Federal Court of Australia

Electoral Commissioner, in the matter of an inquiry relating to an election for an office in the Police Federation of Australia, Victoria Police Branch [2026] FCA 639

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s 206(4)(a) of the Fair Work (Registered Organisations) Act 2009 (Cth), the election for a casual vacancy in the office of Senior Vice President in the Victoria Police Branch of the Police Federation of Australia, the results of which were declared on 16 December 2025 (the Election), is declared to be void.

2. Pursuant to s 206(4)(c)(ii) of the Fair Work (Registered Organisations) Act 2009 (Cth), the General Manager of the Fair Work Commission is directed to make arrangements for a new election to be held.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HORAN J:

1 By an originating application dated 20 February 2026, the Electoral Commissioner applied under s 200(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) for an inquiry into an alleged irregularity in relation to an election held on 16 December 2025 (the Election) for a casual vacancy in the office of Senior Vice President in the Victoria Police Branch of the Police Federation of Australia.

2 The alleged irregularity concerns the erroneous use of a preferential voting system for counting the votes in the Election, which was inconsistent with the Rules of the Police Federation of Australia.

3 On 22 April 2026, having been satisfied that there were reasonable grounds for the application lodged by the Commissioner, I made orders under s 201 of the RO Act to fix a time and place for conducting the inquiry, and gave consequential directions for the notification of persons who may be entitled to appear at the inquiry and for the filing of submissions and evidence.

4 Pursuant to the directions made by the Court, the Branch gave notice to each of the candidates at the Election and provided them with a copy of the orders.  None of the candidates, nor any other member of the Branch or the Executive, sought to appear at the inquiry or file any evidence or submissions.

5 The inquiry was conducted in person on 21 May 2026.  The Commissioner was represented by Mr Stephen Reeves.  Mr Wayne Gatt, the Chief Executive Officer of the Branch, appeared on behalf of the Branch.

BACKGROUND AND EVIDENCE

6 The Commissioner relied on the affidavit of Ishtiaq Ahmed, Senior Project Officer in the Australian Electoral Commission (AEC), affirmed on 19 February 2026.  Mr Ahmed was the returning officer for the Election.

7 The Election was conducted by the AEC under Pt 2 of Ch 7 of the RO Act.  In conducting the election, the returning officer was required by s 193 of the RO Act to comply with the rules of the Branch, and had power to take such action and give such directions as he considered necessary to ensure that no irregularities occurred in relation to the election, to remedy any procedural defect that appeared to him to exist in the rules, and to ensure the security of ballot papers and envelopes: RO Act, s 193(1).

8 On 27 November 2025, pursuant to s 189(1) of the RO Act, the Branch lodged with the Fair Work Commission (FWC) the prescribed information in relation to the Election.

9 On 5 December 2025, a delegate of the General Manager of the FWC decided under s 189(3) of the RO Act to arrange for the conduct of the Election by the AEC.  On the same day, the AEC wrote to the Branch outlining the proposed arrangements for conducting the Election.

10 Notice of the Election was published on the Branch’s website on 8 December 2025, and on the AEC Portal on 9 December 2025. Nominations for the Election closed on 15 December 2025.

11 Nominations were received from three candidates: Mr Damien Peppler, Ms Alexandra O’Toole and Mr Eamon Leahy.  The eligibility of each candidate was certified by the Branch President on 15 December 2025.

12 On 16 December 2025, the Election took place in person at a meeting of the Branch Executive in Melbourne.  Because Mr Ahmed was based in New South Wales, he authorised an AEC colleague, Mr Hanish Gupta, to conduct an attendance ballot with the assistance of two other AEC officers, Ms Rupa Dasgupta and Ms Sue Franks.

13 The AEC used a computer system known as EasyCount for the management of the Election.  In configuring the parameters for the Election, a preferential voting system was selected for counting the results.

14 Prior to the conduct of the ballot, Mr Gupta delivered a short pre-ballot speech to the meeting of the Branch Executive, in which he stated that a preferential counting system would be used for the Election.  Mr Gupta also explained that, in the event of a tied vote, the result would be determined “by lot” (that is, a ballot draw).  This reflected a direction given by Mr Ahmed under s 193(1)(b) of the RO Act, after having identified that r 52CH of the Rules was silent on how to resolve a tied vote.

