General Practitioners Society v The Commonwealth

[1980] HCA 30

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ.

GENERAL PRACTITIONERS SOCIETY v. THE COMMONWEALTH

(1980) 145 CLR 532

2 September 1980

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Provision of sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription)—Provision of medical benefits—Conditions to be satisfied before benefits payable for pathology services rendered by medical practitioners—Undertakings to be given by persons wishing to become approved pathology practitioners—Whether civil conscription—The Constitution (63 &64 Vict. c. 12), s. 51 (xxiiiA)—Health Insurance Act 1973 (Cth), ss. 16A, 16B, 16C. Constitutional Law (Cth)—Taxation—Law imposing taxation to deal with no other matter—Provisions dealing with other matters to be of no effect—Medical benefits—Conditions to be satisfied before benefits payable for pathology services rendered by medical practitioners—Undertakings to be given by persons wishing to become approved pathology practitioners—Fee of $10 or other prescribed amount payable by eligible medical practitioner wishing to become approved pathology practitioner—Minister to accept undertaking or refer to Medical Services Committee—Whether fee a tax or payment for services to be rendered—The Constitution (63 &64 Vict. c. 12), s. 55—Health Insurance Act 1973 (Cth), s. 16C(2).

Decisions

September 2.
The following written judgments were delivered: -
BARWICK C.J. In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. He there sets out the statutory provisions under challenge and expresses his view that none of the impugned provisions offends the limitation placed upon s. 51 (xxiiiA) by the bracketed words "but not so as to authorise any form of civil conscription". I agree with my brother's conclusion. (at p536)

2. In order to dispose of this matter I have no need finally to resolve the question whether the words in brackets qualify all of the matters for the provision of which by the Commonwealth the paragraph affords legislative power. If it were necessary for me now to decide that question, the inclination of my mind is distinctly in favour of the view adopted by Sir Owen Dixon and not in favour of the view adopted by Sir John Latham in British Medical Association v. The Commonwealth (1949) 79 CLR 201 , though undoubtedly there is much to be said in point of policy as distinct from mere construction for thinking that the limitation ought to have applied over the whole range of the permitted legislation, or at any rate over more than the words "medical and dental services" might authorize. (at p537)

3. I do not regard the Court as having decided in the British Medical Association Case that if the statute provided no more than that, if a benefit were to be obtained by the patient under the statute, the requirement that the relevant prescription must be written by the medical practitioner on the form provided by the Commonwealth amounted to the imposition of civil conscription. What it decided, in my opinion, was that because s. 7A…