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[2008] FCAFC 13
Federal Court of Australia (Full Court)
2008-02-27
Black CJ, Lander JJ
Original judgment source is linked above.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
NEW SOUTH WALES DISTRICT REGISTRY NSD 2065 OF 2006
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: RIFAAT GEORGE DIMIAN
JUDGES: BLACK CJ, FINN & LANDER JJ DATE OF ORDER: 27 February 2008
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
AND: VINAYAK (VINOO) LELE, PATRICK TAN AND DAVID RIVETT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO 309
THE DETERMINING AUTHORITY ESTABLISHED UNDER S 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH)
ALAN JOHN HOLMES IN HIS CAPACITY AS DIRECTOR, PROFESSIONAL SERVICES REVIEW
NEW SOUTH WALES DISTRICT REGISTRY NDS 2065 OF 2006
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: RIFAAT GEORGE DIMIAN
INTRODUCTION 1 There are two matters before the Court. The first is an appeal from a decision of a single judge of the Court in Selim v Lele and Ors (2006) 150 FCR 83. The second is a reference of questions to a Full Court in the matter of Dimian and Wong v The Commonwealth of Australia which is an application remitted to the Federal Court by the High Court of Australia. We heard both matters together. The Attorney-General for the Commonwealth intervened in Selim (2006) 150 FCR 83 and the respondents in that case adopted his submissions. 2 In both cases there is a challenge to the validity of the Professional Services Review (PSR) Scheme in Pt VAA of Health Insurance Act 1973 (Cth) (the Act). Dr Selim, Dr Dimian and Dr Wong are general practitioners who have been found by a PSR Committee to have engaged in inappropriate practice. The consequence of such a finding is that each doctor may be subject to sanctions, including reprimand, counselling and disqualification from participation in the Medicare Scheme for up to three years. The Determining Authority, whose responsibility it is to decide upon the sanctions each doctor will be subject to, has undertaken not to make determinations pending the outcome of these proceedings. 3 The doctors contend that the PSR Scheme and certain other key provisions of the Act offend the prohibition on civil conscription in s 51(xxiiiA) of the Constitution and that the Act impermissibly confers the judicial power of the Commonwealth on the Determining Authority. These contentions were rejected by the learned primary judge in Selim (2006) 150 FCR 83.
THE PROFESSIONAL SERVICES REVIEW SCHEME 4 The PSR Scheme was introduced into the Act as a new Pt VAA by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth) and was subsequently amended by the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) and the Health Legislation Amendment Act (No 3) 1999 (Cth) (the 1999 amendments), both of which came into effect on 1 January 2000. Pt VAA has since been amended again by the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth), which relevantly came into effect on 1 January 2003. Because the Health Insurance Commission (the Commission) (now Medicare Australia) referred the conduct of each of the doctors to the Director of PSR (the Director) on dates between 1 January 2000 and 1 January 2003, Pt VAA of the Act as it was in force during that period applies: Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth), Sch 1, Item 118. 5 Central to the PSR Scheme is the concept of inappropriate practice. That term is defined s 82, which, as relevant to general practitioners, provides: 82 Definitions of inappropriate practice (1) A practitioner engages in inappropriate practice if the practitioner's conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that: (a) if the practitioner rendered or initiated the services as a general practitioner - the conduct would be unacceptable to the general body of general practitioners; or … (2) A person (including a practitioner) engages in inappropriate practice if the person: (a) knowingly, recklessly or negligently causes, or knowingly, recklessly or negligently permits, a practitioner employed by the person to engage in conduct that constitutes inappropriate practice by the practitioner within the meaning of subsection (1); or (b) is an officer of a body corporate and knowingly, recklessly or negligently causes, or knowingly, recklessly or negligently permits, a practitioner employed by the body corporate to engage in conduct that constitutes inappropriate practice by the practitioner within the meaning of subsection (1). (3) A Committee must, in determining whether a practitioner's conduct in connection with rendering or initiating services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services. As defined by s 81, in Pt VAA "service" means: (a) a service for which, at the time it was rendered or initiated, medicare benefit was payable; or (b) a service rendered by way of a prescribing or dispensing of a pharmaceutical benefit by a medical practitioner, a dental practitioner or an optometrist. That section also defines "adequate and contemporaneous records of the rendering or initiation of the services" as meaning "records that meet the standards prescribed by the regulations for the purposes of this definition." 6 As the learned primary judge in Selim (2006) 150 FCR 83noted, the Report of the Review Committee of the Professional Services Review Scheme (Commonwealth, 1999) (the Report) identified various categories of conduct as involving inappropriate practice. What the Committee described as general professional issues included clinical competence and performance and aberrant professional behaviour and beliefs. It also identified particular types of professional conduct such as: high number of services per patient; unusual incidence of specific types of services; inappropriate prescribing; inappropriate ordering of diagnostic and imaging pathology; inappropriate use of Medicare item numbers when making claims. It noted that a large number of the cases brought before PSR Committees involved general practitioners providing high numbers of services per day with low rates of consultation services per patient: see Selim (2006) 150 FCR 83at 90 and pp 15 to 16 of the Report. 7 If the Commission considers that a person may have engaged in inappropriate practice, it may refer the person's conduct to the Director, in a report which, amongst other requirements, must set out the reasons why the Commission considers that the person may have engaged in inappropriate practice: s 86 of the Act. In the present matters, the Commission considered that the doctors may have engaged in inappropriate practice because they had a high volume of services and may not have provided the appropriate quality of clinical input into those services. It referred their conduct to the Director. 8 The Director must conduct an investigation into such referrals and may establish and make an adjudicative referral to a PSR Committee: s 93. The Committee must be composed of at least three doctors, at least two of whom must be general practitioners: s 95. 9 If a PSR Committee finds that a person has engaged in inappropriate conduct, the Determining Authority must make a make a determination in relation to the person. That determination must include at least one of the directions listed in s 106U. These include directions for reprimand, counselling, that any Medicare benefit due to the person in relation to the relevant services not be paid, or that the whole or part of a benefit paid in relation to the relevant services be repaid to the Commonwealth. The person may also be disqualified from participating in the Medicare Scheme for a period of up to three years or disqualified from providing certain services, from providing services to certain classes of persons or to persons other than those in a specified class, or in a specified location or otherwise than in a specified location. If the inappropriate practice involved prescribing or dispensing a pharmaceutical benefit, the person's authority to prescribe or dispense pharmaceutical benefits may be revoked or suspended. 10 Although it is not necessary to set them out here, it should be noted that Pt VAA contains detailed provisions directed to affording, at all stages of the process, procedural fairness to the person whose conduct is under review.
