Wong v Commonwealth of Australia

[2008] HCATrans 352

[2008] HCATrans 352

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S362 of 2008

B e t w e e n -

CHEE KAN KENNETH WONG

Appellant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

RIFAAT GEORGE DIMIAN

Second Respondent

Office of the Registry
  Sydney  No S363 of 2008

B e t w e e n -

ASHRAF THABIT SELIM

Appellant

and

VINAYAK (VINOO) LELE, PATRICK TAN AND DAVID RIVETT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 309

First Respondents

THE DETERMINING AUTHORITY ESTABLISHED UNDER SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH)

Second Respondent

HEALTH INSURANCE COMMISSION

Third Respondent

ALAN JOHN HOLMES IN HIS CAPACITY AS DIRECTOR PROFESSIONAL SERVICES REVIEW

Fourth Respondent

FRENCH CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 OCTOBER 2008, AT 10.16 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR M.A. ROBINSON, and my learned friend, MS J. CHAMBERS, for the appellant in each matter. (instructed by TressCox Lawyers)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, with MS R.M. HENDERSON and MS K.M. RICHARDSON, I appear in the Wong matter for the first respondent and in the Selim matter, for the Attorney‑General of the Commonwealth, intervening.  (instructed by Australian Government Solicitor)

MS R.M. HENDERSON:   If the Court pleases, in matter No S363 of 2008, the Selim matter, I appear for the first respondents, the third respondent and the fourth respondent and, your Honours, I understand the second respondent has filed a submitting appearance.  (instructed by Sparke Helmore)

MR P.J. DAVIS, SC:   If it please the Court, I appear with MR G.J.D. DEL VILLAR of counsel on behalf of the Attorney‑General of the State of Queensland intervening.  (instructed by Crown Law – Brisbane)

FRENCH CJ:   Thank you.

MS HENDERSON:   Your Honours, there is a matter I should draw attention to in relation to the third respondent in the Selim matter.  I believe your Honours will have copies of an extract from the Human Services Legislation Amendment Act 2005.  There is a red tab in that bundle, your Honours, which draws attention to section 725 – I think properly item 725.  It relevantly provides that:

If, immediately before the commencement time, any proceedings to which HIC . . . was a party were pending in any court or tribunal, then, from the commencement time, the CEO is substituted for HIC . . . as a party to the proceedings.

The expressions “CEO” and “HIC” are explained on page 99 of the bundle.  Your Honours will see:

HIC means the Health Insurance Commission established under the old law –

and –

CEO means the Chief Executive Officer of Medicare Australia.

The commencement time is identified on the page with the blue tab and your Honours will see that Schedule 2, items 31 to 731, commenced on 1 October 2005.  Your Honours, the Full Court heard the matter of Selim in June 2005 and this legislation came into force before their Honours gave their judgment.  So by force of the legislation the Chief Executive Officer of Medicare Australia was substituted for the Health Insurance Commission.  If your Honours please.

KIRBY J:   Could I just ask, normally tribunals submit to the orders of the Court.  Is the determining – here the respondents all contest and embrace the submissions of the Commonwealth?

MS HENDERSON:   That is so, your Honour.

KIRBY J:   I am not trying to be difficult, but it is a matter of propriety that independent decision‑making bodies would normally submit, would they not?  So does that affect the Determining Authority?

MS HENDERSON:   The Determining Authority has submitted.  I am not appearing for the Determining Authority, your Honour.

KIRBY J:   And the Director of Professional Services contests because he is a member of the – or the CEO are members of the Executive Government, is that the theory of it?

MS HENDERSON:   The Director of Professional Services Review is the statutory officer appointed under the legislation as part of the professional services review scheme.  He is a medical practitioner.

KIRBY J:   Has he submitted or has he embraced the submissions of the Commonwealth?

MS HENDERSON:   He embraces the submissions of the Commonwealth, as do the other respondents for whom I appear.

FRENCH CJ:   Ms Henderson, the purported effect of the provision is to actually substitute a party in the proceedings in this Court, is it not?

MS HENDERSON:   I think, your Honour, it actually operated at the time that the matter was still before the Full Federal Court and therefore the appeal should properly be brought in relation to the substituted party.

FRENCH CJ:   Speaking for myself, it is a little curious to see a party being substituted by a statute as distinct from application of a judicial power.

MS HENDERSON:   Indeed, your Honour.

FRENCH CJ:   Perhaps we can just note you are drawing to our attention the provisions of the Act for the moment.

MS HENDERSON:   If your Honours please.

MR JACKSON:   Your Honours, the aspect to which my learned friend, Ms Henderson, referred was only mentioned to us just before the Court commenced.  We would just like to consider the position because the proceedings started at different times in this Court and elsewhere and I just want to check that what has been put necessarily applies.  I suspect it does, but I would just like to check it.

Your Honours, as the Court will have seen from the various written submissions, the two cases turn ultimately on the operation of the words in parentheses in section 51(xxiiiA) of the Constitution. Your Honours, I will come to the terms of it in due course, but may I say just this. Your Honours, in the end one does come back to the fact that in giving legislative power to the Commonwealth by the constitutional amendment which resulted in section 51(xxiiiA), there was not given an entirely plenary power to legislate with respect to the provision of medical services. Rather, the power which was given with respect to the provision of such services was a power which was always, and was always stated to be from its adoption by the nation, subject to the qualification contained in the words in parentheses in that provision.

Your Honours, the point which we would seek to make initially is simply this, that those words should not be regarded as being subordinate to or a second order type of provision.  They do not merely, in one sense, qualify exercises of the grant of legislative power, but they also determine the ambit of the legislative power.  Your Honours, I intend to come to those provisions, of course, shortly.  May I go, as briefly as possible, to the statutory provisions which are ultimately germane?

Your Honours will see though set out in volume 1 of the joint bundle of legislation – and, your Honours, there is not, as we would understand the position, a difference or great difference between the parties as to the interpretation of the provisions.  They fall into two categories.  First, those providing for the circumstances in which a benefit is payable and, secondly, those providing for forms of sanctions in relation to a medical practitioner who is engaged in what is defined as inappropriate practice.  May I deal with them in that order.

Your Honours, the statutory provisions for benefits are found principally in sections 9, 10, 20 and 20A of the Health Insurance Act.  Now, your Honours, may I preface what I am about to say by saying that, as our written submissions have made clear, we do not contend that the provisions in terms compel any medical practitioner to subscribe – I use that term loosely – or to be part of the Medicare scheme contemplated by the legislation.  Rather, our contention is that there is a form of practical compulsion, to which I will come as soon as I can, your Honours.

Your Honours, could I say that in dealing with the statutory provisions one starts with section 10(1), which your Honours should find on the page numbered 39 at the bottom of the page. Your Honours will see that section 10(1) provides that:

Where, on or after 1 February 1984, medical expenses are incurred in respect of a professional service rendered in Australia to an eligible person, medicare benefit calculated in accordance with subsection (2) is payable, subject to and in accordance with this Act, in respect of that professional service.

