British Medical Association v The Commonwealth

[1949] HCA 44

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 which was first introduced into that Parliament in the Senate on 10th March 1949) entitled the Pharmaceutical Benefits Act 1949, and on 7th July 1949 to an Act of that Parliament entitled the Pharmaceutical Benefits Act (No. 2) 1949 by S. 3 of the last-mentioned Act S. 7A of the Act of 1947 as amended by the Act of 1949, was repealed and a new S. 7A was inserted in lieu thereof, and it was provided that the new S. 7A should come into operation on a date to be fixed by proclamation; this date was fixed on 7th July 1949 as 25th July 1949 that regulations purport- ing to have been made under the said Acts were notified in the Government Gazette on 10th May 1948, 9th December 1948 and 8th July 1949 respectively copies of the Act and regulations were annexed to the statement of claim the plaintiff association was a body corporate incorporated under the laws of New South Wales, one of its objects, as shown by its memorandum and articles of association annexed, was to advance the general interests of the medical profession in Australia; the plaintiffs Collins, Grieve, Deakin and O'Brien were doctors resident and practising the pro- fession of medicine in New South Wales, the plaintiffs Hurley and Colville were doctors resident and practising the profession of medicine in Victoria Hurley and Collins were respectively the president and vice-president and Grieve and Colville were members

79 CLR 203

of the association; the defendant Metcalfe was the Director- General of Health of the Commonwealth and as such had, subject to any direction by the defendant McKenna, the general adminis- tration of the Act of 1947-1949; the defendant McKenna was the Minister of State for Health of the Commonwealth and as such had the overriding direction of Metcalfe in relation to the general adminis- tration of the Act. In the statement of claim uncompounded medicines, medicinal compounds, medical materials and medical appliances were referred to as "medicaments"; medicaments the names or formulae of which were contained or deemed to be included in the Commonwealth Pharmaceutical Formulary referred to in the Act and regulations and called the formulary," or in the prescribed addendum thereto, were referred to as "formulary medicaments" medicaments the names or formulae of which were not SO contained or deemed were referred to as "extra-formulary medicaments". The statement of claim then proceeded substantially as follows:- "9. A large part of the professional work done by doctors consists of prescribing for the supply to their patients of such one or more, or such combinations of two or more, of the medicaments comprised in the following classes as in the opinion of doctors is or are in each case necessary or advisable for the proper medicinal treatment of the patient: (a) formulary medicaments (b) medicaments, either formulary or extra-formulary, specified to be supplied in the form of a particular trade mark, brand, make or proprietary equivalent and in no other form; (c) extra-formulary medicaments consisting of medicinal compounds compounded according to formulae con- tained in the Formulary with variations other than those specified by the regulations as being permitted variations of those formulae (d) other extra-formulary medicaments. 10. A large number of the medicaments prescribed by doctors for supply to patients are formulary medicaments. No doctor could carry on the practice of his profession with due regard to the proper medicinal treatment of his patients or at all if he were unable lawfully to prescribe all formulary medicaments and all medicaments comprised in any other of the abovementioned classes. 11. Substantially all chemists practising their profession throughout the Commonwealth applied to the defendant Director-General for approval in accordance with sub-s. (1) of S. 9 of the Pharmaceutical Benefits Act 1947 and were approved in accordance with that sub-section by or on behalf of the said defendant before 10th March 1949. There are few areas in the Commonwealth in which there is a chemist practising his profession in the area who has not applied for and obtained approval under that sub-section. 12. On the coming into operation of all

79 CLR 204

the provisions of the Act the plaintiff doctors will be substantially prevented from and hindered in practising and carrying on their professions and hindered in the proper treatment of their patients by, inter alia, the requiréments of the Act and the regulations relating to the writing of prescriptions, the repeating of prescrip- tions, the quantities of formulary medicaments that may be prescribed, the prescription of formulary medicaments in the form of a particular trade mark, brand, make or proprietary equivalent, and the permitted variations of formulae contained in the Formu- lary." The plaintiffs submitted, in pars. 13 and 14, that the Act, or, alternatively, that SS. 7, 7A, 8, 11, 14, 21 and 23 of the Act was, or were, beyond the powers of the Commonwealth Parliament, contrary to the provisions of the Commonwealth Constitution and was, or were, void; and, in pars. 15 and 16, that the regulations, or, alternatively, that regs. 4, 11, 15-18, 23, 24, 29-31 and 34, were, or each was, not authorized by the Act and were, or was, beyond the powers of the Governor-General and void. " 17. The defend- ants threaten and intend to prevent and hinder the plaintiff doctors from and in practising and carrying on their professions and to hinder them in the proper medicinal treatment of their patients by the enforcement, contrary to law and the provisions of the Consti- tution of the Commonwealth, of all the provisions of the Act and the regulations. 18. The plaintiff doctors desire to carry on and practise their professions and to prescribe the proper medicinal treatment of their patients without complying with the provisions of the Act or of the regulations, but the plaintiffs fear that they will be unable to do SO by reason of the threats and intentions of the defendants as aforesaid, and the plaintiffs fear that by reason of the premises the plaintiff doctors will be substantially prevented from and hindered in practising and carrying on their professions and hindered in the proper medicinal treatment of their patients and that they and their servants and agents will be exposed to a multiplicity of prosecutions."

The plaintiffs claimed against all the defendants:-(i) a declara- tion that the Pharmaceutical Benefits Act 1947-1949, or, each of the said sections, was invalid and void; (ii) a declaration that the regulations were, or, alternatively, that each of the said regulations was invalid and void; and (iii) an injunction restraining them and each of them their servants and agents from preventing and hinder- ing the plaintiff doctors from and in practising and carrying on their profession and from hindering those plaintiffs in the proper medicinal treatment of their patients by taking or causing or

79 CLR 205

permitting to be taken any action in pursuance or purported pursuance of any of the provisions of the Act or regulations.

The defendants demurred to the whole of the statement of claim on the grounds, inter alia, that :-(a) the Pharmaceutical Benefits Act 1947-1949 was a law validly made by the Commonwealth Parliament in pursuance of powers conferred upon it by the Com- monwealth Constitution; and (b) the Pharmaceutical Benefits Regulations were and each of them was validly made by the Governor- General in pursuance of powers conferred upon him by the Pharma- ceutical Benefits Act 1947-1949.

At the hearing of the demurrer leave to intervene was granted to the State of Victoria and the Attorney-General for Victoria.

The relevant provisions of the Act and of the regulations there- under are sufficiently set forth in the judgments hereunder.

The Attorney-General of the Commonwealth (H. v. Evatt K.C.) (with him the Solicitor-General of the Commonwealth (K. H. Bailey), Phillips K.C. and Menhennitt), for the defendants in support of the demurrer. The plan of the Pharmaceutical Benefits Act 1947-1949 is that pharmaceutical benefits, as set out in S. 6, are to be made available to all members of the public resident in Australia with the exception, under S. 7 1, that due to other arrangements having been made, patients occupying beds in a public ward in a public hospital are not entitled, as other residents are, to receive those benefits. The method adopted in the Act is practically the same as the method adopted in the Pharmaceutical Benefits Act 1944. Under the later scheme if the medical practi- tioner prescribes a benefit he is required, unless otherwise requested by the patient, to write his prescription on the form provided for that purpose by the Commonwealth. The Act is nothing but a provision in respect of the supply of pharmaceutical benefits free to members of the public SO long as the conditions of the scheme are complied with. The purpose and plan of the Act is that the benefit is to be received by the patient only when a medical practitioner has prescribed such a benefit for him (Attorney-General (Vict.) v. The Commonwealth (1) ). Sub-section (2) (a) of S. 7A of the Act is not necessary. All that S. 7A does is to forbid medical practitioners to write prescriptions for pharmaceutical benefits otherwise than on forms provided by the Commonwealth. It does not compel medical practitioners to write any prescriptions. Section 7A read in conjunction with S. 8 merely makes certain that in the case of the medical practitioner determining that the patient needs a

1(1945) 71 C.L.R. 237. 79 CLR 206

prescribed benefit-one of the drugs on the formulary--he shall not refuse to take the step which will give the patient that very drug prescribed by him as being necessary to the patient's health. He is required to write that prescription on the form and it is on that form that payment is subsequently made by the Common- wealth to the chemist. Medical service is separate from pharma- ceutical benefit for the purpose of furnishing prescriptions. The remarks made in Attorney-General (Vict.) v. The Commonwealth 1 apply with at least equal force to the Act of 1947-1949. Since par. (xxiiia.) was inserted in S. 51 of the Constitution in 1946 it is no longer true to say, as in Attorney-General (Vict.) v. The Commonwealth 2 that laws may not be passed by the Common- wealth Parliament which have a direct and important bearing upon health. The situation evidenced in that case 3 has now completely altered specific power to do the very kind of thing referred to has been given to the Commonwealth Parliament. The majority judgments in that case 4 were founded upon the absence from the Constitution of any provision which would justify the particular provisions of the Act of 1944 the Constitution has now been altered by the insertion of par. (xxiiia.) and there is now a presence in the Constitution of the very thing the absence of which brought about the decision in that case. Attorney-General (Vict.) v. The Commonwealth (4) shows, both on the negative reasoning and the affirmative principle, that had there been a power in the Constitution which enabled the Commonwealth Parliament to pass laws for the provision to the public of pharmaceutical benefits all the things referred to would have been relevant to such a plan and such a scheme. The Pharmaceutical Benefits Regulations meet some objection to the rigidity of the formulary. Regulations 11, 15, 18, 27, 29 and 34 fall within the statute. They contain incidental provisions, convenient and necessary for carrying the Act into effect. Regulation 16 does not prevent any person buying as many medica- ments as he chooses, but in order to obtain, say, an insulin syringe as a pharmaceutical benefit the conditions prescribed by the regulation in relation to the signing of a statement containing certain particulars must be satisfied. The word "supply " in reg. 17 means "supply under the Act." Regulation 23 simply applies to the medical practitioner the law which applies to chemists. Regulation 24 has been repealed. Regulation 31 is clearly relevant to the question of payment. The meaning of "pharmacy" and "pharmaceutical" " is discussed in the Encyclopedia Britannica, 11th

1(1945) 71 C.L.R., at p. 267. 2(1945) 71 C.L.R., at pp. 251-257. 3(1945) 71 C.L.R., at pp. 258-260. 4(1945) 71 C.L.R. 237. 79 CLR 207

ed. (1910), vol. 21, p. 355, and Webster's Dictionary, 23rd ed., p. 1618. The word " pharmacy" includes the preparation of medicines by pharmacists in accordance with prescriptions of physicians, therefore it is clearly within a law passed by the Com- monwealth Parliament for the supply of pharmaceutical benefits, not merely incidental to the legislative power of the Commonwealth but part of the power itself to provide that the benefits shall be obtained only if the medical practitioner SO prescribes. Being able

SO to provide, Parliament clearly can prevent the statute from being defeated and the benefit from being enjoyed, by requiring the medical practitioner, without any interference at all with his practice, coming to his own conclusion that a formulary benefit should be prescribed and require him to put that prescription in writing. That is all that the Act requires to be done.