THE CONSTITUTIONAL CHALLENGE 11 The following questions were referred to the Full Court in Dimian & Anor v Commonwealth of Australia:
Section 51(xxiiiA) and the prohibition on civil conscription 12 Section 51(xxiiiA) was inserted into the Constitution by the Constitution Alteration (Social Services) Act 1946 (Cth), approved by the electors at referendum. It reads: 51 Legislative powers of the Parliament The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxiiiA) 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. 13 At the time of the 1946 referendum the Commonwealth was already providing maternity allowances, widows' pensions, child endowments, unemployment, sickness and hospital benefits and benefits to students. It had also been providing pharmaceutical benefits. The High Court held in Attorney-General (Vic) (Ex rel Dale) v Commonwealth (1945) 71 CLR 237 (Pharmaceutical Benefits Case) that the Pharmaceutical Benefits Act 1944 (Cth) was invalid and, specifically, it could not be supported merely by s 81 of the Constitution which gives the Commonwealth power to appropriate money from the Consolidated Revenue Fund for Commonwealth purposes. 14 As required by s 6A of the Referendum (Constitution Alteration) Act 1906 (Cth), an argument in favour of the proposed law was posted to each elector. (The relevant provision is now s 11 of the Referendum (Machinery Provisions) Act 1984 (Cth)). The "Yes" case for the Constitution Alteration (Social Services) Act records: None of the benefits set out in the Bill are named in the Constitution, as it stands at present. This means that, exactly like the Pharmaceutical Benefits Act, they are all in danger of being declared invalid too at any moment. That is the position today with all benefits provided by the Commonwealth through the Maternity Allowances Act, the Child Endowment Act, the Widows' Pensions Act, and the Unemployment and Sickness Benefits Act as well as parts of the Hospital Benefits Act and the Education Act. Obviously too, the Commonwealth cannot safely provide any new kind of social service benefit… Strictly, no Act of the Commonwealth Parliament is invalid until it has been so held by the Courts. Therefore the Government, though it thinks that the principles laid down by the High Court in the Pharmaceutical Benefits case would also apply to these other payments if they were challenged, has taken the responsibility of continuing them for the time being. But they are all open to attack at any time. This is why the government has taken this early opportunity of consulting the electors at a referendum. By voting "Yes" you will put these other payments out of danger. (Original emphasis) (Chief Electoral Officer for the Commonwealth, Referendums to be taken on the Proposed Laws Constitutional Alteration (Social Services) 1946, Constitutional Alteration (Organised Marketing of Primary Products) 1946, Constitutional Alteration (Industrial Employment)1946: The Case For and Against, 20 July 1946, p 6). The Constitution Alteration (Social Services) Act had the support of both major political parties and only three members of Parliament voted against the Bill. 15 Since these cases turn upon the meaning of the words "but not so as to authorize civil conscription" in s 51(xxiiiA) of the Constitution as introduced following a referendum conducted for the purposes of s 128 of the Constitution, it is convenient to commence by considering how referendum materials may be used in interpreting the provisions of the Constitution that have been altered (or as here introduced) by amendment. 16 In Kartinyeri v Commonwealth (1998) 195 CLR 337 the High Court considered the scope of the race power in s 51(xxvi) of the Constitution, which had been amended by the Constitution Alteration (Aboriginals) Act 1967 (Cth). Gaudron, Gummow, Kirby and Hayne JJ all referred to the "Yes" case prepared for the 1967 referendum: at 361-2 per Gaudron J, at 382-3 per Gummow and Hayne JJ, at 407-8 per Kirby J. Kirby J also discussed the history of attempts to amend the provisions of the Constitution that made reference to Aboriginal people. Gummow and Hayne JJ did not decide what use or weight the referendum materials might properly have, stating (at 382) that: "The circumstances surrounding the enactment of the 1967 Act, assuming regard may properly be had to them, may indicate an aspiration of the legislature and the electors to provide federal legislative powers to advance the situation of persons of the Aboriginal race." Kirby J was more forthcoming (at 401): [T]he Parliamentary debates, and the referendum materials, may be used in the same way as the Court now uses the Convention Debates. This is to understand the cause which occasioned the amendment of the Constitution and to help resolve ambiguities in the resulting text. The search is not for the private intentions of the Members of Parliament who spoke in the debates. Nor is it for the undiscoverable subjective intentions of the electors involved in the exceptional law-making process required by s 128 of the Constitution. It is to help to derive the meaning of the Constitution, where amended, on the basis of a thorough understanding of the reasons for the amendment and of the means by which it came about. 17 Whether the issue is approached from the viewpoint of a committed originalist or from that of one who accepts that the Constitution is a "living instrument", to be interpreted in light of the fact that its legitimacy stems from its "original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people" (Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 171 per Deane J), if the Convention Debates of the 1890s have a legitimate use in constitutional interpretation, it would seem hard to deny that referendum materials and related parliamentary debates must serve the same purpose in relation to amendments to the Constitution. Since Cole v Whitfield (1988) 165 CLR 360 the High Court has consistently said that the Convention Debates may be used: …not for the purpose of substituting for the meaning of the words used the scope and effect - if such could be established - which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used [and] the subject to which that language was directed. (Cole 165 CLR 360 at 385 per curiam) 18 The term "civil conscription" is ambiguous. Dixon J noted in Federal Council of the British Medical Association in Australia v Commonwealth (1949) 79 CLR 201 (the BMA Case), at 262, that the concept "is described by a metaphor and therefore must rest upon analogy". Dixon J continued: "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." He described the prohibition as "a qualification of an unexampled kind" (at 259) and called it a "vague and figurative expression [which] carries with it no clear conception" (at 261). 19 The "Yes" case explained the purpose of the prohibition under the heading "No question of socializing medical and dental services" (at 8): [T]here is one thing the Parliament will not be able to do. It will not be able to bring in any form of civil conscription…This means that doctors and dentists cannot be forced to become professional officers of the Commonwealth under a scheme of medical and dental services. The Chifley government had originally proposed to put the s 51(xxiiiA) amendment to the electors without the prohibition on civil conscription. As the "Yes" case records under the heading "This referendum not a political matter" (at 8): The idea that doctors and dentists might be conscripted was the only real objection of the Opposition parties in Parliament. The Government has set that doubt at rest by agreeing to the insertion of a clause in the power itself that there shall be no conscription. 20 That was a fair summary of the debate on the Bill in Parliament. The Hon Robert Menzies, then Leader of the Opposition, moved the amendment to the Bill that inserted the words "(but not so as to authorize any form of civil conscription)". In his brief speech he said: I have no objection to the Commonwealth having power to make proper laws in relation to medical and dental services, but so long as there is no doubt - and I entertain grave doubts on the matter - as to whether that power does not authorize the nationalization of these two professions, their members are entitled to be protected against conscription just as are the industrial workers under the bill I have mentioned. (Commonwealth, Parliamentary Debates, House of Representatives, 10 April 1946, 1214, The Hon Mr Robert Menzies, Leader of the Opposition). 