Now, your Honours, as we have set out in our written submissions at page 3 paragraph 18, some of the terms there used are defined. I will not go to the detail of that, your Honours. They are defined in section 3(1). As is apparent from the terms of section 10(1), the amount of Medicare benefit is to be determined in accordance with section 10(2) and your Honours will see from subsection (2) that the amount of Medicare benefit is calculated by the application of the percentages referred to in section 10(2).

Your Honours, the percentages there referred to are percentages of what is described as the “schedule fee”.  That term your Honours will see defined in section 8(1A).  It means “the fee specified in the table in respect of the service”.

KIRBY J:   The only point of difference, as I understand it, in the written submissions between you and the Commonwealth is as to the degree or the quantification of the bulk‑billing and things like that, is that correct?

MR JACKSON:   I think that is so, your Honour, but, of course, there are some agreed facts about the matter.  I am going to go to those in a moment, your Honours, or shortly.  But your Honours will see that there is not, I think, any substantial disagreement.  Your Honours will see the table to which the definition of “schedule fee” refers is itself defined by section 3(1).  That is at page 14.  There are three tables there referred to.  The three tables there referred to are provided for by sections 4, 4AA and 4A.  I should have said “four capital A, capital A” and “four with one capital A”.

If I could just say, your Honours, that those tables are tables which are provided for by the Health Insurance (General Medical Services Table) Regulations.  They have not been reproduced because they are not insubstantial, if I could put it that way.  The part interaction that I am holding up represents the Health Insurance (General Medical Services Table) Regulations for 1999.  If your Honours really want copies of the detail, we will of course provide them.

KIRBY J:   Silence was the response to that generous offer.

MR JACKSON:   Yes, your Honour, so far. May I just say that, as we say in our written submissions, they cover a very large field. From there one goes to section 20 at page 84. Your Honours will see that it provides in subsection (1) that the Medicare benefit is payable to the person who incurs the medical expenses in respect of the service in question. The manner in which that entitlement is to be satisfied appears from several provisions. First of all, as subsection (2) indicates, there will be circumstances where the person entitled under section 20(1) may or may not have paid the provider of the service. If the person has paid the money, then section 20(1A) would apply. If, as the opening part of subsection (2) sets out, it has not been paid, then the person is not to be paid the Medicare benefit personally but the person is entitled to request that there be a cheque for the amount of the Medicare benefit drawn in favour of the person by whom the service was provided. That occurs, of course, only if a request is made for it. If the cheque is not paid out within 90 days, the Commission may pay the general practitioner directly. That is section 20(3).

That applies only to general practitioners. Your Honours will see that from section 20(3)(b). Your Honours, if the general practitioner is paid in that way, as in the way provided by 20(3), the patient’s request for payment of the Medicare benefit is taken to have been withdrawn. That is subsection (4). Your Honours, from section 20 one goes to section 20A and section 20A does not in terms require but it is the provision which gives rise to what is commonly described as bulk‑billing and it provides by subsection (1) that an agreement may be entered into between two persons. The two persons are, on the one hand, the eligible person – your Honours, might I pause to say that because of the definition of “eligible person” in section 3, that is, for practical purposes, an Australian citizen. That is one person. On the other hand, the other party to the agreement is the person by whom or on whose behalf the service is rendered and that person is described as the practitioner in section 20A(1).

Section 20A then makes lawful entry into an agreement of the nature referred to in that provision and the nature of the agreement is that, on the one hand, there is an assignment by the eligible person to the practitioner of the eligible person’s right to a Medicare benefit and, your Honours, on the other hand, there is the acceptance that the assignment by the practitioner is to be in full payment for the relevant professional services. That is section 20A(1).

Your Honours, provision for payment in accordance with the assignments is made by subsection (3). That is page 88. Then, your Honours, assignment of Medicare benefit otherwise than in accordance with section 20A is proscribed and it is proscribed by subsection (5). Your Honours, there are machinery provisions dealing with the steps to be taken to obtain payment. Your Honours will see those set out in section 20B(2) through to (3B).

HEYDON J:   Mr Jackson, your written submissions and your initiating process asked for a declaration that sections 10, 20 and 20A be declared not valid laws of the Commonwealth.

MR JACKSON:   Yes.

HEYDON J:   Do you really need that relief?  Does it go that far if accepted?

MR JACKSON:   It does, your Honour.  Could I indicate why that is so.  I do not suggest that is the only possible relief but may I say why, in our submission, it is.  Our contention, and I will need to come to the detail of this, is that this is a case where, as the agreed facts would indicate and as the Full Court thought, a medical practitioner who is a general practitioner is for practical purposes required to be part of – and, your Honours, I will come to what that means – the Medicare scheme in order to carry on general practice as a private practitioner.

That comes about, your Honours, in our submission, by a combination of features.  One feature is the extent to which the table provided for covers such a very wide range of matters except for a few excluded matters.  That is one feature.  A second feature, your Honours, is that a practitioner who is part of the scheme or who participates in the scheme, the manner of whom is carrying on practice, is one which is governed by the requirements of Part VAA, to which I will come in a moment. 

Your Honours, the practitioner, we would submit, to carry on practice as a general practitioner is obliged effectively (a) to be prepared to deal in terms of the scheme, including at the least the obligations or entitlements that are under section 20 and 20A and, on the other hand, your Honours, to carry on practice in a way which requires submission to the standards provided for by Part VA.

HEYDON J:   But if Part VAA went, would that not be sufficient?  Even that may be more than your arguments would support.

MR JACKSON:   That is our second position, your Honour, if I can put it that way.  It would be sufficient for our purposes if VAA went.  Yes, your Honour, it is sufficient. 

HEYDON J:   Or some sections in it.

MR JACKSON:   Your Honour, the core sections of it, yes. 

HEYDON J:   Section 82 and 106U – would that suffice?

MR JACKSON:   Yes, 82, your Honour, on the provision that picks that up in 106U, your Honour.

HEYDON J:   If you want all these provisions struck down, it becomes rather more difficult perhaps to overrule earlier authorities.

MR JACKSON:   Your Honour, I accept that to the extent to which they require overruling.  The reason why I put our position in two ways is because one view of the matter is that the compulsion arises by reason of a combination of provisions to which I have referred.  If that is not right, we are content with ‑ ‑ ‑

HEYDON J:   But you could get compulsion set up in sections which were not in themselves invalid, could you not?

MR JACKSON:   Yes, your Honour.

HEYDON J:   You are running a case which is much wider than the factual core before us.

MR JACKSON:   Your Honour, it is possible that differing views be taken by the Court or members of the Court as to what constitutes the compulsion.  One view is that it is the combination of all these matters and that would give rise to, in a sense, two possibilities:  one possibility would be to say, as our learned friends would seek to say, “The parts of the Act, other than the provisions of Part VA to which you relate, are ones that were covered by general practitioners”.  We would say, your Honours, in response to that, “Assume for a moment that is correct.  The same result does not necessarily follow because there are these added provisions, all of which have to be taken together”. 

Another view, your Honours, is to say well assume that it is covered by general practitioners, yet Part VA is quite different from the legislation then in force and much more extensive in its operation.  It would be sufficient if Part VA were – or relevant parts of it – were to go, your Honour.

CRENNAN J:   Does that answer involve an assumption that, or a compulsion to practice professionally to a particular professional standard of the kind that is imposed on barristers, for argument’s sake, by their disciplinary bodies, that alone would not amount to civil conscription?

