Wong v The Commonwealth
[2009] HCA 3
•2 February 2009
HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJMatter No S362/2008
CHEE KAN KENNETH WONG APPELLANT
AND
COMMONWEALTH OF AUSTRALIA & ANOR RESPONDENTS
Matter No S363/2008
ASHRAF THABIT SELIM APPELLANT
AND
VINAYAK (VINOO) LELE, PATRICK TAN AND
DAVID RIVETT CONSTITUTING THE PROFESSIONAL
SERVICES REVIEW COMMITTEE NO 309 & ORS RESPONDENTSWong v Commonwealth of Australia
Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309
[2009] HCA 3
2 February 2009
S362/2008 & S363/2008ORDER
Matter No S362/2008
1. Appeal dismissed.
2.Appellant to pay the costs of the first respondent.
Matter No S363/2008
1. Appeal dismissed.
2.Appellant to pay the costs of the first, third and fourth respondents.
On appeal from the Federal Court of Australia
Representation
D F Jackson QC with M A Robinson and J Chambers for the appellant in both matters (instructed by TressCox Lawyers)
S J Gageler SC, Solicitor-General of the Commonwealth with R M Henderson and K M Richardson for the first respondent in S362/2008 and intervening on behalf of the Attorney-General of the Commonwealth in S363/2008 (instructed by Australian Government Solicitor)
Submitting appearances for the second respondent in both matters
R M Henderson for the first, third and fourth respondents in S363/2008 (instructed by Sparke Helmore)
P J Davis SC with G J D del Villar intervening on behalf of the Attorney-General of the State of Queensland in both matters (instructed by Crown Law (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wong v Commonwealth of Australia
Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309
Constitutional law (Cth) – Legislative power – Constitution, s 51(xxiiiA) – Provision of medical and dental services (but not so as to authorize any form of civil conscription) – Meaning of "civil conscription".
Constitutional law (Cth) – Legislative power – Constitution, s 51(xxiiiA) – Provision of medical and dental services (but not so as to authorize any form of civil conscription) – Health Insurance Act 1973 (Cth) – Whether ss 10, 20, 20A or Pt VAA or any provision thereof amount to "civil conscription" – Meaning of "inappropriate practice" as defined in s 82(1).
Constitutional law (Cth) – Legislative power – Constitution, s 51(xxiiiA) – Provision of medical and dental services (but not so as to authorize any form of civil conscription) – Health Insurance Act 1973 (Cth) – Pt VAA – Professional Services Review Scheme – Whether Pt VAA invalid as imposing a form of "civil conscription" – Whether provisions imposing obligation on medical practitioners to avoid "inappropriate practice" to remain in Medicare scheme invalid.
Constitutional law (Cth) – Legislative power – Constitution, s 51(xxiiiA) – Relevance of extrinsic materials and legislative history in construction of Constitution – Manner of construction where provision inserted by referendum under Constitution, s 128.
Words and phrases – "civil conscription", "(but not so as to authorize any form of civil conscription)".
Constitution, s 51(xxiiiA).
Health Insurance Act 1973 (Cth), ss 10, 20, 20A, Pt VAA.FRENCH CJ AND GUMMOW J.
The appeals
These appeals were heard together. Both appellants carry on in New South Wales private practice as general medical practitioners. They are "vocationally registered general practitioners" within the meaning of s 3F of the Health Insurance Act 1973 (Cth) ("the Act").
Part VAA of the Act (ss 80‑106ZR) is headed "The Professional Services Review Scheme" and was introduced in its original form in 1994 by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth) ("the 1994 Act")[1]. The definition in s 82 of "inappropriate practice" is central to the operation of the scheme established by Pt VAA. A finding that a practitioner has engaged in "inappropriate practice" may lead, among other consequences, to the imposition of an obligation to repay to the Commonwealth Medicare benefits paid for services rendered in connection with inappropriate practice (s 106U(1)(ca)) and to full disqualification from provision of services under the Act (s 106U(1)(h)) for a period of up to three years (s 106U(4)).
[1]Part VAA was amended by the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) and the Health Legislation Amendment Act (No 3) 1999 (Cth). Part VAA was further amended by the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) ("the 2002 Act"). This was after the institution of proceedings respecting the appellants and the Full Court applied Pt VAA as it stood before the 2002 Act: (2008) 167 FCR 61 at 63.
On 13 January 2004 (in the case of Dr Wong) and 10 October 2003 (in the case of Dr Selim) findings were made that the appellants had engaged in conduct constituting "inappropriate practice".
The appeals are brought to this Court from the decisions of the Full Court of the Federal Court reported as Selim v Lele[2]. The Full Court (Black CJ, Finn and Lander JJ) dismissed an appeal by Dr Selim from the decision of Stone J[3], and answered adversely to Dr Wong questions referred to the Full Court in a proceeding which had been instituted by him in this Court and remitted by order of Gleeson CJ to the Federal Court.
[2](2008) 167 FCR 61.
[3](2006) 150 FCR 83.
The relief sought in this Court is in or to the effect of a declaration that:
"Sections 10, 20, 20A and [Pt] VAA (or any provision of [Pt] VAA) of [the Act] amount to 'civil conscription' within the meaning of [s] 51(xxiiiA) of the Constitution, and are outside the legislative powers of the Commonwealth and invalid."
Sections 10, 20 and 20A of the Act deal with entitlement to Medicare benefit, payment to the persons incurring the medical expenses in respect of professional service and assignment of Medicare benefit to the relevant practitioner.
Section 51(xxiiiA) was added after a referendum conducted under s 128 of the Constitution on 28 September 1946 and reads:
"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 Full Court decision
Of the claims respecting the invalidity of ss 10, 20 and 20A of the Act, the Full Court concluded[4] that these provisions do not compel a medical practitioner to render any professional service to any person.
[4](2008) 167 FCR 61 at 80.
With respect to Pt VAA, the Full Court adopted the statement by Davies J in Yung v Adams[5]:
"The Commonwealth's interest is to see that the services which are provided by a medical practitioner and for which a Commonwealth benefit is or may be claimed are services in respect of which the medical practitioner provides due care and skill, that a claim if made is brought under the correct item and that overservicing does not occur."
The Full Court then concluded[6]:
"To the extent that there is a practical compulsion for general practitioners to participate in the Medicare Scheme, what is compelled is not service of the Commonwealth. Rather, it is that they conduct their practices with the care and skill that would be acceptable to the general body of practitioners. Such a condition is 'clearly necessary to the effective exercise of the power conferred by s 51(xxiiiA)'. The Act does not authorise civil conscription."
The quotation in the third sentence is from the judgment of Gibbs J in General Practitioners Society v The Commonwealth[7]. As will become apparent later in these reasons, what was said by Gibbs J is not wholly satisfactory. With that caveat, and for the reasons that follow, the conclusions reached by the Full Court should be accepted and the appeals dismissed.
[5](1997) 80 FCR 453 at 459.
[6](2008) 167 FCR 61 at 80‑81.
[7](1980) 145 CLR 532 at 557; [1980] HCA 30.
Previous decisions
In General Practitioners[8] the Court rejected the submission by the plaintiffs[9] that for "civil conscription" within the meaning of s 51(xxiiiA) of the Constitution:
"[a]ll that is required is that an action which otherwise would not be done or might otherwise be done voluntarily is now required by federal law. No question of degree is involved. If there is any species or kind of conscription, the law is bad."
On the other hand, the Court, whilst upholding the challenged provisions, did not wholly accept the submission for the Commonwealth[10] that there is civil conscription only where the compulsion in the statute:
"extends across the area of medical practice so as to render the service compelled a medical service of the Commonwealth".
In the submissions by the Solicitor‑General on the present appeals, the Commonwealth renewed and developed that submission. The Solicitor‑General contended that, within the meaning of s 51(xxiiiA), "civil conscription" involves (a) some form of compulsion or coercion which is properly described as the rendering of service or the doing of work and (b) that work or service is for or at the direction of the Commonwealth; the challenged legislation did not satisfy requirement (a) and there was no form of civil conscription.
[8](1980) 145 CLR 532.
[9](1980) 145 CLR 532 at 535.
[10](1980) 145 CLR 532 at 536.
Upon a stated case, the Full Court in General Practitioners answered "No" to questions challenging the validity of ss 16A, 16B and 16C of the Act and of certain regulations. Various obligations were placed upon persons wishing to become and remain approved pathology practitioners; the payment of medical benefits was contingent upon the provision of services by approved pathology practitioners. A distinction was drawn in General Practitioners between regulation of the manner in which some of the incidents of the practices of medical practitioners were carried out and the compulsion, legal or practical, to carry on that practice and provide the services in question. The laws under challenge were held to be of the former character and thus were valid.
The distinction was treated by Gibbs J[11] as supported by what had been said by Dixon J in his dissenting judgment in British Medical Association v The Commonwealth[12], respecting the permissible regulation of financial and administrative incidents of medical or dental practice. However, to fix upon a notion of reasonable regulation, with its resonances of judicial exegesis of s 92 of the Constitution[13], manifests an inadequate appreciation of the reasoning of Dixon J in the BMA Case. His Honour said that inherent in the notion conveyed by the words "any form of civil conscription" was "compulsion to serve"[14]. The service so compelled might be "irregular or intermittent", so that a duty to give medical attention to hospital outpatients for two hours once a fortnight "would no doubt be a form of civil conscription"[15]. Nor, in Dixon J's view, was it necessary that the proscribed law involve the relationship of employer and employee; a law requiring a medical practitioner to perform medical services for patients at the practitioner's own rooms would involve a form of civil conscription[16].
[11](1980) 145 CLR 532 at 558. Stephen J (at 563), Mason J (at 564), Murphy J (at 565) and Wilson J (at 571‑572) agreed with Gibbs J in this respect.
[12](1949) 79 CLR 201 at 278; [1949] HCA 44.
[13]Betfair Pty Ltd v Western Australia (2008) 82 ALJR 600 at 618‑621 [85]‑[105]; 244 ALR 32 at 56‑60; [2008] HCA 11.
[14](1949) 79 CLR 201 at 278.
[15](1949) 79 CLR 201 at 278.
[16](1949) 79 CLR 201 at 278.
But, to Dixon J, compulsion to serve medically or to render medical services was one thing, and a law stipulating the manner in which an incident of medical practice was carried out, was another. Those incidents included financial and administrative matters, and s 7A was a law of this character. It did not compel a form of civil conscription because[17]:
"There is no compulsion to serve as a medical man, to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time, however short, or intermittently."
[17](1949) 79 CLR 201 at 278.
A provision numbered s 7A was inserted in the Pharmaceutical Benefits Act 1947 (Cth) by the Pharmaceutical Benefits Act 1949 (Cth)[18], then repealed by the Pharmaceutical Benefits Act (No 2) 1949 (Cth)[19] which introduced s 7A in the form successfully challenged in the BMA Case. In that case, Williams J said of the statute as enacted in 1947 that it[20]:
"did not seek to compel medical practitioners 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."
His Honour continued[21]:
"We were told by the Attorney‑General that the government believed that medical practitioners would co‑operate voluntarily 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 Commonwealth forms compulsory."
[18]Act 8 of 1949.
[19]Act 26 of 1949.
[20](1949) 79 CLR 201 at 288.
[21](1949) 79 CLR 201 at 288‑289.
In the BMA Case, the majority decision (Latham CJ, Rich, Williams and Webb JJ; Dixon and McTiernan JJ dissenting) was that s 7A was invalid as authorising a form of civil conscription of medical services. The section, however, required use of a statutory form for the writing of any prescription, whether or not the medicines were to be obtained free by the patient under the Commonwealth scheme. Thus there was no necessary connection with the head legislative power in s 51(xxiiiA) of the Constitution. The result in the BMA Case was rationalised by Barwick CJ and by Gibbs J on that basis in their reasons in General Practitioners[22]. (The question whether, upon that understanding of the earlier case, s 7A was to be read down, and with what consequences, was not explored by their Honours in General Practitioners.) The argument of the plaintiffs in General Practitioners, described above, was derived from a wider reading of the BMA Case than that which was to be accepted in General Practitioners.