15 After a ballot draw to identify the order of candidates, Ms Dasgupta and Ms Franks prepared the ballot papers and updated the candidates’ names in EasyCount.  The ballot papers contained the following instructions to voters:

For the election of –

Branch Senior Vice President (1)

Place the number 1 in the box opposite the name of the candidate of your first choice.  You may number one or more of the other boxes by using the numbers 2, 3 and so on;

PEPPLER, Damien

O’TOOLE, Alexandra

LEAHY, Eamon

16 All 12 members of the Branch Executive voted in the Election, and the ballot papers were checked and entered into EasyCount by Ms Dasgupta and Ms Franks.

17 After the first count of the votes, no candidate had received an absolute majority of votes.  The first preference votes were cast as follows:

(a) Mr Peppler received six votes,

(b) Ms O’Toole received four votes, and

(c) Mr Leahy received two votes.

18 The candidate with the lowest number of votes, Mr Leahy, was excluded, and his votes were distributed by EasyCount to the other candidates in accordance with the second preferences.  After this distribution, Ms O’Toole received two additional votes, producing a tied vote between her and Mr Peppler on six votes each.

19 In accordance with the direction that had been given by Mr Ahmed, the tied vote was resolved by a ballot draw, which was conducted by Mr Gupta in a meeting room in the presence of Mr Peppler, Ms O’Toole, Mr Gatt and Ms Tanya De Carli (the Chief of Staff to the Branch President).  The name of each of the remaining candidates was written on a separate card that was folded and placed into the ballot draw box.  The person whose name was first drawn by lot was excluded.  The successful candidate from the ballot draw was Ms O’Toole, who was declared elected by the returning officer.

20 On 17 December 2025, Mr Gatt wrote to the returning officer, raising concerns that the Election had been conducted using a preferential voting system that was inconsistent with the Rules.  Mr Gatt stated that r 52CH of the Rules contemplated preferential voting only when there were simultaneous elections for multiple offices (such as both President and Vice President) involving the same candidate.

21 Having been alerted to the potential irregularity, Mr Ahmed reviewed the relevant Rules and concluded that he had misinterpreted the relevant voting system requirements.  Mr Ahmed formed the view that r 52CH(13) of the Rules did not require or allow for a preferential voting system for the Election, but rather required the candidate with the most votes to be declared elected.  Accordingly, Mr Ahmed considered that there had been a breach of r 52CH(13) of the Rules, and that Mr Peppler had received the most votes and should have been declared elected instead of Ms O’Toole.

THE INQUIRY

22 Under s 200(2) of the RO Act, if the Commissioner believes that the result of an election for an office has been affected by an irregularity in relation to the election, he or she must make an application for an inquiry by this Court into the matter.  The Court must fix a time and place for conducting such an inquiry if it is satisfied that there are reasonable grounds for the application: RO Act, s 201.

23 In conducting the inquiry, the Court is not bound to act in a formal manner nor by any rules of evidence, but may inform itself on any matter in such a manner as it considers just: RO Act, s 205(3)(b).

24 The Court is required to inquire into and determine on the balance of probabilities whether an irregularity has happened in relation to the election, together with any further questions concerning the conduct and results of the election as are considered necessary: RO Act, s 206(1), (2).

25 For such purposes, an “irregularity” in relation to an election is defined as follows in s 6 of the RO Act:

irregularity, in relation to an election or ballot, includes:

(a)     a breach of the rules of an organisation or branch of an organisation; and

(b)     an act or omission by means of which:

(i)     the full and free recording of votes by all persons entitled to record votes and by no other persons; or

(ii)     a correct ascertainment or declaration of the results of the voting;

is, or is attempted to be, prevented or hindered; and

(c)     a contravention of section 190.

26 Section 190 of the RO Act, which prohibits an organisation or branch from using its property or resources to help one candidate against another candidate in an election for an office or other position, has no relevance to the present inquiry.

27 The term “election” has a wide meaning, which encompasses steps taken to prepare for the ballot itself: Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA 1242 at [7]–[10] (Tracey J), citing Hodge v The King (1907) 5 CLR 373 at 379 (Griffith CJ), 383 (Barton J), 388 (Isaacs J); Scott v Jess (1984) 3 FCR 263 at 272 (Evatt and Northrop JJ); Newbury v Smith (1991) 29 FCR 246 at 252 (Gray J).

There was an irregularity in relation to the election

28 Under the Rules, the Branch Executive consists of 12 persons elected by and from members of the Federation attached to the Branch: r 52CB(1).  Members of the Branch Executive hold office for three years, with elections for four members taking place each year: r 52CB(2)–(4).

29 The Branch officers are the President, Senior Vice President, Junior Vice President, Treasurer and Assistant Treasurer, each of whom is elected by and from members of the Branch Executive: r 52CA.