MR JACKSON:   Well, your Honour, it could.  If one is speaking about civil conscription in a context of a constitutional provision which is speaking of the provision by the Commonwealth of medical services, if one assumed that the provision said the provision of legal services with a similar part in brackets following it then, your Honour, if there were a requirement to appear for particular persons or interests that the Commonwealth required one to appear for, then it may be that would amount to civil conscription.  I may not have quite picked up the question that your Honour was asking, I suspect.

CRENNAN J:   What I was really directing attention to was whether your previous answer involved an assumption – one might even say a concession – that a compulsion or requirement on a professional service provider to provide those services to a professional standard – however that is measured – could not, without more, amount to civil conscription because the purpose of obliging those standards to be complied with would have nothing to do with any sort of conscription.

MR JACKSON:   Well, your Honour, there are circumstances in which a requirement that services of a particular kind be required as a statutory requirement and as giving rise to an entitlement to a fee or some benefit in respect of it might not amount to compulsion.  I would accept that proposition, your Honour.

Your Honours, I was going I think to go to Part VAA.  Your Honours, we have dealt with this aspect in our written submissions at page 6, paragraphs 30 to 33.  May I go, your Honours, very briefly to these provisions.  Several stages are involved in the procedures which are there referred to.  Your Honours, first of all there are two relevant bodies.  One is the Director of Professional Services Review.  That is an office which is established by section 83(1).  There at relevant times was the Health Insurance Commission.  It was a body established by a different Act – the Health Insurance Commission Act 1973, section 4.  I do not think I need to take your Honours to it.  It simply says it was established.  Later provisions made it a body corporate. 

Your Honours, under section 86(1) the Commission was empowered to refer to the director the conduct of a person relating to one or both of the matters referred to in section 86(1).  Your Honours will see that the matters were “engaging in inappropriate practice in connection with rendering of services” and also paragraph (b) “initiation of services”.  Such a referral, your Honours, is described in other provisions of the Act as being an investigative referral.  That definition in section 81(1). 

Now, “inappropriate practice”, as used in section 86(1), or the term, is itself defined, the definition being in section 82.  The parts of section 82 that are most relevant are section 82(1)(a), which says:

A practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services is such that a Committee –

a term to which I will come –

could reasonably conclude that:

(a). . . the conduct would be unacceptable to the general body of general practitioners –

Then your Honours will see also section 82(3):

A Committee must, in determining whether a practitioner’s conduct in connection with rendering or initiating services was inappropriate practice, have regard to . . . whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services.

Now, your Honours, the director is given power by section 93(1) to set up a Committee and the Committee there referred to is given its full name “a Professional Services Review Committee”. You will see that, your Honours, in the definitions in section 81(1). The composition of such a Committee is provided for by section 95 and the most relevant provisions of that are sections 95(1), (2) and (5). Your Honours, the function of the Committee is set out in section 93(1).

FRENCH CJ:   The only species of referral to the Committee is the adjudicative referral?

MR JACKSON: Yes. The term “adjudicative referral” is defined also in section 81(1). Now, your Honours, the Committee is to determine the issue set out in section 93(1). It is to provide, first of all, a draft report. That is section 106KD. The draft report is to be given to the person and written submissions invited, your Honours, at subsection (3). Then, your Honours, there is to be a final report, section 106L. The final report, your Honours, goes to the Determining Authority. That is section 106L(4). If the report contains a finding of inappropriate practice, the Determining Authority has to make a determination under section 106U.

Your Honours will see, and if I can just say this – I will come to the terms of 106U in just a moment – but the determination is at the first a draft determination with an opportunity being given to the practitioner to comment.  That is provided for by section 106T.  Then there is to be a final determination, section 106TA, and the content of the determination is set out in section 106U.  Your Honours will see from the opening words of 106U(1) the determination must contain one or more of the directions that are set out in the subparagraphs.  They contemplate, 106U(1)(a), a “reprimand”; (b) counselling; (c) that Medicare benefit cease to be payable; and, paragraph (ca), repayment.  Your Honours, there is provision for disqualification, paragraph (g).

FRENCH CJ:   Mr Jackson, what does the Committee actually find to support these, as it were, outcome determinations?  The definition of “inappropriate practice” is based upon what a committee could reasonably conclude.  That is the chapeau in section 82.  So a finding of inappropriate practice, according to that definition, is no more than a finding that the Committee could reasonably conclude that one or other of those things set out in 82 had occurred.

MR JACKSON:   Yes, your Honour, that is the way in which the definition is framed.  If one goes to section 93, your Honours will see that it speaks of, in 93(1), to consider whether conduct constituted engaging in appropriate practice.  I appreciate what your Honour put to me about the way in which the definition is framed, but the provisions of section 93 would seem to contemplate that the Committee would form a view along one of the lines.

FRENCH CJ:   You are suggesting that context implies a shift in the definition to a substantive reference to the actual conduct as unacceptable to the general body of practitioners.

MR JACKSON:   Yes, as determined by the Committee.

FRENCH CJ:   Yes.

MR JACKSON: Your Honours, those are the provisions which are ultimately germane and they give rise to several related questions which lie, of course, at the heart of the case. The first is what is contemplated by, in terms of section 51(xxiiiA), the provision of medical or dental services. Your Honours, may I use “medical” for brevity rather than saying “medical or dental” every time. That is the first thing. The second thing, your Honours, is in what circumstances will the provision of such services amount to authorisation of a form of civil conscription. The third, your Honours, is does the present case amount to a form of civil conscription and, finally, what consequence should follow in terms of the orders which the Court might make if the impugned provisions did constitute, in one way or another, a form of civil conscription?

CRENNAN J:   Where do we find rights of appeal or review provided for in respect of these final determinations by the Committee?

MR JACKSON:   Of the Determining Authority?  Could we give your Honours a reference to that later because it may be tied up with the AAT, I think, and, of course, section 75(v).

CRENNAN J:   Yes, I think that is probably right.

MR JACKSON:  Your Honours, could I go to section 51(xxiiiA). Your Honours will see that the terms of that provision provide for making laws with respect to the provision of a number of subjects or matters and the laws include, your Honours – if I could deal with them separately for the moment – the provision of the first three classes of, in effect, bounty, that is maternity allowances, widows’ pensions, child endowment and, similarly, there are the two last mentioned in the provision, namely, benefits to students and family allowances. Could I pause at that point, your Honours

There is no doubt that Parliament may decide whether such benefits should be given at all, to whom they should be given, whether any terms should be applied such as means testing, for example, what benefits in terms of quantum or perhaps type should be given and how they should be given. For example, in the case of benefits to students, should they be given to the student or to the educational institution or perhaps to both? Your Honours, similar observations would apply to the other four categories described as benefits in section 51(xxiiiA), that is unemployment benefits, pharmaceutical benefits, sickness benefits and hospital benefits.

Now, your Honours, in Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271 at page 279 in the last paragraph on the page the Court referred to a number of matters which it was said in relation to section 51(xxiiiA) should be taken as settled. It was said, your Honours:

First, the reference to “the provision” of the relevant benefits is to be confined to the provision of benefits by the Commonwealth.

