General Practitioners Society in Australia v The Commonwealth

General Practitioners Society in Australia v The Commonwealth - [1980] HCA 30 - HCA 1980 case summary — Zoe

[111]

It was held by the majority of the Court in British Medical Association v. The Commonwealth [4] that the bracketed words in par. (xxiiiA) qualify only "medical and dental services", and that the other heads of power in the paragraph are not subject to those words: see per Rich J. [5] , per Dixon J. [6] , per McTiernan J. [7] , and per Williams J. [8] ; contra, per Latham C.J. [9] . In the present case, the provisions of Pt II of the Act appear plainly enough to have been enacted in intended exercise of the power to provide sickness benefits, and the purpose of the impugned provisions appears to be to protect the public revenue against abuses of the system under which such benefits are provided. This is done by placing conditions on the entitlement to benefits payable in respect of pathology services, in an endeavour to deter medical practitioners from either requesting or rendering services which are unnecessary or excessive. However, I do not consider that the plaintiffs' challenge can be disposed of on the short ground that the legislation as a whole may properly be characterized as a law with respect to the provision of sickness benefits. I agree with the statement of Williams J. in British Medical Association v. The Commonwealth [10] that "whenever such" (i.e., medical or dental) "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". Dixon J. appears to have expressed, although tentatively, a similar view [11] . It is therefore necessary, notwithstanding the general character of the legislation now in question, to proceed to consider whether it does authorize any form of civil conscription in relation to medical services. 1. (1949) 79 C.L.R. 201. 2. (1949) 79 C.L.R., at p. 255. 3. (1949) 79 C.L.R., at pp. 261, 269, 277. 4. (1949) 79 C.L.R., at pp. 281-282. 5. (1949) 79 C.L.R., at pp. 286-287. 6. (1949) 79 C.L.R., at pp. 250-251. 7. (1949) 79 C.L.R., at p. 287. 8. (1949) 79 C.L.R., at p. 277.

[114]

It then becomes necessary to consider the effect of the challenged legislation upon medical practitioners, and there arises a question as to the proper construction of s. 16A (1). On behalf of the plaintiffs it was submitted that the words "the practitioner" in s. 16A (1) (a) (i) mean a practitioner other than an approved pathology practitioner, and it was upon this construction that counsel for the plaintiffs particularly relied in advancing the argument that the sub-section prevents medical practitioners from carrying on practice in the ordinary way and compels them, in some instances, to render services which they would not otherwise have performed. For example, it was said that the effect of the sub-section was to prevent an approved pathology practitioner who determined that a pathology service was necessary from requesting any other medical practitioner to perform that service - that is, of course, if a medical benefit were to be payable in respect of it. This would mean that a practitioner could not have the service performed by a specialist, or by his own partner, as he might otherwise have done, but would in effect be compelled to perform the service himself. I need not consider whether, if this were so, the sub-section would impose a form of civil conscription, for in my opinion the suggested construction is erroneous. The draftsman has throughout the sub-section preserved a distinction between a practitioner who is an approved pathology practitioner and one who is not. The former is expressly so described; the latter is referred to as "a medical practitioner other than an approved pathology practitioner". Where the word "practitioner" alone appears, it is intended to cover both classes. This is clearly so in the introductory words of the sub-section; if those words did not extend to approved pathology practitioners, as well as to other practitioners, they could not be read sensibly with s. 16A (1) (b), which applies where the service was determined to be necessary by an approved pathology practitioner. There is no justification for giving practitioner in s. 16A (1) (a) (i) any narrower meaning than the ordinary meaning in which the word is used in the introductory words of the sub-section. So understood, s. 16A (1) (a) (i) takes effect harmoniously with the rest of the sub-section, and there does not arise any inconsistency, repugnancy or incongruity which might justify reading into the sub-paragraph words which do not appear there. The effect of s. 16A (1) (a) is that a medical benefit will be payable in respect of a pathology service, other than a prescribed pathology service, which is rendered by or on behalf of an approved pathology practitioner in pursuance of a request addressed to that practitioner by a practitioner, whether an approved pathology practitioner or not, who had determined that the service was necessary, or by an approved pathology practitioner who had not himself determined that the service was necessary. The last-mentioned case, provided for by s. 16A (1) (a) (ii), was no doubt intended to allow an approved pathology practitioner who had been requested to perform a service, but who was unable or unwilling to do so, to request another approved pathology practitioner to perform the service, without first determining that the service was necessary. Put shortly, the effect of pars. (a) and (b) is that any practitioner, whether an approved pathology practitioner or not, may determine that a pathology service is necessary; if the practitioner who so determines is an approved pathology practitioner he may perform the service himself or by his employee (s. 16A (1) (b)) or may request another approved pathology practitioner to perform it (s. 16A (1) (a) (i)), and an approved pathology practitioner so requested may in turn request another approved pathology practitioner to perform it (s. 16A (1) (a) (ii)) and in all these cases a medical benefit will be payable. If, however, the practitioner who so determines is not an approved pathology practitioner, he must, if a medical benefit is to be payable, request an approved pathology practitioner to perform the service (s. 16A (1) (a) (i)). Properly understood, the provisions of s. 16A (1) (a) and (b) do not compel an approved pathology practitioner to do anything except that, as has been indicated, those provisions will as a matter of practicality compel some medical practitioners to seek to become approved pathology practitioners.