A. R. Taylor K.C. (with him Webb K.C., T. W. Smith K.C., Ashburner and Riley), for the plaintiffs. The extent of the law- making power can only be determined by reference to the language of par. (xxiiia.). It is a matter of very great significance that part of the paragraph relates to the provision of benefits and other parts relate to the provision of services. The words to be found in association with the expression " pharmaceutical benefits" reflect on the meaning of pharmaceutical benefits." Different language having been chosen, "benefit" must be something different from "service." There would be no power, on the language of par. (xxiiia.), to authorize any form of civil conscription in which unemployment, hospital, sickness or pharmaceutical benefits were concerned. The paragraph itself is directed to the provision of benefits of the nature specified. Significance must be attached to the word "provision." On the form of the language the word "benefit contemplates some special kind of grant, either in money or in goods, that is, a grant of some commodity. The giving of a commodity to some person in need involves the execution of some service in order to make the grant complete, but the only portion of par. (xxiiiA.) which contemplates a power to legislate with respect to services, and which would authorize the compulsory performance of services, is the reference to medical and dental services. The word' provision" in the paragraph means "provision by the Com- monwealth." The only service contemplated is the service of the Commonwealth itself or of its officers. The prohibition in par. (xxiiiA.) of any form of civil conscription applies only to medical and dental services and that circumstance circumscribes the extent of the power with respect to every other prior expression

79 CLR 208

in the paragraph. The paragraph should not be construed in such a way as to authorize under the power to make laws with respect to the provision of pharmaceutical benefits some form of civil conscription of medical and dental services having regard to the express prohibition thereto. For a parallel view see Bank of New South Wales v. The Commonwealth 1. It is not necessary to have recourse to two separate paragraphs. A power to make laws with respect to medical and dental services appears in the same paragraph as a power to make laws with respect to pharma- ceutical benefits, and it must be read as a power given to the Commonwealth to provide pharmaceutical benefits and not a power to provide services. The paragraph merely authorizes the Commonwealth to make laws with respect to the provision by it of the various benefits, pensions, allowances and services specified therein and it does not authorize the making of any law which amounts to any form of civil conscription, at least SO far as the medical profession is concerned. A medical practitioner must render certain services, e.g. (i) he must determine whether his patient (a) is a person entitled to receive pharmaceutical benefits, and (b) falls within some other exception which has been prescribed (ii) if the patient is SO entitled the medical practitioner must write on a Commonwealth form unless he is requested not to do SO. Failure to do SO on the part of the medical practitioner is an offence under the Act and regulations. An obligation on medical practi- tioners is expressed also in SS. 8 and 11. The word " shall " in the regulation-making power contained in S. 23 (a) indicates that that power itself was quite enough to authorize direct legal compulsion on chemists, and, under S. 11, on medical practitioners, to supply pharmaceutical benefits. There was a very real obligation on chemists to supply and a very real sanction to compel them, because a refusal would immediately bring about ground for the revocation of the approval, with the consequent loss of their business. Pharmaceutical chemists who applied for and obtained approval became bound to supply pharmaceutical benefits without payment by the person presenting the prescription. They had undertaken to do SO under the original Act. The necessary impli- cation arising from S. 8 (3) is that the Act clearly contemplated that except in such circumstances as mentioned in that sub-section a chemist should be bound to dispense the medicines and to supply the goods to the persons who presented prescriptions. Although the revocation of an approved chemist's approval is not a legal sanction imposed by the Act, the possibility of such revocation is

1(1948) 76 C.L.R. 1, at pp. 201, 203. 79 CLR 209

just as effective and is a matter of practical compulsion. Section 23 (a) contains a power whereby the legal obligation could be imposed expressly upon chemists. The last amendment to S. 7A leaves completely untouched the obligation of medical practitioners to render service to patients who do not request that Common- wealth forms be not used. The obligation to give services on the part of medical practitioners still exists in just as vital a form as it did under the original S. 7A. Section 7A was introduced for the purpose of compelling medical practitioners to write prescriptions on Commonwealth forms unless they were otherwise requested, and the practical result is that unless the prescriptions are SO written the medical practitioners would lose their practices. As shown by S. 16 the Act recognizes "services," and they are services which are availed of under practical compulsion because the medical practitioners are given the option of rendering the services or, in the language of the statement of claim, ceasing to carry on their practices at all. Medical practitioners are not given by the Act a right to obtain any Commonwealth forms. In the absence of such forms they cannot prescribe formulary medicines for persons who do not request that Commonwealth forms be not used. The fact that the regulations do, for the time being, make provision for the supply of forms does not make the Act valid on that point. Sub- stantially the whole of the chemists in the Commonwealth became approved pharmaceutical chemists during March 1949, under the Act as originally enacted, and some months prior to the insertion in the Act of S. 7A in its present form, that is to say without knowledge of the present scheme which, introducing compulsion without option, is radically different from the then existing scheme. Approved chemists have no right to abandon that status they cannot resign and are bound to remain until they are, inter alia, removed for "good cause." "Good cause" would be a refusal to supply. Upon such refusal removal could be directed by the Director-General. Removal would result in the loss of the business with respect to the dispensing and supply of medicines. The questions which arise upon a consideration of the provisions of the Act are (i) whether the Act, and particularly S. 7A, is a law with respect to the provision of pharmaceutical benefits, or whether the Act or any part of it can be justified as incidental to a law with respect to the provision of pharmaceutical benefits (ii) whether a number of sections of the Act, including S. 7A, constitute a law with respect to the provision of medical services; (iii) if so, whether S. 7A does not in some measure introduce a form of civil conscription and (iv) whether SS. 7 and 8 constitute part of a law with respect to

79 CLR 210

the acquisition of property and, if so, whether just terms are provided. The expression 'pharmaceutical benefits as used in the Act is not synonymous with that expression as used in S. 51 (xxiiia.) of the Constitution. The power given by the paragraph is a very special power. The benefits mentioned in par. (xxiiia.) might take the form of the grant of money or of goods see Unemploy- ment and Sickness Benefits Act 1944. The Act is outside the area of pharmaceutical benefits. Not all the provisions of the Act fall within the category of the provision of pharmaceutical benefits. It is not a law with respect to the provision of pharmaceutical benefits, but a number of its provisions constitute laws with respect to medicines and drugs and for the control of them. 'Pharma- ceutical benefits" " having been defined by the Act as medicines and drugs, every person is then declared to be entitled to receive what- ever medicines and drugs may be specified in the formulary irrespec- tive of State legislation as to the sale of poisons and drugs. The expression "pharmaceutical benefits" in par. (xxiiia.) is merely a reference to a grant, either in money or in kind, which will enable persons to obtain drugs or medicines which otherwise may be lawfully obtained in the various States. The Act declares a right to receive, irrespective of State legislation-from chemists who are bound by State legislation-whatever may be contained in the Commonwealth formulary, therefore SS. 7 and 8, and other sections depending on SS. 7 and 8 for their validity, are outside the consti- tutional power. The extent of the constitutional power of the Commonwealth in relation to pharmaceutical benefits under par. (xxiiia.) is limited by the laws in force, from time to time, in the several States. In any event S. 7A is not a law with respect to the provision of pharmaceutical benefits at all; it is a law with respect to the manner in which substantial services shall be performed by medical practitioners. It forbids the services of medical practi- tioners unless performed in a particular way. The direct effect of S. 7A is to regulate the manner of performance and to compel per- formance by medical practitioners of a substantial part of their practice. That is not authorized by the power to make laws with respect to the provision of pharmaceutical benefits, though it might be authorized by the power to provide medical and dental services were it not for the presence of the bracketed words in par. (xxiiiA.). The facts pleaded show that no medical practitioner could carry on the practice of his profession with due regard to the proper medicinal treatment of his patients unless he were in a position to prescribe the medicines included in the formulary. He has no real option in the matter at all, particularly having regard to the penalty

79 CLR 211

provided. The requirement is a practical compulsion of a very stringent nature. The application of the knowledge and skill of medical practitioners and the act of writing out a prescription are in themselves medical services: see S. 16. The words any form of civil conscription" in par. (xxiiia.) are important. The words "any form" are appropriate to refer to any form of compulsion, and this is a form of civil conscription qua those services. Those words mean any form of the compulsory rendering of service. There is a very real sanction. A description of the Act appears in Attorney-General (Vict.) v. The Commonwealth 1. There is no evidence that the prior scheme would not "work" and even if there were the "incidental power" provisions of S. 51 (xxxix.) of the Constitution are not applicable (Crowe v. The Common- wealth 2; New South Wales v. The Commonwealth [No. 1] 3; Collins v. Hunter 4 ). Section 7A was not an essential part of the scheme in 1947; there had been a complete failure and the intro- duction of this feature made a completely radical alteration of the scheme. It could not be justified under the incidental power because it deals with medical services and there is a complete express power to deal with medical services. The provisions of par. (xxxi.) of S. 51 of the Constitution are not confined to laws for the acquisition of property by the Commonwealth (Collins V. Hunter (4) McClintock v. The Commonwealth 5 ). Legislation which, as in this case, operates to produce a forced sale is within the paragraph. The terms are entirely within the discretion of the Commonwealth Executive. Whatever the prices may be which have in fact been fixed by the regulations, the whole scheme falls because it is within the power of the Commonwealth Government or a Commonwealth Minister to alter the regulations. There is no limitation on the power of the Minister to prescribe prices. He is not required to fix :-(i) fair and reasonable prices (ii) just compensation, or (iii) market prices. Such a law is necessarily a law which does not provide just terms (Australian Apple and Pear Marketing Board v. Tonking 6 ). The legislation itself must provide just terms. It follows that the whole scheme fails. Under S. 11 a medical practitioner may be "approved" whether or not he be willing to act. A chemist cannot, but a medical practitioner can, be compelled to act. Adequate service," whatever may be

1(1945) 71 C.L.R., at pp. 258, 260, 2(1935) 54 C.L.R. 69, at p. 96. 3(1932) 46 C.L.R. 155, at pp. 212, 4(1949) 79 C.L.R. 43. 5(1947) 75 C.L.R. 1, at pp. 23, 24, 6(1942) 66 C.L.R. 77, at pp. 89, 79 CLR 212

comprehended, under S. 15, must be SO wide as to extend beyond 1949.

any of the matters referred to in par. (xxiiiA.). The provision in reg. 31 (2) which in effect authorizes a chemist to depart from the terms of medical practitioners' prescriptions is not within the head of power.

