British Medical Association v Commonwealth

British Medical Association v Commonwealth - [1949] HCA 44 - HCA 1949 case summary — Zoe

[9]

Statement of Claim. In an argument upon demurrer the allegations in the challenged pleading are, for the purposes of the demurrer, assumed to be true, and the question is, in the case of a demurrer to a statement of claim, whether, if all the allegations in the statement of claim are taken to be true, it discloses a cause of action so that the plaintiff will, if the allegations are established as true, be entitled to the relief claimed. The statement of claim alleges the passing of the Act and the making of the regulations under the Act, and states the interest of the plaintiff Council, which is a body corporate one of the objects of which is to advance the general interests of the medical profession in Australia. The interest of the individual plaintiffs has already been indicated. Uncompounded medicines, medicinal compounds, medical materials and medical appliances the names or formulae of which are included or deemed to be included in the Commonwealth Pharmaceutical Formulary prescribed under the Act are referred to in the statement of claim as "formulary medicaments." Other medicaments &c. are referred to as "extra-formulary medicaments." Paragraphs 9 and 10 of the statement of claim are as follows: - "9. A large part of the professional work done by doctors consists of prescribing for the supply to their patients of such one or more, or such combinations of two or more, of the medicaments comprised in the following classes as in the opinion of doctors is or are in each case necessary or advisable for the proper medicinal treatment of the patient: - (a) formulary medicaments; (b) medicaments, either formulary or extra-formulary, specified to be supplied in the form of a particular trade mark, brand, make or proprietary equivalent and in no other form; (c) extra-formulary medicaments consisting of medicinal compounds compounded according to formulae contained in the Formulary with variations other than those specified by the Regulations as being permitted variations of those formulae; (d) other extra-formulary medicaments. 10. A large number of the medicaments prescribed by doctors for supply to patients are formulary medicaments. No doctor could carry on the practice of his profession with due regard to the proper medicinal treatment of his patients or at all if he were unable lawfully to prescribe all formulary medicaments and all medicaments comprised in any other of the abovementioned classes." In par. 11 it is alleged that substantially all chemists practising their profession throughout the Commonwealth have applied for and obtained approval under s. 9 (1) of the Act as pharmaceutical chemists. Paragraph 12 alleges that on the coming into operation of the provisions of the Act the plaintiff doctors will be substantially prevented from and hindered in practising and carrying on their professions and hindered in the proper medicinal treatment of their patients by the requirements of the Act relating to "the writing of prescriptions, the repeating of prescriptions, the quantities of formulary medicaments that may be prescribed, the prescription of formulary medicaments in the form of a particular trade mark, brand, make or proprietary equivalent, and the permitted variations of formulae contained in the Formulary."

[63]

(1) The power is not a power to make laws with respect to, e.g. pharmaceutical benefits and medical services. It is a power to make laws with respect to the provision of such benefits and services. A power to make laws with respect to medical services might well be held to be a power which would authorize a law providing for the complete control of medical services rendered by any person to any other person and so would enable the legislature to control the practice of the medical profession completely or to such less extent as Parliament might think proper. Similarly, if the power were a power to make a law with respect to pharmaceutical benefits it could be argued (with some doubt because of the eleemosynary suggestion contained in the word "benefits") that such a power would authorize a law for the complete control of the business of pharmaceutical chemists. But the actual power is a power to make laws, not with respect to pharmaceutical benefits or with respect to medical services &c., but with respect to the provision of such benefits and services. It is accordingly argued that a distinction should be drawn between powers in the two forms, namely, (1) a power to make laws with respect to, e.g. pharmaceutical benefits, and (2) a power to make laws with respect to the provision of pharmaceutical benefits. It is submitted that effect can be given to the introduction of the words "the provision of" only by treating the power as limited to the provision by the Commonwealth of the various benefits referred to in par. (xxiiiA.). An analogy may be suggested between par. (xxiiiA.) and par. (ii.) of s. 51. Under par. (ii.) the Parliament has power to make laws with respect to taxation. It has always been considered that this is a power to make laws with respect to taxation by the Commonwealth, and that it would not authorize Federal laws prescribing the forms or methods of taxation by the States or laws authorizing private persons to impose taxation. Similarly, it is contended, and in my opinion rightly contended, that the introduction of the words "The provision of" at the beginning of par. (xxiiiA.) produces the result that the new power given to the Commonwealth Parliament by this constitutional amendment is a power to make laws with respect to the providing by the Commonwealth of the benefits mentioned in the paragraph. Under this paragraph the Commonwealth Parliament could not make a law requiring States or corporations or individual persons to provide maternity allowances, widows' pensions, child endowment, or any other of the benefits specified in the paragraph.

[65]

If, as I think should be held, it is the case that the constitutional provision contained in par. (xxiiiA.) relates only to the provision of certain benefits by the Commonwealth, it follows that under this legislative power the Commonwealth Parliament could not prevent the provision of such benefits by any other agency, and therefore, for example, could not prevent the States, through their hospitals or otherwise, supplying benefits either identical with or different from those which were included within the Commonwealth scheme, as long as the Federal and State statutes, each positively providing for such benefits, were not inconsistent with each other. This proposition follows from the view that the legislative power is limited to the subject of provision by the Commonwealth and that it does not extend to provision by other agencies or by a private person. But the Act does not in my opinion in any of its provisions purport to exclude the States from the area of provision of pharmaceutical benefits. It gives State hospitals and the like and friendly societies organized under State law the opportunity of taking advantage of the provisions, but it is not the case that they are bound to do so under penalty of being deprived of necessary medicines &c. There is nothing in the Act which would prevent a State hospital obtaining and dispensing its own drugs or which would prevent a friendly society from obtaining and distributing its own drugs and medicines through a friendly society dispensary. This view depends upon the interpretation of s. 8 of the Act, which I have already examined. As I have said, in my opinion s. 8 does not produce the result that the drugs &c. specified in the formulary or the addendum cannot be obtained from or delivered by an approved pharmaceutical chemist or other chemist except upon a prescription written upon a Commonwealth form which entitles the recipient to receive the drugs or medicines without payment. If persons or institutions choose to remain outside the benefits of the scheme there is not in my opinion anything in the Act to compel them to accept those benefits.