[115]

Section 16A (1) (c) on the other hand has the effect that medical benefits will only be payable in respect of a prescribed pathology service if that service was rendered by or on behalf of a medical practitioner who was not an approved pathology practitioner. At first sight it seems strange that it should have been intended to deny a patient an entitlement to medical benefits in respect of a prescribed pathology service which was rendered by an approved pathology practitioner, but the intended operation of the paragraph is revealed by the regulations made to give effect to it. By reg. 4 of the Health Insurance (Pathology Services) Regulations, each pathology service to which Div. 9 of Pt 7 of the table relates is specified for the purposes of the definition of prescribed pathology service in s. 3 of the Act. The services set out in Div. 9 are described in the table as "Simple Basic Pathology Tests", and these are the only pathology services which may be rendered by medical practitioners who are not approved pathology practitioners if benefits are to be payable. Most, if not all, of the same services are listed in Divs 1 to 8 of Pt 7; in other words, a particular service may be both a prescribed pathology service and a pathology service other than a prescribed pathology service, so that if it is performed by a practitioner who is not an approved pathology practitioner benefits will be payable under Div. 9 and if it is performed by an approved pathology practitioner benefits will be payable under one of the other divisions of Pt 7. No doubt the general intention, somewhat obscurely expressed and indirectly achieved, was to permit medical benefits to be paid in respect of simple basic services, which were not likely to be the subject of abuse, whether they were rendered by an approved pathology practitioner or by a practitioner who was not an approved pathology practitioner, but to allow no benefits to be paid in respect of other pathology services unless rendered by an approved pathology practitioner.

[119]

In the first place, it may be agreed that some medical practitioners, who request an approved pathology practitioner to render a pathology service, will be compelled to make the request in a written form that complies with reg. 5, or, if the request was not made in writing, to give written confirmation in accordance with reg. 5. The complusion in such a case will be not legal but practical, resulting from the fact that the provisions of s. 16A (1) make the payment of medical benefits depend upon the making of a written request or confirmation as prescribed. The request or confirmation, to satisfy reg. 5, must specify the matters detailed in that regulation, and one of those matters - "each service to which the instrument relates" - must be specified in the handwriting of the person signing the instrument (reg. 5 (8)). This means that it is no longer possible to follow the practice, which was formerly widely adopted, of marking (perhaps only with a tick) the appropriate part of a printed request form which set out a list of available pathology services. Secondly, it appears to be intended that there shall be recorded on an account, or receipt, for fees in respect of a service to which s. 16A (1) applies, or, if an agreement has been entered into under s. 20 (3) in relation to the medical benefit in respect of the service, on the form of agreement, the particulars described by reg. 6. It is not made clear by s. 16A (2) on whom this duty lies, or what is the sanction for a failure to perform it, but an approved pathology practitioner may be obliged, by virtue of cl. 3 of the undertaking, to ensure that the duty is carried out. Thirdly, an approved pathology practitioner who has rendered a pathology service in pursuance of a request made or confirmed in accordance with s. 16A (1) must retain for eighteen months the written request or written confirmation, and must produce the same on being given proper notice within that period (s. 16A (3)). Fourthly, an approved pathology practitioner must, in accordance with the undertaking, take appropriate action to ensure that his employees, and other persons who by arrangement perform duties or services for him, act in accordance with the relevant provisions of the Act, regulations and undertaking (cl. 3) and must also furnish to the Minister such information relating to the requesting or rendering by or on behalf of the practitioner of applicable pathology services as is from time to time reasonably requested by the Minister (cl. 10).