Sholl K.C. (with him D. I. Menzies), for the State of Victoria and the Attorney-General for Victoria, intervening by leave. In general the arguments addressed to the Court on behalf of the plaintiffs are adopted. Section 4 (2) of the Pharmaceutical Benefits Act 1947-1949, has not the effect of overcoming the criticisms which were passed upon the Pharmaceutical Benefits Act 1944. The Act of 1947-1949 is not a valid law with respect to the provision of pharmaceutical sickness or hospital benefits, or of such benefits and medical services within the meaning of par. (xxiiia.) of S. 51 of the Constitution because: (a) it is not restricted to 'pharma- ceutical sickness and hospital benefits" within the meaning of the paragraph; (b) it does not deal with 'provision" of pharmaceutical sickness or hospital benefits within the meaning of the paragraph (c) if and insofar as it is a law with respect to the provision of medical services it authorizes "a form of civil conscription" within the meaning of the paragraph; and (d) it involves, wholly or alterna- tively in respect of portion of its operation, what is not the provision of " benefits" within the meaning of the paragraph. The last- mentioned ground relates to the operation of the Act in those cases where the alleged option of the patient is incapable of exercise. Nor is the Act supported by par. (xxxix.) as being legislation with respect to a matter or matters incidental to the execution of the power conferred by par. (xxiiia.). Nor is S. 13 (2)-(2c) of the Act supported by S. 77 (iii.), or par. (xxiiia.), or par. (xxxix.) of S. 51 of the Constitution or any other power. It is not a desirable thing from the point of view of the Supreme Courts of the States that they should have committed to them by any Commonwealth legislation a so-called appeal, involving "good cause," without the prescription of any certain legal guide or standard whatever to assist the courts in the exercise of the functions which purport to be committed to them. The Act is, in pith and substance, an Act to regulate, control, compel and prohibit medical, veterinary, and pharmaceutical practice to regulate and control, in part, hospital administration, and to regulate, control, compel and prohibit supplies and standards of drugs and appliances. The Act covers in those terms prescriptions of drugs and medicines even

79 CLR 213

for veterinary services. The Act is not restricted to "pharma- ceutical sickness or hospital" benefits within the meaning of par. (xxiiia.). In that paragraph: (i) "pharmaceutical benefits" mean those "benefits" which comprise drugs or medicines for the medical treatment of humans, produced by means of the science or art of preparing drugs 'sickness benefits" mean those 'bene- fits" which comprise things for the treatment of human sickness, or payments for the relief of poverty or distress caused by such sickness and "hospital benefits" mean those "benefits" which comprise things or payments for the relief of human patients in hospitals; (ii) S. 6 extends the Act beyond any such limits. Section 6 (1) (b) extends "pharmaceutical benefits" to anything which the Executive likes to include in the regulations, SO long as it is a "material" or an "appliance." The term is not limited to something a medical practitioner may ordinarily prescribe. It could be extended to cover cosmetics, babies' foods, toothpaste, and other toilet articles, bathing caps, or photographic goods. It need not, indeed, be limited to something a chemist ordinarily sells or may hereafter sell. It could be extended to cover any goods or appliances whatever; (iii) S. 6 (1) (a), (b) and (2) is not limited to matters relating to the treatment of humans, but could include veterinary medicines, medicinal compounds, materials and appli- ances. Section 7 (1) is not inconsistent with this, for it is a benefit for an owner to get drugs for his animals. Nor is S. 7A-it does not amend the original meaning of S. 6; and in any event S. 7A is limited to humans, the rest of the Act is not. It is of very great importance to a State and its inhabitants to find in a Federal Act under par. (xxiiia.) the adoption of a definition which can have SO wide an operation at the discretion of the Commonwealth Executive. In par. (xxiiia.) the ' pharmaceutical sickness and hospital benefits" and the "medical and dental service" respectively referred to are such as the State laws relating to drugs, poisons, patent medicines, medical and dental practice, &., allow lawfully to be supplied. For example, the power to legislate to provide medical service would not authorize legislation for the carrying out of abortion contrary to State law; SO the power to legislate to provide pharma- ceutical benefits would not authorize the enactment of a law to provide medicine or drugs or appliances of a nature, or in quantities or combinations, prohibited by State laws. But the Act is not anywhere SO limited as to be confined to the area of the power. Thus the Act may be made to apply by regulation to numbers of things ordinarily dealt with under State laws relating, inter alia, to medical practice, veterinary practice, pharmacy, health, drugs,

79 CLR 214

poisons, patent medicines, sale of goods, hospitals, mental hygiene and prices. It may be made to apply SO as to operate contrary to such State laws, to cover medicines, drugs or appliances of a nature, or in quantities or combinations, prohibited by State laws. It may thus deal with matters not within par. (xxiiia.). Section 7 purports to give the whole Act an operation quite independent of what is lawfully available under State law. Ground (iii) and the ground relating to State laws create non-severable invalidity, and ground (ii) may involve a severable invalidity. The power is a facultative power. It was not intended to enable the Commonwealth Parlia- ment to interdict other sources of supply. The provision to enable the Commonwealth to supply things is not designed to forbid other people to supply things, nor is it designed to enable the Common- wealth to make available something which is contrary to State criminal law. The whole of the Act is based upon too wide a basis: the essential basis is that it is to be applied to whatever the Executive cares to put in the formulary, whether it be a pharma- ceutical benefit, sickness or hospital benefit within the meaning of par. (xxiiia.) or not, and unless the Act is brought down within the proper confines-which S. 15A of the Acts Interpretation Act 1901- 1948 will not do-the whole Act must fall upon that basis. The Act does not deal with the "provision" of pharmaceutical, sickness, or hospital benefits within the meaning of the paragraph. On its proper construction, par. (xxiiiA.), in using the term "provision of refers to provision by the Commonwealth. It is a facultative provision, which, combined with the incidental power and the appropriation power, enables the Commonwealth to: (i) provide, inter alia, pharmaceutical sickness or hospital benefits by its own servants or (ii) make expenditure, with proper regulation and safeguards, on the enumerated subjects (a) it does not authorize the compulsion of, or the prohibition of, or the regulation of, the provision of such matters by others, for example, the Common- wealth Parliament could not exclude a State from providing unemployment relief, hospital benefits, free dental services in State schools, free general X-ray tests for tuberculosis, iodine tablets for thyroid areas, pensions to widows under the State Superannuation Act, or otherwise, drugs for the inmates of mental or gaol hospitals, or assisted passages or bursaries to students. Equally, it could not compel the State to provide the same. And if SO, it could not regulate the State's provision thereof. The bracketed words in par. (xxiiia.) are sufficient to exclude from legis- lation passed under that paragraph the adoption of compulsory provisions if they fall within the expression "civil conscription."

79 CLR 215

The paragraph should not be interpreted in a manner which would authorize the Commonwealth at some future date to proceed to intervene in the regulation of any of the activities of the States in relation to these subject matters. Paragraph (xxiiia.) does not authorize legislation which, by controlling or limiting or canalizing the activities of particular individuals or professions within the limits of a Commonwealth system, prevents the States from effect- lively acting with respect to the enumerated subject matters of the paragraph in a manner which involves the use of those individuals' or professions' services or activities, or the supply of their goods, outside the limits of the Commonwealth system. If S. 7A applies to the medical practitioner prescribing for a patient in a State hospital, he cannot, except on a Commonwealth form, write a prescription in the State hospital for a State hospital patient. Under neither par. (xxiii.) nor par. (xxiiia.) could the Commonwealth Parliament prohibit a State from providing pensions, services, benefits, or allowances as there enumerated; or require that the provision thereof by a State or any of its officers shall be by or in accordance only with a Commonwealth system of forms, finance, or personnel. If this is true of a State, it is also true of its inhabi- tants. The compulsory provision of services by other than the Commonwealth's own servants is not within "the provision of pharmaceutical sickness and hospital benefits": it must be found, if at all, under "the provision of medical and dental service," and any such power is subject to the limitation as to civil conscription. Otherwise as the subjects overlap, and "medical" cannot be limited to doctors, there might be claimed from the power regarding pharmaceutical sickness and hospital benefits, the power to legislate for a compulsory pharmaceutical or nursing or doctors' or dentists' service. Unless these submissions be correct it would be within Commonwealth power to pass legislation requiring the State of Victoria to provide pensions for widows in the State of New South Wales, or requiring testators, companies, churches, or any other class, to provide benefits to students, family allowances, or unem- ployment relief; and apart from the possible effect of par. (xxxi), an Act compelling chemists to provide pharmaceutical benefits without any payment at all would be within power. The Act is not an Act with respect to the provision by the Commonwealth of pharmaceutical sickness or hospital benefits or medical services or, alternatively, it goes far beyond any "provision" thereof within the meaning of par. (xxiiia.). The power in par. (xxiiia.) is not a power to make laws with respect to the provision by anybody of pharmaceutical benefits. As to pharmaceutical benefits, or

79 CLR 216

pharmaceutical, sickness and hospital benefits, it is now an Act purporting to compel individuals to "prescribe" (except on a condition independent of their will, S. 7A (2) ), and to compel or at least allow other individuals to supply anything specified by regu- lation under S. 6. The element of compulsion is prescribed to medical practitioners except on conditions which are not of any relation to them, but relate to the option given to patients in certain circumstances. By virtue of S. 6 the extent of the compulsive provisions is carried over the whole area embraced by that section. It is not provision by the Commonwealth to enact legislation which purports to give power to regulate and control, for example, the method of prescribing and supplying drugs, appliances, &., in State mental hospitals, State hospitals or sanatoria, State gaol hospitals, State police hospitals and State clinics; or the method of prescribing and supplying drugs, appliances, &., by public service doctors, or by doctors of the Health Department treating wards of the State. The Act itself is wide enough to cover all those things. Section 23 (d) and reg. 2 (3) deal with the definition of public hospitals. The regulations cannot validate the Act; but in any event regs. 2 (3) and 33 do not exclude State institutions as referred to above. Notwithstanding regs. 2 (3) and 33, the Act purports to operate upon all medical practitioners prescribing in State institutions, and therefore it purports to impose obligations upon them of a compulsory character in relation to matters which are quite outside the provision by the Commonwealth of any of the matters enumerated in par. (xxiiia.). Thus the whole Act goes beyond such "provision" of pharmaceutical, sickness and hospital benefits, and of medical services, as par. (xxiiia.) contemplates. The paragraph must be limited, on a consideration of the history of the matter, the other terms of S. 51, and of the federal nature of the Constitution, to provision of a facultative character by the Com- monwealth. If and insofar as the Act is an Act with respect to the provision of medical services, it authorizes a "form of civil con- scription' within the meaning of par. (xxiiia.). The limitation in brackets in par. (xxiiia.) is not limited to medical and dental services, but if it is, insofar as under the power relating to pharmaceutical benefits it is sought to do anything which involves the provision of medical services or matters incidental thereto, the limitation applies. " Any form of civil conscription" is a very wide expression and includes any compulsion legal or practical by Commonwealth law to do in a civil capacity, any act in the course of medical practice for the purposes of the provision of medical services. The use of the word civil in par. (xxiiia.) is a use tied up with the concept of