Your Honours will see the reference to the BMA Case –

Secondly, the prohibition contained in the words “but not so as to authorize any form of civil conscription” in section 51(xxiiiA) applies only to the reference in the paragraph to the provision of “medical and dental services”. The words of that prohibition, however, are not irrelevant to the scope of the other matters described in the paragraph at least to the extent that whenever medical or dental services are provided pursuant to a law with respect to the provision of some other benefit, eg, sickness or hospital benefits, “the law must not authorize any form of civil conscription of such services”.

KIRBY J:   I do not quite understand the extent of that concession.  Do you accept that the words in brackets only refer to medical and dental services?

MR JACKSON:   Your Honour, we do not, but the effect of what the Court has held in that case is to the effect that the words ‑ ‑ ‑

KIRBY J:   The commas give some support to that – and the history, I suppose, of the provision.

MR JACKSON:   Yes, your Honour. 

HAYNE J:   Does it not also march in step with the understanding that the provision of benefits must be by the Commonwealth, whereas the provision of services could be by the Commonwealth through appointed officers or could be provisioned by other means?

MR JACKSON:   Yes, your Honour.  I am going to come, in just a moment if I may, to the ways in which it might be provided.

HAYNE J:   Of course.

MR JACKSON:   Your Honours, in the end, in our submission, we are content to accept what was said in that case.  It does not seem to be challenged for present purposes.  Your Honours, the third thing that was said – your Honours will see at the top of page 280 in the second line, that the concept intended by the use of the word “benefits” is not confined to a grant of money or some other commodity, and that goes on through the remainder of that paragraph. 

Your Honours, the provisions to which I have so far referred have so far left the part of section 51(xxiiiA) which refers to provision of medical and dental services. Your Honours, could I seek to try to indicate the possible ways in which one might see medical services being so provided by the Commonwealth. Your Honours, there are a number of possible cases. One is perhaps the simplest case, medical services provided by medical practitioners who are employees of the Commonwealth or of a Commonwealth entity. A second category, which would seem to fit within that would be medical services provided by medical practitioners who had contracted with the Commonwealth to provide such services on behalf of the Commonwealth, but other than as employees. Your Honours, such a contract might be for an agreed period in relation to a particular location or otherwise limited. Your Honours, section 19ABA of the Act seems to contemplate the existence of some such contracts.

HAYNE J:   For example, Commonwealth medical officers who deal with questions of superannuation or work‑related compensation benefits.

MR JACKSON:   Yes, your Honour, that could be so.  A third category is medical services provided by corporations which had contracted with the Commonwealth to provide such services.  I am leaving aside for a moment the effect of the words in brackets in section 23A.  There could also be provisions requiring that medical practitioners provide or that medical practitioners of a particular kind provide medical services or medical services of a particular kind.  That would be a law which would seem to be within the words “the provision of medical services”. 

There could also be – and this is a further category – provisions that medical practitioners provide medical services only at particular locations or only to particular categories of persons or only at particular levels of charging. They would be, although perhaps they are getting a little closer to an edge, laws relating to the provision of medical services. If the Commonwealth were to take the view that services of a particular kind should not be provided at a particular area, or should be provided at a particular area, the terms of section 51(xxiiiA), absent the words in brackets, would seem wide enough to provide for that.

One could also have provisions – and this I think I may have in fact encapsulated in something I said a moment ago – requiring that if medical practitioners provide services of a particular kind, they will do so only at prices fixed by the Commonwealth – and no doubt one would assume there would be some payment by the Commonwealth – but that they do so only at prices fixed by the Commonwealth.  Your Honours, there could also be provisions requiring that if medical practitioners provide services of a particular kind and wish to be remunerated directly or indirectly by the Commonwealth in whole or in part, they must provide those standards in accordance with rules or standards determined by the Commonwealth.  There could also be provisions which, as a matter of law, compel medical practitioners to perform medical services generally or particular services in the sense that they are being provided by the Commonwealth.

KIRBY J:   If they were provided by an employee of the Commonwealth, as, for example, the Commonwealth doctors who used to give injections and so on, then that is pursuant to a contract of employment which is a freely agreed step and that cannot involve conscription.

MR JACKSON:   No, I accept that, your Honour. I am really trying to list – I am almost at the end of it – the matters that might be or the types of provision of service that might be contemplated by section 51(xxiiiA), leaving aside the words relating to civil conscription.

GUMMOW J:   Would it be within 51(xxiiiA) for a law of the Commonwealth to impose a blanket prohibition upon the provision of medical services other than by a licensed practitioner?

MR JACKSON:   Your Honour, it might well.  If one were to treat the words “the provision of medical services”, leaving aside the words in brackets, as being a head of power akin to, for example, trade and commerce with other countries.

GUMMOW J:   Yes.

MR JACKSON:   You would have a Murphyores situation, in which the Commonwealth could prohibit it except on Commonwealth terms.  That seems, your Honours, that a difficult question would arise then for decision, and that is whether a law framed in terms of – framed using words “the provision of” would be a law which allowed the prohibition of, except on terms.  It is a question on the edge, in our submission.

I was just going to say, your Honours, that if one looks – and I think this is the last category to which I wish to refer.  I referred a moment ago to provisions which as a matter of law compelled practitioners to perform medical services generally or particular services, but the last category to which I would refer is to provisions which have the practical effect that medical practitioners, in order to practice as such in private practice, had to participate in a scheme where the manner of conduct of their practices was determined in accordance with standards determined by the Commonwealth.

FRENCH CJ:   Sorry, just before you move on.  Can one characterise as a category falling within 51(xxiiiA) a law providing for the payment for the provision of medical services by private medical practitioners on terms and conditions specified by that law, which is really what we have here, is it not?

MR JACKSON:   Yes, your Honour, as being the provision of services.  It would, in our submission ‑ ‑ ‑

FRENCH CJ:   It is a law about the terms on which money is paid.

MR JACKSON:   Yes, your Honour.  We have accepted that for the purposes of the case, of course.

FRENCH CJ:   Yes.

MR JACKSON:   We accept that a law which says that Commonwealth benefits are payable, to put it shortly, for the performance of medical services, is a law which falls within the concept of the provision of medical services.

Your Honours, I was going to say that that outline, as it were, of the possibilities is one where we would accept that there may be additional possibilities, there may be variance, there may be combinations of them, but – and, your Honours, as we have said in our reply submissions at paragraph 15, we accept that the power under section 51(xxiiiA) is broad and that it is for the Parliament to select the manner and extent in which the power is exercised – manner by which and extent to which the power is exercised but, your Honours, there is also a reference to the words in brackets in the provision, and may I come to that.

HAYNE J:   Do the several categories that you have thus identified all constitute examples of various combinations of the regulation of provision – of the question of by or for whom services are provided, to whom services are provided and on what terms they are provided?

MR JACKSON:   The answer, your Honour, only goes to the first and third of those, yes.  As to the second, I think I would assume in giving those examples that there was a person who was the subject of them.  The “to whom” part of it.

HAYNE J:   But within 51(xxiiiA) do we need to take account of whether, leaving aside the parenthetical limitation for the moment, there is power to make a law regulating to whom doctors will provide services?  I have in mind particularly the English example of the list of patients; you may treat patients on your list, you may not treat patients who are not on your list.

