Wong v Commonwealth of Australia

Wong v Commonwealth of Australia - [2009] HCA 3 - HCA 2009 case summary — Zoe

[31]

Upon a stated case, the Full Court in General Practitioners answered "No" to questions challenging the validity of ss 16A, 16B and 16C of the Act and of certain regulations. Various obligations were placed upon persons wishing to become and remain approved pathology practitioners; the payment of medical benefits was contingent upon the provision of services by approved pathology practitioners. A distinction was drawn in General Practitioners between regulation of the manner in which some of the incidents of the practices of medical practitioners were carried out and the compulsion, legal or practical, to carry on that practice and provide the services in question. The laws under challenge were held to be of the former character and thus were valid.
The distinction was treated by Gibbs J[11] as supported by what had been said by Dixon J in his dissenting judgment in British Medical Association v The Commonwealth[12], respecting the permissible regulation of financial and administrative incidents of medical or dental practice. However, to fix upon a notion of reasonable regulation, with its resonances of judicial exegesis of s 92 of the Constitution[13], manifests an inadequate appreciation of the reasoning of Dixon J in the BMA Case. His Honour said that inherent in the notion conveyed by the words "any form of civil conscription" was "compulsion to serve"[14]. The service so compelled might be "irregular or intermittent", so that a duty to give medical attention to hospital outpatients for two hours once a fortnight "would no doubt be a form of civil conscription"[15]. Nor, in Dixon J's view, was it necessary that the proscribed law involve the relationship of employer and employee; a law requiring a medical practitioner to perform medical services for patients at the practitioner's own rooms would involve a form of civil conscription[16].
But, to Dixon J, compulsion to serve medically or to render medical services was one thing, and a law stipulating the manner in which an incident of medical practice was carried out, was another. Those incidents included financial and administrative matters, and s 7A was a law of this character. It did not compel a form of civil conscription because[17]:

[39]

As demonstrated by the arguments submitted on the present appeals to this Court, there remains some uncertainty respecting the phrase "(but not so as to authorize any form of civil conscription)". Each side sought to turn this to its advantage. However, both approached the issue of constitutional interpretation in a manner which differs from that in the two previous cases. These were decided in 1949 and 1980 respectively, at a time when the doctrine of the Court took a limited view of the use of extrinsic materials in the interpretation of the Constitution, including interpretation of provisions added to the Constitution under the alteration procedures of s 128.
The present parties, encouraged by Cole v Whitfield[25] and Betfair Pty Ltd v Western Australia[26], relied upon matters of legislative history to assist the interpretation of s 51(xxiiiA).
The issues which arise in the pursuit of that endeavour illustrate the proposition that diverse and complex questions of construction of the Constitution are not answered by adoption and application of any particular, all‑embracing and revelatory theory or doctrine[27]. The character of s 51(xxiiiA) as a product of the machinery prescribed by s 128 for the alteration of the Constitution gives a particular character to matters of legislative history.
Sir William Harrison Moore saw in s 128 a recognition of three principles: those of Parliamentary government, of democracy and of federalism[28]. The requirement that the genesis of change be a proposed law for the alteration of the Constitution and that this be placed before each legislative chamber directs attention to the considerations which animated the executive and legislative branches of government.
Section 128 goes on to provide that the vote upon a proposed law submitted to the electors "shall be taken in such manner as the Parliament prescribes". The Parliament acted accordingly in 1906, enacting the Referendum (Constitution Alteration) Act 1906 (Cth) ("the Referendum Act"). Section 6A, first introduced in 1912[29], was designed to enable electors to be informed of "the plain facts of the case, as set forth by each side"[30]. Mr W M Hughes, the Attorney‑General, went on[31]:

[43]

In this country, the subject of military conscription, especially for service beyond the limits of the Commonwealth, is associated with highly controversial political and social divisions during World War I. The Military Service Referendum Act 1916 (Cth) had authorised a plebiscite, conducted on 28 October 1916, posing the question "Are you in favour of the Government having, in this grave emergency, the same compulsory powers over citizens in regard to requiring their military service, for the term of this War, outside the Commonwealth, as it now has in regard to military service within the Commonwealth?".
Compulsory military service within the Commonwealth was provided for in Pt IV (ss 59‑61A) of the Defence Act 1903 (Cth). The distinction between military service within and beyond the geographical limits of the Commonwealth, which was critical to the controversies during World War I, has a general significance. It shows that the place at which service is required may be an aspect of a form of conscription.
The conduct of the 1916 plebiscite, called a "referendum", was controlled by provisions of the Referendum Act which were applied (by s 7) as if the prescribed question were a proposed law to which s 128 of the Constitution applied. The Referendum Act included the compulsory voting provisions introduced by the Compulsory Voting Act 1915 (Cth)[34].
The War Precautions (Military Service Referendum) Regulations[35] made under the War Precautions Act 1914 (Cth) provided for a second plebiscite, to be conducted on 20 December 1917, where the question was "Are you in favour of the proposal of the Commonwealth Government for reinforcing the Australian Imperial Force oversea?". Both plebiscites, which were popularly understood as turning upon "conscription", failed to carry[36].
Whilst it may be true to say that the phrase "civil conscription" lacked a settled meaning at the time of the amendment of the Constitution in 1946, the related expression "industrial conscription" had at that time played a considerable part in political discourse. In the United Kingdom the Emergency Powers Act 1920 (UK), while providing for the proclamation of an emergency and the making of regulations, had stated (s 2(1)):

[57]

On 8 June 1944, in Reid v Sinderberry[42], this Court allowed an appeal from the Full Court of the New South Wales Supreme Court[43]. On 25 May 1944 the Full Court had held that upon its construction s 13A of the 1939 Act did not authorise the making of reg 15 of the Man Power Regulations. Jordan CJ had said that "read according to [its] natural construction [reg 15] would, if valid, reduce the population of Australia to a state of serfdom more abject than any which obtained in the Middle Ages"[44]. That reasoning was rejected by this Court. In the course of upholding the validity of reg 15, Latham CJ and McTiernan J[45] remarked that notwithstanding the provision in s 5(7) of the 1939 Act that nothing in the regulation making power was to authorise the imposition of "any form of industrial conscription", it was clear that reg 15 imposed a "very wide form of industrial conscription". However, the opening words of s 13A, introduced by the 1940 Act, made it clear that its operation was not limited by any reference to the terms of s 5(7) as it had been enacted in the 1939 Act.
The present appellants emphasise that the treatment by this Court in Reid of reg 15 as imposing a form of industrial conscription, was in respect of a provision which required work to be performed not under the control of the Commonwealth, but at the direction of a specified employer.
With effect 4 April 1944, reg 15AA was added[46] to the Man Power Regulations. This empowered the Director‑General, among other matters, to order that a particular person or those in a class of persons, without consent, neither cease to carry on or practise their "trade, profession or calling" at any particular place, nor commence to do so at some other place, whether on his own account or as an employee. This provision extended the system of conscription beyond the trades, to professions. It also directed the place at which these activities were to be conducted.
On 19 August 1944 a proposed law[47] to amend the Constitution by inserting after Ch I a chapter to be headed "Chapter IA - Temporary Provisions" was placed before the electors. This new chapter was to comprise s 60A which would empower the Parliament, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to 14 subject matters listed as pars (i)‑(xiv) of s 60A(1). Paragraph (ii) of s 60A(1) would read "employment and unemployment". The proposed s 60A(5) provided for s 60A to cease to have effect and for any laws then current to cease to have effect at the expiration of a period of five years from the cessation of hostilities in the then present war.
The referendum was not approved by the majorities of electors required by s 128 of the Constitution. In both the "YES" and "NO" cases distributed pursuant to s 6A of the Referendum Act, there was discussion of the prospect that the proposed legislative power with respect to "employment and unemployment" would authorise laws providing for industrial conscription during the present war and in the five year period after the end of hostilities. The "NO" case said of what it called "the Government's 'Brains Trust'":

[95]