[22](1980) 145 CLR 532 at 537, 558‑559 respectively.
Gibbs J expressed his conclusion in terms reflecting the reasoning of Dixon J in the BMA Case, saying[23]:
"The provisions in question in these proceedings do compel medical practitioners to perform certain duties in the course of carrying out their medical practices, but they do not go beyond regulating the manner in which some of the incidents of those practices are carried out, and they do not compel any medical practitioner to perform any medical services. Most of the duties imposed relate only to things done incidentally in the course of practice, rather than to a medical service itself."
[23](1980) 145 CLR 532 at 559‑560.
There was some debate in General Practitioners as to whether "practical compulsion" as distinct from "legal compulsion" would satisfy the constitutional conception of "civil conscription". Mason J and Wilson J[24] reserved their position. However, in argument on the present appeals, the Commonwealth accepted that "practical compulsion" would suffice.
[24](1980) 145 CLR 532 at 564, 571‑572 respectively.
Constitutional interpretation
As demonstrated by the arguments submitted on the present appeals to this Court, there remains some uncertainty respecting the phrase "(but not so as to authorize any form of civil conscription)". Each side sought to turn this to its advantage. However, both approached the issue of constitutional interpretation in a manner which differs from that in the two previous cases. These were decided in 1949 and 1980 respectively, at a time when the doctrine of the Court took a limited view of the use of extrinsic materials in the interpretation of the Constitution, including interpretation of provisions added to the Constitution under the alteration procedures of s 128.
The present parties, encouraged by Cole v Whitfield[25] and Betfair Pty Ltd v Western Australia[26], relied upon matters of legislative history to assist the interpretation of s 51(xxiiiA).
[25](1988) 165 CLR 360; [1988] HCA 18.
[26](2008) 82 ALJR 600; 244 ALR 32.
The issues which arise in the pursuit of that endeavour illustrate the proposition that diverse and complex questions of construction of the Constitution are not answered by adoption and application of any particular, all‑embracing and revelatory theory or doctrine[27]. The character of s 51(xxiiiA) as a product of the machinery prescribed by s 128 for the alteration of the Constitution gives a particular character to matters of legislative history.
[27]See SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51 at 75 [40]‑[44]; [2002] HCA 18; Heydon, "Theories of Constitutional Interpretation: a Taxonomy", Bar News (Winter 2007) 12 at 26‑27.
Sir William Harrison Moore saw in s 128 a recognition of three principles: those of Parliamentary government, of democracy and of federalism[28]. The requirement that the genesis of change be a proposed law for the alteration of the Constitution and that this be placed before each legislative chamber directs attention to the considerations which animated the executive and legislative branches of government.
[28]The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 599.
Section 128 goes on to provide that the vote upon a proposed law submitted to the electors "shall be taken in such manner as the Parliament prescribes". The Parliament acted accordingly in 1906, enacting the Referendum (Constitution Alteration) Act 1906 (Cth) ("the Referendum Act"). Section 6A, first introduced in 1912[29], was designed to enable electors to be informed of "the plain facts of the case, as set forth by each side"[30]. Mr W M Hughes, the Attorney‑General, went on[31]:
"Quite a number of measures, admirable in themselves, have been rejected by the Swiss people; and to a large extent this has been due to the lack of precise information at the disposal of the elector. In America, the referendum and initiative have been grafted on to the Constitution in several States, and many of them have adopted this method of approaching the elector."
[29]By s 2 of the Referendum (Constitution Alteration) Act [No 2] 1912 (Cth).
[30]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 December 1912 at 7153.
[31]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 December 1912 at 7154.
The procedures mandated by the Constitution for the adoption of s 51(xxiiiA) in 1946 invite particular attention to the matters of history and usage to which reference was made in the submissions in these appeals. No doubt those matters cannot be and are not determinative of the construction and interpretation of the addition made to s 51. But their importance is supported by the lack of any clear meaning apparent on the face of the text of the expression "any form of civil conscription".
In their reasons in the BMA Case, Rich J said of the phrase "civil conscription" that it was "somewhat of a novelty", Williams J said it had "no ordinary meaning in the English language", and Webb J said that he could not remember seeing or hearing it until he saw it in the proposed law for the 1946 referendum[32].
[32](1949) 79 CLR 201 at 255 per Rich J, 287 per Williams J, 292 per Webb J.
Later, in the course of his reasons in General Practitioners, Aickin J remarked[33]:
"'Civil conscription' is not a technical expression with a settled historical meaning. It is no doubt used by way of analogy to military conscription but the use of the words 'any form of civil conscription' indicates to my mind an intention to give the term a wide rather than a narrow meaning, the precise extent of which cannot be determined in advance."
[33](1980) 145 CLR 532 at 571.
Those remarks repay study and invite comment.
Conscription – The Australian setting
In this country, the subject of military conscription, especially for service beyond the limits of the Commonwealth, is associated with highly controversial political and social divisions during World War I. The Military Service Referendum Act 1916 (Cth) had authorised a plebiscite, conducted on 28 October 1916, posing the question "Are you in favour of the Government having, in this grave emergency, the same compulsory powers over citizens in regard to requiring their military service, for the term of this War, outside the Commonwealth, as it now has in regard to military service within the Commonwealth?".
Compulsory military service within the Commonwealth was provided for in Pt IV (ss 59‑61A) of the Defence Act 1903 (Cth). The distinction between military service within and beyond the geographical limits of the Commonwealth, which was critical to the controversies during World War I, has a general significance. It shows that the place at which service is required may be an aspect of a form of conscription.
The conduct of the 1916 plebiscite, called a "referendum", was controlled by provisions of the Referendum Act which were applied (by s 7) as if the prescribed question were a proposed law to which s 128 of the Constitution applied. The Referendum Act included the compulsory voting provisions introduced by the Compulsory Voting Act 1915 (Cth)[34].
[34]Repealed by the Statute Law Revision Act 1934 (Cth).
The War Precautions (Military Service Referendum) Regulations[35] made under the War Precautions Act 1914 (Cth) provided for a second plebiscite, to be conducted on 20 December 1917, where the question was "Are you in favour of the proposal of the Commonwealth Government for reinforcing the Australian Imperial Force oversea?". Both plebiscites, which were popularly understood as turning upon "conscription", failed to carry[36].
[35]Statutory Rules 1917, No 290.
[36]Sawer, Australian Federal Politics and Law 1901‑1929, (1956) at 135‑136, 159‑160.
Whilst it may be true to say that the phrase "civil conscription" lacked a settled meaning at the time of the amendment of the Constitution in 1946, the related expression "industrial conscription" had at that time played a considerable part in political discourse. In the United Kingdom the Emergency Powers Act 1920 (UK), while providing for the proclamation of an emergency and the making of regulations, had stated (s 2(1)):
"Provided that nothing in this Act shall be construed to authorise the making of any regulations imposing any form of compulsory military service or industrial conscription".
Shortly thereafter in Australia the Public Safety Preservation Act 1923 (Vic) ("the 1923 Act") had included s 7 which stated:
"Nothing in this Act shall be construed to authorize the making of any regulations imposing any form of industrial conscription."
Also at the State level, the National Emergency Act 1941 (NSW), which received the Royal Assent on 20 March 1941[37], contained a provision following that in the 1923 Act. Section 3 authorised the making of raid precaution schemes for the protection of persons or property in the event of "any warlike attack". However, s 8(2) preserved the operation of industrial awards and agreements, and s 8(1) dealt with the avoidance of "industrial conscription" in the same terms as s 7 of the 1923 Act.
[37]Repealed by the Statute Law Revision Act 1976 (NSW), Sched 1.
Section 5 of the National Security Act 1939 (Cth) ("the 1939 Act") conferred in broad terms a power for the making of regulations. However, s 5(7) provided that nothing in the section authorised:
"(a)the imposition of any form of compulsory naval, military or air‑force service, or any form of industrial conscription, or the extension of any existing obligation to render compulsory naval, military or air‑force service". (emphasis added)
The National Security Act 1940 (Cth) ("the 1940 Act") amended the 1939 Act by inserting s 13A, as follows:
"Notwithstanding anything contained in this Act, the Governor‑General may make such regulations making provision for requiring persons to place themselves, their services and their property at the disposal of the Commonwealth, as appear to him to be necessary or expedient for securing the public safety, the defence of the Commonwealth and the Territories of the Commonwealth, or the efficient prosecution of any war in which His Majesty is or may be engaged:
Provided that nothing in this section shall authorize the imposition of any form of compulsory service beyond the limits of Australia." (emphasis added)
(Thereafter provision was made by the Defence (Citizen Military Forces) Act 1943 (Cth) for compulsory military service in "the South‑Western Pacific Zone" and in Polites v The Commonwealth[38] this system was held validly to apply to conscripted aliens.)
[38](1945) 70 CLR 60; [1945] HCA 3.
Regulation 15(1) of the National Security (Man Power) Regulations[39] ("the Man Power Regulations") was made in 1943 in reliance upon s 13A and stated:
"The Director‑General [of Man Power] may direct any person resident in Australia to engage in employment under the direction and control of the employer specified in the direction, or to perform work or services (whether for a specified employer or not) specified in the direction."
[39]Statutory Rules 1943, No 23.
Section 13A was substantially in the form of s 1 of the Emergency Powers (Defence) Act 1940 (UK) and reg 15 was in substantially the same form as reg 58A of the Defence (General) Regulations made on 22 May 1940 under the United Kingdom legislation[40]. In the Second Reading Speech on the Bill for the 1940 Act, the Prime Minister (Mr R G Menzies) had said of the proposed s 13A[41]:
"It takes power to control persons in relation to themselves so that they, for example, may be taken and trained to prepare for the defence of Australia. It takes power over their services so that they may be, notwithstanding any limitation contained in the original act, directed as to what services they are to perform and where they are to perform them. That applies all round."
[40]See the argument of Fullagar KC in Reid v Sinderberry (1944) 68 CLR 504 at 505; [1944] HCA 15.
[41]Australia, House of Representatives, Parliamentary Debates (Hansard), 20 June 1940 at 15.
On 8 June 1944, in Reid v Sinderberry[42], this Court allowed an appeal from the Full Court of the New South Wales Supreme Court[43]. On 25 May 1944 the Full Court had held that upon its construction s 13A of the 1939 Act did not authorise the making of reg 15 of the Man Power Regulations. Jordan CJ had said that "read according to [its] natural construction [reg 15] would, if valid, reduce the population of Australia to a state of serfdom more abject than any which obtained in the Middle Ages"[44]. That reasoning was rejected by this Court. In the course of upholding the validity of reg 15, Latham CJ and McTiernan J[45] remarked that notwithstanding the provision in s 5(7) of the 1939 Act that nothing in the regulation making power was to authorise the imposition of "any form of industrial conscription", it was clear that reg 15 imposed a "very wide form of industrial conscription". However, the opening words of s 13A, introduced by the 1940 Act, made it clear that its operation was not limited by any reference to the terms of s 5(7) as it had been enacted in the 1939 Act.
[42](1944) 68 CLR 504.
[43]Ex parte Sinderberry; Re Reid (1944) 44 SR (NSW) 263.
[44](1944) 44 SR (NSW) 263 at 266.
[45](1944) 68 CLR 504 at 509.
The present appellants emphasise that the treatment by this Court in Reid of reg 15 as imposing a form of industrial conscription, was in respect of a provision which required work to be performed not under the control of the Commonwealth, but at the direction of a specified employer.
With effect 4 April 1944, reg 15AA was added[46] to the Man Power Regulations. This empowered the Director‑General, among other matters, to order that a particular person or those in a class of persons, without consent, neither cease to carry on or practise their "trade, profession or calling" at any particular place, nor commence to do so at some other place, whether on his own account or as an employee. This provision extended the system of conscription beyond the trades, to professions. It also directed the place at which these activities were to be conducted.
[46]Statutory Rules 1944, No 61.