KIRBY J:   Another English example, I think, is the so‑called triage, that you may not give certain operations to people over the age of 65, something which is extremely interesting to some of us.

MR JACKSON: Yes. No benefits are obtainable under the Medicare scheme for euthanasia, your Honour, let me say, with respect, but leaving that aside, your Honours. Your Honour, so far as the question your Honour Justice Hayne was putting to me, our submission would be that, leaving aside the words in brackets in section 51(xxiiiA), the provision is unlikely to go quite as far as that, your Honour. It is speaking in terms of it is a law with respect to the provision of medical services by the Commonwealth. Your Honours, the view that it is speaking of provision of medical services by the Commonwealth is one that appears to have been taken in the three cases that relate to the provision. Your Honours will see that it is the first of the points, I think, that was in the summary in Alexandra that I referred to earlier.

HAYNE J:   But the premise for your argument, or this branch of the argument, is, is it, that the provision of services is provisioned by the Commonwealth?

MR JACKSON:   Yes, your Honour, provisioned by the Commonwealth by its making available the various subsidies that are contained in the Act.

HAYNE J:   The point I am trying to put to you is that the expression “medical and dental services” would ordinarily invite attention to three separate yet related issues; who is providing the services, to whom are the services being provided, what are the terms on which the service is provided.  You say, by whom is the service being provided, that seems to be an amalgam of, well, it is a service provided by the Commonwealth but provided by it giving a financial subvention in some means, is that right?

MR JACKSON:   Yes, your Honour.  Your Honours, a person can be required to serve the Commonwealth even though the service is to be performed by being employed by someone else.  What I mean by that – and I will come to that in just a moment.  Could I come to the part in brackets for a moment because I want to direct this to your Honours.  In dealing with the ambit of the words in brackets in 51(xxiiiA) it is clear, of course, your Honours, we would submit, that the limitation or restriction would prevent the simplest form or forms of conscription, that is, being legally compelled to serve part‑time or full‑time or for a time. 

Your Honours, I said “compelled to serve” without identifying the person to whom such service might be required to be given and that person might be the Commonwealth itself or a private employer.  That issue, your Honours, was adverted to in Reid v Sinderberry (1944) 68 CLR 504. Your Honours, that case concerned section 13A of the National Security Act.  You will see that provision set out at the bottom of page 508 and going through to the top of page 509.  That empowered the making of regulations for requiring persons to place themselves, their services and their property at the disposal of the Commonwealth.  Your Honours, the provision which you will see at page 508 just after halfway down the page, regulation 15(1) was held to support the making of that provision, which was that:

The Director‑General may direct any person resident in Australia to engage in employment –

et cetera.  Your Honours, that provision was held valid under the contention that section 13A should be read down by reference to the words which your Honours will see on the sixth and seventh lines on page 509:

Nothing in this section –

that is a different section –

shall authorize the imposition of . . . any form of industrial conscription.

That was rejected as a matter of statutory construction. 

HAYNE J:   Not least because of the successive enactment of the provisions.

MR JACKSON:   Yes, your Honour.  I accept that.  What I was going to go on to say, though, was that all members of the Court appeared to have accepted that regulation 15(1), which your Honours will see applied to employers other than the Commonwealth – and indeed the two cases were about employment otherwise than by the Commonwealth.  What I was going to say was all members appear to have accepted that regulation 15(1) involved persons placing themselves, to use the words of section 13A, at the disposal of the Commonwealth, although the Commonwealth would not be the employer.

Your Honours will see that at page 509 in Chief Justice Latham and Justice McTiernan – and your Honours it is the paragraph commencing about halfway down the page and it goes through the whole of that paragraph.  Then Justice Starke at page 516 and your Honours will see in the first five or six lines on page 516 he disagreed with that view.  Justice Williams at page 522 in a passage, your Honours, that commences about 12 or 13 lines from the bottom of the page and goes through to the top of the next page and his Honour’s reasons were agreed in by Justice Rich.  Could we invite your Honours to note also in passing that at page 509 about point 2 it was observed by Chief Justice Latham and Justice McTiernan that “reg. 15 imposes a very wide form of industrial conscription”.

Now, your Honours, if I could go back to what your Honour Justice Hayne was asking me before, we would say that something that amounted to civil conscription in terms of 23A would not necessarily involve having to be engaged by the Commonwealth, as such, as an employer.  Your Honours, could I also say that it seems clear, of course, that the concept of conscription does involve being required to perform services for others and that some form of compulsion to serve is required, is apparent from what was said in General Practitioners Society (1980) 145 CLR 532 where, at page 557 about point 2 on the page his Honour Justice Gibbs said that the expression “civil conscription”:

used in its natural meaning, and applied . . . to medical and dental services, refers to any sort of compulsion to engage in practice as a doctor or a dentist or to perform particular medical or dental services.

Now, your Honours, one thing that is clear, in our submission, in the decisions so far on the provision is that the compulsion need not be by the law itself, but by its practical effect. Your Honours, that appears to have been recognised from the time of introduction of those words and your Honours will see that the amendment moved by Mr Menzies to have the words in brackets in section 51(xxiiiA) was moved in circumstances where, first of all, the reference to “medical and dental services” in the proposed provision was itself new. It is referred to, your Honours, in volume 2 of the green volumes, the bundle of historical material. The page number is 155. The relevant passage ‑ ‑ ‑

KIRBY J:   Which page are you on?

MR JACKSON:   Page 155 at the bottom of the page, your Honour, in volume 2.  Your Honours will see that commencing on the left column on 155 there is a reference to the opinions having been given by various eminent counsel and their views about the validity of various provisions at the top of the page.  Then the Attorney‑General said:

After considering these legal opinions and those furnished by its own advisers, the Government has decided that the only amendment to the Constitution which is urgently necessary –

You will see then, your Honours, Mr Spender asking:

Would the power to legislate in respect of medical and dental services, if granted, enable the Parliament to nationalize those services?

Dr. EVATT.-We might discuss that in some detail at a later stage.

His answer does not appear to have satisfied other members of Parliament, I say with respect, perhaps a little, not very surprisingly in the circumstances, but you will see that goes on, your Honours, through the left column on the next page, 156.  Then after the reference to Mr McEwen, Dr Evatt said:

It would enable the Commonwealth to make use of the services of doctors and dentists to provide national medical and dental services . . . I was saying that the proposed alteration is limited to benefits of a social service character and in the main to benefits of a kind already provided for by statute.  The exceptions –

that is, to ones already provided for –

or partial exceptions, are medical and dental services, and family allowances.  Medical services had, to some extent, been provided for by the Pharmaceutical Benefits Act itself, and dental services are so closely analogous to medical services that the Government considers that it would be illogical to enable the Parliament to provide for the one and not for the other.

Now, that resulted, your Honours, in a proposed amendment, adding the words in brackets, and the proposed amendment is the one that in the end was accepted.

KIRBY J:   Mr Spender’s question, which is reflective of other things that are said in the parliamentary record, is rather against you, is it not, because it rather suggests that the thing that was really concerning the opposition that led to Mr Menzies’ amendment was nationalisation of the profession as was happening in – or was being debated in the United Kingdom at the time.