30 The election of Branch officers is governed by r 52CH.  Elections for such positions are conducted at the first meeting of the Branch Executive after the annual general meeting in the year in which the election is required to be conducted: r 52CH(1).  Rule 52CH relevantly provided as follows in relation to the conduct of elections of Branch officers:

(7)    If more nominations are received than there are vacancies for the position, the Branch Returning Officer shall prepare ballot papers containing the names of the candidates for each position in order determined by lot, indicating the number to be elected to each position and the manner in which votes shall be recorded.

(8)     The Branch Returning Officer shall be responsible for the safe custody of the ballot papers.

(9)     The Branch Returning Officer shall initial every ballot paper prior to its distribution.

(10)     The Branch Returning Officer shall distribute ballot papers to persons eligible to vote attending the meeting and provide a ballot box for the receipt of completed ballot papers.

(11)     The Branch Returning Officer shall, when voting has been completed and ballot papers placed in the ballot box, open the ballot box and count the votes.

(12)     The Branch Returning Officer shall first count the votes for the office of Branch President and declare elected the candidate receiving the highest number of first preference votes.

(13)     The Branch Returning Officer shall, after declaring the election for the position of Branch President, count the votes for the positions of Vice President.  Where the person declared elected as Branch President is also a candidate for the positions of Branch Vice President, the second preference votes for the person elected to the position of Branch President shall be counted as first preference votes for the candidates for the positions of Branch Vice President.  The person receiving the highest number of votes shall be declared elected as Senior Vice President and the person receiving the second highest number of votes shall be declared elected as Junior Vice President.

(14)     The Branch Returning Officer shall, after declaring the election for the positions of Vice-Presidents, count the votes for the positions of Treasurer and Assistant Treasurer.  Where a person declared elected for the positions of Branch President or Vice-President is also a candidate for the positions of Treasurer or Assistant Treasurer, the second preference votes for the person elected to the position of Branch President or Vice-President shall be counted as first preference votes for the candidates for the position of Treasurer or Assistant Treasurer.  The person receiving the highest number of votes shall be declared elected as Treasurer and the person receiving the second highest number of votes shall be declared elected as Assistant Treasurer.

(15)     The Branch Returning Officer shall declare the result of the election by making a written report to the Branch Executive setting out the number of ballot papers printed, the number distributed, the number returned, the number completed, the number of votes received by each candidate and any other relevant matters.

…

(17)     Casual Vacancies

(a)     Where a casual vacancy occurs in the office of a member of the Branch Executive, the Branch Executive shall take immediate action to have such vacancy filled by secret postal ballot of all financial members of the Branch provided that;

(i)     an election shall not be required where the unexpired portion of the term of office does not exceed three quarters of the term, in which case the Branch Committee may fill the vacancy by appointing an eligible member of the Branch; and

(ii)     where an election is to be conducted to fill the vacancy, the Branch Executive may appoint an eligible member of the Branch to fill the vacancy until an election is held.

(b)     Where a casual vacancy occurs in the office of a Branch Officer or a delegate to Federal Council, the Branch executive shall take immediate action to have such vacancy filled by an election conducted at a meeting of the Branch Executive.

31 Accordingly, r 52CH provided for second preference votes to be counted only in circumstances where a person who had been declared elected as President was also a candidate for the position of Vice President, or where a person who had been declared elected for the positions of President or Vice President was also a candidate for the positions of Treasurer or Assistant Treasurer: r 52CH(13), (14).  In such circumstances, the second preference votes for the successful candidate were to be counted as first preference votes for the other office positions, and the persons receiving the highest and second highest number of votes were respectively declared elected as Senior Vice President and Junior Vice President, or Treasurer and Assistant Treasurer.

32 In the present case, the Election was for a casual vacancy in the office of Senior Vice President.  Rule 52CH(17) provided for such a vacancy to be filled by an election conducted at a meeting of the Branch Executive.  Rules 52CH(13) and (14) did not in terms apply to an election in respect of a casual vacancy in a single office.  In the absence of any provision for a preferential voting system, it is implicit that such an election should be determined on a “first past the post” basis, that is, the candidate who received the highest number of (first preference) votes would be declared elected. This is consistent with r 52CH(13), which contemplated that “[t]he person receiving the highest number of votes shall be declared elected as Senior Vice President”, save for the limited circumstances in which there was a distribution of second preferences in respect of a candidate who had been declared elected to another position.

33 As the Commissioner submitted, this may be contrasted with the preferential voting system for the election of members of the Branch Executive, which was governed by r 52CG of the Rules.