[131]

With the greatest respect, I am unable to agree with those observations by Latham C.J. and Williams and Webb JJ. as to the meaning and effect of the expression "any form of civil conscription". That expression, 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 would be an abuse of language to say that a soldier who has voluntarily enlisted in the army becomes a conscript because he is obliged to obey orders as to the manner in which he performs his military duties. Similarly 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. For example, a clerk who was instructed to write out orders for goods or services only on a specified form could not be said to be thereby subjected to a form of civil conscription. There is nothing in the Constitution that would indicate that the expression "any form of civil conscription" where it appears in 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. I respectfully agree with the opinion expressed by Dixon J. in British Medical Association v. The Commonwealth [22] that "a wide distinction exists between on the one hand a regulation of the manner in which an incident of medical practice is carried out, if and when it is done, and on the other hand the compulsion to serve medically or to render medical services"; the latter is within the prohibition but the former is not. If the incident of practice which is regulated is not medical or dental, but financial and administrative, it is clearly outside the prohibition.

[134]

It follows from what I have said that if the ratio decidendi of British Medical Association v. The Commonwealth was expressed in the observations with which I have disagreed, I should regard the case as wrongly decided. However, I consider that the decision may be supported on narrower grounds and that those observations may be treated as dicta. In the first place it may be observed that s. 7A of the Pharmaceutical Benefits Act 1947-1949 required that a doctor should write any prescriptions for any medicines included in the formulary on the form supplied by the Commonwealth, whether or not the medicines were to be obtained free. Therefore the section had no necessary relationship with any pharmaceutical benefit or medical services provided by the Commonwealth: see per Latham C.J. [25] . It is noteworthy that s. 8 of that Act, which provided that a person should not be entitled to receive pharmaceutical benefits from an approved pharmaceutical chemist, except, inter alia, on presentation of a prescription written and signed by the medical practitioner and, except as prescribed, written on a prescription form supplied by the Commonwealth, was upheld as valid. Unlike s. 7A, s. 8 did no more than prescribe a condition of giving a pharmaceutical benefit. Latham C.J. said: "But it is one thing to provide as a condition of giving a pharmaceutical benefit that a prescription shall be written on a particular form, and another thing to provide that a doctor shall write any prescription for medicines which are included within a formulary upon a particular form, whether or not such medicines are to be supplied free under the Act. Section 7A (1) is a provision of the latter description." Secondly, the majority of the Court appear to have considered that, in the light of the history of the earlier legislation, and having regard to the scheme of the Pharmaceutical Benefits Act considered as a whole, s. 7A could be seen to have the intention to compel medical practitioners to join in the Commonwealth scheme for the provision of free pharmaceutical benefits, and to provide, against their will, a medical service for the Commonwealth. This view was clearly expressed by Williams J. [26] , and by Webb J. [27] , and Latham C.J. and Rich J. appear to have been of a similar opinion [28] . In both these respects that case is distinguishable from the present.

[136]

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. The only possible exception is s. 16A (1), which requires that a request by a medical practitioner to an approved pathology practitioner to render a pathology service shall be made or confirmed in writing as prescribed. A request of that kind may be regarded as a medical service. However, s. 16A (1) does not compel any medical practitioner to make such a request. What it requires is that the request, if made, be made or confirmed by a written instrument which satisfies reg. 5. There is nothing in that regulation which affects in the slightest the performance by a medical practitioner of his medical duties and functions. The statutory requirements may impose on him more administrative work. In particular he is required to specify, in his own handwriting, the services to which the instrument relates, and cannot simply mark a form on which is printed a list of possible services. The reason why a condition of this kind is attached to the entitlement to medical benefits is no doubt that the use of the printed form might reasonably be regarded as likely to contribute to laxity and to facilitate fraud. However that may be, to require a practitioner to write out particulars of the service which he has decided to request another practitioner to perform is not to compel the practitioner making the request to perform a medical service. Even more clearly, the requirements of s. 16A (2) with regard to accounts and receipts, and those of s. 16A (3) with regard to the retention and production of any written request or confirmation, do not compel any medical practitioner to perform any medical service. Clause 3 (b) of the undertaking, which obliges a medical practitioner to exercise some supervision over his servants and agents, and cl. 10, which requires a medical practitioner to furnish such information as is reasonably requested with regard to the requesting or rendering of pathology services in respect of which medical benefits are payable, are also no more than a regulation of the incidents of medical practice and do not compel a medical practitioner to perform any medical service.