[77]

(1) The word "conscription" etymologically considered relates only to writing names together upon a list: see Latin Dictionary, Lewis & Short, sub voce " conscribo. " Thus the Conscript Fathers in republican Rome were the seniors whose names were on a list of those summoned to the Senate. In both ancient and modern use "conscription" has been principally applied as a convenient term for the purpose of describing compulsory enlistment for military or similar services. In recent years there have been many examples of compulsion of other services for war or other purposes. Such compulsion in relation to industry has been described as "conscription of labour" and "industrial conscription." Conscription of labour assumes various forms - forced labour camps containing prisoners of war or foreigners or enemies or critics of a government behind barbed wire are one form of conscription of labour. Man-power regulations provide another form. The latter provisions were regarded in Australia as industrial conscription: see National Security Act 1939-1946, s. 5 (7). Section 5 provided for the making of regulations under the Act, and sub-s. (7) provided that nothing in the section should authorize - "(a) the imposition of any form of compulsory naval, military or air-force service, or any form of industrial conscription " When Parliament became of opinion that it was desirable or necessary to compel persons to render service in particular occupations for the purposes of prosecuting the war and supplying the needs of the population, civil and military, s. 13A was introduced into the Act. This section provided that "Notwithstanding anything contained in this Act, the Governor-General may make such regulations 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 " It was under this power that the Manpower Regulations, which were considered and upheld in Reid v. Sinderberry [1] were made.

[88]

In the Thirteenth Amendment of the Constitution of the United States of America there is a provision - "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation." This prohibition has been construed broadly so as to give effect to its evident purpose and to prevent evasion by the creation of crimes in relation to acts or omissions which are connected with the rendering of services. In a statute passed to enforce this article of the Constitution the Congress provided that any State laws establishing or enforcing peonage - voluntary or involuntary service in liquidation of a debt or obligation - should be null and void. In Alonzo Bailey v. State of Alabama [1] the Supreme Court said: - "The Act of Congress, nullifying all state laws by which it should be attempted to enforce the "service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise," necessarily embraces all legislation which seeks to compel the service or labor by making it a crime to refuse or fail to perform it. Such laws would furnish the readiest means of compulsion." The fact that a peon could release himself by the payment of his debt did not make his service any the less compulsory [2] . In United States v. Reynolds; United States v. Broughton [3] the Court said: - "Compulsion of such service by the constant fear of imprisonment under the criminal laws renders the work compulsory, as much so as authority to arrest and hold his person would be if the law authorized that to be done." No distinction in this connection can be drawn between fear of imprisonment and fear of a fine. These cases show that the court regarded the substance of the legislation, as determined by its actual operation in the circumstances in which it applied, in reaching a conclusion as to whether or not a law established involuntary servitude.

[95]

The demurrer in this action raises a question which is of great importance, not only to the community in general, but to the medical profession in particular. And I premise my judgment by venturing to repeat that a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret: (Vacher & Sons Ltd. v. London Society of Compositors [1] ; McCawley v. The King [2] ; Ex parte Walsh and Johnson; In re Yates [3] ). Our duty is to interpret the Act. The Act in question the validity of which is attacked is the Pharmaceutical Benefits Act 1947-1949 which was passed in purported exercise of the power conferred on the Commonwealth Parliament by par. (xxiiiA.) of s. 51 of the Constitution. This addition to the Constitution was the result of the decision of this Court in Attorney-General (Vict.) v. The Commonwealth [4] . In that case the majority of the Court held in effect that the original Pharmaceutical Benefits Act 1944 was invalid because it was considered that the power of appropriation of money under s. 81 of the Constitution did not extend to payments for maternity allowances, child endowment and widows pensions, social services being limited by s. 51 (xxiii.) to invalid and old age pensions. Its object was to increase the social services beyond those already provided for by par. (xxiii.) of s. 51. The new provision added to the Constitution in 1946 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." In the first place in interpreting this provision I consider that the provision of these services is to be by the Commonwealth and not by any State or other person. Then I think that the bracketed phrase "but not so as to authorize any form of civil conscription" is restricted to the phrase "medical and dental services." Although punctuation is not to be entirely disregarded, it should not control the meaning of the words where such meaning seems otherwise reasonably clear: Mayor, &c. of Geelong v. Geelong Harbour Trust Commissioners [1] ; President, &c. of the Shire of Charlton v. Ruse [2] ; Committee of Direction of Fruit Marketing v. Collins [3] . In addition to its punctuation the form and structure of the phrase lead me to the construction I have adopted. But I disclaim any suggestion that the spasmodic sprinkling of commas by draftsmen, printers or proof readers should dominate interpretation. The phrase "civil conscription" next calls for interpretation. It is somewhat of a novelty. Military conscription and industrial conscription are familiar combinations. The draftsman apparently shied at the naked simplicity of the word "compulsion," but I think that the phrase means compulsion in connection with "medical and dental services." Turning to the Act the crucial question is whether s. 7A imposes civil conscription as thus interpreted. The Chief Justice and Dixon J. have dealt fully with the details involved in the controversy. I have confined my judgment to what I conceive to be the crucial question in this matter, namely, whether the provisions of s. 7A of the Act can be regarded as a form of civil conscription. The demurrer of necessity admits all the allegations in the statement of claim. And I would particularly refer to the following paragraphs of the statement of claim: - "8. Uncompounded medicines, medical compounds, medical materials and medical appliances are hereinafter referred to as "medicaments." Medicaments the names or formulae of which are contained or deemed to be included in the Commonwealth Pharmaceutical Formulary referred to in the Act and Regulations and hereinafter called "The Formulary" or in the prescribed addendum thereto are hereinafter referred to as "formulary medicaments". Medicaments the names or formulae of which are not so contained or deemed are hereinafter referred to as "extra-formulary medicaments." 9. A large part of the professional work done by doctors consists of prescribing for the supply to their patients of such one or more, or such combinations of two or more, of the medicaments comprised in the following classes as in the opinion of doctors is or are in each case necessary or advisable for the proper medicinal treatment of the patient: (a) formulary medicaments; (b) medicaments, either formulary or extra-formulary, specified to be supplied in the form of a particular trade mark, brand, make or proprietary equivalent and in no other form; (c) extra-formulary medicaments consisting of medicinal compounds compounded according to formulae contained in the Formulary with variations other than those specified by the Regulations as being permitted variations of those formulae; (d) other extra-formulary medicaments. 10. A large number of the medicaments prescribed by doctors for supply to patients are formulary medicaments. No doctor could carry on the practice of his profession with due regard to the proper medicinal treatment of his patients or at all if he were unable lawfully to prescribe all formulary medicaments and all medicaments comprised in any other of the abovementioned classes 12. On the coming into operation of all the provisions of the Act the plaintiff doctors will be substantially prevented from and hindered in practising and carrying on their professions and hindered in the proper medicinal treatment of their patients by (inter alia) the requirements of the Act and the Regulations relating to the writing of prescriptions, the repeating of prescriptions, the quantities of formulary medicaments that may be prescribed, the prescription of formulary medicaments in the form of a particular trade mark, brand, make or proprietary equivalent, and the permitted variations of formulae contained in the Formulary." The question is one of law and, as I have said, this question is the proper construction of s. 7A. It is true that no one is compelled to adopt the profession of medicine. But if he does do so he is affected in his freedom of practice and in his means of living unless he subscribes to the scheme whereby he is subject to control as to the form of the treatment and the drugs which he may prescribe for his patient. For the general practitioner non-compliance means loss of practice. The use of a particular form or the signing of a prescription is no mere automatic action. It 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. It is the culmination of the medical service rendered by the practitioner to the patient. This may perhaps not be compulsion in the sense in which the word is used in connection with military service but, in my opinion, it is a form of civil conscription.