On 19 August 1944 a proposed law[47] to amend the Constitution by inserting after Ch I a chapter to be headed "Chapter IA – Temporary Provisions" was placed before the electors. This new chapter was to comprise s 60A which would empower the Parliament, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to 14 subject matters listed as pars (i)‑(xiv) of s 60A(1). Paragraph (ii) of s 60A(1) would read "employment and unemployment". The proposed s 60A(5) provided for s 60A to cease to have effect and for any laws then current to cease to have effect at the expiration of a period of five years from the cessation of hostilities in the then present war.
[47]Cited as Constitution Alteration (Post‑war Reconstruction and Democratic Rights) 1944 (Cth).
The referendum was not approved by the majorities of electors required by s 128 of the Constitution. In both the "YES" and "NO" cases distributed pursuant to s 6A of the Referendum Act, there was discussion of the prospect that the proposed legislative power with respect to "employment and unemployment" would authorise laws providing for industrial conscription during the present war and in the five year period after the end of hostilities. The "NO" case said of what it called "the Government's 'Brains Trust'":
"It is all very simple as they explain it. All you have to do is to give up your right to choose your own way of living and take orders to go to the job selected for you (that is, accept industrial conscription) and the industries which are to give you your livelihood will be re‑organized by men who, for the most part, have never had to organize or control a successful pie‑stall!"
The 1946 referendum
The Pharmaceutical Benefits Act 1944 (Cth) had provided for the supply by chemists without charge to the public of certain medicines prescribed by medical practitioners, had appropriated money to pay the chemists for those medicines and had imposed obligations upon medical practitioners and chemists in relation to the prescription and supply of the medicines. On 19 November 1945 this Court held in Attorney‑General (Vict) v The Commonwealth[48] that the legislation was not authorised under the power of appropriation found in s 81 of the Constitution or by the incidental power conferred by s 51(xxxix). It followed that the statute was invalid.
[48](1945) 71 CLR 237; [1945] HCA 30. The Attorney‑General for Victoria sued at the relation of the president, vice‑president and honorary secretary of the Medical Society of Victoria: (1945) 71 CLR 237 at 237‑238.
Thereafter at a referendum conducted on 28 September 1946 the majorities of electors required by s 128 of the Constitution approved a proposed law to alter s 51 of the Constitution by inserting par (xxiiiA).
The "YES" case for the proposed law under the heading "No question of socializing medical and dental services" stated:
"You will not be voting for any particular method of providing medical and dental services. Whether or not they are to be provided, and if so how, will both be matters for your representatives in Parliament from time to time to decide, in accordance with your wishes. At least once in every three years, you can change your representatives if you do not approve their actions.
But there is one thing the Parliament will not be able to do. It will not be able to bring in any form of civil conscription. That, you will see if you refer to the heading in black type, is expressly safeguarded in the new power itself.
This means that doctors and dentists cannot be forced to become professional officers of the Commonwealth under a scheme of medical and dental services."
Under the heading "This referendum not a political matter", the "YES" case said:
"There is no Party question at all. The idea that doctors and dentists might be conscripted was the only real objection of the Opposition parties in Parliament. The Government has set that doubt at rest by agreeing to the insertion of a clause in the power itself that there shall be no conscription. After that, only three out of all the members of the Federal Parliament voted against the Social Services Bill – Mr A Cameron (South Australia) in the House of Representatives and Senators Mattner and McLachlan (both of South Australia) in the Senate. These three are the only persons in Australia authorized to present a Case for 'No' in this pamphlet on this question."
Under the heading "Three reasons for voting 'NO'", the "NO" case stated:
"The following are three important reasons why you should vote 'NO' to No 1 proposal, against the powers to provide specified social services:-
(1)Because through them the Commonwealth can gain further far‑reaching controls over your daily lives;
(2)Because they will enable the States to be ousted from their present role of providing additional social services; and
(3)Because they are one step further towards the centralization of all controls and powers in Canberra."
The proposed law had taken the form in which it was submitted to the electors after detailed consideration in the Parliament. On 27 March 1946 the Attorney‑General and Minister for External Affairs, Dr H V Evatt, moved the second reading of the Constitution Alteration (Social Services) Bill 1946. He said[49]:
"The object of this bill is to alter the Constitution so that this Parliament can continue to provide directly for promoting social security in Australia. This is in no sense a party measure. Ever since federation, it has been assumed by successive governments and parliaments that the National Parliament could spend for any all‑Australian purpose the money that it raises. In 1944, I warned the House and the country that, under the Constitution as it stands, the legal foundations for even the most urgent modern social service legislation were doubtful and insecure. The High Court's decision last year in the pharmaceutical benefits case has shown that these doubts were only too well founded. The object of this bill is to place Australian social service legislation on a sound legal footing."
Mr Percy Spender, a member of the Opposition, asked whether[50]:
"the power to legislate in respect of medical and dental services, if granted, enable the Parliament to nationalize those services".
Dr Evatt responded: "We might discuss that in some detail at a later stage." Upon the resumption on 3 April 1946 of the debate on the second reading, the Leader of the Opposition (Mr R G Menzies) referred to Mr Spender's question and to what, he said, was the inadequate response of the Attorney‑General[51]. Mr Menzies referred to the decision delivered on 14 December 1945 in Australian National Airways Pty Ltd v The Commonwealth[52]. This established that the Parliament was authorised by s 51(i) of the Constitution to create a body corporate with power to conduct inter‑State services for the transport by air of passengers and goods for reward. Mr Menzies continued[53]:
"In those circumstances, very little doubt exists that not only the words of the proposed amendment but also the decision of the High Court will mean that under those words, the medical and dental professions could be nationalized by making all doctors and dentists members of one government service which had a monopoly of medical and dental treatment. In that sense, this power includes a power to nationalize medicine and dentistry."
[49]Australia, House of Representatives, Parliamentary Debates (Hansard), 27 March 1946 at 646‑647.
[50]Australia, House of Representatives, Parliamentary Debates (Hansard), 27 March 1946 at 648.
[51]Australia, House of Representatives, Parliamentary Debates (Hansard), 3 April 1946 at 899.
[52](1945) 71 CLR 29; [1945] HCA 41.
[53]Australia, House of Representatives, Parliamentary Debates (Hansard), 3 April 1946 at 900.
In the course of the resumed debate on 9 April 1946, Mr Haylen blamed the failure of the 1944 referendum upon the effectiveness of the "lie" which had been circulated in the newspapers "that a 'Yes' vote would be a vote for industrial conscription"[54].
[54]Australia, House of Representatives, Parliamentary Debates (Hansard), 9 April 1946 at 1183.
In further debate, on 10 April 1946, Mr Menzies moved that the proposed new par (xxiiiA) include after the word "services" the words "(but not so as to authorize any form of civil conscription)". Mr Menzies said that he had borrowed the form of words from that appearing in another measure then before the Parliament, the Constitution Alteration (Industrial Employment) Bill, in which the proposed additional head of legislative power was "Terms and conditions of employment in industry but not so as to authorize any form of industrial conscription"[55]. (That measure was to be submitted at a referendum also to be conducted on 28 September 1946; it failed to carry.) Mr Menzies remarked of the medical and dental professions[56]:
[55]Australia, House of Representatives, Parliamentary Debates (Hansard), 10 April 1946 at 1214‑1215.
[56]Australia, House of Representatives, Parliamentary Debates (Hansard), 10 April 1946 at 1215.
"their members are entitled to be protected against conscription just as are industrial workers under the bill I have mentioned. This is a perfectly fair proposition: If industrial workers are to be put beyond the danger of industrial conscription, then what is good for them should be good for professional workers also."
Dr Evatt had been on notice of the amendment and forthwith accepted it. He had available to him a written advice dated 9 April 1946 from the Solicitor‑General, Sir George Knowles[57], and two officers of the Attorney‑General's Department[58]. The advice was headed "Amendment to be moved by Mr Menzies". The document stated:
[57]Solicitor‑General 1932‑1946.
[58]M Boniwell and C K Comans.
"The meaning assigned by the Oxford Dictionary to the word 'conscription' is inter alia the compulsory enlistment of men for military service – more generally, enrolment or enlistment.
In view of the meaning assigned to 'conscription' in the Oxford Dictionary it is of the essence of conscription that there must be some form of compulsory enlistment or enrolment of the conscript.
The question arises whether, if the amendment is agreed to, 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 provided under Commonwealth legislation."
The authors concluded:
"In our view the Commonwealth would, under the power proposed to be taken, as proposed to be amended by Mr Menzies, have ample authority to require practising doctors or dentists to treat patients entitled to medical or dental benefits under Commonwealth legislation passed in pursuance of the power.
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." (emphasis added)
The Constitution Alteration (Social Services) Bill 1946 came into effect on 19 December after the passage of the referendum and the giving of the Royal Assent. It may be noted that the 1939 Act was then still in force. That statute and all remaining regulations thereunder ceased to have effect only on 31 December 1946[59]. The Man Power Regulations had been repealed with effect 1 May 1946[60], and so had remained in force during the Parliamentary debates in March and April 1946.
[59]By operation of s 2 of the National Security Act 1946 (Cth).
[60]National Security (Regulations Repeal) Regulations (No 7). Statutory Rules 1946, No 78.
The utility of the extrinsic materials
These materials and the events described above assist in an understanding of what was conveyed by the phrase "any form of civil conscription" at the time of the introduction of s 51(xxiiiA) under the procedures of s 128 of the Constitution[61].
[61]See Cole v Whitfield (1988) 165 CLR 360 at 385.
The phrase had been used, consistently with the submissions now made by the Solicitor‑General, to identify the compulsory provision of service or doing of work for the Commonwealth, or for a third party as directed by the Commonwealth. The later legislation challenged in this Court has not sought to deny to medical practitioners the power to refuse to treat patients entitled to benefits under the legislation. The occasion thus far has not been presented to test the gravamen of the advice provided to the Attorney‑General on 9 April 1946 and upon which he appears to have relied in accepting the amendment moved by Mr Menzies.
What can be taken from the extrinsic materials is the notion of compulsion to serve. This may fix upon the place of provision of the service, the identity of the recipient of the service and the occasions for its provision, but need not compel the creation of a status of servant of the Commonwealth. This notion is reflected in the reasoning of Dixon J in the BMA Case.
In their submissions to this Court the appellants rely upon the advice to the Attorney‑General of 9 April 1946 as indicative of the scope of the reservation contained in s 51(xxiiiA). In particular, the appellants emphasise the phrase "to have the whole of their professional activities controlled by Commonwealth direction", and submit that Pt VAA deals so extensively with the conduct of practitioners as to cover "everything that the doctor might do".
Part VAA
In its application to the appellants, par (a) of s 82(1) provides:
"(1)A practitioner engages in inappropriate practice if the practitioner's conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that:
(a)if the practitioner rendered or initiated the referred services as a general practitioner – the conduct would be unacceptable to the general body of general practitioners".
The "Committee" is a Professional Services Review Committee set up under s 93; it must comprise a Deputy Director of Professional Services Review (appointed under s 85 after consultation between the Minister and the Australian Medical Association Limited) and at least two other Panel members who are general practitioners (s 95(5)). There are a number of such Committees. The first respondents in the Selim appeal constitute Professional Services Review Committee No 309.
In determining the question posed by s 82(1) regard must be had, as well as to other relevant matters, to "whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services" (s 82(3)). The term "service" relevantly means a service for which Medicare benefit was payable (s 81). Entitlement to payment of Medicare benefit, where medical expenses are incurred in respect of a professional service, is conferred by s 10 of the Act. The benefit in respect of a service is, in general, an amount equal to 75 percent of the Schedule fee (s 10(2)).