The statutory criterion of conduct unacceptable to the general body of general practitioners, of which the appellants also complain, is an adaptation for the operation of the Act of principles of professional responsibility developed in the second half of the 19th century. The phrase "infamous conduct in any professional respect" found in s 29 of the Medical Act 1858 (UK)[65] and memorably construed in Allinson v General Council of Medical Education and Registration[66] with use of the phrase "disgraceful or dishonourable", has been seen since as not necessarily requiring an appeal to a moral standard[67]. The essential question in such cases is whether "the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence"[68]. The rendering of services not reasonably necessary for the care of the patient may be dubbed "overservicing", but may also attract the reprobation just described.
A legislative scheme for the provision of medical services supported by appropriation of the Consolidated Revenue Fund established under s 81 of the Constitution, by requiring the professional activities of medical practitioners to conform to the norms derived from Allinson, does not conscript them. Those norms are calculated to ensure that the activities be professional rather than unprofessional in character.
The formation of an opinion in the course of the performance of functions or the exercise of power under Pt VAA that the conduct of the person under review has caused, is causing, or is likely to cause "a significant threat to the life or health of any other person" leads to a reference under s 106XA to the appropriate regulatory body in the State or Territory in which the practitioner practises; provision is made under s 106XB for reference to the appropriate regulatory body where the opinion formed is that there has been a failure "to comply with professional standards". The presence of these further provisions in Pt VAA does not give it the character of a law which authorises a form of civil conscription.
There remains the alleged invalidity of ss 10, 20 and 20A of the Act. There was said to be a form of practical compulsion applied by these provisions to practitioners such as the appellants. The practical compulsion was said to be to participate in the Medicare scheme. Three matters were emphasised by the appellants. First, the medical practitioner must be prepared to accept that at least part of the fee may not be paid by the patient and rely upon payment by the Health Insurance Commission of an amount equal to that of the Medicare benefit (s 20(3)). Secondly, the medical practitioner may, as a practical matter, be left to rely for payment upon an assignment under s 20A of the Medicare benefit in respect of a service rendered to an eligible person. Thirdly, s 19(6) denies payment of a Medicare benefit where there has been a failure to record prescribed details (including particulars of the item number) of the service provided.
These provisions condition the enjoyment of membership of the scheme established by the Act. They do not amount to practical compulsion to perform a professional service. The Full Court was correct in the conclusion expressed as follows[69]:

[99]

The head of power itself was inserted by the Constitution Alteration (Social Services) 1946 (Cth) which was approved by the electors in a referendum conducted on 28 September 1946 in accordance with s 128 of the Constitution. Exceptionally, that referendum was carried nationally and in all six States[73]. Other issues agitated in the Federal Court were not maintained in this Court[74].
In deriving the meaning of the restriction on legislative power effected by the prohibition on measures amounting to "any form of civil conscription", the joint reasons in the Full Court of the Federal Court recognised that a preliminary question arose as to the approach to be taken to the interpretation of s 51(xxiiiA). They asked whether the paragraph should be "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'"[75].
This was an important observation. It lies at the heart of the different approach that I take to the constitutional question presented by these appeals. In past authority this Court has accepted that, in resolving disputed questions concerning the meaning of the Constitution[76] (and specifically in deriving the meaning of provisions adopted following amendments made under s 128[77]), it is legitimate for the decision-maker to consider, and give weight to, historical materials as they throw light on the resolution of such problems[78].
Nevertheless, such historical materials do not control the meaning of the constitutional language. Identifying that meaning is a task of legal analysis, not of historical research. In this case the reasons of other members of this Court (both in the language chosen[79] and in their approach and emphasis[80]) might be read as suggesting otherwise. It is for this reason that I write separately. I could not agree to an interpretation of s 51(xxiiiA) that treated the history surrounding the adoption of that paragraph as determinative of the meaning of the provision as it operates today. Not only would this be contrary to the general view I hold as to the proper approach to deriving constitutional meaning (and the approach ordinarily taken by this Court). It would also risk accepting a view of the paragraph that would be unjust to the appellants and to other persons whose interests are protected by the constitutional prohibition against laws that "authorize any form of civil conscription". That notion is one that necessarily changes and adapts to different times and circumstances.
When the proper approach to deriving the meaning of s 51(xxiiiA) is adopted (including by appropriate but limited use of the historical record explaining what was in the minds of the legislators and the electors when the paragraph was added to the Constitution), the same result is reached as is stated in other reasons. Substantially, I agree in the analysis of Hayne, Crennan and Kiefel JJ. The provisions of the Act, as challenged in this Court, do not offend the prohibition on enacting "any form of civil conscription". The Full Court was correct to so decide. The appeals to this Court should be dismissed.

[100]

The agreed facts: Many of the background facts necessary to decide the constitutional issue raised by the appeals are stated in the reasons of other members of this Court[81]. However, because the Constitution (like other written laws) operates in the real world, it is useful, in approaching its meaning, to have an idea of the actual circumstances that call forth the remaining issue for decision.
Such circumstances were before the Full Court of the Federal Court and they are expressed in its reasons[82]. Although largely derived from the case of Dr Selim, they were contained in facts that were agreed for the purpose of both proceedings in that Court. It is therefore convenient, as other reasons do, to treat the facts in Dr Selim's case as indicative of the circumstances giving rise to the common constitutional objection of the appellants[83]. Adding a few facts to the bare bones of the disembodied constitutional submissions which they advance helps us to understand better the force of their argument that they have been subjected to at least a "form" of "civil conscription", contrary to the prohibition contained in s 51(xxiiiA).
Dr Selim, a medical graduate from Cairo University, came to Australia in 1984. He obtained the necessary Australian qualifications to practise as a medical practitioner in 1985. He has been in private practice as a general practitioner since 1987. He is vocationally registered as such under s 3F of the Act.
In December 2001, the Health Insurance Commission ("the Commission"), acting pursuant to s 86(1) of the Act, referred Dr Selim's conduct to the Director of PSR. The referral related to professional services rendered by Dr Selim to or on behalf of patients during the calendar year 2000. The Commission concluded that Dr Selim may have engaged in "inappropriate practice", contrary to ss 81 and 82 of the Act, as amended by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth)[84]. In particular, the Commission's consideration of "inappropriate practice" was based on the concern that Dr Selim had rendered a very high volume of services in the nominated time and may not have provided the appropriate quality of clinical input into those services. If these allegations were established, Dr Selim (and, in his case which was in material respects similar, Dr Wong) would be exposed to the imposition of statutory sanctions, including disqualification for up to three years from participating in the Medicare Scheme established by the Act or disqualified from providing designated services or services to specified classes of persons.
If a non-"bulk billing" practitioner were fully disqualified it would be likely that he or she would lose a substantial number of patients from the practice unless the practitioner reduced the fees charged to approximately the difference between the fees previously charged and the Medicare benefit. How many of the lost patients might later return to the practice, after the period of disqualification, would depend on a number of factors, including the extent and duration of the disqualification, the availability of other practitioners in the area and other competitive and economic considerations.
During disqualification, the medical practitioner might engage a locum tenens to continue ongoing care to his or her patients, provided such a person was available and qualified. Likewise, if the practitioner were a member of a group practice, other members could continue ongoing care of the patients, provided their skills were suitable and they had the capacity to take on other patients[85].
Whilst fully disqualified, a medical practitioner would not be prevented from rendering medical services for which no Medicare benefit was payable - such as statutory services to veterans, services to workers' compensation patients, overseas visitors, patients in public hospitals, in the defence services, cosmetic surgery, health screening and so on. As well, the medical practitioner could carry on non-fee services, such as in medical journalism and administration as well as services for those patients who are "prepared to pay the practitioner's fee without claiming on Medicare". But the agreed facts accepted the unsurprising conclusion that "to provide services solely on this basis would rarely be economically practicable".
The Full Court expressed some general factual conclusions of its own relevant to the practicalities of disqualification to be ordered against the appellants[86]:

[112]

Recognising the threshold issue: French CJ and Gummow J are correct[99] in recognising the threshold importance of resolving an uncertainty that arises as to the interpretation of the constitutional phrase "but not so as to authorize any form of civil conscription". It is that uncertainty that the parties severally sought to exploit.
The Full Court was also correct in appreciating the significance, for the resolution of this issue, of identifying the approach to be taken to the understanding of the paragraph by reference either to the original materials available to the legislators and electors who agreed to the insertion of the paragraph in the Constitution, or by reference to the wider range of materials available today to those obliged to make decisions on the question[100].
These are not theoretical considerations. Unless this Court follows a consistent approach to resolving such questions it risks the criticism that it adopts, in some cases, a form of "originalist" approach to the most important task it fulfils (constitutional interpretation) and in other cases a broader approach that recognises the reification of the words appearing in the Constitution, either those surviving from its original adoption or those later inserted in accordance with s 128.
Rejecting "originalist" approaches: In many of the recent decisions of this Court judges of the Court (or at least a clear majority of them) have rejected the notion that constitutional meaning is to be derived from nothing more than what was in the minds of those who framed the applicable constitutional language. Thus, the observations of the entire Court in Cheatle v The Queen[101], to the effect that "in contemporary Australia, the exclusion of females and unpropertied persons [from a 'jury'] would itself be inconsistent with [s 80 of the Constitution]", is the clearest possible statement that the adoption of a 1900 meaning to the original language of the Constitution is not appropriate to fulfil the task of judicial interpretation assigned by the Constitution to this and other courts.
Similarly, the conclusion of the Court in Sue v Hill[102] that the expression "subject … of a foreign power", appearing in s 44 of the Constitution[103], extends to a "subject" of the Queen who was a citizen of the United Kingdom. Had an "originalist" approach been applied to the meaning of the words in s 44(i), there is no doubt that, in 1900, a subject of the Queen of the United Kingdom would not have been included within the disqualification. There could scarcely be a clearer instance of a rejection of the "originalist" approach in Sue v Hill given that its consequence would have been the opposite disposition. A special exception has sometimes been suggested for technical words in the Constitution, requiring an "originalist" approach in such cases[104]. However, even this proposition must now be doubted in the light of recent decisions[105].
The fundamental difficulty of adopting an "originalist" interpretation of constitutional language is that it is incompatible with the character and purpose of the text being interpreted. This is a law that speaks of high governmental matters applicable from generation to generation and from age to age. In Grain Pool of Western Australia v The Commonwealth[106], by reference to a provision of the Constitution (s 51(xviii)), I said[107]:

[120]

Whilst these historical materials are helpful as affording a context for approaching the meaning of s 51(xxiiiA), it would be a serious mistake to think of them as resolving the problem of meaning now before this Court, or of controlling the interpretation which the Court gives to the constitutional provision as adopted. When the Constitution was amended by referendum to incorporate the added paragraph, the words had thereafter to respond to new circumstances, quite different from the controversial war-time conscription for Australians to perform overseas military service in the Great War; or strike-breaking and man-power regulation in later years of the twentieth century, both in Australia and the United Kingdom.
For example, the framers of s 51(xxiiiA) could not have envisaged the advances in "medical and dental services" that have occurred in the sixty years since the adoption of the amendment. These changes have arisen largely by reason of then unknowable technological developments. They could not have anticipated the complexity and potential costs of the resulting changes in healthcare; the appearance of new diseases; the advent of new and hugely expensive therapies; not to mention new means of affording the high standards of healthcare envisaged by the Universal Declaration of Human Rights[119]. That Declaration was being conceived and developed by the United Nations at the very time that the amendment, in terms of s 51(xxiiiA), was being adopted in Australia and given its initial effect.
Nor could the law-makers of 1946 (or the electors who approved the insertion of par (xxiiiA) in s 51 of the Constitution) have foreseen the advances in the "regulatory state"[120]; the collapse of the command economies; the spread of governmental notions of "economic rationalism"[121]; and the development of new techniques, designed to maximise the efficient provision of healthcare within society and to contain the costs and means of doing so[122].
Once a constitutional provision is adopted, it must apply to events and developments that could not have been imagined at the time of its adoption. This is why it is wrong in legal principle to confine the ascertainment of the boundaries of a constitutional power to the discovery of the purposes of those who devised it or the circumstances and experiences that may have been in their minds when they did so. These considerations afford but one portion of the material upon which the constitutional analysis proceeds. It is helpful, in part, to understanding the purpose or "mischief" that lay behind the constitutional provision. However, once the words are chosen, it is fundamental to the task of constitutional interpretation that those words apply as understood from time to time. They cannot be limited to the circumstances, experiences, purposes or objectives of those who adopted them.
Application of recent authority: Nothing in the foregoing observations is inconsistent with the general approach of this Court in recent years, once Cole v Whitfield[123] lifted the earlier prohibition on reference to, and use of, historical materials (specifically Convention Debates) in assisting in the derivation of the meaning of constitutional words. Neither in Cole v Whitfield[124] nor in later decisions, including the opinion of six members of the Court in Betfair Pty Ltd v Western Australia[125], was it suggested that the use of historical materials imposed an interpretation of words confining their meaning to the original understandings, without regard to the changing circumstances to which those words must apply in times far removed from those in which the words were first written.
It follows that history may afford an understanding of the general purpose of the words, viewed at the time of adoption[126]. But the constitutional function of the words, once chosen, requires that they should continue to apply in different and unenvisaged later circumstances according to the "broad and general" approach explained by O'Connor J in the early years of the Commonwealth[127]. That approach was specifically reaffirmed in Betfair[128]. Obviously, it applies to the problem presented by the present appeals.
Distinguishing access to and use of history: In these appeals, French CJ and Gummow J are therefore correct, with respect, in pointing out that the issue of constitutional interpretation, affecting s 51(xxiiiA), presented when the BMA case (1949) and General Practitioners (1980) were decided, necessarily involved a somewhat different approach because, at that time, this Court was limited in the use that it might make of extrinsic materials to understand the ambit of a constitutional provision[129]. However, it is one thing to permit access to such materials. It is quite another to allow the resulting discoveries to control the meaning of the text, as then understood. Nothing in Cole v Whitfield or Betfair warrants an originalist view of the use of the historical materials deployed in the present appeals. On the contrary, the joint reasons in Betfair laid emphasis on the importance of the constitutional text and on the need to construe constitutional language as it speaks to new and differing circumstances arising at a later time.

[127]

As a matter of textual interpretation of the language in which the prohibition is stated, I find it impossible to accept that the words "any form of" in s 51(xxiiiA) do not enlarge the concept of "civil conscription"[135]. They are part of the ambit of the prohibition, which is to be read as a whole. On their face, the words are clearly intended to signal that no narrow view should be taken of the form of "civil conscription" that is prohibited. It is unpersuasive to me to draw a distinction between "compulsion to serve" and "regulation of the manner in which a service is performed", if such a distinction is intended to deny the fact that particular forms of regulation can, at a certain point, amount, in practice, to a "form of civil conscription". Both as a matter of textual interpretation and as a matter of practical commonsense, there is much to be said for the more ample view of the prohibition on "civil conscription" stated in the majority reasons in the BMA case[136].
Supposed need for leave to reargue: A question then arises (and was raised by the submissions of the appellants) as to whether they required the leave of this Court to suggest (as they did in their arguments) that the approach adopted by the Court in General Practitioners was incorrect and that this Court should revert to the approach explained by the majority in BMA. In this connection, reference was made to the supposed requirement of leave and to the considerations that would then enliven provision of such leave[137].
I do not accept that any procedural requirement of leave (necessarily potentially limited to a majority of judges of this Court) could impede the right and duty of a judge of the Court to state his or her belief concerning the true meaning and application of the Constitution. The judge's obligation derives from the Constitution itself. No procedural rule, devised by judges, could impede its exercise[138]. The right and duty of a judge of this Court to state the law prevails, particularly in matters of constitutional interpretation[139].
If, contrary to my belief, leave is required, I would certainly grant it to the appellants. This would not be the first time that a significant (and potentially useful or convenient) federal legislative scheme would have fallen, where, for constitutional reasons, that scheme was held invalid[140]. Such decisions can arise most especially when a federal law, relying on earlier decisions of the Court, seeks to erect too large an edifice of regulation, incapable of being supported by the constitutional text[141].
The appellants' complaints: The appellants argued that, when the edifice of Pt VAA of the Act was examined, it was excessive to the power, especially after the change from regulation of practitioner conduct by reference to a criterion of "excessive services"[142] to one by reference to the broader notion of "inappropriate practice"[143]. According to the appellants, the result of this change was the imposition of an impermissible "form" of "civil conscription". A coercive intrusion had been introduced into the lives of the healthcare professionals who provided "medical and dental services"[144]. It took the legislation into conflict with the prohibition in s 51(xxiiiA). This required invalidation of the impugned provisions and their severance, if possible, from other provisions of the Act.
The introduction of the criterion of practical coercion of health professionals, effectively to conform to perceptions of "appropriate practice", beyond those enforceable by the State and Territory disciplinary bodies applicable to registered medical practitioners and dental surgeons, subjected such professionals to severe restrictions and regulations. The subject provisions, which were introduced in 1994, were not in force at the time of the decision in General Practitioners. Moreover, at that time (amongst other things) the Court's restriction on access to historical and other materials would have prevented the presentation of many of the arguments advanced by both sides in these appeals.
It follows that it is appropriate to recognise the uncertainty that exists in the meaning of the prohibition contained in s 51(xxiiiA) of the Constitution; to acknowledge the arguable shift in the approach between the BMA case and General Practitioners; and to accept that there are difficulties in adopting at face value some of the reasoning expressed in General Practitioners. What, then, does the prohibition in the paragraph entail, with particular relevance to the statutory provisions that the appellants impugn?