21 Mr Menzies based the language of the prohibition on the Constitution Alteration (Industrial Employment) Bill, which proposed to give the Commonwealth power to make laws with respect to "[t]erms and conditions of employment in industry but not so as to authorize any form of industrial conscription", but which but did not have the support of the Opposition and was narrowly defeated at the 1946 referendum. In the reply to Mr Menzies in the parliamentary debate the Hon H V Evatt, then Attorney-General, observed that "the Government had previously borrowed the same set of words from the National Security Bill introduced by the right honourable gentleman [Mr Menzies] when he was Attorney-General." (Commonwealth, Parliamentary Debates, House of Representatives, 10 April 1946, 1215, The Hon Dr Herbert Evatt, Attorney General). Section 5(7) of the National Security Act 1939 (Cth) read: "Nothing in this section shall authorize the imposition of any form of compulsory naval, military or air-force service, or any form of industrial conscription." 22 The history of the National Security Act provides examples of what was meant by "industrial conscription", an expression evidently seen as analogous to "civil conscription". The National Security Act was amended in 1940 to insert s 13A which read: Notwithstanding anything contained in this Act, the Governor-General may make such regulations making provision 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, the defence of the Commonwealth and the Territories of the Commonwealth, or the efficient prosecution of any war in which His Majesty is or may be engaged: Provided that nothing in this section shall authorize the imposition of any form of compulsory service beyond the limits of Australia. The section was relied upon to support what were known as the "Man Power" regulations. Regulation 15(1) of the National Security (Man Power) Regulations 1942 provided: The Director-General may direct any person resident in Australia to engage in employment under the direction and control of the employer specified in the direction, or to perform work or services (whether for a specified employer or not) specified in the direction. In Reid v Sinderberry (1944) 68 CLR 504, William Robert Sinderberry and May Kathleen McGrath unsuccessfully challenged their convictions under the National Security Act for failing to comply with a direction under reg 15. Mr Sinderberry had been directed to work as a factory hand and Miss McGrath as a stenographer-secretary to a production manager. In holding s 13A and the regulation to be within the scope of the defence power, Latham CJ and McTiernan J noted that the regulation "imposes a very wide form of industrial conscription" (at 509). 23 This brief history of the expressions "civil conscription" and "industrial conscription" suggests that the s 51(xxiiiA) prohibition was intended to prevent the nationalisation of medical and dental services, and that "civil conscription" was intended to convey a meaning analogous to "industrial conscription", which included situations like the Man Power regulations of World War II. 24 The High Court has examined the meaning of the prohibition on civil conscription in s 51(xxiiiA) in only two cases: the BMA Case and General Practitioners Society v Commonwealth (1980) 145 CLR 532 (General Practitioners Society Case). 25 In the BMA Case the Court held that s 7A of the Pharmaceutical Benefits Act 1974 (Cth) was invalid for the reason that it imposed a form of civil conscription (Latham CJ, Rich, Williams and Webb JJ, Dixon and McTiernan JJ dissenting). The Pharmaceutical Benefits Act established the Commonwealth Pharmaceutical Formulary, which listed medicines and other products which could be obtained free of charge under the government scheme. Section 7A required doctors, when prescribing any medicine listed in the Formulary, to use a particular form provided by the Commonwealth, whether or not the patient intended to obtain the item without charge. The only exception to this requirement was where the patient asked the doctor not to use the Commonwealth form. Non-compliance was an offence for which there was a penalty of Ł50. 26 In the General Practitioners Society Case, the Court unanimously upheld the validity of certain provisions of the Health Insurance Act (the same Act now under consideration) and regulations made under the Act, which set out when medical benefits would be payable in respect of certain pathology services. The Act provided that a medical benefit would only be payable with respect to pathology services, other than certain prescribed pathology services, if the service was performed by an approved pathology practitioner or somebody working on their behalf. To become an approved pathology practitioner, doctors were required to provide an undertaking and agree to adhere to a code of conduct. Certain conditions, such as requirements that the request to perform a pathology service be made in writing and that the written request be retained for 18 months, also applied if a medical benefit was to be payable. The conditions were designed to ensure that the Commonwealth did not pay for unnecessary or excessive pathology services. The Act also contained provisions that had an operation somewhat similar to Pt VAA of the Act. Gibbs J (with whom the other members of the Court agreed, subject to their own observations) described those provisions thus (at 543-4): Under s. 106 the Minister may make a determination in accordance with a recommendation of a Medical Services Committee of Inquiry, which may, in relation to a question referred under s. 16C, recommend that the Minister accept or refuse to accept the undertaking concerned (s. 105(1)), and which may, where in a report it expresses the opinion that a practitioner has failed to comply with the undertaking given by him and accepted by the Minister under s. 16C, recommend, inter alia, that the Minister revoke his acceptance of the undertaking, and that a medical benefit payable or paid to a practitioner in respect of a pathology service in relation to which the practitioner failed to comply with the undertaking cease to be payable or be refunded as the case may be. 27 The prohibition on civil conscription only applies directly to laws for the provision of medical and dental services, and not to laws for the provision of the other allowances, pensions and benefits described in s 51(xxiiiA), but to the extent that any law made under s 51(xxiiiA) involves the provision of medical or dental services, it must not authorise civil conscription: see General Practitioners Society Case at 549 per Gibbs J (Aickin and Wilson JJ agreeing at 571 and 572 respectively); at 563-4 per Stephen J; Barwick CJ, at 536-7, not deciding but preferring this interpretation; Mason and Murphy JJ not deciding the point. See also BMA Case at 254-5 per Rich J, at 261, 269 and 277 per Dixon J, at 281-2 per McTiernan J, at 286-7 per Williams J; and Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271 at 279-280 per curiam. Stephen J explained the point as follows: That qualification, expressed in the phrase "but not so as to authorize any form of civil conscription", applies only to the provision of medical and dental services. It has no application to the provision of the other allowances, pensions, endowment and benefits, including "sickness benefits", to which the sub-section also refers. Let it be supposed that a law for the provision of "sickness benefits" may include the provision of medical or dental services: such a law may not disregard the qualification which subs-s. (xxiiiA) expressly attaches to the provision of such services. That qualification restricts the permitted modes in which those services may be provided. To disregard part of the law's content, treating the whole as an exercise of the unqualified power to provide sickness benefits and failing to recognize the character of those parts which provide medical and dental services, is to ignore the specific restriction imposed by Parliament and People when the Constitution was amended by the insertion of subs-s. (xxiiiA). (General Practitioners Society Case at 563-4). 