Speaking of the introduction of Pt VAA by the 1994 Act, in Pradhan v Holmes[62] Finn J observed:
"Previously the mechanism employed to protect public revenues was by policing 'excessive servicing' by a practitioner. The change to concern with 'inappropriate practice' was remarked on in the Second Reading Speech on the 1993 amending bill in the following terms[63]:
'A significant change in the bill is the replacement of the concept of excessive servicing with one of inappropriate practice. Whereas excessive servicing is currently defined as the rendering or initiation of services not reasonably necessary for the adequate care of the patient, the concept of inappropriate practice goes further. It covers a practitioner engaging in conduct in connection with the rendering or initiating of services that is unacceptable to his or her professional colleagues generally.'"
[62](2001) 125 FCR 280 at 282.
[63]Australia, House of Representatives, Parliamentary Debates (Hansard), 30 September 1993 at 1551.
Conclusions
The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase "(but not so as to authorize any form of civil conscription)" which treats "civil conscription" as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth[64]; it also may be for the benefit of third parties, if at the direction of the Commonwealth.
[64]cf Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; [1969] HCA 44.
An issue whether legislation otherwise supported by s 51(xxiiiA) authorises a form of civil conscription may only be decided with close attention to the legislative scheme in question, in particular, to those aspects which are under challenge. The appellants contest the validity of certain provisions of the Act. The Act, and delegated legislation supported by it, provides a regime with a wide and diverse operation and many norms of conduct. To refuse the relief sought by the appellants indicates no view as to the validity or invalidity of other aspects of the legislation which may be the subject of other challenges yet unformulated.
The reservation in the advice of 9 April 1946 respecting the control by Commonwealth direction of the professional activities calls for further consideration. Contrary to what was said there, something less than control of "the whole" of those activities may, if the necessary legislative compulsion or coercion be present, amount to a "form of civil conscription".
Does Pt VAA provide an example? The appellants complain of s 82(3) to which reference has been made above. The sub‑section states:
"A Committee must, in determining whether a practitioner's conduct in connection with rendering or initiating services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services."
The keeping of adequate and contemporaneous records of the rendering or the initiation of services provided by the practitioner is, as the place of s 82(3) within the definition of "inappropriate practice" indicates, apt to assist the Committees in reaching their reasonable conclusions as to unacceptable conduct for s 82(1).
The statutory criterion of conduct unacceptable to the general body of general practitioners, of which the appellants also complain, is an adaptation for the operation of the Act of principles of professional responsibility developed in the second half of the 19th century. The phrase "infamous conduct in any professional respect" found in s 29 of the Medical Act 1858 (UK)[65] and memorably construed in Allinson v General Council of Medical Education and Registration[66] with use of the phrase "disgraceful or dishonourable", has been seen since as not necessarily requiring an appeal to a moral standard[67]. The essential question in such cases is whether "the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence"[68]. The rendering of services not reasonably necessary for the care of the patient may be dubbed "overservicing", but may also attract the reprobation just described.
[65]21 & 22 Vict c 90.
[66][1894] 1 QB 750 at 760‑761. See also A Solicitor v Council of Law Society (NSW) (2004) 216 CLR 253 at 264‑265 [13]; [2004] HCA 1.
[67]Epstein v The Medical Board of Victoria [1945] VLR 309 at 310; Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 at 36.
[68]Qidwai v Brown [1984] 1 NSWLR 100 at 105; Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 199‑200, 208; cf Hoile v The Medical Board of South Australia (1960) 104 CLR 157 at 162‑163; [1960] HCA 30.
A legislative scheme for the provision of medical services supported by appropriation of the Consolidated Revenue Fund established under s 81 of the Constitution, by requiring the professional activities of medical practitioners to conform to the norms derived from Allinson, does not conscript them. Those norms are calculated to ensure that the activities be professional rather than unprofessional in character.
The formation of an opinion in the course of the performance of functions or the exercise of power under Pt VAA that the conduct of the person under review has caused, is causing, or is likely to cause "a significant threat to the life or health of any other person" leads to a reference under s 106XA to the appropriate regulatory body in the State or Territory in which the practitioner practises; provision is made under s 106XB for reference to the appropriate regulatory body where the opinion formed is that there has been a failure "to comply with professional standards". The presence of these further provisions in Pt VAA does not give it the character of a law which authorises a form of civil conscription.
There remains the alleged invalidity of ss 10, 20 and 20A of the Act. There was said to be a form of practical compulsion applied by these provisions to practitioners such as the appellants. The practical compulsion was said to be to participate in the Medicare scheme. Three matters were emphasised by the appellants. First, the medical practitioner must be prepared to accept that at least part of the fee may not be paid by the patient and rely upon payment by the Health Insurance Commission of an amount equal to that of the Medicare benefit (s 20(3)). Secondly, the medical practitioner may, as a practical matter, be left to rely for payment upon an assignment under s 20A of the Medicare benefit in respect of a service rendered to an eligible person. Thirdly, s 19(6) denies payment of a Medicare benefit where there has been a failure to record prescribed details (including particulars of the item number) of the service provided.
These provisions condition the enjoyment of membership of the scheme established by the Act. They do not amount to practical compulsion to perform a professional service. The Full Court was correct in the conclusion expressed as follows[69]:
"Those sections assume that a medical practitioner has rendered a professional service to an eligible person and has rendered a fee for that service, and provides a scheme whereby either the eligible person, if he or she has paid that fee, becomes entitled to a Medicare benefit or, if the eligible person has not paid that fee, the medical practitioner becomes entitled to the Medicare benefit. Those sections provide for the payment of a medical practitioner's fee for a professional service when that professional service has been rendered in response to an eligible person's request."
[69](2008) 167 FCR 61 at 80.
Orders
Each appeal should be dismissed. In Wong, the appellant should pay the costs of the first respondent. In Selim, the appellant should pay the costs of the first, third and fourth respondents.
KIRBY J.Dr Chee Kan Kenneth Wong and Dr Ashraf Thabit Selim ("the appellants") challenge orders of the Full Court of the Federal Court of Australia[70]. That Court by those orders (in consolidated proceedings) dismissed an appeal by Dr Selim from orders of a single judge (Stone J)[71] and decided a reference to the Federal Court from this Court of like questions adversely to Dr Wong[72].
[70]Selim v Lele (2008) 167 FCR 61.
[71]Selim v Lele (2006) 150 FCR 83.
[72]Dimian v The Commonwealth [2006] HCATrans 565.
By the time special leave was granted, the constitutional questions which the appellants sought to agitate against the validity of the Professional Services Review ("PSR") scheme established by Pt VAA of the Health Insurance Act 1973 (Cth) ("the Act") were confined to the decision that the PSR scheme did not offend the prohibition on "civil conscription" contained in the grant of power to the Federal Parliament in s 51(xxiiiA) of the Constitution. Section 51(xxiiiA) allows the Parliament to make laws with respect to:
"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 head of power itself was inserted by the Constitution Alteration (Social Services) 1946 (Cth) which was approved by the electors in a referendum conducted on 28 September 1946 in accordance with s 128 of the Constitution. Exceptionally, that referendum was carried nationally and in all six States[73]. Other issues agitated in the Federal Court were not maintained in this Court[74].
[73]The overall total vote in favour of the amendment was 51.59% of the electors, with 43.27% against and 5.14% informal. See Blackshield and Williams, Australian Constitutional Law and Theory, 4th ed (2006) at 1449.
[74]Notably the challenge to the validity of s 106U of the Act on the ground that it purported to confer part of the judicial power of the Commonwealth on persons not appointed to office pursuant to s 72 of the Constitution. See (2008) 167 FCR 61 at 81-82 [51]-[56].
In deriving the meaning of the restriction on legislative power effected by the prohibition on measures amounting to "any form of civil conscription", the joint reasons in the Full Court of the Federal Court recognised that a preliminary question arose as to the approach to be taken to the interpretation of s 51(xxiiiA). They asked whether the paragraph should be "approached from the viewpoint of a committed originalist or from that of one who accepts that the Constitution is a 'living instrument', to be interpreted in light of the fact that its legitimacy stems from its 'original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people'"[75].
[75](2008) 167 FCR 61 at 66 [17] applying Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 171; [1994] HCA 46.
This was an important observation. It lies at the heart of the different approach that I take to the constitutional question presented by these appeals. In past authority this Court has accepted that, in resolving disputed questions concerning the meaning of the Constitution[76] (and specifically in deriving the meaning of provisions adopted following amendments made under s 128[77]), it is legitimate for the decision-maker to consider, and give weight to, historical materials as they throw light on the resolution of such problems[78].
[76]Cole v Whitfield (1988) 165 CLR 360 at 385; [1988] HCA 18.
[77]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 361-362 [27]-[30] per Gaudron J, 382-383 [92]-[94] per Gummow and Hayne JJ, 407-408 [145]-[146] of my own reasons; [1998] HCA 22.
[78]Reasons of Heydon J at [262]-[263].
Nevertheless, such historical materials do not control the meaning of the constitutional language. Identifying that meaning is a task of legal analysis, not of historical research. In this case the reasons of other members of this Court (both in the language chosen[79] and in their approach and emphasis[80]) might be read as suggesting otherwise. It is for this reason that I write separately. I could not agree to an interpretation of s 51(xxiiiA) that treated the history surrounding the adoption of that paragraph as determinative of the meaning of the provision as it operates today. Not only would this be contrary to the general view I hold as to the proper approach to deriving constitutional meaning (and the approach ordinarily taken by this Court). It would also risk accepting a view of the paragraph that would be unjust to the appellants and to other persons whose interests are protected by the constitutional prohibition against laws that "authorize any form of civil conscription". That notion is one that necessarily changes and adapts to different times and circumstances.
[79]Reasons of French CJ and Gummow J at [52]; cf reasons of Hayne, Crennan and Kiefel JJ at [192].
[80]Reasons of French CJ and Gummow J dealing with the history of the 1946 referendum at [43]-[55]; see also reasons of Hayne, Crennan and Kiefel JJ at [174]-[186].
When the proper approach to deriving the meaning of s 51(xxiiiA) is adopted (including by appropriate but limited use of the historical record explaining what was in the minds of the legislators and the electors when the paragraph was added to the Constitution), the same result is reached as is stated in other reasons. Substantially, I agree in the analysis of Hayne, Crennan and Kiefel JJ. The provisions of the Act, as challenged in this Court, do not offend the prohibition on enacting "any form of civil conscription". The Full Court was correct to so decide. The appeals to this Court should be dismissed.
The proceedings
The agreed facts: Many of the background facts necessary to decide the constitutional issue raised by the appeals are stated in the reasons of other members of this Court[81]. However, because the Constitution (like other written laws) operates in the real world, it is useful, in approaching its meaning, to have an idea of the actual circumstances that call forth the remaining issue for decision.
[81]Reasons of French CJ and Gummow J at [3]-[4]; reasons of Hayne, Crennan and Kiefel JJ at [164]-[170].
Such circumstances were before the Full Court of the Federal Court and they are expressed in its reasons[82]. Although largely derived from the case of Dr Selim, they were contained in facts that were agreed for the purpose of both proceedings in that Court. It is therefore convenient, as other reasons do, to treat the facts in Dr Selim's case as indicative of the circumstances giving rise to the common constitutional objection of the appellants[83]. Adding a few facts to the bare bones of the disembodied constitutional submissions which they advance helps us to understand better the force of their argument that they have been subjected to at least a "form" of "civil conscription", contrary to the prohibition contained in s 51(xxiiiA).
[82](2008) 167 FCR 61 at 73-75 [34]-[35].
[83]cf reasons of Hayne, Crennan and Kiefel JJ at [167]-[170].
Dr Selim, a medical graduate from Cairo University, came to Australia in 1984. He obtained the necessary Australian qualifications to practise as a medical practitioner in 1985. He has been in private practice as a general practitioner since 1987. He is vocationally registered as such under s 3F of the Act.
In December 2001, the Health Insurance Commission ("the Commission"), acting pursuant to s 86(1) of the Act, referred Dr Selim's conduct to the Director of PSR. The referral related to professional services rendered by Dr Selim to or on behalf of patients during the calendar year 2000. The Commission concluded that Dr Selim may have engaged in "inappropriate practice", contrary to ss 81 and 82 of the Act, as amended by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth)[84]. In particular, the Commission's consideration of "inappropriate practice" was based on the concern that Dr Selim had rendered a very high volume of services in the nominated time and may not have provided the appropriate quality of clinical input into those services. If these allegations were established, Dr Selim (and, in his case which was in material respects similar, Dr Wong) would be exposed to the imposition of statutory sanctions, including disqualification for up to three years from participating in the Medicare Scheme established by the Act or disqualified from providing designated services or services to specified classes of persons.