79 CLR 217

compelling service, compelling civil action or compelling action in the course of civil service, service as a civilian, and it is designed to exclude from the Commonwealth power any conception that com- pulsion can be brought to bear upon medical or dental practitioners and for the purpose and in the course of the carrying out of medical practice. The obligation imposed upon medical practitioners to use the Commonwealth form is a compulsory use of their professional services and is "civil conscription". The Act and regulations purport to impose a scheme which will-save in events not within the control of the State or a medical practitioner and which in some cases cannot occur, S. 7A (2)-prevent anything in the formulary or the addendum being prescribed except by compliance with a particular Commonwealth method or system, or save as performance may be dispensed with arbitrarily by Commonwealth regulations. This will apply to-(i) State-employed medical practitioners (ii) State provision of medical services, for example, subsidized services in State institutions, schools, &., for school children, wards of State, or members of the public being treated for State health purposes, &.; and (iii) general medical practice. The conditions of S. 7A (2) are in all cases outside the control of the State or the medical practitioners. In some cases-unconscious, lunatic, some foreign or some gravely ill patients-no request by the patient or any other person may be possible at all within S. 7A (2), and the compulsion of S. 7A (1) is then quite unqualified, unless a doctor ceases to practise. The legislation thus purports to compel certain acts in the course of such medical practice for the purpose of the provision of medical services, and thus involves a form of civil conscription: SS. 7A, 11. The Act involves what is not the pro- vision of benefits' within the meaning of par. (xxiiia.), either- (i) at all-if S. 8 means that one cannot get a pharmaceutical benefit at all from an approved chemist except under the Act: or (ii) in respect of portion of its operation at least, to the extent that no option can be exercised by an unconscious or a lunatic person or some gravely ill or some foreign persons. A "benefit' in par. (xxiiia.) is something a person wants, not merely what someone may think he needs. If he is incapable of exercising any option of choice under S. 7A (2), then he has to get the "free-medicine" willy-nilly. In view of reg. 31 (2), it may even be an actual detri- ment. Thus in cases (ii) mentioned above the Act goes quite outside "benefits." As to (i) mentioned above, if S. 8 has the suggested meaning-as it appears to have-the position is that unless there can be found an unapproved chemist, or an approved chemist at unapproved premises, plus, in either case, a medical

79 CLR 218

practitioner prescribing on a Commonwealth form the person requiring the medicine can only get it under the Act. Such a law is in pith and substance not one with respect to the provision of pharmaceutical sickness or hospital " benefits," or of medical services without civil conscription; it is a law to prevent totally or partially the supply of pharmaceutical benefits for money. It is not a law to provide free medicine, but a law to prevent, to the extent that chemists become approved chemists, the supply of non-free medicine. It is no more valid under par. (xxiiiA.) than would be a law prohibiting the continuance of State or private insurance policies, pensions, or superannuation schemes in relation to widows, or prohibiting State unemployment relief. The Act is not supported by par. (xxxix.) in conjunction with par. (xxiiia.) as being legislation "with respect to a matter or matters inci- dental" &. So far as compulsion is concerned there cannot be got from the incidental power what is denied by the express terms of the paragraph. As to the meaning of the incidental power see Le Mesurier v. Connor 1. The extension of S. 6 beyond par. (xxiiia.) cannot be thus justified nor the prohibition in S. 7 (3), which goes beyond mere prevention of double payment, or the prevention of a charge to a person who wants free medicine; nor S. 7A (compulsion); nor S. 8 (unless in some way read down by reference to S. 4 (2); nor S. 15 (unless limited to contractual arrangements not obnoxious to State laws); nor SS. 21 (c), (e), 23 (a), (e). Thus it would also not be possible to support, under the power, provisions to compel farmers to grow plants to provide drugs, importers to import drugs or appliances, individuals to serve in chemists' shops, drug houses, limb factories, &. To require medical practitioners to use Commonwealth forms is not incidental to the provision of free medicine. It is a law with respect to the controlling of the activities of medical practitioners which may, or may not, result in the supply of free medicine. There are two arguments against the importation of compulsion into the execution of the power under par. (xxxix.), namely, the effect of the parenthesis in par. (xxiiia.), and the reasonable limitation of the language of the various powers, SO as to prevent them from justi- fying laws which are really laws with respect to a different sub- stantive subject matter not committed to the Parliament. Section 21, particularly sub-ss. (c) and (e), and S. 23, particularly sub-ss. (a) and (e), go beyond any provisions justified by the incidental power. Section 13 (2)-(2c) are not supported by S. 77 (iii), or S. 51, par. (xxiiia.) or par. (xxxix.), of the Constitution, or any other

1(1929) 42 C.L.R. 481, at pp. 497, 498. 79 CLR 219

power. The power of the Director-General under S. 13 1 is clearly not Federal judicial power and if it were, the provisions would be bad in the absence of compliance with S. 72 of the Constitution. The function purporting to be given to the Supreme Courts under S. 13 2 and (2c) is not Federal judicial power. There is no precisely ascertainable standard of "good cause," which here implies dis- cretion, personal assessment, opinion, perhaps expediency, and other administrative considerations. An appeal from such an administrative act is itself administrative, even if the function must be exercised "judicially" (Moses v. Parker (1); Medical Board of Victoria v. Meyer (2); Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia 3; Penton V. Australian Journalists' Association 4 ). There is no power of enforcement of the Supreme Court's decision: see S. 13 (2c) (c) (Rola Co. (Australia) Pty. Ltd. v. The Commonwealth 5 ). That case goes the maximum distance in saying what is not Federal power. Non-judicial power cannot be conferred on a State Supreme Court, at all events when not conferred as incidental to the exercise of judicial power (Le Mesurier v. Connor 6 Bond v. George A. Bond &Co. Ltd. 7 Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. 8 ). The conferring on a court of a discretion as to whether or not it will exercise admittedly judicial powers, is distinguishable: Barrett v. Opitz 9, as also are tax-law cases, where a court exercises judicial power in deter- mining whether an administrative officer or tribunal acted in accordance with the legal rights and duties of the parties (Medical Board of Victoria v. Meyer 10 ). The Act is, in pith and sub- stance, an Act-(i) to regulate, control, compel and prohibit medical, veterinary, and pharmaceutical practice (ii) to regulate and control (in part) hospital administration and (iii) to regulate, control, compel and prohibit supplies and standards of drugs and appliances (Attorney-General (Vict.) v. The Commonwealth 11; Bank of New South Wales v. The Commonwealth 12 ). There is no obligation on the Commonwealth to supply prescribed forms to any medical practitioner, whether in the service of the State or in private practice. Regulation 11A, which may be repealed at any time, does not make the Act valid. By withholding or failing

1(1896) A.C. 245, at p. 248. 2(1937) 58 C.L.R. 62, at pp. 92, 3(1925) 36 C.L.R. 442. 4(1947) 73 C.L.R. 549. 5(1944) 69 C.L.R. 185, at pp. 198- 6(1929) 42 C.L.R. 481. 7(1930) 44 C.L.R. 11, at p. 22. 8(1943) 67 C.L.R. 25, at pp. 35-37, 9(1945) 70 C.L.R. 141, at p. 168. 10(1937) 58 C.L.R., at p. 92. 11(1945) 71 C.L.R., at pp. 250, 258, 12(1948) 76 C.L.R., at p. 182. 79 CLR 220

to supply forms, the Commonwealth or the Director-General of Health can interfere with, regulate or terminate the practice of all or any medical practitioners (ss. 7, 7A, 8), or interfere with, regulate or nullify the activities of medical practitioners employed by or working under arrangement with a State: S. 7A. Section 7A applies to a prescription presented to an unapproved chemist, or to an approved chemist at unapproved premises. The Act is far beyond a law with respect to the provision of pharmaceutical benefits by the Commonwealth. It really enters directly into the conduct of medical practice in State institutions or in State activities. In the same way it can deal with the practice of any chemist through the medical practitioners S. 8 1 (a), (b). It is really an Act for the licensing of chemists: SS. 6, 9, 13. If S. 8 (1) (b) is given its ordinary meaning, then by the combined effect of SS. 6, 8 and 20 (1) (d) and the regulations, veterinary surgeons can be prevented from prescribing at all. A law which entitles the Commonwealth SO to deal with the practice of individuals or the activities of State employees is not a law with respect to the provision of pharmaceutical sickness or hospital benefits or medical services, within the meaning of par. (xxiiia.). Whether or not it comes under SS. 12-14 and 21, a hospital is partially controlled in its administration by SS. 6-9. Section 21 and S. 23 (e), enter into the sphere of supplies and standards of drugs and appliances. The whole substance of the Act goes, in the realm of regulation, pro- hibition and compulsion, far beyond what was contemplated by par. (xxiiia.). On the question of severability see R. v. Burgess Ex parte Henry (1) and R. v. Poole; Ex parte Henry [No. 2] 2. If the two principal portions of the Act are invalidated on any of the foregoing grounds then the whole scheme fails and there would not remain some severable system. If, for example, S. 6 extends the Act beyond the scope of par. (xxiiia.) then there could not be severed out SO much of the Act as would relate only to pharmaceutical benefits within the meaning of the paragraph. Similarly, if the provision as to the use of Commonwealth forms is invalid, then that is vital to the operation of the scheme contained in the legis- lation and there would have to be evolved some different scheme of legislation adopting some other method.

