistance became an important function of the Department. A scheme of regionalisation was introduced and a new group of specialists with expertise in accounting and financial management were appointed to disseminate guidelines and to conduct seminars for local government officials.
A new senior position of Manager for Human Resources Consultancy was created within the Local Government Department and steps were taken to assist municipalities in recruiting the best qualified personnel and in implementing modern management practices. Electoral rolls, now computer-generated by the state Electoral Office, are regularly purged of the names of those who have moved from Richmond, to terrestrial locations or elsewhere.
Shortly after the Labor government came to power in 1982 it introduced freedom of information legislation. Because of political resistance, local government matters were exempt from provisions of the Act. But steps were eventually taken to improve the accountability of local government in Victoria.
Five years after the dismissal of Richmond Council, the Victorian Government introduced a new Local Government Bill which would require that council and committee meetings be held in public. The new Bill addressed many of the shortcomings of local government addressed in the Nicholson Report. Requirements that the terms of proposed leases be published in advance were intended to prevent disastrous situations such as the arrangement with Protean.
A term of imprisonment of up to two years was specified for making false or misleading statements to an auditor. Councillors and council staff would be required to register their pecuniary interests. The integrity of the electoral process would be protected by such provisions as six months imprisonment for communicating any information likely to defeat the secrecy of voting, six months imprisonment for multiple voting, and two years imprisonment for returning officers tampering with or fraudulently altering voting materials.
The Bill would also create municipal electoral tribunals to whom candidates or aggrieved voters could apply if they disputed the propriety of electoral processes or outcomes. The tribunal would be empowered to declare an election void if allegations in question were substantiated.
State supervision of local government activities is still intended to avoid even the appearance of paternalism. Beyond the proffering of managerial advice, actual intervention in the affairs of local government would not occur unless there were an apparent breach of the law, or serious mismanagement of financial matters.
The state government also planned to introduce a system of efficiency audits which would compare the local government agencies of Victoria on such criteria as the percentage of rate revenue allocated for administrative expenses. Authorities believe that compliance with proper administrative standards is more readily achievable by letting such facts speak for themselves rather than by overt chastisement. While recognising that municipalities are responsible for allocating their resources, audits would also look to the effectiveness of resource usage in meeting community needs.
Nearly five years after the dismissal of Richmond Council, the municipality's business remained the responsibility of an appointed administrator. There was obviously no rush to restore a democratically elected council, given the antidemocratic traditions which were so deeply engrained in the Richmond electorate. By 1987, consideration was given to restoring the democratic process, perhaps in conjunction with a merger of the local governments of Richmond and neighbouring Collingwood.
In the end, the likelihood that Richmond-style maladministration might one day recur seems extremely remote, due less to any reformist inclinations on the part of state government than to the course of history. By the late 1980s the social and demographic requisites of the city political machine had become part of Australia's urban past.
- Barrett, B. 1979, The Civic Frontier, Melbourne University Press, Melbourne.
- Victoria 1982, Report of Board of Inquiry Relating to Certain Matters Within the City of Richmond, 3 vols., (A.B. Nicholson Q.C., Board of Inquiry), Government Printer, Melbourne.