Case: Federal Council of the British Medical Association in Australia v Commonwealth [1949] HCA 44 ; (1949) 79 CLR 201
Outcome: distinguished
In making these submissions the applicant relies on the decision of the High Court in The General Practitioners Society in Australia v Commonwealth of Australia [1980] HCA 30 ; (1980) 145 CLR 532 ('General Practitioners case'). In the alternative the applicant submits that: (a) GPS is distinguishable and does not apply to the present case; and/or (b) the construction of 'civil conscription' in GPS is incorrect and should not be accepted by this Court. Rather, it is submitted, the broader view of what constitutes 'civil conscription' taken by Latham CJ, Rich, Williams and Webb JJ in Federal Council of the British Medical Association in Australia v Commonwealth [1949] HCA 44 ; (1949) 79 CLR 201 ('BMA case') should be accepted. 28 In the BMA case , the High Court held that the prohibition against civil conscription in s 51(xxiiiA) applied only to medical and dental services and not to the other elements of the section. At issue was the validity of s 7A of the Pharmaceutical Benefits Act 1947 (Cth) which required medical practitioners to use a prescribed form and adhere to a prescribed list of pharmaceuticals in writing a prescription if their patients were to be entitled to free pharmaceutical benefits. It was an offence, carrying a penalty of [sterling]50, for a medical practitioner to write a prescription other than in the statutory form unless asked to do so by the person for whom or at whose request the prescription was written. The majority of the High Court (Latham CJ, Rich, Williams and Webb JJ, Dixon and McTiernan JJ dissenting) held that the section imposed a form of civil conscription contrary to the prohibition in s 51(xxiiiA). 29 Latham CJ emphasised, at 243, that the power given to the Commonwealth under s 51(xxiiiA) is not a power to make laws with respect to pharmaceutical benefits and medical services but for the provision of such benefits and service. The Chief Justice accepted that in providing such benefits and services, the Commonwealth was entitled to rely upon the existing 'position in the community', that is, a system whereby private doctors prescribe medicine. His Honour found that the incidental power derived from s 51(xxxix) of the Constitution entitled the Commonwealth, when providing benefits out of public moneys, to take precautions so as to prevent injury to the public and the useless or dishonest expenditure of public moneys. 30 The Chief Justice also said (at 249) that the term 'civil conscription' is wider than 'industrial conscription' and is applicable to "any compulsion of law requiring that men should engage in a particular occupation, perform particular work, or perform work in a particular way." The Chief Justice emphasised that the words 'any form of' in s 51(xxiiiA) evinced an intention on the part of the Parliament to ensure that any service to which the limitation applied should be 'completely voluntary'. Considering s 7A, his Honour accepted that a doctor might escape the penalty by not writing a prescription but noted that if a doctor could not carry on practice without writing many prescriptions included in the prescribed list, the doctor is not given any live option. Given that the doctor had no power or right to procure or control a request that he not use the Commonwealth forms then he either had to use them or go out of practice. The Chief Justice viewed this as a very real form of compulsion commenting (at 253): 'There could in my opinion be no more effective means of compulsion than is to be found in a legal provision that unless a person acts in a particular way he shall not be allowed to earn his living in that way, and possibly in the only way, in which he is qualified to earn a living.' Webb J expressed a similar view at 292-3. 32 The aspects of the legislation that had led Webb J to conclude that the legislation involved a compulsory medical service were clearly identified by his Honour at 294: 'To reiterate: if s 7A had not been enacted a patient requesting a doctor to write a prescription on the Commonwealth form, which involves consulting and consideration of the Commonwealth Pharmaceutical Formulary or its addendum or both, would request a service which only a doctor can render, and which therefore is properly described as a medical service. But when this service is made compulsory by a fine, or loss of practice to avoid the fine ...then, having regard not only to the extent of the professional work involved but to the almost unlimited number of persons entitled to insist on the service at any time, it becomes, I think, not merely a compulsory service but a form of civil conscription within any meaning that can be given to that expression which, if not quite clear, was certainly intended to be comprehensive. It is civil conscription of doctors as doctors.' His Honour's comments on these aspects of the legislation are particularly instructive in the present proceeding. 33 The only other case in which the High Court has considered the meaning of 'civil conscription' in any detail is the General Practitioners case . Certain provisions of the HIA (ss 16A, 16B and 16C) and regulations made under the Act imposed conditions to be met before Commonwealth medical benefits were payable in respect of pathology services (other than prescribed pathology services) and also imposed obligations on some, at least, of the persons providing those services. It was necessary for those services to be provided by or on behalf of an 'approved pathology practitioner'. The conditions and obligations were designed to prevent the supply of unnecessary or excessive pathology services. 34 The legislative provisions operated in conjunction with an undertaking to be provided by approved pathology practitioners and a code of conduct. They had no application to a medical practitioner who was prepared to render pathology services for which no medical benefit would be payable and there was no legal compulsion on any medical practitioner to become an approved pathology practitioner. The arguments put to the Court that the legislation imposed a form of civil conscription were summarised by Gibbs J at 549: 'First, it was said that the laws positively require a practitioner to perform services of a medical kind. Secondly, it was said, the laws, by prohibiting practitioners from carrying on practice in what was formerly the normal way, compel them to carry on practice in a different way. ... it was argued for the plaintiffs that few practitioners would be able to attract patients, or to make a living from their profession, if medical benefits were not payable in respect of their services, and that therefore, if ss 16A, 16B and 16C are valid, a practitioner who intends to render pathology services (whether as a specialist or as a general practitioner) is compelled by practical considerations to apply to become an approved pathology practitioner.' 37 Gibbs J disagreed with observations by some members of the majority in the BMA case (Latham CJ at 249, Williams J at 290 and Webb J at 294) to the effect that 'a law which compels people to perform services in a particular manner is a law which imposes civil conscription'. At 557, Gibbs J explained his disagreement thus: 'That expression, ['any form of civil conscription'] used in its natural meaning, and applied, as the context of par. (xxiiiA) requires, to medical and dental services, refers to any sort of compulsion to engage in practice as a doctor or a dentist or to perform particular medical or dental services. However, in its natural meaning it does not refer to compulsion to do, in a particular way, some act in the course of carrying on practice or performing a service, when there is no compulsion to carry on the practice or perform the service. ... it could not properly be said that it would be a form of civil conscription to require a person who had voluntarily engaged in civilian employment to perform the duties of that employment in accordance with the instructions given to him by his employers. ... There is nothing in the Constitution that would indicate that the expression "any form of civil conscription" where it appears s 51(xxiiiA) should be given an enlarged meaning which its words do not naturally bear. The words "any form of" do not, in my opinion, extend the meaning of "conscription", and that word connotes compulsion to serve rather than regulation of the manner in which a service is performed. Of course no express power is conferred on the Parliament to make laws to regulate the manner of performance of medical or dental services, but it appears clearly necessary to the effective exercise of the power conferred by s 51(xxiiiA) that the Parliament should be able to make laws as to the way in which medical and dental services provided by the Commonwealth under the authority of that paragraph are performed, and laws annexing conditions to the entitlement to any of the benefits provided under that authority even if those conditions may have the result that a medical or dental service must be rendered in a particular way if the benefit is to be obtained. I find it impossible to discern in the words in parenthesis in par. (xxiiiA) any intention to prevent the Parliament from making laws of that kind, provided that no compulsion to serve is imposed.