MR JACKSON:   Your Honour, there is no doubt that possible nationalisation of the medical and dental professions was a concern and, if I may say so, in a sense the stated concern which led to the amendment of the proposed amendment.  However, one did not see the amendment to the proposed constitutional amendment simply expressed in a way which would exclude nationalisation.  Those who drafted it picked up an earlier form which was designed to be comprehensive, and that is to put in brackets “but not so as to authorize any form of civil conscription”.

KIRBY J:   I realise that, and we have to latch on to what the constitutional amendment introduced, but it is interesting that when you look at the Oxford Dictionary and the Macquarie Dictionary both of them give a definition of “conscription” which is effectively limited to military conscription which, as far as I have understood it. in British legal history and in Australian legal history has always been done by law and is specifically imposing burdens and obligations by law on particular people.  That seems to have been the narrow view of conscription which was in the minds of the dictionary writers.  I do not know what the American and other dictionaries say.  As you point out, it is civil conscription, so it cannot just be the military.

MR JACKSON:   Yes.  Your Honour, the term “conscription” in relation to performing service as distinct from being on a list, which seems to be the original Latin of the expression, seems to have come into favour at the time of the American civil war and to have been used since then.  No doubt conscription applies to service by compulsion of law, but the two decisions on the provision in this Court have accepted, and certainly general practitioners have accepted, that it is not just a matter of looking at what the law itself prescribes as a matter of law.  I will come back to that in a moment, if I may.

CRENNAN J:   I think the other point – not that I am suggesting it should be pursued in any detail – is that civil conscription as an idea, I think, does not just depend on the experience of nationalising medicine in England but goes back further to early 19th century concerns about how does a society cope with civil disorder in circumstances where you do not want a civil militia, you do not want a standing army, you perhaps want a volunteer police force and not have civil people involved at all, and those sorts of debates that happened in the 1820s and so forth in the English Parliament.

MR JACKSON:   Yes.  Your Honour, the concept of conscription does involve, one would think, some element of compulsion, it would seem, and the compulsion is a compulsion to serve in one way or another for some public purpose.  If one goes back, for example, to the general strike in the United Kingdom in, I think, the 1920s where many people became special constables and matters of that kind, those roles sometimes attract particular ignominy or particular praise for some particular ignominy for others, but they are roles that are divisive.  It is right to say, in our submission, that when one is speaking about civil conscription, it is speaking about the requirement that there be some service in one form or another – I am sorry.  “Form” is the wrong word.  It is right to say that it does involve some requirement to provide services for others, and it is a question of, is there a form and a does it amount to civil conscription?

HAYNE J:   But the expression “civil conscription” grew out, perhaps, of the common expression “industrial conscription” which seems to have been used, at least since the end of World War 1.  See, for example, the Emergency Powers Act 1920 of the United Kingdom which refers to industrial conscription, obviously a matter of great political moment at the time of the coal strikes and other strikes which were occurring post World War 1.

CRENNAN J:   The point was that the police force, the volunteer force, whose duty it was to deal with public disorder perhaps was not up to dealing with the levels of it, therefore, there was the idea of industrial conscription, a very short‑term arrangement, to supplement those who had the task as paid volunteers in a particular force to quell those sorts of problems.

MR JACKSON:   Yes, your Honour, and what your Honour has been putting to me may involve the question of what is any form of civil conscription.  But, your Honour, the term “industrial conscription” is one that, in one sense, is a species of the genus “civil conscription”.  Of course, civil conscription for present purposes is related to particular people, that is, doctors and dentists, one would expect, but the term “industrial conscription” does involve a requirement that people perform services for others, and, your Honours, we do not shrink, I think, from that.  But it is a question whether one is speaking only about conscription that is effected as a matter of law or conscription that can be effected as a matter of fact, to put it shortly.

Your Honours, what I was going to say was this – and your Honours will have seen and the Court referred us to it – that there was an opinion given about Mr Menzies’ proposed amendment by the then Solicitor‑General and others.  That is set out as an addendum to our submissions in reply.  You will see that the proposed amendment was set out in the first paragraph.  There is a reference to the meaning in the Oxford Dictionary, enrolment, enlistment, compulsory enlistment.

GUMMOW J:   The date is significant, I think, 9 April 1946.  It is in the middle of this parliamentary procedure.

MR JACKSON:   Yes, your Honour.  One sees then in relation to it that the question that was raised is in the fourth paragraph:

the Commonwealth would be precluded from passing any legislation which would have the effect of preventing medical practitioners, registered under State law, from refusing to treat patients who are entitled to benefits –

It was said they would –

have ample authority to require practising doctors or dentists to treat patients –

and it was then said, your Honours will see –

The only kind of legislation which the amendment would preclude would be such as compelled doctors or dentists in effect to become servants of the Commonwealth, or to have the whole of their professional activities controlled by Commonwealth direction.

Your Honours, of course, they are not dealing with every possible circumstance, but your Honours will see the reservation in the last paragraph of that statement, that is:

in effect to become servants of the Commonwealth, or to have the whole of their professional activities controlled by Commonwealth direction.

KIRBY J:   Could one say in this case under the legislation you have taken us through that the whole of the professional activities of the appellants is controlled by Commonwealth direction?

MR JACKSON:   Well, your Honour, under Part VAA the conduct of a practitioner has to be conduct which satisfies a standard which is pursuant to Commonwealth legislation and there are sanctions made available if that does not occur and, your Honours, that covers everything that the doctor might do.

HAYNE J:   Does it control what kind of work the doctor does or for whom that doctor does it?

MR JACKSON:   Your Honour, it does not require the doctor to see X or Y if one takes individual cases, nor does it require the doctor in terms to say “I will” or “I will not take this class or case”.  Now, it may be that refusal to deal with particular things or particular people might amount to engaging in inappropriate conduct.  Maybe, maybe not, it would depend on the circumstances.  But, your Honours, if one goes to – and I will come to these in just a moment, your Honours – the kind of work that was involved in the ordinary course of events, it does require a general practitioner, if the general practitioner is going to carry on a general practice, to be someone who is subjected to – I do not use that in any pejorative sense – the terms of Part VAA.

FRENCH CJ:   The standard defined by legislation, of course, is a standard under the definition of “inappropriate practice” which simply imports by reference a judgment as to what the general body of practitioners would regard as acceptable or otherwise.

MR JACKSON:   Yes, your Honour.  I am speaking hypothetically, one doctor may prefer to use a tried and true method which the general body would say does not work.  That general practitioner says “it has always worked for me”.  Another one might be more adventurous and say “I want to use a new method”.  General practitioners generally do not.

FRENCH CJ:   How does this standard differ though from the general standard applicable to professional misconduct under medical disciplinary statutes around the country?

MR JACKSON:   Your Honour, it is different in the sense that in the ordinary course of events under the various medical legislation you would find that there are various standards of conduct differing somewhat from state to state, but mostly they would be ones that have the familiar professional misconduct or versions of that test.  Now, that may well give a wider range than is contemplated by the test provided for by section 82.

CRENNAN J:   I think the practitioner, members of the committees, are required to be practising in the same area as the persons who are coming before the committees, which would suggest your answer is right.  I wanted to ask you how you would say that being required to practice to a particular standard is a practical compulsion in the sense in which that phrase is used in the cases?