(a) Rule 52CG(2) provided that, if no candidate received an absolute majority of first preference votes, “the candidate with the lowest number of first preference votes shall be eliminated and second preference votes of the eliminated candidate shall be allocated to the remaining candidates in accord with the voters’ preference”.

(b) If that results in a candidate having an absolute majority of votes, that candidate is elected.  Otherwise, the process is repeated until one candidate has received an absolute majority of votes and is elected: r 52CG(3).

(c) The second preference votes of the candidate who has been elected are then distributed to each of the other candidates, and the remaining vacancies are filled in the same manner until four persons have been declared elected: r 52CG(4), (5).

(d) Further, r 52CG(6) expressly deals with the situation in which two or more candidates have an equal number of votes and one or more of them have to be eliminated, in which event the returning officer must determine by lot which candidate shall be eliminated (save that if one of the tied candidates is a retiring office holder from the position subject to the ballot, he or she is deemed to have received the higher number of votes).

34 In the present case, the Election should have been conducted on the basis that the candidate who received the highest number of votes was to be declared elected to the vacant position of Senior Vice President, whether or not that constituted an absolute majority of votes.  On the ballots that were cast in the Election, this would have resulted in Mr Peppler being declared elected as Senior Vice President.  There was no need to exclude Mr Leahy nor to distribute the second preference votes recorded on his ballot papers. Accordingly, Ms O’Toole would not have received an additional two votes, and there would not have been a tied vote requiring a ballot draw to be held.  The manner in which the votes were counted involved a breach of the Rules which amounts to an irregularity in relation to the Election.

35 Further, the instructions given to voters both in the pre-ballot speech and on the ballot papers themselves did not reflect the system of voting under the Rules, in that voters were told that the method of counting the votes would be preferential and instructed that they could mark their ballot papers accordingly.  In my view, these instructions are themselves capable of being regarded as an irregularity in relation to the election or ballot, either because they were inconsistent with the Rules or, perhaps, because they involved an act or omission by means of which a correct ascertainment or declaration of the results of the voting was prevented or hindered (albeit unintentionally).

36 I am therefore satisfied that an irregularity has happened in relation to the Election.

What orders should be made?

37 The Court’s powers on an inquiry are set out in s 206(4) and (5) of the RO Act:

(4)     If the Court finds that an irregularity has happened, the Court may, subject to subsection (5), make one or more of the following orders:

(a)     an order declaring the election, or any step in relation to the election, to be void;

(b)     an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;

(c)     an order directing the General Manager to make arrangements:

(i)     in the case of an uncompleted election—for a step in relation to the election (including the calling for nominations) to be taken again and for the uncompleted steps in the election to be taken; or

(ii)    in the case of a completed election—for a step in relation to the election (including the calling for nominations) to be taken again or a new election to be held;

(d)     an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section.

(5)     The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.

38 As to the principles which govern the exercise of these powers, I refer to my observations in Electoral Commissioner, in the matter of an inquiry relating to an election for an office in the Australian Education Union (No 2) [2025] FCA 57 at [42]–[43]:

The powers conferred on the Court by Pt 3 of Ch 7 are to be exercised “in a way that seems most beneficial to the organisation and its members, bearing in mind any relevant statutory objects”: see, in relation to the powers conferred by s 206(4), Re Menon (No 3) at [13] (Wheelahan J), referring to Re Australian Journalists’ Association; Ex parte Nicholson (1990) 27 FCR 75 at 83 (Wilcox J).

In this regard, the expressed intention of Parliament in enacting the Act is to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation, by requiring associations of employers and employees to meet the standards set out in the [RO] Act in order to gain the rights and privileges accorded to such associations: ss 5(1), (2).  The standards set out in the [RO] Act, relevantly, ensure that registered organisations are representative of and accountable to their members, and provide for the democratic functioning and control of organisations: ss 5(3)(a) and (d).

39 Before making a declaration that an election is void or that a person was not elected, the Court must form an opinion that the result of the election may have been affected by the irregularity: RO Act, s 206(5).  The assessment is directed to the existence of a real or distinct possibility that the result may have been affected: see Australian Education Union (No 2) at [46]–[47], referring to Re Nimmo; Application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (2011) 192 FCR 111 at [69] (Reeves J) and Electoral Commissioner, in the matter of an inquiry relating to elections for offices in the Australian Federal Police Association Branch of the Police Federation of Australia [2016] FCA 469 at [74] (Katzmann J).