[99]

The first plaintiff named in the writ is the Federal Council of the British Medical Association in Australia, a body incorporated under the law of New South Wales, one of the objects of which is to advance the general interests of the medical profession in Australia. It may be doubted whether this body has, as a corporation, a sufficient material interest, which would be prejudiced by the operation of the Act, to give it a title to maintain the suit (see Real Estate Institute of New South Wales v. Blair [1] ). But the point is of no importance, because there are six other plaintiffs all of whom practise medicine or surgery. The interest which they have is enough to enable them to complain, if the legislation is invalid as a whole or if severable provisions are invalid which would directly affect the practice of medicine or surgery. It is hardly necessary to add that if provisions of the Act or Regulations which would not in themselves affect the plaintiffs and do not touch the practice of their profession are found to be severable so that the operation of other parts of the Act or Regulations is not dependent upon them, the interest of the plaintiffs will not enable them to obtain a declaration concerning the validity of such provisions. It is convenient to illustrate this by the example which is supplied by s. 13 (1), (2), (2A), (2B) and (2C) of the Pharmaceutical Benefits Act 1947-1949. Sub-section (1) of s. 13 enables the Director-General for good cause shown to suspend or revoke his approval of a pharmaceutical chemist, of a hospital authority or of a medical practitioner who practises in an area where there is no pharmaceutical chemist and who has been approved for the purpose of supplying pharmaceutical benefits. Sub-section (2) purports to give an appeal to the Supreme Court of a State against the suspension or revocation of the approval, and sub-s. (2A) purports to invest the Supreme Court of each State with jurisdiction to hear and determine the appeals. Sub-sections (2B) and (2C) deal with the powers of the Court and with procedure upon such appeals.

[107]

The introductory expression in par. (xxiiiA.) "the provision of," governed as it is by the words "with respect to," might conceivably be read as giving a power to legislate about the providing of the allowances, benefits and services to which the paragraph refers whoever did the providing. If it were read thus it would extend to legislation dealing directly and substantially and not merely incidentally, with provisions made by State Governments, public bodies, voluntary associations, trading companies and private persons for any of the purposes enumerated, however limited the application of the provision. It would follow that these governments, bodies and persons might, by legislation under the power, be compelled to make such provision in accordance with whatever obligations the Parliament thought fit to impose upon them. But I am clearly of opinion that this is not the true meaning of the words "with respect to the provision of." The purpose of the constitutional amendment was to enable the Commonwealth to provide the pensions allowances endowments benefits and services which par. (xxiiiA.) mentions. That is shown by the character of the things for the provision of which laws may be made, which are recognized social services the establishment of which is now considered to be within the province of government. The conclusion is confirmed by the history of the matter; and it is supported by the placing of the new paragraph after s. 51 (xxiii.), which deals with invalid and old age pensions. The meaning appears to me to be the same as if the power had been expressed as one to make laws to provide &c. It might have been so expressed had it not been for the words "in respect of" at the head of the section. These words made the use of a substantive or verbal noun necessary and doubtless this accounts for the choice of the words "the provision." But to say that the meaning is the same as if the power had been one to provide the benefits &c. enumerated is not to restrict the Commonwealth to providing them directly and at the expense of the Treasury. The power perhaps might, for example, cover the establishment of contributory schemes; and it would cover the provision of benefits &c. through separate bodies set up for the purpose.