[84]Reasons of Hayne, Crennan and Kiefel JJ at [211]-[226]; reasons of Heydon J at [234]-[248].
If a non-"bulk billing" practitioner were fully disqualified it would be likely that he or she would lose a substantial number of patients from the practice unless the practitioner reduced the fees charged to approximately the difference between the fees previously charged and the Medicare benefit. How many of the lost patients might later return to the practice, after the period of disqualification, would depend on a number of factors, including the extent and duration of the disqualification, the availability of other practitioners in the area and other competitive and economic considerations.
During disqualification, the medical practitioner might engage a locum tenens to continue ongoing care to his or her patients, provided such a person was available and qualified. Likewise, if the practitioner were a member of a group practice, other members could continue ongoing care of the patients, provided their skills were suitable and they had the capacity to take on other patients[85].
[85](2008) 167 FCR 61 at 73-74 [34].
Whilst fully disqualified, a medical practitioner would not be prevented from rendering medical services for which no Medicare benefit was payable – such as statutory services to veterans, services to workers' compensation patients, overseas visitors, patients in public hospitals, in the defence services, cosmetic surgery, health screening and so on. As well, the medical practitioner could carry on non-fee services, such as in medical journalism and administration as well as services for those patients who are "prepared to pay the practitioner's fee without claiming on Medicare". But the agreed facts accepted the unsurprising conclusion that "to provide services solely on this basis would rarely be economically practicable".
The Full Court expressed some general factual conclusions of its own relevant to the practicalities of disqualification to be ordered against the appellants[86]:
"[I]f patients cannot claim medical benefits in relation to the services that a doctor provides … a doctor will have few, if any, opportunities to practise as a general practitioner in private practice. The Act thus imposes a practical compulsion on those who wish to practise as general practitioners in private practice to participate in the Medicare Scheme and, as a result of Pt VAA, to conduct their practice in such a way as to avoid committing inappropriate practice. They therefore must not, in relation to the rendering or initiating of services for which medical benefits are payable, do anything that would be unacceptable to the general body of general practitioners [in accordance with s 82(1)(a) of the Act]. The other ways in which those with medical training could practise their profession were also available, to some extent, when the High Court heard the BMA Case[87] and the General Practitioners Society Case[88], and are not sufficient to avoid the practical compulsion upon all, or virtually all, of those wishing to practise as general practitioners in private practice."
[86](2008) 167 FCR 61 at 75 [35].
[87]British Medical Association v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44.
[88]General Practitioners Society v The Commonwealth (1980) 145 CLR 532; [1980] HCA 30.
The foregoing conclusions on the facts were unchallenged in this Court. They are obviously sensible and realistic. It was the practical consequences of the operation of the Act and its administration, by reference to the very broad criterion of "inappropriate practice", that the appellants argued had crossed the constitutional line and entered the territory forbidden to federal legislation by the prohibition on laws "authoriz[ing] any form of civil conscription".
The legislation: The history of the legislation, the subject of the constitutional challenge, is contained in other reasons[89]. So are the most important provisions of the Act. It is unnecessary for me to repeat this material.
[89]Reasons of French CJ and Gummow J at [56]-[59]; reasons of Hayne, Crennan and Kiefel JJ at [203]-[210].
On the basis of the record, it is important (particularly for the approach that I take to the meaning of the constitutional provision) to emphasise that the appellants' challenge to the constitutional validity of the Act was limited to the provisions of ss 10, 20 and 20A and "any provision of [Pt] VAA … of [the Act]"[90]. It is therefore unnecessary, and would be inappropriate, to consider whether any other provisions of the Act offend the constitutional prohibition or to speculate on broader questions that may present in the future. Such questions could concern particular aspects of a "managed care" system of healthcare[91], including the concept of "case mix" and whether such features of the legislation, now or in the future, might offend the constitutional prohibition[92]. None of these issues is raised by the present appeals.
[90]Reasons of French CJ and Gummow J at [5].
[91]See Health Legislation (Private Health Insurance Reform) Amendment Act 1995 (Cth) amending both the National Health Act 1953 (Cth), which provided for a form of contributory health insurance, and the Health Insurance Act 1973 (Cth).
[92]The "case mix" reimbursement system is based on identification and classification of various patient diagnoses ("diagnostically related groups") requiring a specific rate of funding to all patients with similar diagnoses. See Mendelson, "Devaluation of a Constitutional Guarantee: The History of Section 51(xxiiiA) of the Commonwealth Constitution", (1999) 23 Melbourne University Law Review 308 ("Mendelson") at 331. The "case mix" system was developed in the 1970s at Yale University. See Curran, Hall and Kaye, Health Care Law, Forensic Science, and Public Policy, 4th ed (1990) at 719-720. See also National Health Act 1953 (Cth), s 73BD(4)(a)(i) which was inserted by Health Legislation (Private Health Insurance Reform) Amendment Act 1995 (Cth).
The issues
Non-issues: In addition to excluding the abandoned issue (raising a complaint that the scheme of Pt VAA and specifically s 106U of the Act were invalid on judicial power grounds) and any broader question as to the constitutional validity of "case mix" and "managed care" provisions[93], in the way the appeals were argued three particular issues can be noted and set aside:
(1)The sickness and hospital benefits issue: Before the Full Court, the Commonwealth argued that the impugned sections of the Act were laws with respect to "sickness and hospital benefits" and, for that reason, that they did not attract the prohibition on "civil conscription" that was the focus of the appellants' arguments[94]. The Full Court noted that this submission was reserved for possible pursuit in this Court; but their Honours observed that it "seems to stretch the notion of a 'sickness benefit' to argue that it would apply to all medical services for which benefits are payable under the Act"[95]. That comment was a proper one. I did not understand that, ultimately, the Commonwealth pressed a contrary submission on this Court;
(2)The medical and dental services issue: Likewise, as noted by Hayne, Crennan and Kiefel JJ[96], the foundation for the appellants' challenge to the constitutional validity of the identified provisions of the Act was only the prohibition upon "civil conscription" in the bracketed phrase in s 51(xxiiiA) of the Constitution. The appellants did not mount a separate challenge based upon the contention that all, or any, of the provisions impugned would, in their true character, take the Act outside the "central area" of the power provided by s 51(xxiiiA). Conventionally, a broad approach is adopted to the "central area" of such a grant of power, given the myriad circumstances for which the Parliament might decide to enact laws on that and related and incidental matters. Nevertheless, a point could arise as to the validity of a particular federal law where, for example, in its true character, an enacted provision was a law to achieve other and different purposes. The mere fact that a law was addressed to medical or dental practitioners, their actual or potential patients or healthcare issues generally, would not render it valid under s 51(xxiiiA) if, properly characterised, the law was not one with respect to the "provision" of "medical and dental services". Because this issue was not canvassed in these appeals, it can likewise be put aside; and
(3)The employment and practical impact issue: Although the Commonwealth, in response to challenges invoking s 51(xxiiiA) of the Constitution, has long argued that the prohibition on forms of "civil conscription" is confined to attempted laws to nationalise the medical and dental professions and the provision of their services (and thus to address "conscription" in the sense of actual or effective "employment" of such practitioners by or for the Commonwealth), in the way the arguments developed the submissions were not so limited. Correctly so, in my opinion. During argument, the Commonwealth accepted that it was appropriate for the Court to consider the extent to which the Act imposed obligations of "practical compulsion" upon the appellants whilst insisting that compulsion in various forms was not of itself necessarily offensive to s 51(xxiiiA) read as a whole and would not be so unless rising to the level of a "form" of "civil conscription"[97].
[93]Mendelson (1999) 23 Melbourne University Law Review 308 at 331-340.
[94](2008) 167 FCR 61 at 70 [28].
[95](2008) 167 FCR 61 at 70 [28].
[96]Reasons of Hayne, Crennan and Kiefel JJ at [225].
[97][2008] HCATrans 352 at 2215.
The issues: The exclusion of the foregoing issues leaves four issues to be resolved in these appeals:
(1)Constitutional interpretation: Is the meaning of s 51(xxiiiA) of the Constitution controlled, or substantially determined, by the debates and circumstances that surrounded the introduction of that paragraph into s 51 and the then understandings of various forms of military, industrial or other "conscription", existing in Australian, United Kingdom and other laws prior to that time?
(2)Constitutional decisions: Did the decision of this Court in General Practitioners in 1980 effectively restore a meaning of s 51(xxiiiA) that had been adopted by Dixon J in dissent in the BMA case of 1949? Is this Court now bound by the view expressed in General Practitioners by Gibbs J[98] that "[t]he words 'any form of' do not … extend the meaning of 'conscription', and that word connotes compulsion to serve rather than regulation of the manner in which a service is performed"? If the appellants wish to contest the narrower meaning of the prohibition in s 51(xxiiiA), adopted in General Practitioners, is it necessary for them to obtain the leave of the Court, or a majority of the Court, to contend that the earlier, broader meaning adopted and applied in the BMA case was correct and should be restored?
(3)Meaning of "civil conscription": In the light of the resolution of the foregoing issues, is the phrase "any form of" civil conscription limited to "compulsion to serve" or does it extend to a wider range of coercive obligations so as to carry into effect its constitutional purpose?
(4)Application of the prohibition: Are all or any of the provisions of the Act impugned by the appellants invalid as offending the constitutional prohibition in the light of the resolution of the foregoing issues?
[98](1980) 145 CLR 532 at 557.
The centrality of constitutional interpretation
Recognising the threshold issue: French CJ and Gummow J are correct[99] in recognising the threshold importance of resolving an uncertainty that arises as to the interpretation of the constitutional phrase "but not so as to authorize any form of civil conscription". It is that uncertainty that the parties severally sought to exploit.
[99]Reasons of French CJ and Gummow J at [18].
The Full Court was also correct in appreciating the significance, for the resolution of this issue, of identifying the approach to be taken to the understanding of the paragraph by reference either to the original materials available to the legislators and electors who agreed to the insertion of the paragraph in the Constitution, or by reference to the wider range of materials available today to those obliged to make decisions on the question[100].
[100](2008) 167 FCR 61 at 66 [17].
These are not theoretical considerations. Unless this Court follows a consistent approach to resolving such questions it risks the criticism that it adopts, in some cases, a form of "originalist" approach to the most important task it fulfils (constitutional interpretation) and in other cases a broader approach that recognises the reification of the words appearing in the Constitution, either those surviving from its original adoption or those later inserted in accordance with s 128.
Rejecting "originalist" approaches: In many of the recent decisions of this Court judges of the Court (or at least a clear majority of them) have rejected the notion that constitutional meaning is to be derived from nothing more than what was in the minds of those who framed the applicable constitutional language. Thus, the observations of the entire Court in Cheatle v The Queen[101], to the effect that "in contemporary Australia, the exclusion of females and unpropertied persons [from a 'jury'] would itself be inconsistent with [s 80 of the Constitution]", is the clearest possible statement that the adoption of a 1900 meaning to the original language of the Constitution is not appropriate to fulfil the task of judicial interpretation assigned by the Constitution to this and other courts.
[101](1993) 177 CLR 541 at 561; [1993] HCA 44.
Similarly, the conclusion of the Court in Sue v Hill[102] that the expression "subject … of a foreign power", appearing in s 44 of the Constitution[103], extends to a "subject" of the Queen who was a citizen of the United Kingdom. Had an "originalist" approach been applied to the meaning of the words in s 44(i), there is no doubt that, in 1900, a subject of the Queen of the United Kingdom would not have been included within the disqualification. There could scarcely be a clearer instance of a rejection of the "originalist" approach in Sue v Hill given that its consequence would have been the opposite disposition. A special exception has sometimes been suggested for technical words in the Constitution, requiring an "originalist" approach in such cases[104]. However, even this proposition must now be doubted in the light of recent decisions[105].