[128]

Starting with the constitutional text: The meaning of the prohibition in s 51(xxiiiA) is to be derived by an orthodox process of analysis addressed to the contested phrase of the Constitution. That mode of reasoning does not surrender the analysis either to the supposed enlightenment now afforded by available historical material or to an uncritical acceptance of the unadorned criterion expressed by Dixon J in the BMA case[145] and reflected in the reasons of Gibbs J in General Practitioners[146].
The starting point for analysis is always the language of the provision itself. Several points need to be noticed. First, each of the social security benefits stated in the paragraph is governed by the opening phrase "the provision of". Thus, laws with respect to "medical and dental services" at large are not assigned to the Federal Parliament by the added head of power. What is authorised are laws with respect to "the provision of" both "medical and dental services". That is also the context in which the prohibition has to be understood.
Moreover, the provision of the applicable services needs to be understood by reference to the accompanying services, all of which contemplate payments or facilities of various kinds: "maternity allowances", "widows' pensions", "child endowment", "unemployment, pharmaceutical, sickness and hospital benefits" and "benefits to students and family allowances". It is in this context that "medical and dental services" appear with their attached prohibition on "civil conscription". It is difficult to imagine that the mere payment of the various forms of allowances, pensions, endowment and benefits could turn into a form of "civil conscription". Hence, the bracketed words have generally been assumed to govern only the provision of "medical and dental services". With their reference to nominated professions those words are conceivably susceptible to a form of "civil conscription". Were it otherwise, it might have been expected that the words now appearing within brackets would have appeared either at the beginning or at the end of the paragraph, so as to govern expressly all of the nominated services.
Dictionary meanings of conscription: Contrary to the suggestion of Gibbs J in General Practitioners, the inclusion within brackets of the reference to "any form of" civil conscription seems designed to expand the concept of "conscription" itself. Normally, in contemporary English, that word is used to refer to compulsory military enlistment in the defence forces. In fact, this is the sole definition provided in the Macquarie Dictionary[147], namely "compulsory enrolment in the armed forces".
In the Shorter Oxford English Dictionary, the primary relevant meaning given is "[e]nrolment or enlistment (of soldiers)"[148]. However, in Dr Samuel Johnson's original Dictionary of the English Language[149], the author, by reference to the Latin source of the word (conscriptio), describes "conscription" as "[a]n enrolling or registering". He explains "conscript" by reference to a non-military example: "A term used in speaking of the Roman senators, who were called Patres conscripti, from their names being written in the register of the senate." The military use of "conscription" in England is ascribed by the Shorter Oxford English Dictionary to the 1650s.
A wider application of the word "conscription" to non-military activities is also recognised in other modern dictionaries but still with primary reference to compulsory service in the armed forces[150]. Clearly, the usual denotation of the word in Australia, at least when expressed in the form of the noun "conscription", involves compulsory enrolment in the armed forces. This fact helps to explain the importance of the parenthetical prohibition on "civil conscription" and the inclusion of the indication that what was being prohibited was "any form" of such "conscription" which, in this instance, was expressly to be "civil", not military, in character.
As a textual matter, the inclusion of the indication of the breadth of the concept ("any form of") suggests that the imperfection of the metaphorical phrase was recognised by the drafters[151]. It was not "military" (or even "industrial") conscription, as in the failed accompanying proposal envisaging enlarged legislative powers with respect to industrial employment. All of these considerations place emphasis on the width of the stated prohibition, considered by reference to the terms in which it is expressed.
A special and limited protection: A further feature, derived from the text, that lends support to the foregoing propositions is that the protection afforded by the words in brackets is special, limited and necessarily restricted to those involved in the provision of "medical and dental services". Such persons comprise the healthcare professionals who provide the designated services. They also include, of necessity, the patients who are the recipients of the provision of such services.
Normally, in our society, the provision of "medical and dental services" occurs pursuant to a private contract entered into between the healthcare provider and the patient[152]. The purpose of incorporating a prohibition on "civil conscription" in the provision of such services is thus to preserve such a contractual relationship between the provider and the patient, at least to the extent that each might wish their relationship to be governed by such a contract.
In this sense, the prohibition is expressed for purposes of protection, including a protection extending to the patient. It is designed to ensure the continuance in Australia of the individual provision of such services, as against their provision, say, entirely by a government-employed (or government-controlled) healthcare profession.
This does not mean that there cannot be the provision of "medical and dental services" otherwise than by individual suppliers, including for example public hospitals and private insurers. However, the prohibition on "any form of civil conscription" is designed to protect patients from having the supply of "medical and dental services", otherwise than by private contract, forced upon them without their consent.
A rare constitutional guarantee: Because of its character as a guarantee or protection, both for the healthcare professionals identified and for the patients affected by the provision of their services, the exclusion of any form of "civil conscription" must be seen as one of the rare instances of an individual guarantee and protection spelt out in the Australian Constitution. The fact that the Constitution has taken the trouble to afford such a guarantee is a strong reason for upholding a broad ambit for the prohibition, to the full extent that the words permit. It is a reason for rejecting an unduly narrow reading.
Such an approach also conforms to the view taken about analogous questions arising in other paragraphs in s 51 of the Constitution, where a grant of power is made subject to a "safeguard, restriction or qualification"[153]. This was the expression employed by Dixon CJ in explaining the approach that is to be taken when deciding the meaning of a grant of power expressed as subject to a limitation.
In Attorney-General (Cth) v Schmidt[154], Dixon CJ explained the proper approach with the concurrence of the four other judges participating in that case[155]. The principle there stated has been applied by this Court on many occasions[156]. Although commonly considered in the context of the power to make laws with respect to the acquisition of property, subject to the "guarantee" of "just terms"[157], the present is an even clearer occasion for the application of the stated rule. This is because of the way in which the limitation on the exercise of the power is expressed within the very grant of legislative power itself - emphatically and within parentheses.
The broad approach to constitutional words: The established approach of this Court to the ascertainment of the meaning of constitutional words, affording a grant of legislative power to the Parliament, is to insist that such words should be given a broad application. This approach is adopted out of recognition of the purposes of the Constitution; the democratic accountability of the repository of the power; and the vast array of circumstances to which, over time, the power will have application[158]. Although this rule is normally stated in the context of a grant of power, the same principle applies to a limitation upon such a grant, at least where that limitation has been adopted, as here, to afford protection to an identified class. This is especially so where it is recognised that that class includes not merely the providers of "medical and dental services" but also the recipients, namely patients, and citizens generally, as potential recipients of such services.
Express textual enlargement of exemption: In the present case, the foregoing rule receives specific endorsement from the use of the expression "any form of civil conscription". Correctly, in my view, the wide ambit of "any form of" was recognised in the BMA case both by Latham CJ[159] and by Williams J[160]. If the opinion of Gibbs J in General Practitioners were correct[161], that phrase was basically redundant. This is not a view that I could accept. In a comparatively sparse constitutional text, containing comparatively few express, protective guarantees, it is an approach to the interpretation of the Constitution that is unsupported by any other instance of which I am aware[162].
Fundamental human rights: To the extent that it is permissible to construe a contested provision of the Constitution by reference to the contextual consideration of emerging norms of fundamental human rights as expressed in international law[163], some reinforcement for a broad reading of the prohibition in s 51(xxiiiA) of the Constitution can also be found in relevant provisions of international law.
These include the provisions of the Universal Declaration of Human Rights, including Art 23.1 which guarantees that "[e]veryone has the right to work [and] to free choice of employment" and of Art 25.1 which provides: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family … and medical care and necessary social services, and the right to security in the event of … sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."[164]
To the extent that the interpretation of the prohibition on "civil conscription" urged by the appellants finds support in the international expression of fundamental rights, and in the international law that states those rights, the wider view of the phrase should be preferred to a view that would fail to uphold such fundamental rights in the Australian context. It is important to recognise that the fundamental human rights referred to in the instruments of international law preceded the inclusion of reference to them in such instruments. All that international law has done is to express the rights that inhere in human beings by virtue of their humanity. There is therefore no inconsistency in giving a meaning to the Australian Constitution by reference to declarations of fundamental rights that were adopted after the initial acceptance of the Constitution or, in this case, after the 1946 amendment of the Constitution by the addition of the provisions of s 51(xxiiiA).
The necessity of detailed implementation: So far, the analysis of the content of the power in s 51(xxiiiA) has laid emphasis upon the wide ambit both of the grant to make laws with respect to the "provision" of "medical and dental" services and of the exclusion from that grant of a law that would authorise "any form of civil conscription". However, s 51(xxiiiA) must also be read in the context of the Constitution viewed as a whole. It is therefore necessary to refer to express and implied contextual considerations that throw light on the scope of the particular power and of the express exclusion from it.
Specifically, both the express and implied constitutional provisions for the making of laws incidental to the execution of any power vested in the Parliament[165] envisage the enactment of detailed laws to carry into force a head of power such as that in par (xxiiiA). In the nature of modern government, such provisions are bound to involve considerable detail, both of a substantive and procedural kind. Especially so in the context of a paragraph of the Constitution, such as s 51(xxiiiA), with its wide variety of provisions for differing kinds of allowances, pensions, endowment and sundry benefits.
It would be impossible to bring such a head of power into effect, in the form of a comprehensive law on social security such as the Act, without enacting provisions of very considerable detail. This is especially so because the addition of par (xxiiiA) to s 51 supplements a power to make laws on "invalid and old-age pensions" included in the original list of powers afforded to the Federal Parliament in 1901[166]. Thus par (xxiiiA) expanded greatly the powers of the Federal Parliament and its potential functions and duties with respect to social services for all Australians.
The history of the introduction of the legislation based upon s 51(xxiiiA), and the complexity of the scheme as it grew and expanded, is explained in other reasons[167]. In the nature of such a substantial grant of legislative power; the wide variety of the services specifically nominated; the individuality of the beneficiaries affected; and the specificity of the transactions to be provided for, federal legislation of considerable detail was necessary, addressed both to the rights and obligations of the providers of "medical and dental services" and also to the rights and obligations of the recipients of those services.
It follows that, in arriving at an understanding about the express prohibition on "any form of civil conscription", stated in s 51(xxiiiA), it is necessary to accept that detailed provisions for the implementation of the services, and for their regulation and proper deployment, would not, of themselves, amount to "any form of civil conscription"[168]. In so far as such regulation is necessary to, and inherent in, the provision of a wide range of "medical and dental services", and reasonably proportionate to the grant of power for that purpose, the stated constitutional prohibition would not, without more, be breached.
Constitutional regulation of finances: There is a further contextual consideration which must be taken into account, for it lies deep in the language, history and principles of the Constitution, in relation to which s 51(xxiiiA) must find its place and be understood. I refer to the central constitutional doctrine that the imposition of taxation and the raising of moneys from people, constituting as they do a "burden on the people"[169], have to be effected as the Constitution expressly provides.
Thus, the expenditure of moneys must be approved by Appropriation Bills that conform to the constitutional design[170] and that observe the requirements of the Constitution for the levying of moneys from the people; the payment of such moneys into the Consolidated Revenue Fund; and the expenditure of all such moneys in accordance with, or under, appropriations made by law[171].
The foregoing are fundamental postulates of the Constitution. They impose severe practical requirements. These are reflected in all federal measures involving the expenditure of moneys. The requirements ensure that such moneys are lawfully and properly expended, and not otherwise. In the context of the Constitution, no reading of the prohibition on "any form of civil conscription" could be adopted that in any material way limited or restricted the due observance of these other constitutional norms designed to ensure the lawfulness and integrity of the expenditures of the Commonwealth.
Self-evidently, the provision of social services in the many forms described in s 51(xxiiiA) would necessarily involve both very large aggregate expenditures and very small individual expenditures made payable (relevantly) to the providers of "medical and dental services" or their agents, or to patients or other persons on their behalf. No view could be adopted of the prohibition in s 51(xxiiiA) on the enactment of "any form of civil conscription" which involves a departure from, or limitation upon, the proper regulation of the expenditures to ensure their lawfulness and financial integrity.
The enactment of general and particular provisions of federal law to safeguard such considerations was expressed by, or implied in, the constitutional provisions governing taxation, appropriations, the Consolidated Revenue Fund and the expenditures to which I have referred. If any aspect of the federal law, enacted in a proportionate way to conform with such constitutional provisions, involved a burden (even a coercive burden) on the providers of "medical and dental services" (or their patients who received such services) this could not, of itself, constitute a form of "civil conscription". That is so because of the need to reconcile the prohibition expressed in s 51(xxiiiA) with the provisions elsewhere contained in the Constitution, or implied by necessity and constitutional convention, to uphold the lawfulness and integrity of each expenditure of federal funds raised ultimately as a "burden on the people".
Also of necessity, because of the very great aggregate sums of federal moneys involved and the multitude of very small payments for the provision of individual services arising in the case of particular recipients, a high degree of particularity in monitoring, supervising and checking such payments is inescapable. The prohibition on "any form of civil conscription" must accommodate to that degree of particularity. An intrusion to some degree into the private contractual arrangements between the provider of "medical and dental services" and the recipient of such services is inescapable, so long as there is any payment of moneys out of the Consolidated Revenue Fund.
Defining the permissible regulation: The question in these appeals thus becomes how to define the point where the necessary, proper and inescapable intrusion into the private arrangements between the provider of "medical and dental services" and a recipient of such services passes beyond legitimate scrutiny for reasons of upholding the lawfulness and integrity of such payments and is converted, by its sheer detail and intrusiveness, into a prohibited "form of civil conscription". No easy formula is available to identify that point.
In recognition of the primary grant of power to the Parliament to enact laws for a wide range of social services, including the provision of "medical and dental services"; the adoption of the power to do so, exceptionally, by amendment of the Constitution; and the importance and necessity of detailed provisions (including machinery laws) to ensure the lawfulness and integrity of both aggregate and individual payments, the courts will generally respect and uphold the means adopted by the legislature.
So long as the machinery provisions are proportionate to the grant of power and do not aggregate to a "form of civil conscription", this Court would not invalidate a measure, or combination of measures, properly characterised as laws enacted to give effect to constitutional requirements designed to uphold the lawfulness and integrity of federal financial expenditures. In particular, the Court would not ordinarily second-guess the legislature in such specific provisions, so long as they appeared reasonably appropriate and adapted ("proportionate") to the fulfilment of the power afforded by s 51(xxiiiA).
There must, however, be exceptions to such deference. Thus, a law pretending to be one to uphold the lawfulness and integrity of financial expenditures but which, instead, was properly to be characterised as one intruding into the individual relationship between providers of "medical and dental services" and recipient patients, might attract constitutional invalidation. So might a law which was so detailed and intrusive as to impose coercive requirements and restrictions on the provider of such services, disproportionate to any legitimate federal interest, financial or otherwise. Similarly, to enact laws imposing blanket rules affecting the individual relationship between providers of "medical and dental services" and their recipients, whether for reasons of cost minimisation or for the achievement of particular administrative outcomes in terms of medical or dental practice, could risk invalidation. They might do so either as falling outside the primary grant of legislative power or as falling within a prohibited "form" of "civil conscription".
Test for the prohibition: The test for attracting the prohibition contained in s 51(xxiiiA) is whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of "medical and dental services" and the individual recipients of such services. It is this consensual feature of those arrangements which the head of power postulates will be undisturbed.
Most obviously, any such disturbance would happen in the unlikely event of an attempt by the Parliament to revive the nationalisation of the healthcare professions or to force their members into full-time or part-time work for the federal government or its agencies. It would also occur where a conclusion was reached that the true purpose of the law was not the regulation of the legality and financial integrity of such benefits but an unjustifiable intrusion into the conduct of medical and dental practice, inconsistent with, or travelling significantly beyond, the ordinary standards generally observed by such professions in Australia.
Obviously, cases could arise at the borderline. Views might sometimes differ as to whether particular provisions exceed the grant of power or attract the broadly stated expression of the prohibition upon "any form of civil conscription". In performing the judgment that is enlivened by the prohibition, the decision-maker will not only be affected by the several considerations that I have listed, giving emphasis to the wide ambit of the prohibition. The decision-maker will also give due attention to the need, inherent in the nature of the power, for implementing laws of high particularity that include necessary provisions to ensure the lawfulness and financial integrity of all payments made, conformably with the Constitution.