[109]

The expression "not so as to authorize" seems to mean that the grant of the power to the Parliament shall not authorize the Parliament to impose any form of civil conscription. But the grammatical place and the form of the qualification strictly mean that the law made by the Parliament itself shall not authorize the imposition of a form of civil conscription, by, I suppose, the executive. In its application to the legislation under consideration the distinction makes no difference in the result. Much depends, however, upon the meaning of the words "any form of civil conscription." This vague and figurative expression carries with it no clear conception. From the power to make regulations conferred upon the Governor-General in Council by s. 5 of the National Security Act 1939 there was a parallel exclusion of any form of industrial conscription. The meaning of this expression was never elucidated but perhaps it inspired the bracketed exception in s. 51 (xxiiiA.). 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. Nor, I suppose, would there be any doubt that they would cover any attempt to impose upon a medical man a duty of attending patients for fees paid or provided by the Government. But the question is whether an incidental interference in the complete freedom of medical practice involves a form of civil conscription. It is suggested that the word "civil" is used merely to ensure that medical men and dentists will remain liable to military conscription. I think it does something more than that. The word "conscription" has no proper application except to compulsory enlistment for the armed services. Like the word "draft," which too properly applies only to obligatory military service, it has a metaphorical use. A man who is pressed into any task or work or is required to accept any office is said to be drafted for it, a use of the word which is common in the United States. When the word "conscription" is taken from its primary use and the word "civil" is added to it the compound expression seems to me to indicate a single conception. It is described by a metaphor and therefore must rest upon analogy. The difficulty is that, so far as I am aware, it is not an expression which has gained general currency or has acquired a recognized application. Mr. Sholl, who appeared for the State of Victoria intervening, said that "any form of civil conscription" included any compulsion legal or practical by Commonwealth law to do in a civil capacity any act in the course of medical practice for the purpose of the provision of medical services. This of course was not intended to be an exhaustive definition, but it brings out clearly what perhaps in this case is the critical question concerning the meaning of the expression. It does so because it insists that if compulsion is applied to any act, that is any separate thing, it will amount to a form of civil conscription, provided the act is in the course of medical practice and for the purposes of the provision of medical services. The question which this brings out is whether the isolation of an incident in medical practice and the imposition of a duty in reference to what is done can fall within the conception described by the words "any form of civil conscription," or whether on the other hand compulsory service or the compulsory performance of a service or services is not connoted. The meaning of indefinite expressions cannot often be determined in the abstract. It is only by settling what application an expression like "civil conscription" has to definite situations that its exact scope can be worked out. In the present case the particular problem presented is whether the specific requirement imposed by s. 7A of the Act and reg. 11 as to the use of forms for the writing of prescriptions and to the manner of doing it amount to an attempt at a form of civil conscription. This question can better be dealt with after I have expressed my opinion upon the validity of the Act and regulations considered generally. Therefore, with these preliminary observations upon the verbiage employed in s. 51 (xxiiiA.), I shall proceed to the consideration of that subject.

[113]

It will be seen that unless medical practitioners when prescribing medicines contained in the formulary use the forms supplied for the purpose by the Commonwealth the approved chemist cannot supply the medicines free to his customer and obtain payment from the Commonwealth. Apparently it was assumed that medical practitioners would use the forms. But by Act No. 8 of 1949 a provision was inserted in the Act imposing upon them an express duty to use the forms when prescribing medicines, materials or appliances covered by the formulary or the addendum. This provision was replaced by a similar but more qualified provision substituted by Act No. 26 of 1949 and it is the latter with which we are concerned. It stands in the Pharmaceutical Benefits Act 1947-1949 as s. 7A. Its effect may be shortly stated thus. It makes it an offence for a medical practitioner to write a prescription on anything but a form supplied by the Commonwealth if the following conditions are fulfilled - (1) the person in respect of whom it is written is entitled to receive in accordance with the Act pharmaceutical benefits; (2) what is prescribed is covered by the formulary or the addendum; (3) either the person in respect of whom the prescription is written or the person at whose request it is written does not ask him not to write it on such a form; (4) the case does not fall under some prescribed exception. An exception has been prescribed when a medical practitioner considers it necessary to write a prescription but a form is not immediately available. In that case he may use any suitable paper but he must state that a form is not available and entitle the prescription with the words " Pharmaceutical Benefits Act." Afterwards he must give the chemist a prescription on a form - reg. 11 (4)-(6). The regulations direct that a prescription must be written on the prescribed form in duplicate and must be dated, and that not more than one prescription shall be written on a form and that a line shall be drawn through the unused portion of the form: reg. 11 (2). A medical practitioner is forbidden to use a prescription form for any purpose but writing a prescription for the purposes of the Act and from giving it or sending it to any other person except to another practitioner, and in that case he must keep a record of what he has given him: reg. 11 (3) and (9) and (10). By a recent amendment, the regulations impose upon the Director-General of Health an obligation to make available supplies of forms and to furnish them to medical practitioners on request: reg. 11A.

[118]

Much reliance was placed upon the situation in which approved pharmaceutical chemists stood. It appears from the allegations in the statement of claim that nearly all chemists carrying on business in Australia had applied for approval before the amendments made in the Act and regulations during this year were brought forward. Approval must be granted upon application: s. 9 (1). But the authority of the Director-General to comply with a request by an approved chemist to revoke approval is conferred in permissive language. He "may at the request of an approved pharmaceutical chemist revoke his approval of that pharmaceutical chemist." It is not easy to spell into this language a duty on the part of the Director-General to comply with the request. Accordingly it is claimed that the legislation enables the authorities to hold approved chemists to the performance of the duties imposed upon them by the Act and the regulations as they now stand whether they desire to continue or not. But even if it were not so, no chemist, it is said, could afford to relinquish his position as an approved pharmaceutical chemist, if the medical practitioners are obliged to use the prescribed forms. For his business would, in too great a measure, depend upon supplying the prescribed medicines. The duties of the approved chemist do not appear to me to include an imperative legal obligation to supply prescribed medicines, materials or appliances. But no doubt a refusal to do so might lead to the suspension or withdrawal of the chemist's approval under s. 13 (1). I do not think that s. 23 (a) should be construed as enabling the Governor-General in Council to provide that it should be an offence for a chemist to fail to supply prescribed medicines. If it were so construed I should doubt its validity, as I doubt the validity of reg. 22, which purports to impose upon an approved chemist a legal duty, certainly of a rather vague description, to stock drugs. To place such obligations upon chemists seems to go beyond what is incidental to the provision by the Commonwealth of pharmaceutical benefits. But the validity of these provisions, which do not affect the plaintiffs and are severable, cannot be called in question in this suit.

