FRENCH CJ, GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
Matter 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 RESPONDENTS
Wong 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 & S363/2008
ORDER
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 Act1973 (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 Act1973 (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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Wong v The Commonwealth [2009] HCA 3
Case
[2009] HCA 3
Decision Date
CaseChat Overview and Summary
The parties in this matter were the appellant, Mr. Wong, and the Commonwealth of Australia. The dispute concerned the constitutional validity of certain provisions of the *Health Insurance Act 1973* (Cth), specifically Part VAA, which established the Professional Services Review Scheme. The appellant argued that these provisions amounted to "civil conscription" and were therefore beyond the legislative power of the Commonwealth under section 51(xxiiiA) of the Constitution. The case was heard by the High Court of Australia.
The central legal issue before the High Court was whether Part VAA of the *Health Insurance Act 1973* (Cth), which imposed obligations on medical practitioners to avoid "inappropriate practice" to remain eligible for the Medicare scheme, constituted "civil conscription" within the meaning of the prohibition in section 51(xxiiiA) of the Constitution. This section grants the Commonwealth power to legislate with respect to the provision of medical and dental services, but expressly states this power does not extend to authorising any form of civil conscription. The Court was required to interpret the meaning of "civil conscription" in this constitutional context and determine if the impugned provisions fell foul of this limitation.
The High Court, in dismissing the appeals, adopted the reasoning of the Full Court below. It held that while there might be a practical compulsion for general practitioners to participate in the Medicare Scheme, this compulsion did not amount to civil conscription. Instead, the Court found that the scheme compelled practitioners to conduct their practices with the care and skill that would be acceptable to the general body of practitioners. This condition was considered "clearly necessary to the effective exercise of the power conferred by s 51(xxiiiA)" and did not constitute an authorisation of civil conscription. The Court distinguished between regulating the manner in which certain aspects of medical practice are carried out and compelling medical practitioners to carry on their practice or provide services. The Court noted that previous decisions, such as *General Practitioners Society v The Commonwealth*, had established that not all compulsion by federal law constituted civil conscription, and that the Commonwealth's interest lay in ensuring the quality and appropriateness of services for which benefits were claimed.
The appeals were dismissed, and the appellant was ordered to pay the costs of the respondents.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
(dissent)
KIRBY J
(dissent)
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.