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British Medical Association v The Commonwealth

British Medical Association v The Commonwealth

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Case Copied 7 October 1949 77 min read

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79 CLR 201

FEDERAL COUNCIL OF THE BRITISH

MEDICAL ASSOCIATION IN AUS-

TRALIA AND OTHERS

THE COMMONWEALTH AND OTHERS

DEFENDANTS. Constitutional Law (Cth.)-Powers of Commonwealth Parliament- Provision of

pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription) "Provision" of benefits and services-" Civil conscription "-Provision of free pharmaceutical benefits-Effect of statute- Medical practitioners compelled to write practically all prescriptions on Commonwealth forms-" Medical service"

-Validity of statute-The Constitution (63 &64 Vict. C. 12), 88. 51 (xxiiia.), (xxxi.), (xxxix.), 77 ii.)--Pharmaceutical Benefits Act 1947-1949 (No. 33 of 1947-No. 26 of 1949), 88. 4 (2), 6, 7, 7A, 8, 11-14, 20 (1) (c), 21, 23- Pharmaceutical Benefits Regulations (S.R. 1948 No. 56-1949 No. 44).

The Pharmaceutical Benefits Act 1947-1949 establishes a scheme under which members of the public are entitled on compliance with certain conditions to obtain free of charge the medicines specified in a formulary and the appliances specified in an addendum. One of the conditions of entitlement is that the medicine or appliance must be prescribed by a medical practitioner on a prescription form supplied by the Commonwealth. Section 7A of the Act provides that a medical practitioner shall not write a prescription in respect of medicines in the formulary or appliances in the addendum otherwise than on a prescription form supplied by the Commonwealth and imposes a penalty for non-compliance. The plaintiffs alleged in their statement of claim that the formulary and addendum contained a large number of medicines and appliances ordinarily prescribed by medical practitioners who could not carry on the practice of their profession without prescribing such medicines and appliances. Upon a demurrer,

Held, by Latham C.J., Rich, Williams and Webb JJ. (Dixon and McTiernan JJ. dissenting), that S. 7A imposed a form of civil conscription within the meaning of S. 51 (xxiiia.) of the Constitution and, therefore, was invalid.

79 CLR 202

Held, by Rich, Dixon, McTiernan and Williams JJ. (Latham C.J. dissenting) that the prohibition in S. 51 (xxiiia.) of the Constitution but not so as to authorize any form of civil conscription applies only to medical and dental

Held, by Latham C.J., Rich, Dixon, McTiernan and Webb JJ. that the power conferred by S. 51 (xxiiia.) of the Constitution to legislate with respect to the provision of allowances, benefits, pensions &. is limited to the provision of those matters by the Commonwealth.

" Civil conscription discussed. DEMURRER.

The Federal Council of the British Medical Association in Aus- tralia, Thomas Ernest Victor Hurley, Archibald John Collins, Herbert Ronald Robinson Grieve, Henry Cecil Colville, John Edward Ferdinand Deakin and John O'Brien, medical practitioners, com- menced an action in the High Court against the Commonwealth, Dr. Arthur John Metcalfe and Nicholas Edward McKenna.

The statement of claim alleged that the Royal Assent was signified on 12th June 1947, to an Act of the Commonwealth Parliament entitled the Pharmaceutical Benefits Act 1947, and on 25th March 1949 to an Act of that Parliament (the Bill for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1949] HCA 44
Decision Date: 7 October 1949

CaseChat Overview and Summary

The Federal Council of the British Medical Association in Australia and several medical practitioners brought an action against the Commonwealth of Australia, its Director-General of Health, and the Minister for Health. The dispute concerned the validity of the Pharmaceutical Benefits Act 1947-1949 and associated regulations, which established a scheme for providing free medicines and appliances to the public. A key condition of this scheme was that prescriptions must be written on Commonwealth-supplied forms, with penalties for non-compliance. The plaintiffs argued that this requirement, among others, hindered their ability to practice medicine and treat patients, and that the Act exceeded the Commonwealth Parliament's constitutional powers. The defendants demurred to the statement of claim, asserting the Act's validity.

The High Court was required to determine several legal issues. Primarily, it had to ascertain whether the Pharmaceutical Benefits Act 1947-1949, particularly section 7A which mandated the use of Commonwealth prescription forms, constituted "civil conscription" within the meaning of section 51(xxiiia) of the Constitution. This section grants the Commonwealth Parliament power to legislate on various social benefits and services, but expressly prohibits laws that authorise "any form of civil conscription." The Court also considered whether the Act's provisions fell within the scope of "pharmaceutical benefits" as contemplated by section 51(xxiiia), and whether the Act unduly encroached upon powers reserved to the States.

A majority of the High Court, comprising Latham C.J., Rich, Williams, and Webb JJ., held that section 7A of the Act imposed a form of civil conscription and was therefore invalid. They reasoned that compelling medical practitioners to use specific Commonwealth forms, under penalty, amounted to a compulsory service that was prohibited by the constitutional provision. Conversely, Rich, Dixon, McTiernan, and Williams JJ. (with Latham C.J. dissenting) found that the prohibition against civil conscription in section 51(xxiiia) applied only to medical and dental services, not to pharmaceutical benefits. Furthermore, Latham C.J., Rich, Dixon, McTiernan, and Webb JJ. agreed that the power conferred by section 51(xxiiia) to legislate on benefits and services was limited to provision by the Commonwealth itself.

The Court's decision on the demurrer was that section 7A of the Pharmaceutical Benefits Act 1947-1949 was invalid as it constituted civil conscription, contrary to section 51(xxiiia) of the Constitution. Consequently, the Act, in so far as it relied on this provision to compel medical practitioners to use Commonwealth forms, was found to be beyond the legislative power of the Commonwealth Parliament. The specific orders made on the demurrer would depend on the precise claims and the Court's findings on severability of the invalid provisions.

Orders