[120]

There is some difficulty of interpretation concerning the scope of the prohibition against receiving payment from a person presenting a prescription on a Commonwealth form signed by a medical practitioner. The difficulty arises from the drafting device adopted consisting of the use in the body of the Act of the words supply, obtain and receive and of the making of a general provision that such words shall be read as a reference to the supply, obtaining or receipt of the pharmaceutical benefit in accordance with the Act: s. 4 (2). The result of this is that a payment from the Commonwealth cannot be claimed by the chemist unless the medicine has been supplied in accordance with the Act and that means a regular prescription on the proper form in duplicate and a supply at or from the premises of the chemist in respect of which he has been approved. Does it follow that if there is a departure from any of these requirements he can charge the customer and at a price not fixed by the Pharmaceutical Tariff? That depends on s. 7 (3) and the application of s. 4 (2) to the word "supply" where it occurs in s. 7 (3). I am disposed to think the answer is in the affirmative. Clearly enough s. 8 is limited throughout by the qualification expressed in s. 4 (2), notwithstanding that specific conditions or requirements are expressed in s. 8 itself. Accordingly, it appears to me that if the conditions imposed by s. 8 or any other relevant part of the Act are not complied with the person seeking the "pharmaceutical benefit" has no right to its free supply under the Act and may purchase the medicine or the material or appliance whether from an approved chemist or elsewhere. But these are minor matters and have small effect upon the situation of the pharmaceutical chemist as stated above. It is said that his situation involves a degree of compulsion upon him which goes beyond the power to legislate for providing pharmaceutical benefits and also that it amounts to an acquisition of property from him upon terms that are not just.

[121]

These are contentions that, for clearness at all events, require separate consideration. The first of them depends, I think, upon a conception of the power which excludes the possibility of a law being validly made thereunder if its operation is such as to create a situation of economic, business or practical pressure which constrains a man to act in a way desired by the legislature. This seems to me an indefinite, not to say slippery, conception, and one that has no clear connection with the question whether the legislation constitutes a law for the provision by the Commonwealth of pharmaceutical benefits. Even if, contrary to the view I have expressed, the words "but not so as to authorize any form of civil conscription" applied to the provision of pharmaceutical benefits, it would be difficult to say that the chemist was subjected to a form of civil conscription. He can refuse to supply a prescription. He can supply it from other premises. He is an approved chemist because he applied for approval. I am not impressed by the suggestion that chemists sought approval under a scheme which has since been materially changed so that a chemist may say non haec in foedera veni. The amendments in the Act with one exception work no material alteration of the scheme or plan of 1947 and the amendments of the regulations do not do so unless the enlargement of the ambit of the formulary be considered material. The exception is the introduction of s. 7A. But if this section proved effective, the result upon the chemist would be no more than if the medical practitioners had voluntarily used the forms. That the chemists must have contemplated as a possibility when they sought approval. Any full exercise of the power to legislate to provide pharmaceutical benefits must mean either the use of existing pharmaceutical chemists as suppliers of medicines or the use of new agencies. It is difficult to see why the economic consequences upon chemists should put it beyond power. The dilemma which the legislative choice of the first of these alternatives presented to chemists of either coming in or staying out of the scheme does not seem to me to be civil conscription or to place the measure outside the power to provide pharmaceutical benefits.

[123]

Here there has been no attempt to show that the prices the Pharmaceutical Tariff would provide would in fact be inadequate or unfair. But however that may be I do not think that the provisions of the legislation governing the supply of prescribed medicines, materials or appliances by chemists amount to a law with respect to the acquisition of property within the meaning of s. 51 (xxxi.). The view has been expressed that s. 51 (xxxi.) covers voluntary acquisition. The view has also been expressed that it covers acquisitions of property authorized by Federal law even although the property is not acquired by the Commonwealth (McClintock v. The Commonwealth [1] ). No doubt if you combine these views a dialectical argument may be constructed to support the conclusion that as the acquisition of the medicine from the chemist by the customer is authorized by Commonwealth law s. 51 (xxxi.) must apply. But it is a synthetic argument, and in my opinion is unreal. The first view means that an acquisition by the Commonwealth may be authorized under the power, whether the acquisition be voluntary or compulsory. The second view means that a compulsory acquisition under Federal law for a purpose in respect of which the Parliament has the power to make laws must be referred to s. 51 (xxxi.) and must comply with the condition concerning just terms. There is here no compulsory acquisition by the customer of the drugs he obtains from the chemist when he presents a medical prescription. The chemist is legally free to supply them or not as he pleases. I do not think that the risk he may run of his approval being revoked if he refuses, or the business consequences of the revocation, can make the acquisition compulsory. Its legal character is a voluntary sale. The protection which s. 51 (xxxi.) gives to the owner of property is wide. It cannot be broken down or avoided by indirect means. But it is a protection to property and not to the general commercial and economic position occupied by traders. The essence of a chemist's relation to the plan is that, as a trader, he must decide whether at the prices fixed by the Commonwealth he will or will not supply a commodity which he buys and sells, the law having brought about a situation in which it is likely that there will be little or no other trade for him in that commodity. If the prices are too low he may suffer in his trade, but that is not within the protection of s. 51 (xxxi.). But it does not appear to me that it is a case of taking his property from him against his will without just compensation.