The Attorney-General, in reply. It is wrong to interpret the Act and par. (xxiiia.) upon the assumption that existing State laws deal- ing in some respects with pharmaceutical benefits, with health, drugs

1(1936) 55 C.L.R. 608, at pp. 654, 2(1939) 61 C.L.R. 634, at p. 651. 79 CLR 221

and the like, have some constitutional protection. Regard should H. C. OF be had to the words of the paragraph (Attorney-General (Vict.) V. The Commonwealth 1 ). The purpose is carried out by the Act which "provides a detailed and coherent plan' " (Attorney-General (Vict.) v. The Commonwealth 2 ). Its features are: the existence of a Commonwealth Formulary prescribing the substances which could be utilized in the scheme of benefits intended to be provided by the Commonwealth Parliament. The fact that those pharma- ceutical substances will be made available to the people of Australia without charge subject to certain conditions, and that the chief condition is, for present purposes, that the benefit shall be prescribed by a medical practitioner, is part and parcel of the scheme and is not merely an ancillary provision thereto. The sole difference between the Act of 1944 and the Act of 1947-1949 is that when medical practitioners-coming independently to their decision as to what should be prescribed, not being told by the Commonwealth but reaching their own decision in the interests of the patients-pre- scribe something from the formulary, they must write that pre- scription on the Commonwealth form. That is far removed from "civil conscription" in the constitutional sense. "Civil conscrip- tion' is a phrase to be applied by analogy to military conscription in cases where the medical practitioner is no longer free to practise his profession. Under the Act medical practitioners are free to practise their profession. The Constitution was amended for the very purpose of providing or giving the legislature the power to enact a scheme of the type and character illustrated by the Act of 1944, and the Act of 1947-1949 is exactly of that type and character. The Commonwealth may provide benefits not only by its own servants but also by persons who are not servants of the Common- wealth. "Benefits need not, and do not, merely consist of money payments. If for the peace order and good government of the Commonwealth as a whole a particular benefit should be provided by the Commonwealth, to the exclusion of additional, supplementary, or even competing State schemes, it would be competent for the Commonwealth Parliament, as part of the law, to validly exclude such schemes. There is no reason why that should not be included within the content of the power. But there is not in the Act any attempt to exclude any State schemes. It is a great new power of social services and it is entitled to, and doubtless will receive, a broad and liberal interpretation. In determining the meaning of the word "benefits" the Court will be guided by the view that has been expressed by the legislature and if, in the opinion

1(1945) 71 C.L.R., at p. 262. 2(1945) 71 C.L.R., at p. 267. 79 CLR 222

of the Court, that view is permissible or possible the Court will

accept it. The provision of pharmaceutical benefits means, or at least includes, legislation which is directed towards securing and ensuring the supply of drugs, and not excluding, but including, appliances, subject to medical direction in the case of particular patients. "Benefit" could include a money payment made directly to the patient, and it certainly includes the provisions of a scheme aimed at providing or supplying to the patients of the actual pharmaceutical benefit, according to the direction of the medical practitioner. That interpretation removes any difficulties from S. 6. It is clear from S. 8 that it was intended that Common- wealth prescription forms should be supplied to medical practitioners. It is a proper assumption that the things are certain to be done in the ordinary course of administration which the section impliedly directs to be done. The absence of a statutory provision giving medical practitioners the right to obtain Commonwealth forms does not bear on the validity of the Act. The constitutional content in par. (xxiiia.) is not limited to the making of laws to assist persons to obtain those things which may be legally obtained under the existing laws of a State. That is the established constitutional doctrine in this country. The Commonwealth Parliament has a discretion as to what things may be made the subject of pharma- ceutical benefits, subject to the decision of the Court. It is not true that the power is facultative in the sense that legal sanctions, in other words laws, cannot be validly passed by the Commonwealth Parliament in relation to the subject matter of the paragraph. The Commonwealth, acting on the specific power in par. (xxiiia.), can pass valid laws which in effect control in some degree, and displace in some degree, for the purposes of the Commonwealth power, State enactments. Medical practitioners are at liberty, SO far as the Act is concerned, to prescribe what they think is necessary in the interests of the health of their patients. All that the Act does is to provide that if and when the medical practitioners determine that the formulary benefit should be prescribed in the interests of their patients, that they shall write that down on one document rather than on another document. It is clearly not a law with respect to medical services which interferes with medical practi- tioners in the course of their duty as such towards their patients. The requirement is simply a means of securing that the benefits should be obtained by the patients and that the administration of the Act would commence from that one point. The subject matter of S. 7A is merely the question of which form is to be used by medical practitioners for the purposes of writing out their prescriptions.

79 CLR 223

"Conscription" implies the placing of services in a general sense at the disposal of the community by a compulsory law enacted on behalf of the community. It refers to compulsory control in rendering the service to the community and to the patient, but it is not a law affecting some specific act which takes place in the course of medical practitioners freely carrying on their practices, e.g., death certificates. For many years the form of written prescriptions has been regulated by the laws of the States. The prohibitory words in par. (xxiiiA.) are not 'but not SO as to impose any compulsion." Writing a prescription on one document rather than on another document is not the performance of a medical service. The very fact that it is incidental to a scheme to provide pharmaceutical benefits tends to show that it does not impose any form of civil conscription. By writing their prescriptions on the Commonwealth form medical practitioners co-operate with the scheme and such co-operation is essential to the success of the scheme. The choice of the paper upon which a prescription is written is irrelevant to the performance of the medical service by medical practitioners. Whether it is regarded as a medical service or as a duty incidental to the carrying out of a pharmaceutical scheme, in either case it is quite different from what is contained in S. 16. That section contemplates that the patient is to be treated by a free service of medicine instituted by the Common- wealth that is quite different from the operation of S. 7A. Even if S. 7A has an element of medical service, used in a general way, or some act done in the course of a practice, it is none the less a law with respect to the provision of pharmaceutical benefits, therefore par. (xxiiia.) does not import any forbidding of civil conscription in relation to the "pharmaceutical benefits" power. The application of the words in brackets in that paragraph should be limited to medical and dental services. The word 'services" attracts the forbidding of civil conscription. The change in the constitution took place at a time when the operation of the manpower regulations was coming to an end. The word "conscription" was used in the proposed law Constitution Alteration (Industrial Employment) 1946, and in the National Security Act 1939. The matter comes within the pharmaceutical benefits power and, therefore, no question of civil conscription arises. If, however, contrary to that, the Court thought it necessary to fall back on the medical services power it does not impose any form of civil conscription. "Pharmaceutical benefits" include drugs and appliances prescribed by medical practitioners for the treatment of diseases and ailments, and when

SO prescribed, are primarily to be regarded as covered and included

79 CLR 224

in the concept of the provision of "pharmaceutical benefits."

Section 8 does not forbid the sale of medicines: it does not create offences, but merely lays down a further condition of eligibility for benefit. Regulation 31 deals only with the question of payment. Sections 7, 8 and 14 are not laws with respect to the acquisition of property. The Act is not concerned with any question of the acquisition of property. The real subject matter is the supply of drugs to patients at the expense of the Commonwealth, if prescribed by medical practitioners. There is no compulsion on chemists to supply property, to pass the title in the property, by reason of the presentation of prescriptions to them, nor is there any legal right in patients to enforce the handing over of the prescribed medicines. So that the acquisition, if it be regarded as acquisition, is a voluntary acquisition, and no question of just terms can arise. The power under S. 11 to approve a medical practitioner does not mean that he may be approved without his consent, and it could not be SO interpreted. Under S. 13 (3) there is a duty to revoke his approval if requested by a chemist or a medical practitioner SO to do. The whole of that provision emphasizes the voluntary nature of the scheme. An appeal from administrative functions in cases of this kind is common form and is a valid exercise of power by the Parliament (British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation 1 ). "Good cause" is a phrase which is frequently used in the exercise of judicial power: see Burrows' Words and Phrases Judicially Defined, vol. 2, pp. 411-414. Sections 21 and 23 are necessary for the proper and reasonable implementation of the scheme and are within power.

Cur. adv. vult. The following written judgments were delivered :-

LATHAM C.J. Demurrer to a statement of claim in an action in which the plaintiffs are the Federal Council of the British Medical Association in Australia (which is incorporated under the laws of New South Wales) and six medical practitioners resident and practising in Victoria or New South Wales. Two of these practi- tioners hold official positions upon the Federal Council and two others of them are members of the Council. The defendants are the Commonwealth of Australia, the Commonwealth Director- General of Health, Dr. A. J. Metcalfe, and Nicholas Edward McKenna, Commonwealth Minister of Health.

The plaintiffs claim a declaration that the Pharmaceutical Benefits Act 1947-1949 is invalid as being beyond the powers of the Parlia-

1(1926) 38 C.L.R. 153, at pp. 175, 176, 178, 181. 79 CLR 225

ment of the Commonwealth and contrary to the Constitution of the Commonwealth. They also claim, alternatively, declarations that particular provisions contained in the Act and certain regulations made under the Act are invalid, and they seek appropriate injunc- tions. The defendants have demurred to the statement of claim, contending that the Act and the regulations are within the powers respectively of the Commonwealth Parliament and the Governor- General.

In 1944 the Commonwealth Parliament passed the Pharmaceutical Benefits Act 1944. In 1945 the validity of the Act was challenged in the case of Attorney-General (Vict.) v. The Commonwealth 1. The defendants in that action sought to support the validity of that Act solely by reason of the power of the Commonwealth Parliament to appropriate and provide for the expenditure of public money. It was held by the Court that the appropriation power did not extend SO far as to provide constitutional foundation for the Act, and the Act was declared to be invalid.

In 1946 S. 51 of the Commonwealth Constitution was amended by including within the subjects with respect to which the Common- wealth Parliament should have power to make laws :------- (xxiiia.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not SO as to authorize any form of civil conscription), benefits to students and family allowances:

The defendants contend that the Pharmaceutical Benefits Act 1947-1949 is valid as being a law with respect to subjects specified in par. (xxiiia.) and they support their argument by particular reference to 'pharmaceutical benefits," but also to some extent by reference to "sickness and hospital benefits" and "medical services" The defendants rely also upon S. 51 (xxxix.) of the Constitution, whereby power is conferred upon the Commonwealth Parliament to make laws with respect to-" Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth."

The plaintiffs, on the other hand, contend that the Act and the regulations made under the Act go beyond the powers conferred upon the Federal Parliament by the constitutional amendment. The Act (it is contended) relates to the provision of articles which do not fall within the category of pharmaceutical benefits or any

1(1945) 71 C.L.R. 237. 79 CLR 226

other category mentioned in par. (xxiiiA), It is argued that the Act seeks to control various matters which are within the exclusive powers of the States-standards of drugs, sale of poisons, pure food provisions, hospitals &. The plaintiffs also argue that there are provisions in the Act and the regulations which cannot be justified by calling in aid S. 51 (xxxix.) of the Constitution. It is submitted for the plaintiffs that the Act involves a form of civil conscription of medical practitioners, and that it is therefore invalid by reason of the prohibition contained in par. (xxiiia.) of the authorization of "any form of civil conscription." It is further contended by the State of Victoria, which was granted leave to intervene, that S. 13 (2A), (2B) and (2c) of the Act, relating to the suspension or revocation of approval of pharmaceutical chemists, medical practi- tioners or hospital authorities under the Act, purports to confer non-judicial power upon State Courts, and therefore is beyond Federal legislative power.