28 In the present matters the Commonwealth argued that the impugned sections of the Act are all laws with respect to sickness and hospital benefits. It did so because it also submitted, formally, in case an opportunity to argue the point before the High Court should arise, that the prohibition on civil conscription does not apply to a law with respect to sickness and hospital benefits, even if medical and dental services are provided in the course of providing those benefits. The merit of that submission is not for this Court to decide, but it seems to stretch the notion of a "sickness benefit" to argue that it would apply to all medical services for which benefits are payable under the Act. There are many reasons that people who are not in any way sick might use medical services, for example they may be pregnant (see for example, Medical Benefits Schedule Item 4001 - Medical Practitioner Attendance Associated with Provision of Non-Directive Pregnancy Support Counselling Services). 29 The argument before us focussed on two questions. The first was whether there can be civil conscription when there is no legal compulsion to serve the Commonwealth in any respect, but the statute creates a practical compulsion to do so. The second question was what degree or kind of Commonwealth interference with private medical practice is necessary before a statute will be considered to authorise civil conscription.
Practical compulsion 30 The distinction between legal compulsion and practical compulsion appears straightforward but in fact a statutory scheme will most often achieve its desired effect by a combination of both. The BMA Case illustrates this point: there the Pharmaceutical Benefits Act imposed a penalty of Ł50 on any medical practitioner who wrote a prescription for a medicine in the Commonwealth Pharmaceutical Formulary other than on a prescription form supplied by the Commonwealth. The imposition of a fine for particular conduct undoubtedly imposes a species of legal compulsion. As Williams J observed (at 289): "[w]hen 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". The impetus to participate in the pharmaceutical benefits scheme, however, was ultimately a practical one - doctors could only carry on practice if they did so. Latham CJ noted (at 252): It is true that the doctor may escape the penalty by not writing a prescription. The allegations in the statement of claim, however, are to the effect that a doctor could not carry on practice without writing many prescriptions which are included in the formulary…He must, in the absence of a request from a patient or other person (which, as already stated, he has no power or right to procure or control), either use the Commonwealth forms or go out of practice. This is a very real power of compulsion. (The Chief Justice's reference to the allegations in the statement of claim reflects the fact the validity of the legislation was determined on the hearing of a demurrer for the purposes of which the allegations are of course assumed to be true: see at 226. The observations of the Chief Justice and the other Justices about practical compulsion need to be read with this in mind.) Latham CJ later added (at 253): There could in my opinion be no more effective means of compulsion than is to be found in a legal provision that unless a person acts in a particular way he shall not be allowed to earn his living in the way, and possibly the only way, in which he is qualified to earn a living…in determining whether there is compulsion it is proper to consider not only the bare legal provision but also the effect of that provision in relation to the class of persons to whom it is applied in the actual economic and other circumstances of that class. Rich J said (at 256): 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…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 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. Webb J said (at 292-3): To require a person to do something which he may lawfully decline to do but only at the sacrifice of a whole or substantial part of the means of his livelihood would, I think, be to subject him to practical compulsion amounting to conscription in the case of services required by Parliament to be rendered to the people. If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it directly by creating a situation, as distinct from taking advantage of one, in which the individual is left no real choice but compliance. McTiernan J appears to have had a different view. His Honour said (at 283-4): "Practical necessity or moral duty is not conscription. In war time a citizen is under the practical necessity and the moral duty of giving aid to his country. If he acts under such compulsion he is nevertheless a volunteer." 31 The General Practitioners Society Case contains some helpful analysis of the BMA Case with respect to practical compulsion. Barwick CJ said (at 537): I do not regard the Court as having decided in the British Medical Association Case that if the statute provided no more than that, if a benefit were to be obtained by the patient under the statute, the requirement that the relevant prescription must be written by the medical practitioner on the form provided by the Commonwealth amounted to civil conscription. What it decided, in my opinion, was that because s. 7A of the Act as it then stood did not limit itself to the use of the form for the purposes of obtaining or providing for the Commonwealth benefit, it was invalid: it was the universality of the command of s. 7A and the lack of any conforming relationship of the prescription to the scheme of benefit under the Act which brought that section into invalidity…I do not read the decision of the majority in the British Medical Association Case as deciding that, without legal compulsion either by direct command or the imposition of penalties, civil conscription could result from practical or economic considerations. In that case, there was legal compulsion directly applied in relation to the act to be performed. Gibbs J (with whom all other judges agreed on this point) agreed with the Chief Justice's understanding of the BMA Case. His Honour said (at 559): 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… It is noteworthy that s. 8 of the 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. (Footnote omitted). Despite their strong statements about practical compulsion giving rise to civil conscription, observations in the judgments of Latham CJ and Webb J support this analysis of the BMA Case. Webb J said (at 293) that: "in the Pharmaceutical Benefits Act as enacted after the par. (xxiiiA) became part of the Constitution and before July 1949 [when s 7A was added by amendment], there was no compulsion of any kind in respect of medical or dental services". Latham CJ said (at 254): "If s. 7A is struck out of the Act, the rest of the Act will work as a completely voluntary scheme, chemists, doctors and patients utilizing or taking the benefit of the scheme each according to [their] own individual choice." 32 In the General Practitioners Society Case the Court found that, whatever the Act compelled, it did not amount to civil conscription. Nonetheless several members of the Court expressed a view on the issue of practical compulsion. Barwick CJ said (at 537-8): But that is not to say that, in my opinion, civil conscription could not in any case result from the coercive force of circumstance: but, in my opinion, to make out such a case would need an extremely strong set of circumstances which, in real terms, left the individual with no choice but to submit to what the statute required, though it did not command it. Gibbs J continued (at 550): The question whether a law imposes civil conscription cannot be answered in the negative simply because the law does not create any legal liability to perform any medical or dental service; the effect of the law in the economic and other circumstances must be considered, and practical compulsion is enough…In my opinion the circumstance that no medical practitioner is legally obliged to become an approved pathology practitioner is not decisive of the question whether the provisions in question impose a form of civil conscription within s 51(xxiiiA). (Citations omitted). Aickin J said (at 565-6): I agree that the limitation embodied in the grant of power in s 51(xxiiiA) of the Constitution