[126]

As to the first, s. 11 provides that where there is no approved pharmaceutical chemist in a particular area, the Director-General may approve a medical practitioner practising in the area for the purpose of supplying pharmaceutical benefits. It then provides that they shall be supplied by him in accordance with the regulations. Two points arise on the section. The first is whether the Director-General may fix upon a medical practitioner and approve him without his consent and against his will. I think not. The provision is perhaps defectively drawn but I think the word "approve" implies that the function for which he is to be approved is one that the medical practitioner seeks to fulfil. The second point is whether a duty to supply the medicines &c. is imposed upon the approved practitioner. Again I think not. The word "shall" is directed not to the words "be supplied" but to the phrase "in accordance with such conditions as are prescribed." It would be a great burden to impose upon a medical practitioner in a remote area if he were placed under a legal duty of having available for supply everything that might ultimately be covered by the formulary and the addendum. Section 15 (1) is a somewhat indefinitely worded provision authorizing the Minister to make special arrangements to provide that an adequate service in lieu of all or any of the benefits provided by the Act would be available in isolated areas or under special conditions. Sub-section (2) says that the provisions of any special arrangements made in accordance with sub-s. (1) shall have effect notwithstanding any provisions of the Act inconsistent therewith. It is suggested that this gives the Minister an anomalous coercive authority exerciseable by making "arrangements," an authority bounded only by the subject matter. I think that this misconstrues the provision. The Minister, in my opinion, is given no coercive powers. He must make arrangements which are voluntary in character, but he is not bound to conform to the general requirements of the Act and his "arrangements" may be, therefore, inconsistent with the plan laid down elsewhere in the Act. It is plain on the face of s. 16 that only contractual arrangements are contemplated by that particular provision. I see no reason to doubt its validity.

[127]

The Act distinguishes between public and private hospitals. A patient occupying a bed in a public ward in a public hospital is excepted from persons entitled to pharmaceutical benefits: s. 7 (1). The power to make regulations includes authority to prescribe the hospitals or the classes of hospitals which shall be deemed to be public hospitals for the purpose of the Act: s. 23 (d). The governing body of a public hospital and the proprietor of a private hospital are called hospital authorities. A Minister of a State may be declared the governing body of the public hospitals of the State: s. 4 (1) and (3). A hospital authority may apply for approval to supply pharmaceutical benefits to patients receiving treatment in or at the hospital of which it is the governing body or proprietor. The application must say who will dispense or supply the pharmaceutical benefits on behalf of the hospital: s. 12. The approved hospital authority is then entitled to payment from the Commonwealth in accordance with the regulations in respect of the supply of pharmaceutical benefits to the patients but no payment is to be made under this provision in respect of a patient occupying a bed in a public ward in a public hospital: s. 14 (3) and (4). The approved hospital authority takes the place of the approved pharmaceutical chemist. It supplies the medicines, materials and appliances covered by the formulary and addendum and claims payment from the Commonwealth. But in the arrangements for payment a distinction exists between public hospitals and private or it would be better to say hospitals not defined as public. Subject to the satisfaction of the Director-General as to the adequacy of the provision of pharmaceutical benefits by a public hospital, the approved authority of the hospital is to receive payment fixed on a basis "which will result in payments covering as nearly as practicable the cost to approved public hospitals in the State concerned of supplying the pharmaceutical benefits." It is fixed by the Federal Treasurer after consultation with the State Treasurer: reg. 32. Since the payment is made under such an arrangement, the regulations provide that a medical practitioner shall not write a prescription in respect of the treatment of a person in or at an approved public hospital upon a prescription form supplied by the Commonwealth: reg. 33. In other hospitals the medical practitioner must, according to s. 7A, write prescriptions for formulary medicines and materials and appliances on Commonwealth forms. A prescription must be presented to an approved hospital authority if he is the proprietor of a private hospital: reg. 12. Putting aside s. 7A, there is not in my opinion any ground apart from those already dealt with for saying these provisions fall outside the power to make laws with respect to the provision of pharmaceutical benefits. But it is only in public hospitals that the hospital medical attendants need not use Commonwealth forms for medicines and materials and appliances listed in the formulary or addendum. Curiously enough "public hospital" is defined in a way that excludes hospitals conducted by the States themselves. The definition is made by the regulations pursuant to the power already mentioned. To be a public hospital the institution must be in receipt of a grant for maintenance from a State and must be certified to be a public hospital by the State Minister concerned: reg. 2 (3). It is pointed out for the State of Victoria intervening, that State mental hospitals, gaol hospitals, police hospitals and other State hospitals, sanatoria and clinics do not "receive grants for maintenance" and must therefore fall outside the definition. Consequently the medical officers are not relieved from the necessity, if s. 7A is valid, of prescribing upon Commonwealth forms, if they prescribe anything falling within the formulary or the addendum. In any case even if the medical officers of such institutions were relieved by the regulations from so doing, it would remain true that by the terms of s. 7A of the Act they were required so to use Commonwealth forms, and only by the regulation-making power were they excepted. I agree that if the effect of the provisions is to require State medical officers in the course of their State duties to use Commonwealth forms, although the State institutions in which they act are not approved and no payment is or could be claimed from the Commonwealth for the medicines the State provides for the patient, the provisions would probably go too far and so pro tanto would exceed power. The effect as an interference with the conduct of the institution is perhaps exaggerated. The point seems to be, however, that in its application to the circumstances suggested the imposition upon the State medical officers of an obligation to conform to s. 7A and reg. 11 is not connected with the provision of benefits. But again I cannot see how such an excess of power would destroy the whole Act.