I propose in the first place to summarize the statement of claim, then to state the substance of the Act and the regulations, and to deal with certain grounds upon which the validity of particular provisions is challenged. I will then examine the constitutional amendment upon which the defendant relies, and finally consider whether the legislation can be held to be valid under that amend- ment.

Statement of Claim. In an argument upon demurrer the allega- tions in the challenged pleading a1e, for the purposes of the demurrer, assumed to be true, and the question is, in the case of a demurrer to a statement of claim, whether, if all the allegations in the state- ment of claim are taken to be true, it discloses a cause of action SO that the plaintiff will, if the allegations are established as true, be entitled to the relief claimed. The statement of claim alleges the passing of the Act and the making of the regulations under the Act, and states the interest of the plaintiff Council, which is a body corporate one of the objects of which is to advance the general interests of the medical profession in Australia. The interest of the individual plaintiffs has already been indicated. Uncompounded medicines, medicinal compounds, medical materials and medical appliances the names or formulae of which are included or deemed to be included in the Commonwealth Pharmaceutical Formulary prescribed under the Act are referred to in the statement of claim as 'formulary medicaments." Other medicaments &. are referred to as. extra-formulary medicaments." Paragraphs 9 and 10 of the statement of claim are as follows 9. A large part of the professional work done by doctors consists of prescribing for the

79 CLR 227

supply to their patients of such one or more, or such combinations of two or more, of the medicaments comprised in the following classes as in the opinion of doctors is or are in each case necessary or advisable for the proper medicinal treatment of the patient :- (a) formulary medicaments; (b) medicaments, either formulary or extra-formulary, specified to be supplied in the form of a particular trade mark, brand, make or proprietary equivalent and in no other form; (c) extra-formulary medicaments consisting of medicinal compounds compounded according to formulae contained in the Formulary with variations other than those specified by the Regu- lations as being permitted variations of those formulae (d) other extra-formulary medicaments. 10. A large number of the medica- ments prescribed by doctors for supply to patients are formulary medicaments. No doctor could carry on the practice of his profes- sion with due regard to the proper medicinal treatment of his patients or at all if he were unable lawfully to prescribe all formulary medicaments and all medicaments comprised in any other of the abovementioned classes." In par. 11 it is alleged that substantially all chemists practising their profession throughout the Common- wealth have applied for and obtained approval under S. 9 (1) of the Act as pharmaceutical chemists. Paragraph 12 alleges that on the coming into operation of the provisions of the Act the plaintiff doctors will be substantially prevented from and hindered in practising and carrying on their professions and hindered in the proper medicinal treatment of their patients by the requirements of the Act relating to "the writing of prescriptions, the repeating of prescriptions, the quantities of formulary medicaments that may be prescribed, the prescription of formulary medicaments in the form of a particular trade mark, brand, make or proprietary equiva- lent, and the permitted variations of formulae contained in the Formulary."

The plaintiffs claim a declaration that the Act is invalid or, alternatively, that SS. 7, 7A, 8, 11, 14, 21 and 23 of the Act are invalid, and that the following regulations are invalid-regs. 4, 11, 15, 16, 17, 18, 23, 27, 29, 30, 31 and 34.

As already stated, the defendants have demurred to the whole of the statement of claim on the grounds that the Act and regulations are valid.

The Act. The Act is entitled the Pharmaceutical Benefits Act 1947-1949. Section 4 defines "medical practitioner" as a medical practitioner duly registered or licensed under Commonwealth or State law, and "pharmaceutical chemist" is defined in a corre- sponding manner.

79 CLR 228

Section 4 (2) is of importance in the construction of the provisions of the Act. It is in the following terms:-"In this Act, any reference to the supply, obtaining or receipt of a pharmaceutical benefit shall, unless the contrary intention appears, be read as a reference to the supply, obtaining or receipt of that pharmaceutical benefit in accordance with this Act." Many provisions of the Act refer to the "supply, obtaining or receipt " of a pharmaceutical benefit. They do not apply merely to the procurement or delivery of a drug or medicine or appliance not as a benefit under the Act. All the provisions relating to supply, obtaining or receipt of a pharmaceutical benefit must be construed in the light of S. 4 (2). Thus, for example, S. 8 provides that a person shall not be entitled to receive a pharmaceutical benefit from an approved pharmaceutical chemist except upon certain conditions. This provision, referring as it does to the 'receipt" of a pharmaceutical benefit, should be construed as applying to the receipt of a benefit in accordance with the Act. Thus S. 8 would not prevent any person from going to a chemist and buying a drug which, if supplied under and in accordance with the Act, would be a pharmaceutical benefit. When a customer simply made a purchase from a chemist he would not be receiving " a pharmaceutical benefit in accordance with this Act," although he might be receiving a drug which was included within the definition of "pharmaceutical benefits" contained in the Act. So also the chemist would not be supplying such a benefit.

Section 6 of the Act is as follows " (1) The pharmaceutical benefits referred to in this Act shall consist of-(a) uncompounded medicines the names of which, and medicinal compounds the formulae of which, are contained in a prescribed formulary to be known as the Commonwealth Pharmaceutical Formulary and (b) materials and appliances (not being uncompounded medicines or medicinal compounds) the names of which are contained in a prescribed addendum to the Commonwealth Pharmaceutical Formu- lary. (2) The Commonwealth Pharmaceutical Formulary shall be deemed to include, as a formula, in addition to the formulae con- tained therein, each formula SO contained with each variation specified by the regulations as being a permitted variation of that formula." Thus the pharmaceutical benefits for which the Act pro- vides are (in class (a) ) certain medicines and medicinal compounds, the formulae of which are contained in the prescribed formulary. The formulary contains a large number of prescriptions which are identified by a code consisting of letters and numbers. It is alleged in the statement of claim that a large part of a doctor's professional work consists in prescribing medicaments which are mentioned in

79 CLR 229

the formulary, and that a doctor would be unable to carry out his practice unless he were able lawfully to prescribe, inter alia, formu- lary medicaments. Class (b) of the pharmaceutical benefits referred to in S. 6 consists of materials and appliances (other than uncom- pounded medicines or medicinal compounds) the names of which are contained in the prescribed addendum to the Commonwealth Pharmaceutical Formulary.

Section 6 (2) provides that the formulary shall be deemed to include certain specified permitted variations of the formulae. These provisions are attacked on the ground that they are SO wide that any material or appliance whatever could be added to the formulary and that any variation could be made in the formulae. It would be possible, according to this argument, to add beer and cosmetics to the formulary or any other goods whatever-articles which might have no relation to the treatment of human ailments and which therefore could not properly be called pharmaceutical benefits.

Section 6, however, must be read with the rest of the Act, and other provisions, especially S. 8 (1) (b), show that pharmaceutical benefits can be supplied and obtained in accordance with the Act only upon the prescription of a duly qualified medical practitioner. Accordingly, S. 6 does not have the effect of enabling the Governor- General to include in the formulary, or the addendum thereto, any article or thing whatever SO as to entitle persons to receive it under the Act irrespective of the treatment of patients by means of drugs &. The objection mentioned which has been taken to these provisions should therefore not succeed.

It is further contended, however, that materials and appliances which are not either uncompounded medicines or medicinal com- pounds (see S. 6 (1) (b) cannot possibly be regarded as pharma- ceutical articles. "Pharmaceutical" is defined in the Oxford English Dictionary as "Pertaining to or engaged in pharmacy relating to the preparation, use, or sale of medicinal drugs," and "pharmacy" is defined in what is described as "the leading current sense " as "The art or practice of collecting, preparing, and dis- pensing drugs, esp. medicinally the compounding of medicines; the occupation of a druggist or pharmaceutical chemist."

It would be possible under S. 6 (1) (b) to prescribe in the addendum of the Commonwealth Pharmaceutical Formulary such articles as trusses and syringes. Indeed, eye droppers, insulin syringes, bandages and other materials or appliances are now included in the addendum to the formulary. In my opinion these articles cannot

79 CLR 230

be described as drugs or medicines and are accordingly not pharma- ceutical in character. Legislation for the provision of them there- fore cannot be supported under the power conferred by S. 51 (xxiiia.) to make laws with respect to pharmaceutical benefits. But par. (xxiiia.) also provides that laws may be made with respect to the provision of sickness and hospital benefits. In my opinion where the use of a syringe is necessary for the treatment of a disease, or some other appliance is required either to treat or to remedy some physical incapacity, the provision of such an article may properly be described as the provision of a "sickness benefit." I see no reason why these words should be limited to the payment of money during a period of sickness, which is the common form of friendly society sickness benefit. The provision of a necessary instrument or appliance for the treatment of sickness, treating the word "sick- ness" as including any form of ill-health or incapacity, is in my opinion the provision of a sickness benefit. Accordingly, I am of opinion that the arguments mentioned which have been adduced against the validity of S. 6 should not be accepted.

Section 7 (1) of the Act provides that, subject to the Act and except as prescribed, "every person (not being a patient occupying a bed in a public ward in a public hospital) ordinarily resident in the Commonwealth shall be entitled to receive pharmaceutical benefits." Section 7 (2) provides that, subject to sub-s. (4) (a special provision for special charges in prescribed cases) " a person receiving a pharma- ceutical benefit shall not be under any obligation to make any payment therefor to the person supplying the pharmaceutical benefit." These provisions entitle any person ordinarily resident in the Commonwealth to obtain pharmaceutical benefits gratuitously. Section 14 provides that the Commonwealth shall pay the chemist or doctor for pharmaceutical benefits supplied.

It has been argued for the plaintiffs that S. 7 (2) is a provision affecting the general law in such a way as to produce the result that a person who receives from any other person any of the drugs or medicines &. specified in the formulary or the addendum could not be required to pay for them, even though he had purported to buy them and had expressly or impliedly promised to pay for them. In my opinion S. 4 (2) provides an answer to this criticism. Section 7 (2) applies only to a person receiving a pharmaceutical benefit," that is to say, (by reason of S. 4 (2) ) receiving " a pharmaceutical benefit in accordance with this Act." If a resident of the Common- wealth went into a chemist's shop (whether the chemist was a chemist approved under the Act or not) and purchased a drug which was mentioned in the formulary, he would not be receiving a

79 CLR 231

pharmaceutical benefit in accordance with the Act, and S. 7 (2) would not operate SO as to relieve him of the duty of paying for it.