extends to practical as well as legal compulsion…No doubt a legal obligation to perform particular medical or dental services, or to perform medical or dental services at a particular place, or to perform such services only as an employee of the Commonwealth would be clear examples of civil conscription. An equally clear example would be the prohibition of the performance of medical or dental services by particular qualified practitioners other than in some designated place, though no punishment was attached to failure to practice in that place. Other forms of "practical compulsion" are easy enough to imagine, particularly those which impose economic pressure such that it would be unreasonable to suppose that it could be resisted. The imposition of such pressure by legislation would be just as effective as legal compulsion, and would, like legal compulsion, be a form of civil conscription. To regard such practical compulsion as outside the restriction placed on this legislative power would be to turn what was obviously intended as a constitutional prohibition into an empty formula, a hollow mockery of its constitutional purpose. Stephen J agreed (at 563-4). Similarly, Murphy J said (at 565) that practical compulsion "is enough to satisfy the concept of 'civil conscription'". Mason J (at 564) and Wilson J (at 571) preferred to leave the question open. 33 Although all of the observations about practical compulsion in the BMA Case and the General Practitioners Society Case could be considered obiter dicta, all of the justices of the High Court who have considered the issue have allowed for at least the possibility that a statute that imposed a practical compulsion to provide medical services might authorise civil conscription. 34 The practical situation about which the doctors complain is analogous to the situation on the assumed facts in the BMA Case and the case stated in the General Practitioners Society Case. As we have noted, in the BMA Case, Latham CJ, referring to the statement of claim to which the Commonwealth had demurred, said (at 227) that: "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" (see also Latham CJ at 251 and Rich J at 256). In the General Practitioners Society Case, Gibbs J said (at 549-50): …it was argued for the plaintiffs that few practitioners would be able to attract patients, or to make a living from their profession, if medical benefits were not payable in respect of their services, and that therefore, if ss 16A, 16B and 16C are valid, a practitioner who intends to render pathology services (whether as a specialist or as a general practitioner) is compelled by practical considerations to apply to become an approved pathology practitioner…The facts thus stated establish that the provisions in question leave some medical practitioners with no real choice; to preserve their practices, they must seek to become approved pathology practitioners, and for that purpose must submit themselves to the obligations which are cast upon approved pathology practitioners by the sections, the undertaking and the regulations. In the present cases the agreed facts are as follows: The principal source of remuneration of general practitioners in Australia is fees charged to patients for professional services for which medicare benefits may be claimed… If a bulk-billing practitioner were fully disqualified for a period of time it is likely that the practitioner would lose a substantial number of patients during the period of disqualification. If a non-bulk billing practitioner were fully disqualified for a period of time it is likely that the practitioner would lose a substantial number of patients during the period of disqualification unless the practitioner reduced his or her fee to around the difference between what they previously charged and the medicare benefit. How many of the lost patients might return to the practitioner after the period of full disqualification would depend on a number of factors, including the extent and the duration of the disqualification, the availability of other practitioners in the area, and other competitive and economic factors. A full or partial disqualification would not prevent a general practitioner from engaging a locum tenens to continue the ongoing care of his/her patients in his/her practice (with those patients able to claim medicare benefits), provided that a locum tenens was available, suitable and affordable for the fully or partially disqualified general practitioner. If the practitioner were a member of a group practice that contained other general practitioners, a full or partial disqualification would not prevent other general practitioners in the group practice from continuing ongoing care of the patients (with those patients able to claim medicare benefits), provided those other practitioners were suitable and had the capacity to take on the additional patients during the relevant period of disqualification… While fully disqualified, the practitioner would not be prevented from continuing to render medical services for which no medicare benefit is provided in the Act or the Regulations, such as services to the following types of patients or in the following circumstances: (a) Patients who qualify for benefits under the Veterans' Entitlements Act 1986 (Cth); (b) Patients whose treatment is covered by a workers' compensation scheme or other compensation scheme or by insurance; (c) Patients who are not eligible for medicare benefits - for example, some overseas visitors; (d) As a medical officer in a public hospital treating inpatients and outpatients; (e) As a medical officer contracted to the Australian Defence Force; (f) As a medical officer in the Health Services Australia, or any similar State or Territory Government health service; (g) As a medical officer in a corporation, such as a large industrial corporation or a mining company; (h) As a medical officer in a speciality clinic dealing with issues such as obesity, or providing cosmetic surgery, or in a "wellness clinic" offering health checks and alternative treatments in areas such as cancer, cardiac, osteoporosis, and menopause, where these services are not covered by Medicare; (i) As a medical officer in a correctional institution; (j) As a medical officer on a cruise ship; (k) As a medical officer to a professional sports team; (l) Medical examinations for the purposes of insurance, commercial drivers' licences and some other forms of licences; (m) Health screening and fitness tests for fitness programs and activities such as scuba diving and weight reduction programs While fully or partially disqualified, the practitioner would not be prevented from using his or her medical training to work in circumstances such as the following: (a) As a medical officer in a pharmaceutical company conducting promotions for general practitioners, pharmacists, dentists, etc; (b) As a medical educator; (c) As a medical researcher; (d) As a medical assessor in a health benefits fund; (e) As a medical journalist; (f) As a medical administrator. A fully or partially disqualified practitioner could also provide services to patients who are prepared to pay the practitioner's fee without claiming on Medicare. However, to provide services solely on this basis would rarely be economically practicable. 35 It may be accepted that if patients cannot claim medical benefits in relation to the services that a doctor provides, that a doctor will have few, if any, opportunities to practise as a general practitioner in private practice. The Act thus imposes a practical compulsion on those who wish to practise as general practitioners in private practice to participate in the Medicare Scheme and, as a result of Pt VAA, to conduct their practice in such a way as to avoid committing inappropriate practice. They therefore must not, in relation to the rendering or initiating or services for which medical benefits are payable, do anything that would be unacceptable to the general body of general practitioners. The other ways in which those with medical training could practise their profession were also available, to some extent, when the High Court heard the BMA Case and the General Practitioners Society Case, and are not sufficient to avoid the practical compulsion upon all, or virtually all, of those wishing to practise as general practitioners in private practice.