[132]

It is I think, within the scope of the power with respect to the provision of pharmaceutical benefits, understood according to these principles, to prescribe conditions governing the right to obtain medicines from chemists at the cost of the Commonwealth and the right of the chemist to obtain payment from the Commonwealth, the procedure to be followed, including the documentation and records, and the machinery for administering the plan. Thus it is within power to make a medical prescription indispensable to the right to obtain free medicines. It is within it to provide, for administrative convenience, that a prescription should not suffice unless written upon an official form. It is within it to make up and furnish to medical practitioners and chemists a list of uncompounded medicines and formulae for medicinal compounds. To do so serves, I take it, the purposes of limiting the medicines to be supplied at government cost, of providing a system of references for the use of the medical practitioner, the chemist and administrative officers and of facilitating the preparation and use of a pharmaceutical tariff. It is more doubtful whether it is within the scope of the power to provide, as reg. 31 (2) in effect does, that if a particular trade mark, brand, make or proprietary equivalent of something contained in the formulary is prescribed, the chemist shall not be bound to supply the pharmaceutical benefit in that form and if he does he shall be paid no more than the rate of the Pharmaceutical Tariff. This, I think, exceeds power if and in so far as it purports to relieve the chemist of responsibility to the patient for supplying something which is not prescribed, if on any medical ground it can be distinguished from what is prescribed. Whether it does so is a question which, I presume, must depend upon the possible operation the clause may have upon prescriptions for particular compounds now specified in the formulary scheduled to the regulations. It is a question that cannot be decided without information and explanation, which are beyond the limits of judicial notice. It is a matter which it is neither possible nor necessary to decide at present. It is not necessary to do so because it does not affect the validity of the main provisions.

[156]

This condition cannot by reason of its place in par. (xxiiiA.) apply to a law providing "benefits to students" and "family allowances". Its place in the paragraph raises the question whether it applies only to the provision of medical and dental services and nothing else or to the provision of any matter in the paragraph which precedes the condition. They are maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services. It would seem odd to say that there is power to make a law with respect to the provision of maternity allowances "but not so as to authorize any form of civil conscription." And if the condition applies to that subject matter it would appear to be odd that it is not made to apply to "family allowances." Clearly it does not apply to that subject matter. If the construction that the condition applies only to the provision of medical and dental services is not adopted, the only alternative construction is that it applies to every subject matter beginning with maternity allowances down to medical services. This alternative construction would bring the idea of conscription into association with matters with which it is not naturally or logically connected. I think that the key to the interpretation of the paragraph is that the idea of conscription cannot naturally be associated with the provision of anything in the paragraph except the services which are mentioned; they are medical and dental services. The condition immediately follows the words "medical and dental services." In my opinion it should not be annexed to anything before the word "medical." There is no comma between dental services and the first of the brackets enclosing the condition: there is a comma at the end of the second bracket. The words "medical and dental services (but not so as to authorize any form of civil conscription)" are a separate branch of the legislative power conferred by the paragraph. No other branch of the power is qualified by the condition. In this view the Parliament is equipped with power to legislate with respect to the provision of pharmaceutical benefits unfettered by the condition with respect to conscription.

[168]

Accordingly, the main purpose of the alteration of the Constitution now embodied in s. 51 par. (xxiiiA.) was to empower the Commonwealth Parliament to legislate to spend its moneys on a wider range of social services than those authorized by s. 51, par. (xxiii.). The new paragraph is of course plenary in its fullest sense and must, like every other legislative power in the Constitution, be given a wide and liberal interpretation. It contains eleven separate heads of legislative power. These heads may to some extent overlap, but there is no reason why the paragraph, because it is part of the Constitution, should not be construed so as to make it a consistent enactment and to give a meaning if possible to every part of it, Bank of New South Wales v. The Commonwealth [1] . It is important to discover at the outset the heads to which the expression in parenthesis "but not so as to authorize any form of civil conscription" applies. There is a comma after the words "hospital benefits" and a further comma after the words "civil conscription" so that the punctuation tends to confine the expression to the words "medical and dental services," (Committee of Direction of Fruit Marketing v. Collins [2] ) and this is in my opinion the true intent of the paragraph. If the expression was meant to apply to all the preceding words, it would only be natural to expect that it would also be made to apply to the succeeding words "benefits to students and family allowances," because medical and dental services could be provided as part of such benefits and allowances just as readily as they could be provided as part of the preceding allowances and benefits. It would appear therefore that the other heads of legislative power in the new paragraph are not subject to the expression. This may well have been thought to be unnecessary because a legislative power to provide allowances, pensions, endowments, and benefits points strongly to a power which is intended to be exercised by the Commonwealth itself providing such allowances &c. in cash or in kind, and not to a power to make or compel a State or some private individual to provide the benefit. But it is unnecessary to express a final opinion because the express inclusion of medical and dental services in the paragraph clearly indicates to my mind that whenever such services are provided whether as services exclusively or in the course of providing some other benefit, the law must not authorize any form of civil conscription of such services.

[173]