Section 7 (2) is complemented by S. 7 (3), which provides that (subject to sub-s. (4) ) an approved pharmaceutical chemist shall not demand or receive a payment (other than a payment from the Commonwealth) or other valuable consideration in respect of the supply of a pharmaceutical benefit. This provision was attacked by the arguments which have already been mentioned in connection with S. 7 (2). It was argued that S. 7 (3) amounted to a provision in the general law that chemists should not demand any payment for any of the drugs mentioned in the formulary. But S. 7 (3) only applies in respect to "the supply of a pharmaceutical benefit," that is (by reason of S. 4 (2) ) the supply of a pharmaceutical benefit in accordance with the Act. An ordinary sale by a chemist to a customer is not a supply of a pharmaceutical benefit under the Act.

If S. 7 were construed in accordance with the plaintiffs' contention,

I would be of opinion that it was invalid, because a power to make laws with respect to the provision by the Commonwealth (as I interpret S. 51 (xxiiia.) for reasons to be stated) of drugs &. would not authorize the Parliament to control the sale of drugs &. or to prevent any member of the public from buying or selling drugs &.

Section 7A (1) was inserted by the amending Act No. 8 of 1949. Act No. 26 of 1949 repealed S. 7A as it then stood and inserted the section as it now appears, that is, with the addition of sub-s. (2), which provides a means of escape from the otherwise absolute provision of sub-s. (1). Section 7A is as follows " (1) Subject to this section, a medical practitioner shall not write, in respect of a person entitled to receive pharmaceutical benefits, a prescription for-(a) an uncompounded medicine the name of which, or a medicinal compound the formula of which, is contained, or is deemed to be included, in the Commonwealth Pharmaceutical Formulary; or (b) a material or appliance the name of which is contained in the prescribed addendum to the Commonwealth Pharmaceutical Formulary, otherwise than on a prescription form supplied by the Commonwealth for the purposes of this Act. Penalty Fifty pounds. (2) The last preceding sub-section shall not apply-(a) in any case in which the person in respect of whom, or at whose request, the prescription is written requests the medical practitioner not to write the prescription on a prescription form supplied by the Commonwealth for the purposes of this Act; or (b) in such other cases or circumstances as are prescribed."

Section 7A (1) imposes a penalty on any medical practitioner who writes a prescription for a medicine the formula of which is contained

79 CLR 232

A. in the formulary, or for any material or appliance &. the name of

which is contained in the addendum otherwise than on a prescription form supplied by the Commonwealth. The statement of claim alleges that a very large number of ordinary prescriptions are contained in the formulary. It would therefore be an offence for a doctor to write otherwise than on a Commonwealth form a large number of prescriptions which he would require for his patients in the course of treatment if he carried on practice.

Accordingly, the main purpose of the alteration of the Constitu- tion now embodied in S. 51 par. (xxiiia.) was to empower the Com- monwealth Parliament to legislate to spend its moneys on a wider range of social services than those authorized by S. 51, par. (xxiii.). The new paragraph is of course plenary in its fullest sense and must, like every other legislative power in the Constitution, be given a wide and liberal interpretation. It contains eleven separate heads of legislative power. These heads may to some extent overlap, but there is no reason why the paragraph, because it is part of the Constitution, should not be construed SO as to make it a consistent enactment and to give a meaning if possible to every part of it, Bank of New South Wales v. The Commonwealth 1. It is important to discover at the outset the heads to which the expression in parenthesis "but not SO as to authorize any form of civil conscrip- tion" applies. There is a comma after the words "hospital benefits" and a further comma after the words "civil conscription"

SO that the punctuation tends to confine the expression to the words "medical and dental services," (Committee of Direction of Fruit Marketing v. Collins (2) and this is in my opinion the true intent of the paragraph. If the expression was meant to apply to all the preceding words, it would only be natural to expect that it would also be made to apply to the succeeding words benefits to students and family allowances," because medical and dental services could be provided as part of such benefits and allowances just as readily as they could be provided as part of the preceding allowances and benefits. It would appear therefore that the other heads of legis- lative power in the new paragraph are not subject to the expression, This may well have been thought to be unnecessary because a legislative power to provide allowances, pensions, endowments, and benefits points strongly to a power which is intended to be exercised

1(1948) 76 C.L.R. 1, at pp. 256, 257. (2) (1925) 36 C.L.R. 410, at p. 421. 79 CLR 287

by the Commonwealth itself providing such allowances &. in cash or in kind, and not to a power to make or compel a State or some private individual to provide the benefit. But it is unnecessary express a final opinion because the express inclusion of medical and dental services in the paragraph clearly indicates to my mind that whenever such services are provided whether as services exclusively or in the course of providing some other benefit, the law must not authorize any form of civil conscription of such services.

The expression is a prohibition upon the exercise of the legislative powers of the Commonwealth under par. (xxiiia.) of the same charac- ter as the prohibition contained in SS. 92 and 116 of the Constitution. It invalidates all legislation to which it applies. The words "civil conscription" have no ordinary meaning in the English language. The ordinary meaning of conscription is the compulsory enrolment of men (and now women) for service in the military or naval (and now in the air) forces. But S. 5 (7) (a) of the National Security Act 1939 provided that nothing in this section should authorize the imposition of

any form of industrial conscription, and this was presumably the origin of the same words in the proposed new par. (xxxivA.) and led to the adoption of the words civil conscription" " in par. (xxiiia.). It would no doubt be a form of industrial conscription to compel persons by law to work in indus- tries whether the industries were carried on by the Commonwealth or its authorities or by the States or their authorities or by private individuals. It would equally be a form of civil conscription of medical or dental services to compel medical practitioners or dentists by law to make their professional services as civilians available to the Commonwealth or its authorities or the States or their authorities or to carry on their professions in particular localities. Conscription as a word of general application would seem to signify compulsory as opposed to voluntary service, SO that the words industrial conscription" would seem naturally to connote compulsory as opposed to voluntary employment in industry, and the expression "civil conscription of medical and dental services" naturally to connote the compulsory as opposed to the voluntary exercise of such services in civil life. Accordingly, in my opinion, the expression invalidates all legislation which compels medical practitioners or dentists to provide any form of medical or dental service.

The crucial question is whether S. 7A of the Pharmaceutical Benefits Act 1947-1949 is such a law. The text of the section, which was proclaimed to come into operation on 25th July 1949, is as follows " (1) Subject to this section, a medical practitioner shall not write, in respect of a person entitled to receive pharmaceutical

79 CLR 288

benefits, a prescription for-(a) an uncompounded medicine the name of which, or a medicinal compound the formula of which, is contained, or is deemed to be included in the Commonwealth Pharmaceutical Formulary; or (b) a material or appliance the name of which is contained in the prescribed addendum to the Common- wealth Pharmaceutical Formulary, otherwise than on a prescription form supplied by the Commonwealth for the purposes of this Act. Penalty: Fifty pounds. (2) The last preceding subsection shall not apply-(a) in any case in which the person in respect of whom, or at whose request, the prescription is written requests the medical practitioner not to write the prescription on a prescription form supplied by the Commonwealth for the purposes of this Act or (b) in such other cases or circumstances as are prescribed."

As the Attorney-General pointed out, the word 'pharmacy" in its ordinary meaning includes the preparation of medicines by pharmacists in accordance with the prescriptions of physicians. This meaning will be found in dictionaries and decided cases, some of which are cited in Unger v. Mason 1. The word has however particular reference to the art or business of compounding and preparing medicines, and the adjective " pharmaceutical" has become descriptive of chemists who are skilled in such art with the addition of the word "registered" where registration is required under the local law to carry on such a business. Chemists now compound and sell many medicines not prescribed for particular patients by physicians, SO that reference in the new paragraph to the provision of pharmaceutical benefits would appear to be par- ticularly applicable to medicaments obtainable in a chemist's shop with or without the prescription of a physician. The inclusion in the definition of "pharmaceutical benefits" in S. 6 of the Act of materials and appliances included in an addendum to the formulary not being uncompounded medicines or medicinal compounds would appear to extend the operation of the Act beyond pharmaceutical benefits and to include sickness benefits, but a prescription on the form supplied by the Commonwealth is just as necessary before a person ordinarily resident in Australia will become entitled to such materials and appliances as it is before he will become entitled to uncompounded medicines or medicinal compounds.

The Acts of 1944 and 1947 did not seek to compel medical prac- titioners to write prescriptions on Commonwealth forms. They were supplied with copies of the formulary and with forms and requested to use the forms when a pharmaceutical benefit was prescribed. We were told by the Attorney-General that the govern-

1(1947) 74 C.L.R. 557, at p. 577. 79 CLR 289

ment believed that medical practitioners would co-operate volun- H. tarily and that it would not be necessary to use compulsion. It may have been thought that patients would exercise a practical compulsion by urging practitioners to use the forms SO that they might become entitled to receive the pharmaceutical benefits. But neither event happened and S. 7A was inserted in the principal Act by Acts Nos. 8 and 26 of 1949 to make the use of the Common- wealth forms compulsory. When a statute inflicts a penalty for not doing an act, the penalty implies that there is a legal compulsion to do the act in question (Redpath v. Allan 1 ). Section 7A therefore compels a medical practitioner, who cannot obtain a request to the contrary from the person in respect of whom or at whose request the prescription is written, to write the prescription on the forms supplied by the Commonwealth. The Attorney-General submitted that the section does not compel a medical practitioner to render any medical service, and that its whole effect is to compel a medical practitioner to write the prescription on a particular piece of paper if he decides, in the unfettered exercise of his discretion, that the patient requires treatment which is included in the formulary. It was submitted that the subject matter of the legislation is not the medical service of treating the patient, but merely the question of the use of a document for the particular purpose of enabling the patient to obtain the pharmaceutical benefits at or from the premises of an approved chemist without payment. But this is not in my opinion the true effect of the section. The scheme of the Act is to make the provision of a pharmaceutical benefit conditional upon a medical practitioner prescribing particular treatment, SO that in prescribing that treatment the medical practitioner is rendering a medical service to the Commonwealth. He is in effect certifying to the Commonwealth that the patient requires a pharmaceutical benefit within the meaning of the Act. Section 16 of the Act provides that: "The Minister may, on behalf of the Common- wealth, enter into an agreement (on such terms as to remuneration, allowances and otherwise as he thinks fit) with a medical practitioner providing that the services of the medical practitioner shall be available without charge to members of the public for the purpose of furnishing prescriptions for the purposes of this Act." This section describes as a medical service, the service which a practitioner provides when he is compelled by S. 7A to write a prescription on a Commonwealth form. He is compelled to render that service in the course of rendering a contractual service to his patient. But it is a service which forms no part of the implied contract for services

1(1872) L.R. 4 P.C. 511, at p. 517. 79 CLR 290

created by a patient seeking the advice and treatment of a medical practitioner and the medical practitioner examining the patient with a view to giving him advice and treatment. It is a compulsory service to the Commonwealth for the purposes of the Act which is super-imposed upon the contract of the parties. It is a compulsory service whether the obligation is absolute or absolute unless per- formance is excused by the person in respect of whom or at whose request the prescription is written. And the Attorney-General did not contend, rightly I think, that the constitutional validity of S. 7A 1 was in any way strengthened by the presence of S. 7A (2). When analysed, the submission of the defendants appears to imply that a law only authorizes a form of civil conscription of medical services when it operates directly to compel medical practitioners to work for some civil authority or in some particular locality or for some particular class of patients, and that a law which merely compels medical practitioners to act in some particular manner in the course of or as incidental to the carrying on of their profession does not authorize any form of civil conscription. This submission, if accepted, would mean that medical practitioners could be com- pelled in the course of their practice to perform all sorts of medical duties as, for instance, to give certificates, keep records, and give information, confidential or otherwise, about the health of their patients provided the certificates &. were reasonably incidental to the execution of a law with respect to the provision of any of the allowances or benefits specified in the paragraph. In my opinion such a submission unduly narrows the effect of the wide words "any form of in the expression in parenthesis.