[102](1999) 199 CLR 462; [1999] HCA 30.
[103]Constitution, s 44(i).
[104]As for example in defining the character and incidents of the constitutional writs mentioned in s 75(v).
[105]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57. In that case, contrary to an historical exegesis, the Court held that, of their nature, all of the constitutional writs mentioned in s 75(v) are discretionary in character, whatever may have been the historical availability of the preceding prerogative writs in the United Kingdom.
The fundamental difficulty of adopting an "originalist" interpretation of constitutional language is that it is incompatible with the character and purpose of the text being interpreted. This is a law that speaks of high governmental matters applicable from generation to generation and from age to age. In Grain Pool of Western Australia v The Commonwealth[106], by reference to a provision of the Constitution (s 51(xviii)), I said[107]:
"[T]hose who were present at the conventions which framed the Constitution are long since dead. They did not intend, nor did they enjoy the power, to impose their wishes and understandings of the text upon contemporary Australians for whom the Constitution must, to the full extent that the text allows, meet the diverse needs of modern government[108]. Once the Constitution was made and brought into law, it took upon itself the character proper to an instrument for the governance of a new federal nation. A constitution is always a special law. It is quite different in function and character from an ordinary statute. It must be construed accordingly. Its purpose requires that the heads of lawmaking power should be given an ample construction because their object is to afford indefinitely … authority to the Federal Parliament to make laws responding to different times and changing needs."
[106](2000) 202 CLR 479; [2000] HCA 14.
[107](2000) 202 CLR 479 at 522-523 [111]. See also Aala (2000) 204 CLR 82 at 133 [136].
[108]Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 600-601; [1999] HCA 27; cf Inglis Clark, Studies in Australian Constitutional Law, (1901) at 21.
I remain of these views. Assistance may sometimes be derived from the study of historical materials that accompanied the adoption of a constitutional provision. This is not so only in respect of the use of the Convention Debates and other materials concerning the original language of the Constitution[109]. It is also true of the use that may be made of materials concerning referenda to amend the Constitution, both where a referendum was successful[110] and where it was rejected by the electors[111]. I do not question the admissibility and utility, in particular cases, of such materials as they tend to identify the subjects of debate[112]. However, I adhere to the opinion I expressed in Grain Pool[113]:
"Although it is sometimes helpful, in exploring the meaning of the constitutional text, to have regard to the debates in the Constitutional Conventions that led to its adoption[114] and other contemporary historical[115] and legal[116] understandings and presuppositions, these cannot impose unchangeable meanings upon the words. They are set free from the framers' intentions. They are free from the understandings of their meaning in 1900 whose basic relevance is often propounded to throw light on the framers' intentions. The words gain their legitimacy and legal force from the fact that they appear in the Constitution; not from how they were conceived by the framers a century ago."
[109]New South Wales v The Commonwealth (Work Choices Case) (2006) 229 CLR 1 at 199 [466], 219-220 [525]; [2006] HCA 52; cf Betfair Pty Ltd v Western Australia (2008) 234 CLR 418; [2008] HCA 11.
[110]Kartinyeri (1998) 195 CLR 337 at 401 [132]; cf (2008) 167 FCR 61 at 66 [16].
[111]Work Choices Case (2006) 229 CLR 1 at 187 [437]; cf at 99-101 [125]-[135].
[112](2006) 229 CLR 1 at 245-246 [614] referring to unsuccessful attempts by successive Australian governments to enlarge the power with respect to the resolution of industrial disputes in s 51(xxxv) of the Constitution. See also at 285-301 [709]-[735] per Callinan J.
[113](2000) 202 CLR 479 at 523 [112] (emphasis added).
[114]Cole v Whitfield (1988) 165 CLR 360; Ha v New South Wales (1997) 189 CLR 465 at 514; [1997] HCA 34.
[115]Ha (1997) 189 CLR 465 at 494.
[116]As was done by Isaacs J and Higgins J in Attorney-General of NSW v Brewery Employees Union of NSW ("the Union Label Case") (1908) 6 CLR 469; [1908] HCA 94.
The same is true of the intentions of the framers of constitutional amendments such as s 51(xxiiiA). The ultimate meaning is to be found in the text, interpreted in the usual way by reference to history, context and purpose. The Constitution is not a time capsule of history, to be uncovered and disclosed intermittently to later generations. It is a living charter of government of daily application for present and future Australians. This Court needs to say so. In the interpretation of the Constitution, the Court should act consistently.
Limits of historical appreciation: These considerations make me unwilling to assign undue importance to the historical materials, deployed in other reasons, whether:
.To show the original intention of those who propounded (and amended) what is now s 51(xxiiiA) of the Constitution;
.To reveal the political concerns over the nationalisation of the medical profession existing at that time in light of then recent New Zealand and United Kingdom laws and proposals[117]; or
.To demonstrate the knowledge of parliamentarians in 1946 concerning the use of statutory expressions relating to forms of "military conscription", "industrial conscription" and other like coercive regimes[118].
[117]Mendelson (1999) 23 Melbourne University Law Review 308 at 312-313.
[118]cf reasons of French CJ and Gummow J at [27]-[42]; reasons of Hayne, Crennan and Kiefel JJ at [187]-[201].
Relevance of practical operation. Secondly, in Ha v New South Wales[268] Brennan CJ, McHugh, Gummow and Kirby JJ said:
"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 in order to ensure that the limitation or restriction is not circumvented by mere drafting devices. In recent cases, this Court has insisted on an examination of the practical operation (or substance) of a law impugned for contravention of a constitutional limitation or restriction on power."
[268](1997) 189 CLR 465 at 498 (footnote omitted); [1997] HCA 34.
Sufficiency of practical compulsion. Thirdly, it is clear that the meaning of "compulsion" in the General Practitioners test includes legal compulsion, ie a command backed by a sanction or enforceable by mandatory injunction. Two members of this Court in the General Practitioners case (Mason J[269] and Wilson J[270]) left open the question whether practical compulsion as distinct from legal compulsion is enough to satisfy the constitutional conception of "civil conscription", but the other five members considered that it was[271], although Barwick CJ thought that "to make out such a case would need an extremely strong set of circumstances which, in real terms, left the individual with no choice but to submit to what the statute required, though it did not command it."[272] In particular Gibbs J appears to have included "practical compulsion" within his references to "compulsion". That is because he said[273]:
"The question whether a law imposes civil conscription cannot be answered in the negative simply because the law does not create any legal liability to perform any medical or dental service; the effect of the law in the economic and other circumstances must be considered, and practical compulsion is enough".
There are also dicta from three Justices to the same effect in British Medical Association v The Commonwealth[274]. In these proceedings the Commonwealth accepted that practical compulsion would suffice. An example of practical compulsion would arise where benefits are given to medical practitioners who comply with a certain condition (eg to treat a particular patient or give a particular patient a particular service), but where benefits are not given to those who do not, in circumstances where failure to obtain those benefits will be economically fatal to the medical practitioner in question.
[269](1980) 145 CLR 532 at 564.
[270](1980) 145 CLR 532 at 571.
[271](1980) 145 CLR 532 at 537-538 per Barwick CJ, 550 per Gibbs J, 563 per Stephen J, 565 per Murphy J and 565-566 per Aickin J.
[272](1980) 145 CLR 532 at 538.
[273](1980) 145 CLR 532 at 550.
[274](1949) 79 CLR 201 at 252-253 per Latham CJ, 256 per Rich J and 292-293 per Webb J; McTiernan J was of the contrary opinion at 283-284; [1949] HCA 44.
The reasoning of the Full Court
The Full Court concluded, first, that the Act imposed a practical compulsion not to do anything which would be unacceptable to the general body of practitioners[275]. But it also concluded, secondly, that the second sentence of the General Practitioners test applied: neither s 10, nor s 20, nor s 20A, nor Pt VAA created any compulsion on a medical practitioner to perform any professional service[276].
[275]Selim v Lele (2008) 167 FCR 61 at 75 [35], quoted above at [84].
[276]Selim v Lele (2008) 167 FCR 61 at 79-81 [45]-[50].
The Commonwealth denied that the Full Court was correct to reach its first conclusion. It said:
"If I choose to be a general practitioner in private practice, then the economic incentives facing my clients [sic] are such that I am unlikely to be able to earn a living as a general practitioner in private practice unless I participate to some extent in the Medicare system and, to that extent, conduct my practice in a way that avoids committing inappropriate practice within the meaning of Part VAA."
It then said: "[T]o characterise the indirect economic effect of the Act on the patient and through the patient on the practitioner as practical compulsion imposed by the Act is going too far". But it did not explain why it was going too far. It is practical compulsion not merely because of indirect economic effects, but because of the way the statutory structure operates on general practitioners considered as professionals.
The following is a conventional path for a person educated in New South Wales who wishes to become a general practitioner. Normally a very high result must be achieved in the last year of secondary school. A university degree must then be obtained, and usually is obtained in a medicine-related field, for example the degree of Bachelor of Medical Science. It is then necessary to gain admission to a university medical school. This entails the passing of quite difficult examinations: many are called to sit, not all that many are chosen. Four years of study for a medical degree then follow. Not all survive them. A year's training in a teaching hospital as an "intern" then takes place. Since 1996 it has been necessary to undertake a minimum of three years supervised clinical practice and to pass the examinations prescribed by the Royal Australian College of General Practitioners. By the time general practitioners have reached that stage they are aged about 30. There may be heavy financial pressures on them. They may well have funded their studies and their accommodation by borrowing. Most persons in that position have to take any medical work they can. They will not obtain any significant amount of medical work unless they are participants in the Medicare Scheme, for if they are not their patients will not be eligible for Medicare benefits. This creates a practical necessity to treat patients who come forward on the conditions of detailed regulation inherent in the Richardson-Theophanous scheme.
The Commonwealth attempted to negate this conclusion by pointing to the capacity of general practitioners to pursue various forms of occupational activity open outside the Medicare Scheme and hence outside the controls of the Richardson-Theophanous scheme. These range from various forms of employment by the Commonwealth or the States or by trading corporations, to work on cruise ships, in gaols or for professional sports teams; conducting medical examinations for the purpose of insurance, drivers' licences and other licences; working in specialty clinics dealing with obesity or cosmetic problems or weight reduction; attending to overseas visitors not eligible for Medicare benefits; dealing with patients who qualify for benefits under the Veterans' Entitlements Act 1986 (Cth); treating patients whose treatment is covered by a workers' compensation scheme or other compensation scheme or by insurance; and working in pharmaceutical companies, tertiary institutions, journalism or medical administration. With the greatest respect to all medical practitioners who provide medical services, or engage in paramedical activities, of these doubtless worthwhile kinds, many general practitioners may not view them as forming a desirable or satisfactory career path.
The Full Court's first conclusion was correct. Medical practitioners have the strongest pressures of self-interest to earn their living and they have a moral obligation to support those dependent on them by earning their living. The effect of ss 10, 20 and 20A and Pt VAA is that unless medical practitioners are prepared to act in the way Pt VAA requires, they will not readily be able to earn their living in the way, and possibly the only way, in which they are qualified to earn it. As Latham CJ said in the British Medical Association case[277], there could be no more effective means of compulsion.
[277](1949) 79 CLR 201 at 253. See also Webb J to the same effect at 292-293. The passages are quoted at [106]-[107] above.
The General Practitioners test
A difficulty with the General Practitioners test is that Gibbs J said that in some circumstances it could be civil conscription for Parliament "to provide that a doctor … should carry on his practice at a particular place, or at a particular time, or only for a particular class of patients."[278] But, on the General Practitioners test, why? For Gibbs J also said that if doctors are not compelled "to perform services generally as such, or to perform particular medical … services", there is no civil conscription[279]. There is no compulsion to attend to any particular patient at that place or time or among that class.
[278](1980) 145 CLR 532 at 558.