The meaning of "civil conscription" 36 To establish whether a statute authorises civil conscription it is necessary to consider not only whether it imposes some form of legal or practical compulsion, but also whether what is compelled amounts to civil conscription. Gibbs J made this clear in the General Practitioners Society case when(at 554) having noted that some provisions of the Act and regulations did have the effect - legal or practical - of compelling medical practitioners to observe certain positive requirements, then as a separate matter, went on to consider what it was that the provisions compelled medical practitioners to do. Gibbs J then addressed what he saw as the further and separate question whether a law which compels a medical practitioner to do those things is a law which imposes any form or civil conscription. 37 Dixon J, in dissent in the BMA Case made the same point when he said (at 276): "Does s. 7A in itself or with the regulations amount to a form of civil conscription? In the consideration of this difficult question, it is important to be clear what duty the medical man is required to perform when it arises and what is its essential nature." 38 In the BMA Case, the members of the majority appeared to take a very wide view of what could amount to civil conscription. Latham CJ said (at 249): The term "civil conscription" is wider than industrial conscription. It is applicable in the case of any civilian service, i.e. non-military, work or service. It could properly be applied to any compulsion of law requiring that men should engage in a particular occupation, perform particular work, or perform work in a particular way. (Emphasis added) And later (at 251): Section 7A is a provision compelling a doctor who is in practice to practise his profession, in so far as the important element of writing prescriptions is concerned, in a particular way. If this is not a form of civil conscription, it would equally not be a form of civil conscription in relation to "medical services" to prescribe by law that a doctor should carry on his practice at a particular place, or at a particular time, or for a particular class of patients and not for other patients, and that he should follow a prescribed routine in dealing with his patients. If laws imposing such requirements were held not to be civil conscription the result would be that, without infringing the prohibition of civil conscription, the whole practice of a doctor could be completely controlled, not merely by negative provisions, but also by positive provisions requiring him to do certain acts in his practice. Williams J had a similar view, stating (at 290): 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 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. Webb J said (at 294) that "civil conscription" is an "expression which, if not quite clear, was certainly intended to be comprehensive." His Honour also said (at 292-4): I think the electors would have taken the proposed law to emphasize, in the use of the words "any form," that legislation for the provision of benefits or services of the kind referred to could not authorize compulsory service of any kind, at least in the provision of medical or dental services, either independently or as incidental to pharmaceutical or other benefits, and that compulsion, to any extent or of any nature, whether legal, by the imposition of any penalties, or practical, by any other means, direct or indirect, could be authorized…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. 39 The minority judges in the BMA Case took a narrower view of the meaning of "civil conscription". Dixon J said (at 278): It is difficult indeed to say with confidence what is essential to the meaning of the expression "any form of civil conscription," to ascribe to the expression any definite requirement as part of its connotation. But compulsion to serve seems to be inherent in the notion conveyed by the words. No doubt the service may be irregular or intermittent. A duty to give medical attention to outpatients at a hospital for two hours once a fortnight if imposed by law would no doubt be a form of civil conscription. It need not involve the relation of employer and employee. A law imposing an obligation to perform medical services for patients at a practitioner's own rooms would doubtless be bad as involving a form of civil conscription. But I cannot escape the conviction 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 former does not appear to me within the conception; the latter does. McTiernan J said (at 283): The word "conscription" standing by itself generally means military conscription. The term "conscription" does not refer to the compulsion of soldiers to serve but to the form employed to compel civilians to be soldiers. The volunteer is bound to obey orders. But volunteers and conscripts, although equally bound to obey orders, are different classes. Conscription is not equivalent to compulsion. It means not the compulsion to serve but the form employed by the State to place a person under a duty to serve. To compel a civilian in time of war to darken the windows of his house is not to conscript him. It is not conscription to require him to fill in and sign a census return giving information required by the Government for defence purposes. The words "civil conscription" mean conscription for civil purposes. The words "any form" do not extend the meaning of conscription beyond its ordinary meaning. The "form" must be a form of conscription. Any form of civil conscription does not mean any form of compulsion or control of conduct. 40 In the General Practitioners Society Case the Court seems to have taken a view of the meaning of "civil conscription" that is more consistent with what was said by Dixon and McTiernan JJ than with some of the statements of members of the majority. In the present cases the doctors submitted that: [t]he narrow construction of "civil conscription" discussed in [the General Practitioners Society] case is wrong and should not be accepted by the Court. The wider view of "civil conscription," namely, the broader views of Latham CJ, Rich, Williams and Webb JJ in British Medical Association on the placitum, should be preferred to the views expressed in General Practitioners Society. 41 To the extent that there are inconsistencies between what was said in the BMA Case and the General Practitioners Society Case the latter must surely prevail and in any event the application of what was actually decided in the two cases to the facts in the present matter leads to the same conclusion. As Dixon J observed in the BMA Case (at 262): "The meaning of indefinite expressions cannot 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 General Practitioners Society Case Gibbs J considered his own decision to be consistent with the ratio decidendi in the BMA Case, although he did not agree with every statement made by the members of the majority. His Honour said (at 556-9): It was further held [in the British Medical Association case] that the expression "civil conscription" in the paragraph is not limited to compulsory service which is performed full-time, or regularly, and that the relevant words are intended to prevent any form of compulsion to perform particular services. However, some members of the majority went further and held that a law which compels people to perform services in a particular manner is a law which imposes civil conscription…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"….it does not in my opinion necessarily follow, as Latham C.J. and Webb J. feared, that if the construction which those Justices adopted is rejected, it would be possible for the Parliament, without infringing the prohibition of civil conscription, to provide that a doctor or dentist should carry on his practice at a particular place, or at a particular time, or only for a particular class of patients. In some circumstances, at least, provisions having that result might well be regarded as imposing a form of civil conscription.