It is to be noted that the Act of 1947 did not repeat S. 22 of the Act of 1944 which provided that a medical practitioner should not write a prescription in accordance with any prescribed form unless he was satisfied, by personal examination of the person in respect of whom the prescription was written, that the pharmaceutical benefit specified in the prescription was necessary for the treatment of that person. In Attorney-General (Vict.) v. The Commonwealth (1) the Chief Justice said of this section that it "directly controls the conduct of medical practitioners

this provision directly and compulsorily operates in relation to medical practitioners by preventing them carrying on their practice as they may be allowed to carry it on under the laws of the State." This was said of course before the insertion of par. (xxiiiA.) in the Constitution. Section 7A of the present Act does not, like S. 22 of the Act of 1944, expressly provide that medical practitioners must make a personal

1(1945) 71 C.L.R., at p. 260. 79 CLR 291

examination of their patient before writing a prescription, but it would be the duty of a medical practitioner at common law to be satisfied that his patient required the pharmaceutical benefit before prescribing it, and a statutory obligation similar to that imposed by S. 22 could be introduced by a regulation made under S. 23 of the present Act which authorizes the Governor-General to make regu- lations

(b) making provision in relation to the writing of prescriptions on prescription forms supplied by the Commonwealth for the purposes of the Act. Section 7A of the present Act, like S. 22 of the Act of 1944, "directly controls the conduct of medical practitioners" in carrying on their practice. Such duties as giving certificates, keeping records, and giving information about the health of their patients would all be duties to be performed by a medical practitioner in the course of carrying on his profession as a civilian and a law which compelled him to perform them would, in my opinion, authorize a form of civil conscription of his services. Obviously legislation which infringed the prohibition could not be invalid under S. 51 par. (xxiiia.) but valid under the incidental power S. 51 par. (xxxix.) of the Constitution. For these reasons I am of opinion that S. 7A is invalid.

Other objections were raised to the validity of the Act but I find it unnecessary to discuss them at this stage of the proceedings. They relate mainly to the position of pharmaceutical chemists under the Act and no chemists are plaintiffs. The plaintiffs are confined to the British Medical Association and certain medical practitioners. If S. 7A is declared to be invalid the rest of the Act, if severable and valid, will operate SO far as medical practitioners are concerned on a voluntary basis. Section 11 (1) and 16 relate to medical practi- tioners. But I do not read S. 11 (1) as authorizing the Director- General to approve a medical practitioner for supplying pharma- ceutical benefits against his will, and S. 16 merely authorizes the Minister to make an agreement on behalf of the Commonwealth with a medical practitioner. As at present advised therefore I do not think that the plaintiffs have any sufficient interest to impeach the validity of the rest of the Act.

On the ground that S. 7A is invalid I would overrule the demurrer, which is to the whole of the statement of claim.

WEBB J. The two most important questions that arise are as to (1) the meaning of par. (xxiiia.) of S. 51 of the Commonwealth Constitution and (2) the validity of S. 7A of the Pharmaceutical Benefits Act 1947-1949.

79 CLR 292

As to (1): in my opinion par. (xxiiia.) does not empower the Commonwealth Parliament to do more than legislate for the provision by the Commonwealth itself of the allowances, pensions, endowment, benefits and services to which it refers, and the pro- ASSOCIATION

vision may be of money, goods or services, even in the case of "benefits" but, as regards medical and dental services at least, it does not authorize any form of civil conscription. As the paragraph is punctuated the words in brackets excluding civil conscription qualify only "services" and not "benefits." However, the Chief Justice gives strong reasons why the punctuation should be disre- garded and the words in brackets held to qualify "benefits" but I find it unnecessary to decide, and SO I do not decide, that they do SO. So far as medical services are incidental to the provision of pharmaceutical benefits there is no power to conscript such services, as the incidental power to legislate under par. (xxxix.) of S. 51 cannot be held to exceed the express power given by par. (xxiiia.). The Constitution states that medical and dental services shall not be conscripted, and that is conclusive for all purposes.

I do not understand that, because the State of Victoria was given leave to intervene, it is necessary to decide whether the words in brackets qualify 'benefits." At all events I think it is not necessary to do SO for determining the rights of the plaintiff Council and doctors.

Then as to the meaning of the words in brackets, it was not sub- mitted that civil conscription meant the enlistment of persons for full-time service. During World War I. "conscription" was employed to designate compulsory military service anywhere, including service overseas but during World War II. it was used in Commonwealth legislation to describe any compulsory service in the armed forces or in industry. As to "civil conscription," I cannot remember hearing or seeing the term used until I saw it in the proposed law in the terms of par. (xxiiiA.) passed by Parlia- ment and subsequently submitted to the electors under S. 128 of the Commonwealth Constitution. I think the electors would have taken the proposed law to emphasize, in the use of the words " any form," that legislation for the provision of benefits or services of the kind referred to could not authorize compulsory service of any kind, at least in the provision of medical or dental services, either independently or as incidental to pharmaceutical or other benefits, and that compulsion, to any extent or of any nature, whether legal, by the imposition of penalties, or practical, by any other means, direct or indirect, could not be authorized. To require a person to do something which he may lawfully decline

79 CLR 293

to do but only at the sacrifice of the whole or a substantial part of the means of his livelihood would, I think, be to subject him to practical compulsion amounting to conscription in the case of services required by Parliament to be rendered to the people. If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance.

As to (2), the validity of S. 7A: in the Pharmaceutical Benefits Act as enacted after the par. (xxiiia.) became part of the Con- stitution and before July 1949, there was no compulsion of any kind in respect of medical or dental services: but in July 1949, after the doctors had declined to use the Commonwealth form in writing their prescriptions, and SO prevented their patients from obtaining the pharmaceutical benefits, the Act was amended to require, in a new S. 7A, that a doctor should use the Commonwealth form if he prescribed anything in the Commonwealth Pharmaceutical Formulary or the addendum thereto, unless the patient requested otherwise. The penalty for non-compliance was fixed at £50. In this way it was sought to compel the doctors to do something which they were not prepared to do voluntarily. But the learned Attorney- General submitted that a doctor, in putting the prescription on the Commonwealth form instead of on his own paper, would not be performing a medical service that the medical service would be complete when the doctor made up his mind what to prescribe and that S. 7A operated on him only as from the time when he proceeded to write the prescription. However, I think that "medical service" in par. (xxiiiA.) is not limited to the exercise of the professional skill required to arrive at a conclusion as to what should be prescribed, but extends to the writing of the prescription, whether on the doctor's paper or on the Commonwealth form. Ordinarily the writing of a prescription is a medical service. Taking the allegations in the statement of claim to be true for the purposes of this demurrer, the position appears to be that, as every person residing in Australia who is not a patient occupying a bed in a public hospital is entitled to the benefits provided by the Act, and the great majority of the people of Australia are likely to want these benefits, the doctors must treat them or lose a considerable part of their practice, if not the whole of it; but if a doctor treats patients to retain his practice, then S. 7A requires him to sign the Commonwealth form and renders him liable to a penalty of £50 if he fails to do SO. This, in my opinion, imposes on doctors a com- pulsory medical service and is a form of civil conscription within

79 CLR 294

the meaning of par. (xxiiia.). It may well appear that at present the doctor is compelled to do very little in being required to use the Commonwealth form, but if it is conceded that he may be compelled to do this on the ground that it is not the performance of a medical service but merely a method of rendering it, he may also be compelled to do many other things on the same ground, such as attending at certain places during certain hours to write prescriptions for the convenience of patients not confined to their homes. It is for Parliament to stipulate the conditions attaching to its grant of benefits, but not by compelling the doctors, under penalty as for an offence, to sign the required forms or be deprived of practice otherwise by fines or deprivation of practice the doctors could be controlled to any extent as to their movements and time. Of course patients may be forced by the attitude of the doctors to request that the Commonwealth form be not used but the compulsion on the doctors remains, although for the time being it is countered by a measure which, however undesirable it may appear, is not unlawful.

To reiterate: if S. 7A had not been enacted a patient requesting a doctor to write a prescription on the Commonwealth form, which involves consulting and consideration of the Commonwealth Pharma- ceutical Formulary or its addendum or both, would request a service which only a doctor can render, and which therefore is properly described as a medical service. But when this service is made compulsory by a fine, or loss of practice to avoid the fine, in the case of any patient, with few exceptions, who does not request that the Commonwealth form be not used, then, having regard not only to the extent of the professional work involved but to the almost unlimited number of persons entitled to insist on the service at any time, it becomes, I think, not merely a compulsory service but a form of civil conscription within any meaning that can be given to that expression which, if not quite clear, was certainly intended to be comprehensive. It is civil conscription of doctors as doctors. When Parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, that the doctor shall render the patient a special service, unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription. This civil conscription can be avoided, without any breach of the law, to the extent that the doctor vacates the field of medicine, which, however, would involve, in many if not most cases, a considerable loss of practice and of income. But it is still civil conscription. Military conscription would not cease to be

79 CLR 295

79 C.L.R.]

OF AUSTRALIA. such because those liable to it might avoid it by a change of occupation.

To amount to civil conscription it is not necessary that the service be a full-time service, or be rendered as a member of a corps created for the purpose.

I think then that S. 7A is invalid as being contrary to S. 51 (xxiiiA.) of the Commonwealth Constitution; but it is severable.

As to the remaining questions I agree with the judgment of the Chief Justice and have nothing to add.

I would overrule the demurrer.

Demurrer overruled. Solicitors for the plaintiffs, Tress, Cocks &Maddox. Solicitor for the defendants, George A. Watson, Crown Solicitor for the Commonwealth.

Solicitors for the intervenant, F. G. Menzies, Crown Solicitor for Victoria, by the Sydney Office Biddulph &Salenger.