MR JACKSON:   Your Honour, what it means is that under the provisions of Part VAA it is really, in a sense, a default, if I can put it that way.  If one does not practice in accordance with the standard set out in section 82, then one is liable to sanctions, the sanctions being sanctions that occur, for example, because under 82(3) not sufficient records are kept or under 82(1) what is done is different from what the general body of persons in the same area thinks is appropriate.  Now, that means that in order not to contravene those provisions, one has to act in a way which complies with them, that is the compulsion, your Honour.

CRENNAN J:   With any dedication of revenue to medical services, would it not be necessary always to grapple in some way with the problem of excessive servicing?

MR JACKSON:   Your Honour, it may be.  It may be that it is appropriate to have a provision dealing with cases where there has been excessive servicing in order to protect the revenue, but the terms of section 82 do not just deal with questions of excessive servicing.  They are dealing with the standard for any servicing.  It is not just excessive.

CRENNAN J:   Yes, it certainly goes further, I agree.  It has really co‑opted the language in the disciplinary area of professional practice into the Medical Benefits Scheme.

MR JACKSON:   Yes, your Honour, to a significant degree.

HAYNE J:   Is it any more than a species of the genus identified as infamous conduct as long ago as Allinson [1894] 1 QB 750?

MR JACKSON:   Your Honour, as I recall it, what that said was that it would be conduct which would be regarded as – and I have forgotten the exact adjective.

HAYNE J:  

reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency -

It is written in the language of its day, is it not?

MR JACKSON:   Your Honour, the terms “disgraceful” and “dishonourable”, even allowing for the enthusiasms of that period, do seem to impose a more difficult test than that provided for by section 82. 

KIRBY J:   The difficulty is that certain of the interventions by the Commission or its agencies to check on over‑servicing, in the sense that if you add up the lengthy consultation it really exceeds the hours of the day, and dealing with that, but on the other hand, the problem of intervention to, in effect, tell the medical practitioner how to conduct the practice according to the medical practitioner’s view of what is necessary – I would have thought your attack is much more validly based on the latter as, for example, saying you cannot do particular blood tests even though they, in your professional opinion, are essential or desirable. 

It is very difficult for you to defend or to attack a legislative system that is checking against over‑servicing in the sense of servicing close to the line of fraud.  That just could not be civil conscription because it is entirely legitimate for the Commonwealth to defend itself from that, but it gets to a different degree when it is intruding into the discharge of the professional judgment of the practitioner, it seems to me.

MR JACKSON:   Your Honour, that is what section 82 speaks of. 

GUMMOW J:   Section 82?

MR JACKSON:   I am sorry, your Honour.  The definition of “inappropriate practice” in section 82, your Honour – page 202 of the first book of legislation, et cetera.

GUMMOW J:   Yes, but this word “unacceptable” carries quite a bit of freight, I think.

MR JACKSON:   Yes, your Honour, it does.

HAYNE J:   Does it not pick up all the baggage of infamous conduct, which was the former standard employed for a century in disciplining of doctors and translated into the legal profession, from Allinson v General Council of Medical Education & Registration?

MR JACKSON:   And more, your Honour.

HAYNE J:   Yes.

MR JACKSON:   If one looks to the Allinson test, it is by no means as stringent as the test referred to in 82(1)(a).

CRENNAN J:   Is it not just a more modern expression of the disciplinary language, Mr Jackson, to say “unacceptable to the general body of practitioners”, because “disgraceful” and “dishonourable” is always tested by reference to whether or not the conduct would command the disapprobation of the general body of practitioners?

MR JACKSON:   Well, your Honour, no doubt one gets to defining words “unacceptable”, “disapprobation”, “scandalous” and so on.  The point we would seek to make about it, your Honours, is that the way in which section 82(1) is framed is that it imposes a standard which must be applied by a practitioner throughout the whole of the practitioner’s practice and that is, in effect, a Commonwealth standard and it is not something that just potentially results in the money not being payable or having to be paid back, but it can also result in matters such as reprimands and things of this kind.

MR DAVIS:   It is not in the material, but there is a financial interest which Queensland has because of its public hospital system, that some of the services that are rendered in the public hospital system are in effect supported by funds which come via this scheme.

KIRBY J:   I see.  They do not come now under section 96 of the Constitution’s special grants on condition?

MR DAVIS:   No, I am quite sure they do not.  That is the reason that Queensland has intervened.

KIRBY J:   You do not have to show a special or financial interest.

MR DAVIS:   No.

KIRBY J:   You are here as of right, as I understand it.  I was just curious as to why we did not have the serried rows at the table that we usually do, but there we are.  Thank you.

MR DAVIS:   Perhaps the other reason, your Honour, is that section 51(xxiiiA) does authorise the Commonwealth to give money away, so perhaps that is another reason why Queensland has chosen to intervene. But, your Honours, at page 282 of Alexandra Private Geriatric Hospital – and I appreciate that the argument has advanced a little bit past this but this passage is important, in our submission, for a couple of reasons.  Could the Court pick it up, please, in the second paragraph.

We do not think that the argument advanced for the plaintiffs can be accepted.  The Parliament having resolved to legislate with respect to the provision of sickness and hospital benefits to patients in nursing homes, some kind of scheme was essential to ensure both that the provision would be effective in meeting the needs of such patients and capable of being held within reasonable budgetary limits.  If it be accepted, as the plaintiffs accept, that the Parliament could legislate for the establishment of Commonwealth hospitals to provide nursing home care directly to patients in need of such care, there can be no objection to it adopting what Smithers J. described as “a private enterprise approach to the problem” –

We say that is significant for a couple of reasons.  Firstly, it does go some way to answering the question which Justice Hayne raised this morning about the Commonwealth not only being able to provide services but being able to provide it through private means or private providers.

The second aspect in which we say this has some significance is this, that what this passage recognises is that the Commonwealth is a purchaser, or can be a purchaser of services and, in our submission, that is relevant when the Court analyses and also evaluates the provisions of section 82 of the Act.  When the Court goes to section 82 – and I know the Court has been taken to it many times today – what section 82 does, in our submission, is no more than impose a standard which the services which are purchased by the Commonwealth must reach in order to attract a benefit.

Now, at paragraph 17 of our outline of submissions we cite part of the judgment of Mr Justice Gibbs where his Honour states that, of course, there must be constitutional power to make laws which regulate the benefit.  If one then goes to section 82, section 82, in our submission, does not say that a particular body such as the review body shall decide precisely what

the general body of general practitioners would prescribe to be the service.  All that section 82 does is to provide a field or a scope in which the standard is judged.  So all that section 82 does is to say that the service must reach a particular standard and that standard is anything except that which would be unacceptable to the general body of general practitioners.  So it does not prescribe a particular course of conduct.  It just, in our submission, prescribes a standard.

FRENCH CJ:   It is an oversimplification to call it a condition of benefit, is it not?  In 106U it has a number of potential outcomes in the event of a final determination of inappropriate practice.

MR DAVIS:   Yes.

FRENCH CJ:   One of which is that the benefit cease to be payable or that a benefit which has been paid be recovered.