…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. His Honour then noted that the Pharmaceutical Benefits Act required all prescriptions for formulary medications to be written on Commonwealth forms, whether or not the medicines were to be obtained free: see above [25]. He continued (at 559): Secondly, the majority of the Court appear to have considered that, in 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.…In both these respects that case is distinguishable from the present. 42 As all the other members of the Court in the General Practitioners Society Case agreed with Gibbs J, we should refer in full to his opinion as to the meaning of "civil conscription". His Honour said (at 557): 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.…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 the paragraph are performed, and laws annexing conditions to the entitlement to any 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. 43 In the submissions on behalf of the doctors, much emphasis was placed upon another part of the judgment of Gibbs J, where his Honour said (at 559-60): The provisions in question in these proceedings do compel 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. Barwick CJ also referred to the relevant provisions of the Act as "incidental provisions" (at 538) and Dixon J relied on the concept in a similar way in the BMA Case, stating (at 277): "In strict accuracy I think that it is not a medical service that is made compulsory. It is a procedure in performing an incident of medical service that is made compulsory and it is done in order to effect a non-medical purpose." 44 The doctors submitted that "the regulation of 'inappropriate practice' is not merely regulation of the 'incidents' of medical practice…It is not regulation of 'things done incidentally in the course of practice'…It is regulation of the medical service itself." This is undoubtedly true. The effect of Pt VAA of the Act is to place a condition on the provision of medical benefits, such that they may not be paid if the service is rendered or initiated in a manner that would be unacceptable to the general body of practitioners. But implicit in the doctors' submission is a reading of the General Practitioners Case to the effect that any compulsive regulation that was not limited to the incidents of medical practice must authorise civil conscription. We do not consider that the observation of Gibbs J that the relevant provisions of the Act merely regulated the incidents of medical practice was intended to limit the generality of his Honour's comments on the meaning of "civil conscription", quoted above at [39]. The text and the context suggest otherwise. 45 Section 10 does not compel a medical practitioner to perform any service. Section 10 addresses circumstances where medical expenses have been incurred in respect of a professional service rendered by, relevantly, a medical practitioner to an eligible person. If such expenses have been incurred then, pursuant to the provisions of s 10, a Medicare benefit is calculated in accordance with subsection (2) and payable in accordance with the Act. There is no compulsion upon a medical practitioner either to render a professional service or, indeed, to render any account for that professional service. Section 20 identifies the person who is entitled to the Medicare benefit which is payable by virtue of s 10. It is the person who has incurred the medical expense who is entitled to the Medicare benefit. That person ceases, however, to be entitled to the benefit if that person has not paid the medical expense: s 20(2). In those circumstances, the payment may be made by cheque (sent to the eligible person) but payable to the relevant medical practitioner who has rendered the service. Again, s 20 does not compel a medical practitioner to provide any service. Section 20 is designed to ensure that a medical practitioner is paid where that medical practitioner has not been paid for the service which he or she has rendered to a person eligible for payment under s 20. 46 Section 20A, like s 20, is facultative. It permits an eligible person who has been rendered a professional service to assign his or her right to the payment of the Medicare benefit to the medical practitioner who has rendered the professional service. Again, s 20A provides a Medicare benefit to a medical practitioner who has rendered a professional service and who has not been paid by the eligible person for that professional service. 47 Sections 10, 20 and 20A do not compel a medical practitioner to render any professional service to any person. Those sections assume that a medical practitioner has rendered a professional service to an eligible person and has rendered a fee for that service, and provides a scheme whereby either the eligible person, if he or she has paid that fee, becomes entitled to a Medicare benefit or, if the eligible person has not paid that fee, the medical practitioner becomes entitled to the Medicare benefit. Those sections provide for the payment of a medical practitioner's fee for a professional service when that professional service has been rendered in response to an eligible person's request. 48 Part VAA does not compel a medical practitioner to perform any professional service. The purpose of Part VAA is to regulate the manner in which any professional service for which a Medicare benefit is payable is performed but only so as to prevent any "inappropriate practice" on the part of the medical practitioner. Part VAA does not render a medical practitioner's failure to perform a professional service an inappropriate practice. It does not thereby compel a medical practitioner to provide a professional service. It does no more than require a medical practitioner whose patient is entitled to seek payment of a Medicare benefit to render any professional service appropriately. The purpose of Part VAA is to preserve the integrity of the Medicare Benefits Scheme not to require medical practitioners to perform professional services. It does no more than regulate the way in which medical practitioners should render their medical services where they have first chosen to render those services. Any inquiry that may be commenced under Part VAA is limited to circumstances where the medical practitioner has rendered or initiated the professional service. 49 It was contended by the doctors that the vice in Part VAA is that it addresses more than overservicing as a genus of inappropriate practice. That might be conceded but that does not mean that Part VAA has the effect of compelling a medical practitioner to provide a professional service. What Part VAA does, as was said to be permissible in the General Practitioners Case, is toregulate the manner in which the professional service which is provided otherwise than by way of compulsion is rendered. In other words, if the medical practitioner chooses to render a professional service to an eligible person and the eligible person becomes liable to that medical practitioner for a medical expense and a Medicare benefit becomes, according to the circumstances, payable to the eligible person or the medical practitioner, the medical practitioner becomes liable to a determination under s 106U if the medical practitioner has engaged in inappropriate practice if the necessary procedural steps have been taken under Part VAA. 50 In Yung v Adams (1997) 80 FCR 453 Davies J observed, in relation to Pt VAA, that (at 459): The Commonwealth's interest is to see that the services which are provided by a medical practitioner and for which a Commonwealth benefit is or may be claimed are services in respect of which the medical practitioner provides due care and skill, that a claim if made is brought under the correct item and that overservicing does not occur. To the extent that there is a practical compulsion for general practitioners to participate in the Medicare Scheme, what is compelled is not service of the Commonwealth. Rather, it is that they conduct their practices with the care and skill that would be acceptable to the general body of practitioners. Such a condition is "clearly necessary to the effective exercise of the power conferred by s 51(xxiiiA)". The Act does not authorise civil conscription.