[129]

When the foregoing approach is taken to the central issue in these appeals, the appellants' challenges fail. But they fail for reasons of textual and legal analysis, not for reasons of the historical intentions that lay behind the amendment of the Constitution to insert par (xxiiiA) into s 51.
The provisions of the Act which the appellants impugn do not compel the provider of "medical and dental services" to perform any service for or on behalf of a recipient, whether legally or practically, whether on behalf of the Commonwealth or (least of all) as its employee or agent. The scheme of the Act, and specifically the impugned provisions, carefully respect the individual and personal character of the relations between the healthcare professional, as the provider of services, and the individual patient, as recipient. True, many detailed obligations are cast on the provider. By the standards of earlier times, they potentially intrude, to some extent, into the professional relationship. However, the provisions that the appellants challenge in these appeals do not demonstrate disproportionality in the regulation nor do they constitute an intrusion that attracts the prohibition on "any form of civil conscription".
Central to my opinion in this respect is a conclusion similar to that expressed by Hayne, Crennan and Kiefel JJ[172]. After the adoption of the defined criterion of "inappropriate practice", proper care has to be taken in the provisions of the Act, to limit the conduct that will attract that description. In part, the phrase is still defined by reference to the provision of excessive services, which is of proper and legitimate concern to the Commonwealth and its agencies as guardians of public moneys raised from the people. So far as wider considerations of "unprofessional conduct" are concerned, two provisions in s 82 (which the appellants challenge) save the legislation from invalidity. The first is the adoption of a criterion that the supervising committee's conclusion must be "reasonable". The second is the requirement that the committee must ask itself whether the conduct of the healthcare professional "would be unacceptable to the general body" of relevant practitioners involved in supplying the "medical and dental services" concerned[173].
These criteria, in combination, necessarily require that committee opinions are determined not by considerations attractive to federal officials, as such, or supposed overall health-management objectives. Instead, in every case, the committee must reach a reasonable conclusion by reference to the standards of the general body of the profession concerned, judged in a therapeutic context. That conclusion is, in turn, susceptible (as in the appellants' cases) to procedures for judicial review, further appeal to the courts and ultimately a constitutional appeal to this Court.
I am unconvinced that any of the provisions of the Act impugned by the appellants constitute an illicit attempt, in either of their cases, to force them into forms of medical practice that are imposed for unstated bureaucratic reasons of cost saving, health policy or other purposes inconsistent with the proper conduct of the individual arrangements between the patient and the healthcare professional concerned. In so far as benefits are provided, the scheme of the legislation gives primacy to the individual arrangements between the healthcare professional and the patient but with appropriate protections to both which are consistent with that relationship. Even "bulk billing" is only possible by consent of both parties to that relationship. In these ways, the legislation avoids impermissible forms of "civil conscription" which the grant of power was thought otherwise possibly to entail.
Specifically, I agree with what Hayne, Crennan and Kiefel JJ have written about the analogy between the statutory criteria expressed in the Act and the long-established law on professional standards stated in such decisions as Allinson v General Council of Medical Education and Registration[174] with the elaboration now afforded by Lord Hoffmann in McCandless v General Medical Council[175]. The concept of "inappropriate practice" is not exactly the same as "unprofessional conduct" existing in the 1890s when Allinson was decided[176]. The statutory criterion today, in a modern regulatory state with a universal, national health scheme, contemplates detailed record-keeping to comply with basic constitutional and statutory principles. Poor book-keeping might not have been "unprofessional conduct" in the century before last[177]. However, in the contemporary Australian context, where what is involved is overcharging, overservicing or inadequate clinical care in the nominated time, it could well be so. In any case, the close similarity of the two concepts is plain.
In consequence of the foregoing conclusions, the regulation imposed on the appellants by the Act, in the provisions impugned by them, are no more than measures proportionate to ensure the lawfulness and integrity of the provision of "medical and dental services" in a manner conforming to the Constitution. They do not constitute a "form of civil conscription". It follows that the impugned provisions of the Act are valid.