[279](1980) 145 CLR 532 at 558.
Further, the General Practitioners test is the product of analysis resting on the "natural meaning" of words[280]. Thus Gibbs J said[281]:
"The word 'conscription', in the sense that seems to be most apposite for present purposes, means the compulsory enlistment of men (or women) for military (including naval or air force) service. The expression 'civil conscription' appears to mean the calling up of persons for compulsory service other than military service."
The type of analysis described in Cole v Whitfield[282] was not then permitted, and was not engaged in. It is necessary to engage in it before considering whether the General Practitioners test is correct. It will be concluded that it is not. It is undesirable to seek to devise a better test which will answer all possible circumstances. It is better to confine attention to the circumstances of these particular proceedings[283].
[280](1980) 145 CLR 532 at 557.
[281](1980) 145 CLR 532 at 555. See also at 557.
[282](1988) 165 CLR 360 at 384; [1988] HCA 18. See below at [262].
[283]See British Medical Association v The Commonwealth (1949) 79 CLR 201 at 262 per Dixon J, quoted above at [193].
Cole v Whitfield
In the course of argument the Commonwealth, in particular, but not only the Commonwealth, referred to the legislative and historical background to s 51(xxiiiA). For example, the Commonwealth relied on the fact that the "Yes" case at the referendum approving s 51(xxiiiA) claimed that it would give the power to provide the benefits then being provided in New Zealand, and the Commonwealth relied on the terms of the New Zealand legislation. Leaving aside the rather important point that the "Yes" case did not say what the terms of the New Zealand legislation were, and that it would be extremely difficult for the voters to find out the terms for themselves, this reasoning must be questioned. The Commonwealth contended that this course was justified by Cole v Whitfield because it assisted in identifying "the subject to which [the] language was directed". Those words from the joint judgment in Cole v Whitfield appeared as part of the following passage[284]:
"Reference to the history of s 92 may be made, not for the purpose of substituting for the meaning of the words used the scope and effect – if such could be established – which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged."
Of these three purposes, the third does not arise: s 51(xxiiiA) did not emerge from the movement towards federation. The first purpose can be pursued, but only to a limited extent. The limit to the extent to which it can be pursued stems from the fact that it is not possible to adopt one standard approach: to take the constitutional words, locate usages of those words before or soon after they entered the Constitution, and ascertain their meaning at that time in that light. In the case of "civil conscription", that approach is not possible. According to Dixon J, writing three years after s 51(xxiiiA) was introduced, "any form of civil conscription" was a "vague and figurative expression [which] carries with it no clear conception."[285] He said: "[I]t is not an expression which has gained general currency or has acquired a recognized application."[286] Rich J called the expression "somewhat of a novelty."[287] Williams J said that the "words 'civil conscription' have no ordinary meaning in the English language."[288] And Webb J said that he could not "remember hearing or seeing the term used" until he saw it "in the proposed law in the terms of par (xxiiiA) passed by Parliament and subsequently submitted to the electors under s 128 of the Commonwealth Constitution."[289] However, the first purpose can be pursued to the extent to which "civil conscription" covers at least the same ground as "industrial conscription". That it does so is evident from the linguistic similarity between the two expressions and the contemporary materials[290].
[284](1988) 165 CLR 360 at 385.
[285]British Medical Association v The Commonwealth (1949) 79 CLR 201 at 261.
[286]British Medical Association v The Commonwealth (1949) 79 CLR 201 at 262.
[287]British Medical Association v The Commonwealth (1949) 79 CLR 201 at 255.
[288]British Medical Association v The Commonwealth (1949) 79 CLR 201 at 287.
[289]British Medical Association v The Commonwealth (1949) 79 CLR 201 at 292.
[290]Australia, House of Representatives, Parliamentary Debates (Hansard), 10 April 1946 at 1215 (last two sentences of Mr Menzies' speech and third sentence of Dr Evatt's).
It can be seen from the contemporary materials analysed above[291], and from other contemporary materials, that among the things which in 1946 were seen as examples of "industrial conscription" were the following:
(a)a law compelling an individual to work[292];
(b)a law compelling a worker to work in a particular industry[293];
(c)a law compelling a worker to work for a particular employer, or compelling a particular employer to accept a particular worker[294];
(d)a law compelling a worker to work in a particular place[295]; and
(e)a law preventing a worker from leaving his employment (ie a law compelling a worker not to leave his current employment)[296].
This is unlikely to be an exhaustive list. There are indications that compulsory unionism was thought to be within the expression "industrial conscription"[297]. The range of these examples suggests that "industrial conscription" was not a narrow conception, although it is unnecessary for present purposes to seek to identify what it is which connects the examples[298].
[291]See above at [27]-[51].
[292]Australia, House of Representatives, Parliamentary Debates (Hansard), 3 April 1946 at 927-928.
[293]Australia, House of Representatives, Parliamentary Debates (Hansard), 9 March 1944 at 1159-1160.
[294]Chief Electoral Officer for the Commonwealth, Referendums to be taken on the Proposed Laws, Constitution Alteration (Social Services) 1946, Constitution Alteration (Organized Marketing of Primary Products) 1946, Constitution Alteration (Industrial Employment) 1946: The Case For and Against, 20 July 1946 at 17.
[295]Australia, House of Representatives, Parliamentary Debates (Hansard), 9 March 1944 at 1159-1160; Australia, Senate, Parliamentary Debates (Hansard), 22 March 1944 at 1708-1709; Australia, Senate, Parliamentary Debates (Hansard), 23 March 1944 at 1838, 1860-1861 ("under [industrial conscription] a man must go where he is sent") and 1891-1892 ("to stipulate that a worker shall accept employment in one place and not in another").
[296]Chief Electoral Officer for the Commonwealth, Referendums to be taken on the Proposed Laws, Constitution Alteration (Social Services) 1946, Constitution Alteration (Organized Marketing of Primary Products) 1946, Constitution Alteration (Industrial Employment) 1946: The Case For and Against, 20 July 1946 at 17 ("He cannot be 'pegged' in his job").
[297]Australia, House of Representatives, Parliamentary Debates (Hansard), 3 April 1946 at 906; Australia, Senate, Parliamentary Debates (Hansard), 19 June 1946 at 1537.
[298]See, for example, Chief Electoral Officer for the Commonwealth, Referendum to be taken on the Proposed Law Constitution Alteration (Post-war Reconstruction and Democratic Rights) 1944, 20 April 1944 at 13 (industrial conscription involved removing "your right to choose your own way of living and [taking] orders to go to the job selected for you"); Australia, House of Representatives, Parliamentary Debates (Hansard), 3 April 1946 at 906 (industrial conscription was "industrial compulsion by the authority of law"); Australia, Senate, Parliamentary Debates (Hansard), 12 April 1946 at 1425 (protection against industrial conscription negativing the power to make laws "in regard to the relation between employer and employee – its commencement, its continuance and its termination").
The analogue for doctors of example (d) would arise if under a Commonwealth enactment a doctor was told: "Your patients will receive no Medicare benefits unless you are qualified to participate in the Medicare Scheme, and you cannot participate in the Medicare Scheme unless you live in Coonamble." If an employee were exposed to an enactment of that kind, it would be industrial conscription, because it has the practical effect of compelling the doctor not to practise medicine in any place the doctor would otherwise have chosen and of compelling the doctor to practise medicine in Coonamble. If "civil conscription" includes at least all forms of "industrial conscription" the enactment would amount to civil conscription. Gibbs J said that an enactment "having [the] result" that "a doctor … should carry on his practice at a particular place … might well be regarded as imposing a form of civil conscription." He said[299]:
"It is necessary in every case to consider the true meaning and effect of the challenged provisions, in order to determine whether they do compel doctors … to perform services generally as such, or to perform particular medical … services; if so, they will be invalid."
In the example under discussion, there is no compulsion to perform services "generally as such", for the doctor could practise without supplying his services "generally"; and there is no compulsion to perform particular medical services. Hence on the General Practitioners test the enactment would be valid even though it was analogous to industrial conscription. That suggests that the General Practitioners test is too narrow even if civil conscription does not extend beyond industrial conscription.
Cole v Whitfield: subject to which "civil conscription" directed
[299]General Practitioners Society v The Commonwealth (1980) 145 CLR 532 at 558.
But the contemporary materials relating to "industrial conscription" leave open the question whether, in the medical field, "civil conscription" had a wider meaning. That inquiry can be pursued by examining the contemporary materials with a view to identifying the second of the three matters listed in Cole v Whitfield – the subject to which the constitutional language was directed. While in 1946 almost all industrial workers were employees, hardly any of those who supplied medical and dental services, namely medical and dental practitioners, were employees. And, in 1946, the relationships of medical and dental practitioners with their patients were quite different from the relationships between industrial workers and those for whom they worked. In short, it is necessary to bear in mind the character of the persons whose services are said to be conscripted in relation to the character of the persons who are to receive them.
The Commonwealth submitted that "the s 51(xxiiiA) prohibition was intended to prevent the nationalisation of medical and dental services". Although no attempt was made to define "nationalisation", counsel for the Commonwealth, in oral argument, with reference to the referendum case sent to electors in 1946, submitted that the "essential concern" was ensuring that doctors and dentists were not "forced to become professional officers of the Commonwealth under a scheme of medical and dental services."
That concern did not centre on the existence of a formal relationship of employer and employee between the Commonwealth and the medical practitioner, but on a matter of substance – the nature and degree of control exercisable by the Commonwealth. Medical practitioners employed by the Commonwealth would be subject to control over the occasion, time and place of work. And they could be subject also to control over their medical and professional activities – the time to be spent with the patient, the kind of tests to be performed, the drugs to be prescribed and the medical records to be kept.
Bearing in mind the professional character of the work performed by medical practitioners, it is not apparent why, in 1946, a scheme containing the latter controls, even though they were not imposed as part of an employer-employee relationship, would be unobjectionable. For the reasons given below[300], a Commonwealth legislative scheme that controlled a practitioner's medical and professional activities would have been inconsistent with the nature of the doctor-patient relationship as understood in 1946. And it would have been inconsistent with contemporary understandings of medical practice. These inconsistencies point to the conclusion that the language employed in s 51(xxiiiA) was not directed solely to the prevention of Commonwealth control over the occasion, time and place of work of medical practitioners.
[300]See [269]-[278].
Rich J's view of the doctor-patient relationship. In the British Medical Association case, three years after s 51(xxiiiA) entered the Constitution, Rich J said[301]:
"An extremely important consideration which cannot be disregarded is the confidential relationship of doctor and patient, a relationship akin to that of solicitor and client and priest and penitent. To disregard this relationship compels a doctor to abandon his normal duties and obligations to his patient."
The cure which a doctor may offer, as Rich J said a little earlier[302]:
"is the result of the practitioner's examination and overhaul of the patient, diagnosis of the complaint and the choice of the treatment, drugs, materials and appliances which his knowledge and skill dictate."
[301](1949) 79 CLR 201 at 256.
[302](1949) 79 CLR 201 at 256. Even National Service for Health: The Labour Party's Post-war Policy, (1943) at 17, discussed below at [274], recognised this: "The confidential relation between doctor and patient is an indispensable part of a satisfactory health service."
Although the connotations of the expression "doctor-patient relationship" may be different now, at the time when s 51(xxiiiA) was introduced, the notion of the doctor-patient relationship was heavily infused with a perception of its confidential, even friendly, character; of the importance of individual practitioners – who then had high community status – having autonomy in their treatment of particular patients; and of the consequential need for doctors to give treatment not mandated by outside influences or commands in any absolute or universal way, but devised by reference to the particular needs of the particular patient in the light of the doctor's personal perception of the problem. That that was so can be seen from five other pieces of material.