The judicial power of the Commonwealth 51 In Tankey v Adams (2000) 104 FCR 152 a Full Court of this Court (Ryan, O'Connor and Weinberg JJ) rejected an argument that s 106U of the Act impermissibly confers the judicial power of the Commonwealth upon a body other than a Ch III court. The Court was then considering the Act as it was prior to the 1999 amendments, when the Determining Officer made the determination under s 106U, with the Professional Services Review Tribunal having the power to review that decision. Counsel for the doctors conceded that the amendments to the Act were not such as to cast any doubt on the applicability of Tankey (2000) 104 FCR 152 to Pt VAA as it was in force during the period relevant for these cases. Rather, the doctors' argument was that the decision in Tankey (2000) 104 FCR 152 should be reconsidered in light of what the High Court said in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129. 52 One of the reasons for the Full Court's decision in Tankey (2000) 104 FCR 152was its characterisation of the Determining Officer's power under s 106U as protective, as opposed to punitive. In Rich (2004) 220 CLR 129the High Court did cast doubt upon the validity of this distinction, albeit in the context of considering whether exposure to the penalties that the Australian Securities and Investments Commission (ASIC) can impose enlivens a privilege against the obligation to make discovery in civil proceedings. The Court was not concerned with an issue of the judicial power. This is not to deny the relevance of the High Court's observations to what was decided in Tankey (2000) 104 FCR 152, but the characterisation of the power as protective and not punitive was only one of many relevant factors considered by the Full Court. In Health Insurance Commission v Grey (2002) 120 FCR 470 another Full Court (Beaumont, Sundberg and Allsop JJ) rejected an argument that the Act impermissibly vested the judicial power of the Commonwealth in PSR Committees, and in doing so summarised the Court's decision in Tankey (2000) 104 FCR 152in these terms (at 478): The Full Court held that the Tribunal was exercising administrative power, so that Ch III was not applicable. A number of factors led to that conclusion. First, the Tribunal was not concerned with the ascertainment of legal rights and obligations. Secondly, the Full Court said, the determination whether a practitioner had engaged in "inappropriate practice" is not a traditional inquiry: "[I]t is a concept which depends for its application on peer review which is, of its nature, a delegated administrative function of government rather than the exercise of judicial power": Tankey v Adams at 162. Thirdly, the Full Court drew attention to the fact that any determination by the Tribunal was not directly enforceable by it. 53 As can be seen, several factors informed the Full Court's decision in Tankey (2000) 104 FCR 152, and the characterisation of the power as "protective" was a relatively minor element which was not seen to warrant a mention in Grey (2002) 120 FCR 470 in that Full Court's summary of the earlier case. The recent decision of the High Court in Attorney-General (Cth) v Alinta Ltd [2008] HCA 2 where the court considered the constitutional validity of the powers and functions of the Takeovers Panel casts no doubt upon the Full Court decision in Tankey (2000) 104 FCR 152. In determining whether the Panel was exercising judicial power such that the authorising legislation would be inconsistent with Ch III, the Court was careful to emphasise that "no single combination of necessary or sufficient factors identified what is judicial power": at [93] per Hayne J; and see also at [5]-[7] per Gleeson CJ, at [9] per Gummow J, at [34]-[48] per Kirby J, at [105] per Heydon J and at [151] per Crennan and Kiefel JJ. 54 It was said on behalf of the doctors that this Court should decline to follow Tankey (2000) 104 FCR 152. An intermediate court of appeal will, as a matter of practice, determine for itself whether it will treat itself as bound by its previous decisions or, if not, the extent to which it will feel itself free to depart from those decisions: Nguyen v Nguyen (1990) 169 CLR 245 at 268 (per Dawson, Toohey and McHugh JJ). If it adopts the practice that it is free to depart from an earlier decision "it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong": Nguyen v Nguyen at 269. This Court has determined that it is free to depart from its earlier decisions: Chamberlain v The Queen (No 2) (1983) 72 FLR 1; Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560-1. In Chamberlain (1983)72 FLR 1 at 8-9, the Court said that it would "normally follow an earlier decision unless convinced that it is wrong." Put another way, whilst this Court is not strictly bound by its previous decisions, this Court will only decline to follow a previous decision of the Court if it is satisfied that that decision is plainly wrong and to continue to follow that decision would perpetuate error: New Zealand v Moloney (2006) 154 FCR 250 at [133]-[137]. 55 The primary contention advanced by the doctors that s 106U was invalid because it purports to confer the judicial power of the Commonwealth on persons who have not been appointed pursuant to s 72 of the Constitution was rejected in Tankey (2000) 104 FCR 152. It was reagitated in Grey (2002) 120 FCR 470 and, for the separate reasons given by that Court, rejected again. Whilst this Court has adopted for itself a practice whereby in circumstances mentioned it is free to decline to follow a previous decision, it is almost inconceivable as a matter of practice that this Court would be satisfied that two closely reasoned decisions of the Court on the same point reaching the same conclusion were plainly wrong. This Bench should, for those reasons, follow this Court's two previous decisions. 56 In any event, we are not satisfied that the two decisions which the applicants and appellant ask this Court not to follow are plainly wrong. Indeed, we are satisfied that those decisions are plainly right for the reasons relied upon subject to the caveat that the distinction between protective and punitive legislation may not be a relevant consideration. That being the case, this Court should follow the decision in Tankey (2000) 104 FCR 152 and the subsequent decision in Grey (2002) 120 FCR 470. Any declaration that those decisions are wrong must now be for the High Court: Transurban (1999) 95 FCR 553 at 560.
CONCLUSION 57 The appeal in Selim should be dismissed. 58 Orders should be made in Dimian that the referred questions be answered as follows:
Counsel for the Appellant: D F Jackson QC and M A Robinson
Solicitor for the Appellant: TressCox Lawyers
Counsel for the Respondents: R Henderson
Solicitor for the Respondents: Minter Ellison Lawyers
Counsel for the Attorney-General for the Commonwealth (intervening): D M J Bennett QC, Solicitor-General of the Commonwealth, R Henderson and K Richardson
Solicitor for the Attorney-General for the Commonwealth (intervening): Australian Government Solicitor
Counsel for the Applicants: D F Jackson QC and M A Robinson
Solicitor for the Applicants: TressCox Lawyers
Counsel for the Respondent: D M J Bennett QC, Solicitor-General of the Commonwealth, R Henderson and K Richardson
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 5-6 March 2007
Date of Judgment: 27 February 2008
Selim
Lele
(1987) 162 CLR 271
(1945) 71 CLR 237
(1983) 72 FLR 1
(1988) 165 CLR 360
(1949) 79 CLR 201
(1980) 145 CLR 532
(2002) 120 FCR 470
(1998) 195 CLR 337
(2006) 154 FCR 250
(1990) 169 CLR 245
(1994) 68 CLR 504
(2004) 220 CLR 129
(2006) 150 FCR 83
(2000) 104 FCR 152
(1994) 182 CLR 104
(1999) 95 FCR 553
(1997) 80 FCR 453
(1944) 68 CLR 504