MR DAVIS:   Yes, that is so.

FRENCH CJ:   It has a wider regulatory, almost a disciplinary flavour, about it, does it not, with reprimands and so forth, and counselling?

MR DAVIS:   Yes, but we submit that all that really does is set the standard though.  It might do it in various ways.  Some of those ways may be of a deterrent nature but, in the end, what it is attempting to do and, in our submission, what it achieves is simply setting a standard that the providers of the services purchased by the Commonwealth must meet.

Now, of course, when one then compares that standard, however it is expressed, to the standard such as professional misconduct and unprofessional conduct which govern the regulation of professionals across the country, the distinction, in our submission, is really more apparent than real.  If there is a distinction, then the distinction is only of any comfort to the appellants, if that distinction is such as to elevate the regulation to that of civil conscription.  Everything else we wish to say is contained in our outline or has already been said.  Thank you.

FRENCH CJ:   Thank you, Mr Davis.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, may I just say a couple of things.  The first is that my learned friend, the Solicitor‑General’s reference to the case of the barrister does rather leave out of account the comparison that one would see with the position of the general practitioners in the present case, the subject of the decision of the Full Court, paragraph 35 and so on.

The second thing, your Honours, is a minor matter, but our learned friend also referred to these provisions as being, in effect, wartime.  As we would understand it, the War in Europe finished on 8 May 1945 and in the Pacific on 15 August 1945.  There is some debate, your Honour, about whether the date should be 8 or 9 May because of the difference in the parts of the world in question.  So the War was over, your Honour, at this point. 

Your Honours, the next point we would seek to make is this, that our learned friend’s argument rather muted the effect of economic reality in these matters.  Your Honour, can we just say this.  It is clear from the decision in General Practitioners 145 CLR at page 550 at about point 5, that what was specifically adopted was the notion that practical compulsion could amount to a contravention of the words in brackets – could amount to civil conscription or a form of civil conscription.  The passage itself refers to economic compulsion.  The passages picked up from the BMA Case refer to economic compulsion. 

Your Honours also, if one goes to what was said by Chief Justice Barwick at page 537, that clearly enough contemplates economic compulsion.  So, your Honours, economic compulsion can amount to a form of civil conscription.  The question is whether it does in particular cases, and that was the exercise into which Justice Gibbs went.

Your Honours, could I just say also in relation to our learned friend, the Solicitor‑General’s, argument – we too, your Honours, will endeavour to see if there is something more to be found on industrial conscription, civil conscription and so on.  Your Honours, I suppose we need to have some time by which we should do that, and might I suggest perhaps a fortnight, if it be convenient?

FRENCH CJ:   Yes.

MR JACKSON:   Your Honours, so far as my learned friend, Mr Davis’ argument is concerned – if one goes to the Alexandra Case for a moment, reference was made to what was said at page 282 and, I think, page 283. But what one has to bear in mind is that the Court was there dealing with the provision of hospital benefits not subject to the words in brackets in section 51(xxiiiA), and you will see that referred to specifically at page 284. Halfway down the page, it said:

Three matters of lesser importance remain to be mentioned.  First, the question of civil conscription, while pleaded in the statement of claim, was not pursued by counsel and does not call for consideration.

So it was not dealing with the effect of the restriction. 

That is a matter which is germane.  The second point, your Honours, is this, that if one goes to section 82 of the Act in the present case, it is not simply setting the standard which must be realised to attract the benefit.  That really turns the provision round a bit.  Certainly it requires that that standard be complied with, but it is possible, of course, that if the standard is not complied with, they would be disentitled to a benefit.  It occurs in a different way.

KIRBY J:   Is there anything in the early history of – as I recollect it, there was after the constitutional amendment was adopted, legislation which was enacted by the Labor Government.  Then on the return of the Menzies Government a very substantial National Health Act was enacted with Sir Earle Page as the Minister.  I wonder if it is of any relevance to your case for us to look at what, fresh from the spoils of the referendum, was thought to be the appropriate degree of regulation of the detail of the practice of medical practitioners and dentists as compared to what has now become a very intrusive, on one view, intervention by federal officials in how they go about their professional duties.

MR JACKSON:   Your Honour, could I say two things.  The first is that the provisions as at the time of the General Practitioners’ Case, one can see in those, of course, and the current form of Part VAA came into being in 1994.  In 1994 Part VAA came into more or less its current form.  There have been various amendments, of course. 

KIRBY J:   Is there anywhere where this is described, some convenient place where the course of – I mean, we have a lot of material on Mr Bevan and the British National Health Act.  It is always helpful for us to look overseas, but sometimes we have to look to ourselves.

MR JACKSON:   Could your Honours excuse me just one moment - I am just not certain whether this document is - it is not part of the material currently before the Court, but Justice Layton, now of the Supreme Court of South Australia, conducted an inquiry into the system and her report is one which sets out the various stages that there have been.  It is contained in a document which I will arrange for your Honours to be given.  But she sets out the historical background of the medical benefits schedule to that point. 

KIRBY J:   Was this before the Federal Court or is it simply a reference to public acts that does the analysis that one could do anyway probably?

MR JACKSON:   It is the analysis that one could do, your Honour, by looking at public Acts of Parliament and documents entirely in the public domain. 

KIRBY J:  The strength of your case is the degree of the intrusion into the daily professional life and the suggestion that this is an unusual provision in our Constitution which was enacted deliberately and by way of amendment to give a special protection against that type of intrusion by the Federal Parliament.

MR JACKSON:   Yes, and, your Honours, if I ‑ ‑ ‑

KIRBY J:   It seems to me it is relevant for us to know what they first did when it was fresh in mind as to what the purpose of the provision was and how it subsequently became so detailed, remembering that this is the only professional group – the doctors and the dentists – who have this very special constitutional protection.

MR JACKSON:   Your Honour, and we would add, with respect, a reference which we have given in our written submissions to what was said by four members of the Court, including your Honour Justice Gummow and your Honour Justice Kirby in Ha v New South Wales (1997) 189 CLR 465 at 498 in relation to constitutional limitations or restrictions on power. What was said there was that:

When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates –– its practical operation – must be examined as well as its terms –

et cetera, various cases being referred to.

KIRBY J:   The problem I still have in the case is the one I had at the outset which I revealed to you and that is you have to have financial controls and that cannot be inconsistent with the constitutional power or involve conscription and, in a sense, your attack is a blunderbuss attack on what is at once financial control and very intimate intrusion into professional practice.  I do not see how one in the Court can cut off the latter in judging the constitutional validity of the whole of the statutory scheme.

MR JACKSON:   Your Honour, that is why, in a sense, one of our submissions was that it is a case where prima facie it is difficult to say some goes but not the lot.  Your Honour, one of the vices of the system, constitutional vice, of course, is that it does not just ensure that there is no fraud, that the system is not overworked, it goes well beyond that and affects the way in which, or the standard to which, the way in which practices used to be conducted.  Your Honours, those are our submissions.

FRENCH CJ:   Thank you, Mr Jackson.  The Court will reserve its decision.  The Court will adjourn until 10.15 am on Thursday, 16 October 2008.

AT 4.03 PM THE MATTER WAS ADJOURNED