Sir Earle Page's view of the doctor-patient relationship. The first is that ideas of that kind received significant expression in a speech delivered only seven years after s 51(xxiiiA) entered the Constitution. It was the Second Reading Speech delivered by the Minister for Health, Sir Earle Page, a self-described "truant surgeon", in introducing the Bill which became the National Health Act 1953 (Cth). He said[303]:
"Restoration of health and prolongation of life is the task of the physician, who must be dedicated to the practice of the healing art, just as the priest is dedicated to the saving of souls. The work of both those dedicated professions is essentially personal and individual. It is the person with his idiosyncrasies, allergies and family heredity and personal and financial problems who must be cured. It is the individual with his physical and mental disease and his own peculiar symptoms who must be treated. It is the personal, continuous contact of the doctor, with an interest in the patient and his family, that must be maintained. These results can best be obtained by maintaining the position, prestige and fullest usefulness of the general medical practitioner …
In recent reports on the British service, the great complaint of that system relates to the deterioration of the general medical practitioner, due to inadequate hospital contacts and lack of time for proper examination owing to the panel system under which each doctor often has several thousands of patients …
The most important point in medical treatment is complete and early examination and diagnosis, whether the treatment is later given by a general medical practitioner or a specialist. It is imperative to preserve this cardinal feature of complete and early examination and diagnosis … [I]t is absolutely necessary for the doctor to have time to be the friend and confidant of the patient and his family, because illness is not only physical. It is frequently psychological."
[303]Australia, House of Representatives, Parliamentary Debates (Hansard), 12 November 1953 at 154-155.
Dr Evatt on controlling doctors. Secondly, thinking similar to that of Sir Earle Page was evidently shared by Dr Evatt. On 27 March 1946 Dr Evatt informed the House of Representatives that the proposed s 51(xxiiiA) would not affect the State laws regulating the right to practise medicine or dentistry and would not affect "the right of a doctor or a dentist as an individual to practise his profession." Dr Evatt also said that under s 51(xxiiiA) "no authority will be vested in the Commonwealth to control health generally or the general practice of medicine or dentistry"[304]. Underlying these statements is an assumption that in the context of doctors and dentists the words of s 51(xxiiiA) did not mean regulation or control of their rights to practise as they saw fit: any regulation or control would be the province of State law only[305].
[304]Australia, House of Representatives, Parliamentary Debates (Hansard), 27 March 1946 at 649.
[305]As is discussed above at [48]-[50], Mr Menzies moved his amendment to the proposed s 51(xxiiiA) to include a reference to civil conscription on 10 April 1946, but he had given prior notice of it to Dr Evatt: the Solicitor-General and two of his colleagues advised on it in writing on 9 April 1946. It is not clear, then, whether on 27 March 1946 Dr Evatt had in mind s 51(xxiiiA) without Mr Menzies' amendment or with it. If he had in mind s 51(xxiiiA) without the amendment, it may explain why he accepted the amendment readily: he saw the meaning of the language of both the unamended and the amended versions as not affecting individual rights of practice and as not giving power to enact legislation to control them.
Dixon J's view on employment. Three years after s 51(xxiiiA) entered the Constitution, Dixon J said: "No one would doubt that an attempt to impose upon a medical practitioner or a dentist an obligation to serve in the employment of the Government would fall within the words."[306] The reason why no contemporary would doubt that a compulsorily established relationship of employment fell within civil conscription was because of the types of control characteristic of an employment relationship, and the antithesis between them and contemporary perceptions of the doctor-patient relationship. It is also likely that contemporaries saw those types of control, compulsorily imposed, as equally falling within civil conscription even if the doctor was not placed in an employment relationship.
[306]British Medical Association v The Commonwealth (1949) 79 CLR 201 at 261-262.
Nationalisation of medicine in the United Kingdom. A fourth item arises from contemporaneous events in relation to the development of the United Kingdom National Health Service by the National Health Service Act 1946 (UK). Those events were followed closely in Australia. In 1942 the Beveridge Report had recommended "the setting up of a comprehensive medical service for every citizen, covering all treatment and every form of disability under the supervision of the Health Departments"[307]. But in this respect the Beveridge Report did not descend to much detail, and said that it "is not necessary to express an opinion on the terms of service and remuneration of doctors of various kinds, of dentists and of nurses"[308]. In April 1943 the Labour Party published one of its "Reconstruction Pamphlets" entitled National Service for Health: The Labour Party's Post-war Policy. It stated: "In the Labour Party's opinion … it is necessary that the medical profession should be organised as a national, full-time, salaried, pensionable service."[309] After its decisive victory in the 1945 General Election, the Labour government presided over by C R Attlee nationalised various industries[310]. From October 1945 the Minister of Health, Aneurin Bevan, began dealing with the British Medical Association, and in particular with a committee negotiating on behalf of the medical profession, about the form which a National Health Service might take. In December 1945 the committee published seven "professional fundamentals". The first four have been summarised as follows[311]:
"1 In the public interest, the profession is opposed to any form of service leading directly or indirectly to the profession as a whole becoming whole-time salaried servants of the State or of local authorities.
2 The profession should be free to exercise its skills, the individual doctor being fully responsible for the care of his patient, with freedom of action, speech and publication, and no interference with his professional work.
3 The citizen should be free to choose his family doctor and (in consultation with that doctor) his hospital, and to choose whether to use the service or not.
4 Doctors should be free to choose their form and place of work without government or other direction."
The most relevant of the "professional fundamentals" to questions of "civil conscription" short of rendering doctors, directly or indirectly, whole-time salaried servants of the State are the second and fourth. An historian of the process by which the National Health Service was created has said that "all except the first and the fourth were entirely in line with the government's own views."[312] It is notorious that in the years 1945 and 1946 the British Medical Association was influential in Australian medical affairs: there was no Australian Medical Association and most Australian doctors were members of the Australian branches of the British Medical Association[313]. It may safely be inferred that the understandings on which the "professional fundamentals" asserted by the British Medical Association rested were shared in Australia. The first three "fundamentals" were repeated by Sir Earle Page in the House of Representatives on 17 March 1949[314].
[307]Sir William Beveridge, Social Insurance and Allied Services, (1942) Cmd 6404 at [30].
[308]Sir William Beveridge, Social Insurance and Allied Services, (1942) Cmd 6404 at [428].
[309]Labour Party, National Service for Health: The Labour Party's Post-war Policy, (1943) at 18.
[310]For example, Bank of England Act 1946 (UK); Coal Industry Nationalisation Act 1946 (UK); Cable and Wireless Act 1946 (UK).
[311]Pater, The Making of the National Health Service, (1981) at 112-113.
[312]Pater, The Making of the National Health Service, (1981) at 113.
[313]Ross-Smith, "The Evolution of a National Medical Association in Australia", [1962] 1 Medical Journal of Australia 746 at 751 (80-90% of the whole profession).
[314]Australia, House of Representatives, Parliamentary Debates (Hansard), 17 March 1949 at 1661-1662.
Senator McKenna's Second Reading Speech in 1949. A fifth piece of evidence suggesting that the Richardson-Theophanous scheme would have been regarded as beyond s 51(xxiiiA) because of the words "civil conscription" may be found in the Second Reading Speech of the Minister for Health, Senator McKenna, introducing the Pharmaceutical Benefits Bill 1949. That Bill introduced the amendment to the Pharmaceutical Benefits Act 1947 (Cth) which was held partially invalid in the British Medical Association case. He said that under the 1947 Act "there was to be no regimentation of doctors, that … the doctor would have complete freedom of action."[315] He also said that the amendment:
"neither proposes nor initiates any interference with the practice of medicine … The doctor will still diagnose and assess his patient's needs in the light of his medical knowledge and experience and in accordance with his own unfettered judgment."[316]
[315]Australia, Senate, Parliamentary Debates (Hansard), 10 March 1949 at 1244.
[316]Australia, Senate, Parliamentary Debates (Hansard), 10 March 1949 at 1247.
It is thus plain that around the time s 51(xxiiiA) was introduced into the Constitution legislation in the form of the Richardson-Theophanous scheme was not in contemplation. Legislation of that kind would have been regarded by contemporaries as completely alien to conventional ideas of the time about governmental control of the relationship between medical practitioners and their patients. It seems likely that any system creating practical compulsion to supply medical services on the conditions inherent in the Richardson-Theophanous scheme would have been seen as a form of civil conscription – a means of vesting authority in the Commonwealth, in Dr Evatt's words, "to control health generally or the general practice of medicine or dentistry".
That conclusion is supported by the advice given by Sir George Knowles, Mr Boniwell and Mr Comans on 9 April 1946 about Mr Menzies' amendment to the proposed s 51(xxiiiA)[317]. The question asked was whether the reference to civil conscription would prevent the Commonwealth from passing legislation to prevent medical practitioners from refusing to treat patients entitled to Commonwealth benefits. The answer given was in the negative. The correctness of that answer is highly questionable if the General Practitioners test is applied. The legislation postulated involves compulsion to treat a particular class of patient whether the doctor wants to or not. But putting aside the correctness of the answer to the precise question asked, the last 13 words of the advice reveal a contemporary understanding of the words "civil conscription" in the context of medical services as meaning control by the Commonwealth of the whole of a doctor's professional activities. The intensely detailed regime of control provided for in the Richardson-Theophanous scheme is control of that kind[318].
[317]See [50] above.
[318]A "moderate originalist" has thoughtfully argued that only evidence of "the founders' intentions which … was readily available to their intended audience" may be examined – which would exclude private communications like that of Sir George Knowles and his colleagues: see Goldsworthy, "Originalism in Constitutional Interpretation", (1997) 25 Federal Law Review 1 at 20. However, if the correct approach is to search, not for the actual intention of the framers, but for what their words meant at the time they were used – and it is this which Cole v Whitfield seems to favour – the objection is not open. Even quite secret contemporary material could cast light on contemporary meaning.
The General Practitioners test revisited
Dixon J said that the expression civil conscription "is described by a metaphor and therefore must rest upon analogy."[319] The most obvious analogy is with military service. Analogies can mislead, and the misleading character of that analogy is to align "civil conscription" too closely with "military conscription". The expression "civil conscription" used in relation to medical services is not limited to ideas about compelling doctors to work for the Commonwealth. While the legislation does not make medical practitioners servants of the Commonwealth, medical practitioners are engaged in the compulsory provision of services for third parties as directed by the Commonwealth. That is because the practical compulsion created by ss 10, 20 and 20A on medical practitioners to operate under the Medicare Scheme means that the Commonwealth is directing them, through its legislation, to comply with Pt VAA. The expression "civil conscription" extends to the very extensive intrusions effected by the Richardson-Theophanous scheme into the relationships between doctor and patient through which doctors supply their services in circumstances where it is not in a practical sense possible for doctors to decline to provide the services.
[319]British Medical Association v The Commonwealth (1949) 79 CLR 201 at 262.
Conclusion
The appeals should be allowed. Dr Selim desires a declaration that because ss 10, 20 and 20A and Pt VAA amount to "civil conscription" within the meaning of s 51(xxiiiA) of the Constitution, they are invalid. Dr Wong desires an answer to the same effect in relation to the question referred into the Full Court of the Federal Court of Australia in relation to which special leave to appeal to this Court was granted. These desires caused the Commonwealth to contend that if the conclusion that ss 10, 20 and 20A were invalid depended on overruling the General Practitioners case, there would be much to be said against that course because of the extent to which the Medicare Scheme had been relied on by medical practitioners and the public, and by the legislature in amending the Act[320]. However, ss 10, 20 and 20A by themselves do not amount to "civil conscription". They generate, with other factors, an element of practical compulsion to comply with the Richardson-Theophanous scheme enacted in Pt VAA, but independently of that scheme they do not have the intrusive quality which renders it civil conscription.
[320]Citing John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439; [1989] HCA 5.
However, some provisions in the Richardson-Theophanous scheme amount to civil conscription. It is not necessary to work out the full extent of the sections which are invalid in these dissenting reasons beyond saying that ss 82 and 106U are invalid. If so, the whole Richardson-Theophanous scheme becomes unworkable. The Commonwealth did not demonstrate that there had been so much legislation in reliance on the Richardson-Theophanous scheme as to render it wrong to overrule the General Practitioners test.
Wong v The Commonwealth [2009] HCA 3
Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433
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