[131]

In May 2006, Dr Wong and Dr Rifaat George Dimian commenced an action in this Court seeking declarations that certain provisions of the Health Insurance Act are not valid laws of the Commonwealth. They alleged that certain provisions of the Health Insurance Act "as a practical matter compel general practitioners to participate in the scheme provided for by [those provisions] in order to carry on practice as a general practitioner" and thus amount to "civil conscription". They further alleged that s 106U of the Health Insurance Act, a provision dealing with the form and content of determinations of "inappropriate practice", purported to confer part of the judicial power of the Commonwealth on persons who had not been appointed pursuant to s 72 of the Constitution and was on that account invalid. This latter contention is not maintained in the appeal to this Court. It may be put aside from further consideration.
In October 2006, the action was remitted to the Federal Court of Australia. Before describing the subsequent proceedings in the Federal Court it is convenient to describe the proceedings that led to the second appeal in this Court: the appeal in which Dr Selim is appellant.
In November 2003, Dr Selim applied to the Federal Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of steps allegedly taken under Pt VAA of the Health Insurance Act. In October 2004, Dr Selim's application to the Federal Court was amended to add grounds alleging invalidity of some or all of the provisions of Pt VAA of the Health Insurance Act on the basis that the Part, or provisions in it, authorise or provide for a form or forms of civil conscription.
Dr Selim's application was heard by a single judge of the Federal Court (Stone J) and in February 2006 the application was dismissed[179]. Dr Selim appealed to the Full Court of the Federal Court.
The appeal in Dr Selim's matter was heard together with questions referred to the Full Court of the Federal Court in the proceedings in which Dr Wong and Dr Dimian were plaintiffs. Those questions were referred pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth) and were referred on an agreed statement of facts.
The Full Court (Black CJ, Finn and Lander JJ) dismissed[180] Dr Selim's appeal, and answered the questions referred in the other matter in terms upholding the validity of the impugned provisions.
By special leave, Dr Wong and Dr Selim appeal to this Court. Dr Dimian did not join in the appeal by Dr Wong. He was named as a respondent to the proceedings in this Court, and filed a submitting appearance.

[135]

The Pharmaceutical Benefits Act 1944 (Cth) provided (s 8) that, subject to the Act, "every person ordinarily resident in the Commonwealth shall be entitled to receive pharmaceutical benefits", and those benefits were identified (s 7) as medicines, medicinal compounds, and materials and appliances identified in the Commonwealth Pharmaceutical Formulary or an addendum to the Formulary. In the following year, provision was made by the Hospital Benefits Act 1945 (Cth) for the Commonwealth to make payments to States, by way of financial assistance, in respect of beds occupied by qualified persons in public and non‑public wards in public hospitals, and for regulations to be made in relation to payments by the Commonwealth of hospital benefits in respect of patients in private hospitals.
In November 1945, this Court held in Attorney‑General (Vict) v The Commonwealth ("the Pharmaceutical Benefits Case")[183] that the Pharmaceutical Benefits Act 1944 was beyond power. The Commonwealth's submissions, that the Act was authorised under s 81 of the Constitution as an appropriation from the Consolidated Revenue Fund "for the purposes of the Commonwealth", or was supported by the incidental power in s 51(xxxix), were rejected.
Four months later, on 26 March 1946, the then Attorney‑General, Dr Evatt, introduced the Constitution Alteration (Social Services) Bill 1946 with the object, as he put it[184], of placing "Australian social service legislation on a sound legal footing". As the Attorney‑General went on to say[185], "[w]hen the Constitution was adopted in 1900, the idea of even invalid and old-age pensions was new", but the Parliament was given power to make laws with respect to that subject matter by s 51(xxiii). And although Parliament had power in relation to insurance other than State insurance (s 51(xiv)) "[a]ny other social service payments made by the Commonwealth must, therefore, rest on some other foundation"[186]. And that was seen as extending to other social services such as child endowment, widows' pensions, and medical and hospital benefits.
The Bill, as first introduced in the House of Representatives, expressed the relevant head of legislative power as "[t]he provision of maternity allowances, widows' pensions, child endowment, unemployment, sickness and hospital benefits, medical and dental services, benefits to students and family allowances".
Two other Bills for constitutional alteration were introduced into the Parliament at the same time as the proposal about social services. The Constitution Alteration (Industrial Employment) Bill 1946 proposed the addition of par (xxxivA) to s 51 to give power to the Parliament 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". The third proposal was to provide legislative power with respect to the "[o]rganized marketing of primary products" but the detail of this proposal need not be further considered.
During the Attorney‑General's second reading speech in support of the Constitution Alteration (Social Services) Bill 1946 a member of the Opposition asked[187] whether the power, if granted, would enable the Parliament to nationalise medical and dental services. The Attorney‑General expressed[188] the opinion that the proposed alteration would not enable the Commonwealth to say "[w]e shall make all practitioners in the medical and dental professions members of the service of the Commonwealth". But examination of the subsequent debates in the House of Representatives reveals that the possible "nationalisation" of the medical and dental professions remained a live issue, albeit without any precise definition of what would constitute "nationalisation".
At the end of debate in the House of Representatives about the Constitution Alteration (Social Services) Bill, the then Leader of the Opposition, Mr Menzies, proposed[189] that after the word "services" there be inserted "(but not so as to authorize any form of civil conscription)". The amendment was at once accepted[190] by the Government and it was in this form that the proposal went to the Senate, and subsequently to electors in a referendum.
The pamphlet setting out the case for and against the proposal, provided to electors in accordance with the Referendum (Constitution Alteration) Act 1906 (Cth), asserted, in the case for the amendment, that there was "[n]o question of socializing medical and dental services". It was said that the express safeguard against civil conscription "means that doctors and dentists cannot be forced to become professional officers of the Commonwealth under a scheme of medical and dental services".
This view of the effect of the words precluding any form of civil conscription is not at odds with, and may even have been based upon, written advice given on 9 April 1946 by the then Solicitor‑General of the Commonwealth and others to the Government, about the amendment which Mr Menzies had proposed to the Bill. It was said in that advice that:

[138]

As is sufficiently apparent from the text of s 51(xxiiiA) (but is confirmed by what was said[191] in the House of Representatives in connection with the Bill for the constitutional amendment) the form of words "but not so as to authorize any form of civil conscription" was borrowed from the Constitution Alteration (Industrial Employment) Bill, and its reference to "[t]erms and conditions of employment in industry, but not so as to authorize any form of industrial conscription". The use of the expression "civil conscription" in the proposed s 51(xxiiiA), rather than "industrial conscription", reflected then current understandings of the need to distinguish between the professions and industry[192]. Today, the term "civil conscription" may therefore be seen as a genteelism, but at the time the expression was evidently adopted as cognate with, and not materially different in content from, the expression "industrial conscription".
The expression "any form of industrial conscription" was borrowed from s 5(7)(a) of the National Security Act 1939 (Cth), an Act to which assent was given on 9 September 1939, six days after the commencement of World War II. Section 5(7) of the National Security Act limited the power in s 5(1), to make regulations "for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth", by providing that the power did not extend to authorise "the imposition of any form of compulsory naval, military or air-force service, or any form of industrial conscription" (emphasis added).
But the use in the National Security Act of the expression "industrial conscription" was not novel. "Industrial conscription" was an expression found in other legislation, both in Australia and in England, between the two World Wars. In 1920, the Parliament at Westminster enacted the Emergency Powers Act 1920 to make what the long title of the Act described as "exceptional provision for the Protection of the Community in cases of Emergency". Wide regulation‑making powers were conferred, but there were two provisos. First, it was said[193] that nothing in the Act should be construed "to authorise the making of any regulations imposing any form of compulsory military service or industrial conscription" (emphasis added). Secondly, it was provided[194] that no regulation should make it an offence "for any person or persons to take part in a strike, or peacefully to persuade any other person or persons to take part in a strike".
In Victoria, in 1923, at the time of a police strike, legislative provision was made for that particular emergency and for later cases of emergency. The Public Safety Preservation Act 1923 (Vic) provided various powers on proclamation declaring that a state of emergency exists. But s 7 provided that nothing in the Act should be construed "to authorize the making of any regulations imposing any form of industrial conscription". The Act was subsequently consolidated in the course of the general Victorian statutory consolidations of 1929 and 1958, and has been amended in some respects, but remains in force in substantially the same terms[195].
The most notable form of industrial conscription in Australia occurred in World War II and was effected by regulations made under the National Security Act 1939. Although that Act, as originally enacted, had expressly provided that the regulation‑making power it conferred did not authorise the imposition of any form of industrial conscription, the Act was amended, in 1940[196], to provide power to make regulations:

[141]

Against this background[199], the meaning to be given to "civil conscription", when used in s 51(xxiiiA), begins to emerge more clearly. It is evident that it connotes compulsion. As Dixon J pointed out in the BMA Case[200], the analogy with compulsory enlistment in the armed forces is readily drawn. Because the analogy with military conscription is so readily available it is apparent that the forms of compulsion which were referred to during World War II as manpower direction, or "requiring persons to place themselves ... at the disposal of the Commonwealth", lie at the centre of the notion conveyed by the expression "industrial conscription" and the cognate expression "civil conscription". But the example of civil or industrial conscription provided by World War II manpower arrangements cannot be seen as marking the metes and bounds of either expression.
We doubt that it is possible to provide any general definition of what is meant by "civil conscription". Rather, as Dixon J also pointed out in the BMA Case[201], the meaning of an indefinite expression like "civil conscription" "cannot often be determined in the abstract [and it] is only by settling what application an expression like 'civil conscription' has to definite situations that its exact scope can be worked out".
Of course, it is to be noticed that s 51(xxiiiA) speaks of "any form of civil conscription". The words "any form of" emphasise that the prohibition is not to be understood narrowly, but nothing in the present matters was said to turn upon giving those words a particular application or operation.
This Court held in the BMA Case that s 7A of the Pharmaceutical Benefits Act 1947 (Cth), which required a medical practitioner not to write a prescription in respect of certain medicines or appliances otherwise than on a prescription form supplied by the Commonwealth, imposed a form of civil conscription. The more broadly expressed opinions stated by some members of the Court in the BMA Case, to the effect that "civil conscription" extends to "any compulsion of law requiring that men ... perform work in a particular way"[202], have since been rejected[203]. Rather, the dissenting opinion of Dixon J in the BMA Case has come to be regarded[204] as better expressing the construction and application of s 51(xxiiiA). In the BMA Case, the determinative question for Dixon J was[205] "whether the isolation of an incident in medical practice and the imposition of a duty in reference to what is done can fall within the conception described by the words 'any form of civil conscription', or whether on the other hand compulsory service or the compulsory performance of a service or services is not connoted" (emphasis added).
Dixon J concluded[206] that s 7A (and an associated regulation) amounted to "no more than a regulation of the manner in which prescriptions shall be given" and that "[t]he end in view [was] not medical but financial and administrative". Noting[207] that "[t]here is no compulsion to serve as a medical man, to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time, however short, or intermittently", Dixon J concluded that s 7A was valid. While the section made obligatory "an act in the course of medical practice"[208] it did not amount to "a compulsory medical service"[209].
Subsequently, in General Practitioners Society v The Commonwealth ("the General Practitioners Case")[210], the relevant question was expressed[211] by Gibbs J, with whose reasons in this respect Stephen, Mason and Wilson JJ agreed, in terms that reflected the inquiries made by Dixon J in the BMA Case. That is, it was said to be necessary to distinguish between regulating the manner in which some of the incidents of medical practice are carried out and compelling any medical practitioner to perform any medical services.
So expressed, the distinction may be thought to sound echoes of a distinction of the kind that had been made in connection with s 92 of the Constitution between "reasonable regulation" and prohibition[212]. The difficulties and incoherence of that distinction contributed[213] to the Court's taking a new path in relation to s 92 in Cole v Whitfield[214]. But what Dixon J said in the BMA Case and what Gibbs J said in the General Practitioners Case does not direct attention to a distinction of the kind attempted in connection with the application of s 92, where the focus fell upon whether the regulation was reasonable, in the sense of necessary for the needs of "a free and civilized society"[215]. Rather, what was said by Dixon J in the BMA Case and by Gibbs J in the General Practitioners Case focuses attention upon what it is that the impugned law compels. Hence the question which Dixon J framed in the BMA Case[216] was whether the isolation of an incident in medical practice, and the imposition of a duty in reference to what is done in that practice, comes within the ambit of either "compulsory service" or "the compulsory performance of a service or services", for if it fell within either of those descriptions, it would amount to a form of civil conscription. As Dixon J said[217]:

[143]

This view of civil conscription may well be understood as encompassing practical as well as legal compulsion[218]. If that is so, the view expressed by Dixon J was wider than that expressed by the other dissentient in the BMA Case, McTiernan J, who held[219] that "[a]ny form of civil conscription does not mean any form of compulsion or control of conduct" and that the condition in par (xxiiiA) "with respect to civil conscription is aimed at the passing of a law which by any form conscribes a person into the service of the Commonwealth". McTiernan J denied[220] that practical necessity or moral duty could amount to conscription.
In the General Practitioners Case, Mr M H Byers QC, then Solicitor‑General of the Commonwealth, urged[221] the adoption of the dissenting opinions of Dixon and McTiernan JJ in the BMA Case. The differences between the two opinions were not then said to be of significance. Rather, in the General Practitioners Case, the Commonwealth submitted that the laws then in question directed no statutory compulsion to the doctor, that there was no compulsion to do the service, that the doctor could treat or not treat the patient, and that civil conscription was to be understood as a compulsion to service analogous to military conscription. The Commonwealth repeated these submissions in the present matters.
The Court divided in the General Practitioners Case about whether it was necessary to decide whether practical compulsion could amount to civil conscription. Five members of the Court concluded[222] that in at least some circumstances practical compulsion could amount to a form of civil conscription; two members of the Court expressly reserved[223] the question. All members of the Court held that provisions of the Health Insurance Act which provided that certain conditions be satisfied before medical benefits became payable to eligible persons to whom pathology services had been rendered and imposed obligations on some providers of services (with the object of ensuring that unnecessary or excessive pathology services were not rendered) did not amount to a form of civil conscription. Although the sections then impugned compelled medical practitioners to perform certain duties in the course of practice, the provisions did not go beyond regulating the manner in which some of the incidents of practice were performed. The provisions did not compel a practitioner to perform any medical service.

[159]

Contrary to the appellants' submissions, however, to observe that there is a practical compulsion to participate in the Medicare scheme does not conclude whether the impugned provisions of the Health Insurance Act provide for a form of civil conscription. In answering that question, it is necessary to begin by noticing what the impugned provisions do not compel, either legally or practically. The impugned provisions do not compel, legally or practically, a medical practitioner to perform any service, whether on behalf of the Commonwealth or at all. They do not compel, legally or practically, a medical practitioner to treat or not treat any particular patient or group of patients. The impugned provisions do not, in the words of Dixon J in the BMA Case[228], provide for "compulsory service" or "the compulsory performance of a service or services". The impugned provisions do not, in the terms used in the Commonwealth's argument in the General Practitioners Case[229], direct any statutory compulsion to a doctor. There is no compulsion to do any service. A doctor can treat or not treat a patient. There is no compulsion to service analogous to military conscription. And there is neither a legal nor a practical compulsion, in the words of Aickin J in the General Practitioners Case, "to perform particular medical ... services, or to perform medical ... services at a particular place, or to perform such services only as an employee of the Commonwealth".
The appellants did not submit to the contrary. Rather, the appellants drew attention to the consequence that follows from the need, as they put it, to "participate" in the Medicare scheme: the consequence that the medical practitioner is subject to the Professional Services Review Scheme provided for by Pt VAA of the Health Insurance Act. As s 80(1) of that Act records, Pt VAA "creates a scheme under which a person's conduct can be examined to ascertain whether inappropriate practice ... is involved. It also provides for action that can be taken in response to inappropriate practice." This the appellants characterised as requiring a practitioner to "conform to whatever it takes to remain in the scheme, even in matters going to the mode or manner of provision of medical services".

