Case: Re Application by Adamson for an Election Inquiry in the Amalgamated Metals Foundry and Shipwrights Union (unreported, FCA, Gray J, NSW No 28 of 1984, 17 June 1985)
Outcome: followed
Commissioner initially invoked the jurisdiction of this Court by way of an Application filed on 21 September 2009. An Amended Application was filed on 26 October 2009. The alleged " irregularities " are said to have arisen in respect to nominations for election to the positions of Federal Council Delegates from the Queensland Branch of the Australian Salaried Medical Officers' Federation ("the Federation") in May and June 2009. The facts relevant to the alleged " irregularity " raised by the Application as first filed are within a narrow compass. Nominations opened on 12 May 2009. Two nominations were received prior to the close of nominations on 26 May 2009 &#8212; one from Dr Nicholas Buckmaster and one from Dr Coralie Endean. At that point in time both doctors were unfinancial members of the Federation. Dr Endean tendered payment for her outstanding subscriptions on 5 June 2009, but that payment was not accepted. On 11 June 2009, letters were written to both Dr Buckmaster and Dr Endean in the same terms. Those letters advised that a check of the Federation's records revealed that the nominations were defective by reason of a failure to comply with Rule 13(4) of the Rules of the Federation. This Rule states the date on which " [a]ll subscriptions shall fall due for payment ... ". Reference was also made to Rule 15(3) , which deals with forfeiture of membership upon failure to pay outstanding subscriptions within a specified time period. Both letters concluded: Unless you become financial by 12 noon on Thursday 18 June 2009 I will reject your nomination. If you become financial during the next week I require evidence of the receipt of your membership subscription and this can be sent to me via fax or post. Notwithstanding the payment that Dr Endean sought to make on 5 June 2009, she apparently did not respond to this letter. Whether Dr Buckmaster had previously tendered any outstanding subscriptions or responded to the 11 June 2009 letter is unknown. The facts relevant to his nomination assume no prominence in the present application. Notwithstanding the manner in which the Application to this Court is expressed, it is considered that the law to be applied is that now contained in the Fair Work (Registered Organisations) Act 2009 (Cth) ("the 2009 Act"). That was the conclusion reached by Barker J after a review of the complex transitional provisions in Re Mcjannett (No 2) [2009] FCA 1015 at [3] to [10]. At the outset of the application made by the Electoral Commissioner, a question was raised as to the nature of the power being exercised by the Court. Comparable powers previously found in the Conciliation and Arbitration Act 1904 (Cth) were found to be Constitutionally valid: Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194 at 218; Re Application by Adamson for an Election Inquiry in the Amalgamated Metals Foundry and Shipwrights Union (unreported, FCA, Gray J, NSW No 28 of 1984, 17 June 1985); Leary v The Australian Builders' Labourers' Federation; Re Elections for Offices in Australian Builders' Labourers' Federation (New South Wales Branch) (1961) 2 FLR 342 per Joske J; Re Mellor; Re Federated Liquor &amp; Allied Industries Employees Union of Australia, Queensland Branch (1986) 17 IR 398. The Electoral Commissioner served notices in accordance with s 78B of the Judiciary Act 1903 (Cth) in the present proceeding. No Attorney has intervened. No submission has been advanced that the current powers vested in this Court are beyond the competence of the federal legislature.