[142]

The expression "laws imposing taxation" must be intended to have the same meaning in those two related sections, as Isaacs J. appears to have recognized in Federal Commissioner of Taxation v. Munro [30] . Therefore the fact that a law contains provisions for the payment of fees for licences or fees for services does not mean that it is a law imposing taxation within s. 55. I have already held that the Act exerts a practical compulsion upon some medical practitioners to become approved pathology practitioners, and this of course means that those persons are practically compelled to pay the fee to which s. 16C (2) refers. I shall assume, without deciding, that practical, as distinct from legal, compulsion is enough to constitute a charge a tax, just as it is sufficient for the purposes of s. 51 (xxiiiA). I therefore may accept that the fee is a compulsory exaction by a public authority for public purposes. However, in my opinion, it is a fee for services. It is the price which a medical practitioner, who seeks to become an approved pathology practitioner, must pay for the purpose of having his undertaking considered by the Minister, and either accepted or referred for inquiry and report to a Medical Services Committee of Inquiry. In other words, it is a charge for the services performed in dealing with the application. The fact that it is paid into Consolidated Revenue does not prevent it from being a fee for services. The nature of such a payment is not determined by what is done with it after its receipt. Further, the fact that the service for which the fee is charged is one which the practitioner is in effect compelled to obtain does not in my opinion alter the character of the fee or convert it into a tax. An exaction may properly be characterized as a licence fee notwithstanding that the licence is one that must necessarily be obtained and the same is in my opinion true of a fee for services; fees charged for compulsory licences, or for holding plants or animals in quarantine, might provide examples. 1. (1938) 60 C.L.R. 263, at p. 276. 2. (1926) 38 C.L.R. 153, at p. 190.

[173]

It was suggested that, although the $10 charge may be a fee for a service, the amount of the exaction prescribed by regulation might be so large that it could not be regarded as a fee for a service. The absence of any limit to the fee which may be so prescribed would appear to make such an exaction possible, though presumably not probable. The apparent extent of this power raises a novel constitutional question to which no ready answer appears. There would be no absence of constitutional power to impose such a tax; indeed, if it mattered, it would not be a new form of tax for what may be called "franchise" taxes have often been imposed, and this could well be regarded as such a tax. Moreover the tax power is not limited to old or well-known taxes but extends to any form of tax which ingenuity may devise. There would thus be no basis for "reading down" s. 16C so as to limit it to "fees for service" in order to confine it within constitutional power. The consequence of the power to prescribe charges extending to those so large that they could not be regarded as fees would not be to make such grant of power extend beyond constitutional limits. There would thus be no basis for reading down the statutory provision pursuant to s. 15A of the Acts Interpretation Act 1901 Cth so as to confine it within constitutional power. The consequence of an Act being one which imposes a tax and also deals with other matters is not that the taxing provision fails; it is that all the other provisions fail. It may perhaps be said that an Act which may be regarded as doing no more than to authorize the making of regulations which will impose a tax does not fall within the scope of s. 55 of the Constitution. If however the regulation-making power is exercised then the Act itself must be seen to be one which imposes the tax and accordingly all the other provisions of the Act must be regarded as being of "no effect" pursuant to s. 55. Whether such invalidity would operate retrospectively is a question which has never arisen. Section 55 does not appear to contemplate the possibility that other provisions in an Act imposing taxation may become void otherwise than from the very moment of an Act coming into operation. Three possible views (not necessarily mutually exclusive) as to the consequences may follow from that situation. The first is that the Constitution may impliedly prohibit the imposition of a tax by regulation made under an Act authorizing such a regulation. The difficulty about that proposition is that there seems to be no rational basis for denying validity to an Act which does no more than authorize the imposition of a tax by regulation, e.g., a customs duty on specified goods and such other goods as may be prescribed by regulation. Such a provision would not contravene the second part of s. 55 as dealing with more than one subject of taxation. The view has never been taken that the Customs Tariff Acts may be invalid because they impose customs duty on more than one category of goods, and there are in those Acts some powers to vary the items by the exercise of delegated legislative power. Customs duties constitute a single subject of taxation, just as excise duties and income tax are single subjects of taxation. I can see no constitutional basis for denying validity to legislation authorizing the imposition of a tax by regulation so long as it did not contravene the second paragraph of s. 55.

At a glance

Court

Decision date

Before

Source

Judgment (180 paragraphs)

Parties

Cited By (5)