The Acts of 1944 and 1947 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. 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. When a statute inflicts a penalty for not doing an act, the penalty implies that there is a legal compulsion to do the act in question (Redpath v. Allan [1] ). Section 7A therefore compels a medical practitioner, who cannot obtain a request to the contrary from the person in respect of whom or at whose request the prescription is written, to write the prescription on the forms supplied by the Commonwealth. The Attorney-General submitted that the section does not compel a medical practitioner to render any medical service, and that its whole effect is to compel a medical practitioner to write the prescription on a particular piece of paper if he decides, in the unfettered exercise of his discretion, that the patient requires treatment which is included in the formulary. It was submitted that the subject matter of the legislation is not the medical service of treating the patient, but merely the question of the use of a document for the particular purpose of enabling the patient to obtain the pharmaceutical benefits at or from the premises of an approved chemist without payment. But this is not in my opinion the true effect of the section. 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. Section 16 of the Act provides that: "The Minister may, on behalf of the Commonwealth, enter into an agreement (on such terms as to remuneration, allowances and otherwise as he thinks fit) with a medical practitioner providing that the services of the medical practitioner shall be available without charge to members of the public for the purpose of furnishing prescriptions for the purposes of this Act." This section describes as a medical service, the service which a practitioner provides when he is compelled by s. 7A to write a prescription on a Commonwealth form. 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. And the Attorney-General did not contend, rightly I think, that the constitutional validity of s. 7A (1) was in any way strengthened by the presence of s. 7A (2). When analysed, the submission of the defendants appears to imply that a law only authorizes a form of civil conscription of medical services when it operates directly to compel medical practitioners to work for some civil authority or in some particular locality or for some particular class of patients, and that a law which merely compels medical practitioners to act in some particular manner in the course of or as incidental to the carrying on of their profession does not authorize any form of civil conscription. This submission, if accepted, would mean that medical practitioners could be compelled in the course of their practice to perform all sorts of medical duties as, for instance, to give certificates, keep records, and give information, confidential or otherwise, about the health of their patients provided the certificates &c. were reasonably incidental to the execution of a law with respect to the provision of any of the allowances or benefits specified in the paragraph. In my opinion such a submission unduly narrows the effect of the wide words "any form of" in the expression in parenthesis.

[174]

It is to be noted that the Act of 1947 did not repeat s. 22 of the Act of 1944 which provided that a medical practitioner should not write a prescription in accordance with any prescribed form unless he was satisfied, by personal examination of the person in respect of whom the prescription was written, that the pharmaceutical benefit specified in the prescription was necessary for the treatment of that person. In Attorney-General (Vict.) v. The Commonwealth [1] the Chief Justice said of this section that it "directly controls the conduct of medical practitioners this provision directly and compulsorily operates in relation to medical practitioners by preventing them carrying on their practice as they may be allowed to carry it on under the laws of the State." This was said of course before the insertion of par. (xxiiiA.) in the Constitution. Section 7A of the present Act does not, like s. 22 of the Act of 1944, expressly provide that medical practitioners must make a personal examination of their patient before writing a prescription, but it would be the duty of a medical practitioner at common law to be satisfied that his patient required the pharmaceutical benefit before prescribing it, and a statutory obligation similar to that imposed by s. 22 could be introduced by a regulation made under s. 23 of the present Act which authorizes the Governor-General to make regulations (b) making provision in relation to the writing of prescriptions on prescription forms supplied by the Commonwealth for the purposes of the Act. Section 7A of the present Act, like s. 22 of the Act of 1944, "directly controls the conduct of medical practitioners" in carrying on their practice. Such duties as giving certificates, keeping records, and giving information about the health of their patients would all be duties to be performed by a medical practitioner in the course of carrying on his profession as a civilian and a law which compelled him to perform them would, in my opinion, authorize a form of civil conscription of his services. Obviously legislation which infringed the prohibition could not be invalid under s. 51 par. (xxiiiA.) but valid under the incidental power s. 51 par. (xxxix.) of the Constitution. For these reasons I am of opinion that s. 7A is invalid.

[180]

As to (2), the validity of s. 7A: in the Pharmaceutical Benefits Act as enacted after the par. (xxiiiA.) became part of the Constitution and before July 1949, there was no compulsion of any kind in respect of medical or dental services; but in July 1949, after the doctors had declined to use the Commonwealth form in writing their prescriptions, and so prevented their patients from obtaining the pharmaceutical benefits, the Act was amended to require, in a new s. 7A, that a doctor should use the Commonwealth form if he prescribed anything in the Commonwealth Pharmaceutical Formulary or the addendum thereto, unless the patient requested otherwise. The penalty for non-compliance was fixed at £50. In this way it was sought to compel the doctors to do something which they were not prepared to do voluntarily. But the learned Attorney-General submitted that a doctor, in putting the prescription on the Commonwealth form instead of on his own paper, would not be performing a medical service; that the medical service would be complete when the doctor made up his mind what to prescribe; and that s. 7A operated on him only as from the time when he proceeded to write the prescription. However, I think that medical service in par. (xxiiiA.) is not limited to the exercise of the professional skill required to arrive at a conclusion as to what should be prescribed, but extends to the writing of the prescription, whether on the doctor's paper or on the Commonwealth form. Ordinarily the writing of a prescription is a medical service. Taking the allegations in the statement of claim to be true for the purposes of this demurrer, the position appears to be that, as every person residing in Australia who is not a patient occupying a bed in a public hospital is entitled to the benefits provided by the Act, and the great majority of the people of Australia are likely to want these benefits, the doctors must treat them or lose a considerable part of their practice, if not the whole of it; but if a doctor treats patients to retain his practice, then s. 7A requires him to sign the Commonwealth form and renders him liable to a penalty of £50 if he fails to do so. This, in my opinion, imposes on doctors a compulsory medical service and is a form of civil conscription within the meaning of par. (xxiiiA.). It may well appear that at present the doctor is compelled to do very little in being required to use the Commonwealth form, but if it is conceded that he may be compelled to do this on the ground that it is not the performance of a medical service but merely a method of rendering it, he may also be compelled to do many other things on the same ground, such as attending at certain places during certain hours to write prescriptions for the convenience of patients not confined to their homes. It is for Parliament to stipulate the conditions attaching to its grant of benefits, but not by compelling the doctors, under penalty as for an offence, to sign the required forms or be deprived of practice; otherwise by fines or deprivation of practice the doctors could be controlled to any extent as to their movements and time. Of course patients may be forced by the attitude of the doctors to request that the Commonwealth form be not used; but the compulsion on the doctors remains, although for the time being it is countered by a measure which, however undesirable it may appear, is not unlawful.

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Judgment (184 paragraphs)

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