40 In the circumstances of the present case, it is clear that the irregularity in relation to the Election, by which a preferential system of voting was erroneously adopted in breach of the Rules, may have affected the result of the Election.

(a) First, the distribution of preferences from Mr Leahy to Ms O’Toole resulted in a tied vote between Mr Peppler and Ms O’Toole, which led to the ballot draw in which Ms O’Toole was declared the successful candidate.  On the proper application of the Rules, Mr Peppler received the highest number of votes and would have been declared elected as Senior Vice President.

(b) Second, the instructions given to members of the Branch Executive that the method of counting would be preferential and that they could indicate their second and third preferences on the ballot paper may conceivably have affected the manner in which the votes were cast.  In particular, there is a real possibility that ballots that were completed as first preference votes for Mr Leahy and second preference votes for Ms O’Toole (on the evidence, there were two such ballots) might have been completed differently if a preferential voting system had not been used.  While there is no evidence from any particular voter to that effect, it remains a possibility which is more than merely theoretical.

41 The Commissioner submitted that the Court could either:

(a) make an order under s 206(4)(b) declaring Ms O’Toole not to have been elected and Mr Peppler to have been elected; or

(b) make an order under s 206(4)(a) declaring the Election to be void and an order under s 206(4)(c)(ii) directing the General Manager to make arrangements for a new election to be held.

42 The Commissioner submitted that the first option would be the most beneficial to the Branch and its members, by correcting the consequences of the irregularity without requiring a further election.  In the Commissioner’s submission, this would minimise any interruption to the Branch’s business and support the effective operation and efficient management of the Branch.  The Commissioner noted that this was an election of a Branch officer by the members of the Branch Executive, rather than an election of the Branch Executive by the full membership of the Branch, and that an order declaring Mr Peppler to have been elected in the place of Ms O’Toole should not adversely affect the democratic functioning and control of the Branch by its members.

43 Nevertheless, the Commissioner acknowledged that voters were given instructions that a preferential voting system would be used, and that the evidence did not exclude the possibility that one or more voters might have taken this into account in casting their vote.  For example, the two voters who cast their first preference vote for Mr Leahy and their second preference vote for Ms O’Toole might instead have cast their vote for Ms O’Toole.

44 As mentioned above, there was no appearance at the inquiry from any member of the Branch Executive nor from any Branch member raising any concerns or adopting any position about the manner in which the irregularity in the Election should be addressed.

45 The election of Branch officers by members of the Branch Executive in accordance with the Rules is an aspect of the democratic functioning and control of the organisation: see RO Act, s 5(3)(d).

46 At the hearing of the inquiry, I was informed that Branch officers are elected annually for a one-year term, and that the next election of Branch officers will take place in September 2026 after the annual general meeting.

47 Under the Rules, the role of the Branch Vice Presidents is to assist the Branch President in the execution of their duties and to carry out the functions of the Branch President in their absence: r 52CK(1).  Further, the Branch Vice Presidents are included in the Branch delegates to the Federal Council of the Federation: r 52CI(1).  In the absence of the Branch President from any meeting of the Branch, the Senior Vice President shall preside and exercise the full powers of the Branch President: r 52CK(2).  It may be noted that the Junior Vice President can also act in the absence of both the Branch President and the Senior Vice President: r 52CK(3).  Nevertheless, it was common ground that the office of Senior Vice President has some “efficacy” such that it should not simply be left unfilled.

48 The current term of office of the Senior Vice President still has some months to run.  This is not a situation in which fresh elections for the relevant office are imminent, such that there is no utility in making any order under s 206(4) to address the irregularity, other than perhaps an order declaring the Election to be void: cf. Australian Education Union (No 2) at [55]–[61].

49 While it might be possible to adopt a pragmatic approach and to fill the office for the remainder of the term by declaring Mr Peppler to have been elected, based on a recount of the votes on a “first past the post” basis, this would not adequately deal with the possibility that the votes might have been cast differently but for the irregularity in relation to the Election.

50 On the evidence before the Court, it is likely that arrangements can be made relatively expeditiously for a new election to be held at an upcoming meeting of the Branch Executive, subject to the prior lodgement with the FWC of the prescribed information and the notice and nomination processes.  The election will be conducted by the AEC, at the expense of the Commonwealth: RO Act, s 182(1).

51 Having regard to all of the circumstances, I consider that the appropriate orders under s 206(4) are to declare the Election to be void, and to direct the General Manager to make arrangements for a new election to be held for the casual vacancy in the office of Senior Vice President of the Branch as soon as practicable.

Associate:

Dated:    22 May 2026