Case: Attorney-General for Victoria v The Commonwealth [1945] HCA 30 ; (1945) 71 CLR 237
Outcome: cited
Section 51(xxiiiA) was inserted into the Constitution by amendment pursuant to s 128 of the Constitution . The proposed amendment had been approved by the necessary majorities of electors and was assented to on 19 December 1946. In explaining the background to this amendment in BMA at 285 , Williams J referred to the different views as to the proper scope of s 81 of the Constitution (Commonwealth power of appropriation) expressed in Attorney-General for Victoria v Commonwealth [1945] HCA 30 ; (1945) 71 CLR 237 (' Pharmaceutical Benefits Case') and to the likelihood, if the point arose for decision, that a majority of the Court would hold that the Commonwealth could only expend its money on those forms of social services expressly authorised by the Constitution , namely invalid and old age pensions authorised by s 51(xxiii). The extension of Commonwealth power to the provision of the benefits enumerated in s 51(xxiiiA) had been put beyond doubt by the amendment and concerns that the extension of power might lead to the nationalisation of medical and dental professions were met by the prohibition of civil conscription; see also D Mendelson, "Devaluation of a Constitutional Guarantee: The History of Section 51(xxiiiA) of the Commonwealth Constitution " (1999) 23 MULR 308 . 31 Williams J was also not prepared to confine the operation of the constitutional prohibition to direct legal compulsion; at 287. In his Honour's view, however, the fact that s 7A carried a penalty for non-compliance implied legal compulsion and by compelling medical practitioners, in the absence of a relevant request to the contrary, to write prescriptions on forms supplied by the Commonwealth, the section compelled the provision of a medical service to the Commonwealth. Williams J summarised his view at 289: 'The scheme of the Act is to make the provision of a pharmaceutical benefit conditional upon a medical practitioner prescribing particular treatment, so that in prescribing that treatment the medical practitioner is rendering a medical service to the Commonwealth. He is in effect certifying to the Commonwealth that the patient requires a pharmaceutical benefit within the meaning of the Act. ... He is compelled to render that service in the course of rendering a contractual service to his patient. But it is a service which forms no part of the implied contract for services created by a patient seeking the advice and treatment of a medical practitioner and the medical practitioner examining the patient with a view to giving him advice and treatment. It is a compulsory service to the Commonwealth for the purposes of the Act which is super-imposed upon the contract of the parties. It is a compulsory service whether the obligation is absolute or absolute unless performance is excused by the person in respect of whom or at whose request the prescription is written.' 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.