[167]

At least some of these categories of conduct assume a very large meaning of, and application for, the expression "conduct in connection with rendering or initiating services". There may be room for debate about whether issues like general questions about a practitioner's physical or mental competence or a practitioner's substance abuse will come within the expression "conduct in connection with rendering or initiating services". There may also be room for debate about whether all questions about clinical competence and performance, or all organisational issues affecting safety, will come within that expression. No doubt the expression "in connection with" is not to be given a narrow or confined construction. But the provision requires that a connection be demonstrated between identified conduct and rendering or initiating services for which benefits are payable. It is not necessary to examine further the nature of, or limits to, that connection.
The Health Insurance Act recognises that examining a practitioner's conduct in connection with rendering or initiating services may reveal conduct that does not fall within the statutory concept of inappropriate practice but which may fall within some other definition of unprofessional practice. Provision is therefore made by s 106XA for referring to an appropriate regulatory body any significant threat to life or health that comes to light "in the course of the performance of functions or the exercise of powers" under Pt VAA of the Act. And s 106XB provides for reference to an appropriate regulatory body of any non‑compliance by a practitioner with professional standards. These provisions show that it is neither necessary nor appropriate to attempt to stretch the concept of "inappropriate practice", or its definition as "conduct in connection with rendering or initiating services", to embrace all forms of conduct by a practitioner that would merit professional condemnation. Rather, the focus of Pt VAA must remain fixed upon conduct in connection with rendering or initiating services for which benefits are payable.
And it was no doubt with just such a focus in mind that provision was made in 1999, by the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth), for a Committee considering whether a practitioner has engaged in inappropriate practice to have regard to only samples of classes of services[238] before finding that a practitioner has engaged in inappropriate practice in relation to services of the relevant class; for a Committee to make a finding of inappropriate practice[239] if it is established that a practitioner's conduct in rendering or initiating services constitutes a "prescribed pattern of services"; and for a Committee to make a generic finding of inappropriate practice[240] where it cannot make a finding by reference to samples of services provided or to prescribed patterns of services because clinical or practice records are insufficient.
The second point to notice about s 82 is that it requires that the conduct be "such that a Committee could reasonably conclude that ... the conduct would be unacceptable to the general body" of relevant practitioners (emphasis added). The addition of the word "reasonably" reinforces the conclusion that might otherwise have been drawn in any event that the standard against which conduct is to be measured is an objectively determined standard. Moreover, the use of the word "reasonably" may take on particular significance in the application of the ADJR Act. In particular, it may bear upon whether a decision to which the ADJR Act applies was "authorized by the enactment in pursuance of which it was purported to be made"[241], whether the decision "involved an error of law"[242], as well as whether "the decision was otherwise contrary to law"[243] or involved an "improper exercise of ... power"[244]. It is not necessary to explore in any further detail these questions about the application of the ADJR Act.
Thirdly, the references in s 82(1) to a conclusion that "the conduct would be unacceptable to the general body" of relevant practitioners cannot be understood divorced from some aspects of the history of legislative regulation of the medical profession.
For many years, both in England and in Australia, medical practitioners would be struck off the register if found "to have been guilty of infamous conduct in any professional respect"[245]. In Allinson v General Council of Medical Education and Registration[246], the Court of Appeal of England and Wales identified one form of conduct amounting to "infamous conduct in a professional respect" as a medical practitioner, in the pursuit of that profession, doing "something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency". Proof of conduct of that kind resulted in striking the offender's name from the register of practitioners. No lesser punishment could be imposed. Not surprisingly, then, there was much litigation over the years about what was "infamous conduct in a professional respect". In particular, much attention was given to whether it was necessary to establish moral turpitude, fraud or dishonesty.
For the most part these issues were put to rest in Australia by this Court's decision in Hoile v The Medical Board of South Australia[247] holding that what amounts to "infamous conduct" is "best represented by the words 'shameful' or 'disgraceful'; and it is as conduct of a medical practitioner in relation to his profession that it must be considered shameful or disgraceful"[248].
More recent legislation regulating the conduct of professional practitioners such as medical and legal practitioners has moved away from the notion of "infamous conduct" and has provided for a much greater range of punishments for professional default than termination of the right to practise by striking off the appropriate register[249]. And as Lord Hoffmann, delivering the opinion of the Judicial Committee of the Privy Council in McCandless v General Medical Council[250], pointed out, "the public has higher expectations of doctors and members of other self‑governing professions [and] [t]heir governing bodies are under a corresponding duty to protect the public against the genially incompetent as well as the deliberate wrongdoers".
But from Allinson's Case to today, a common thread can be identified running through most statutes regulating the conduct of what Lord Hoffmann referred to as the "self‑governing professions". The standard of conduct expected of practitioners is an objective standard and is often identified, at least in part, by reference to the opinion of members of the profession, or members of the profession "of good repute and competency"[251]. Hence, the reference in s 82(1) to conduct that "would be unacceptable to the general body" of relevant practitioners can be seen as maintaining the thread common to many earlier forms of professional discipline and regulation, by which the standards of conduct are set by reference to prevailing professional opinion. And in particular, the conduct which may be identified as "inappropriate practice", as defined in s 82 of the Health Insurance Act, is conduct which has two features. First, the conduct must be "in connection with rendering or initiating services" for which a Medicare benefit or a pharmaceutical benefit is payable. Secondly, the conduct must be such as a Committee could reasonably conclude would be unacceptable to the general body of relevant practitioners.
As noted earlier, it may be accepted that the Health Insurance Act has the practical effect of requiring those medical practitioners who wish to practise as general practitioners to participate in the Medicare scheme. The Act requires those practitioners not to engage in inappropriate practice. It therefore follows that the Health Insurance Act practically compels those practitioners to abide by a particular standard of professional behaviour in connection with rendering or initiating services. Even if the definition of inappropriate practice in s 82 is as broad in its application as has been asserted (and as noted earlier, it is not necessary to decide whether it is) the standard of conduct that is thus imposed is framed by reference to professional opinion. It is, therefore, not different in kind from the standard of professional conduct that, since Allinson's Case, has been expected of medical practitioners in the conduct of their profession.
Whether such a broad view of s 82 could present any question about whether, in some of its applications, the law, so construed, was a law with respect to medical and dental services was not explored in argument. It is neither necessary nor appropriate to express any opinion about whether any such question would be presented, or about how such a question should be answered. The only attack mounted on the provisions of the Health Insurance Act which are impugned in these proceedings was that they provided for a form of civil conscription.
Assuming, without deciding, that s 82 does require medical practitioners to conform to the standard thus prescribed in relation to what the appellants called "matters going to the mode or manner of provision of medical services", the requirement to comply with that standard does not constitute a form of civil conscription. Section 82 and the other provisions which the appellants alleged to be invalid do not deny that a medical practitioner is free to choose whether to practise. A practitioner may choose whether to practise on his or her own account, or as an employee. The impugned provisions do not confine a practitioner's freedom[252] to choose where to practise. If the practitioner practises on his or her own account, the practitioner may decide when to be available for consultation and who to accept as a patient. The practical compulsion to meet a prescribed standard of conduct when the practitioner does practise is not a form of civil conscription. To adopt and adapt what Dixon J said[253] in the BMA Case, "[t]here is no compulsion to serve as a medical [practitioner], to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time, however short, or intermittently".
Each appeal should be dismissed. In Dr Wong's appeal the appellant should pay the costs of the Commonwealth. In Dr Selim's appeal, the appellant should pay the costs of the first, third and fourth respondents.
HEYDON J. The background circumstances and the principal constitutional and legislative provisions are set out in other judgments.

[189]

Want of due care and skill? Hence it is likely that "inappropriate practice" extends at least to the conduct encompassed within the third view. That was the view of the Full Court[261] and of Davies J[262], who thought that "unacceptable" conduct concerned departures from due care and skill. However, the Report of the Review Committee of the Professional Services Review Scheme to the Minister for Health and Aged Care[263] went further.
More detailed regulation? The Report. The Report concluded that the conduct identified by the Committees under the Richardson-Theophanous scheme as involving inappropriate practice fell into three categories. One, under the heading "General professional issues", related to "clinical competence and performance; aberrant professional behaviour or beliefs; lack of meaningful continuing medical education; physical or mental impairment; and substance abuse." Under that heading the Report also referred to organisational issues "which affect patient safety, such as equipment and staffing deficiencies" as also sometimes being evident. The second, under the heading "Particular identifiable unacceptable conduct", was described as "high number of services per patient; unusual incidence of specific types of services; inappropriate prescribing; inappropriate ordering of diagnostic imaging and pathology; and inappropriate use of Medicare item numbers when making claims." The third, under the heading "High volume services per day", referred to "high numbers of services per day with low rates of consultation services per patient."[264]
If the Richardson-Theophanous scheme gives a Committee, given the task of adjudicating on "inappropriate practice", the power to identify as aberrant - years after the supply of the medical services being investigated - certain "professional behaviour" or "professional beliefs", it gives a very wide power of control. The same is true in relation to the mode of "performance" within a practice; to "unusual incidence of specific types of services"; and to "inappropriate prescribing". In each case there is a possibility of particular sanctions for the past and of preventing or hindering or dissuading the supply by doctors of particular types of services, medications or treatments - types which might not command majority support within the profession but may be thought bona fide and on reasonable grounds by a particular doctor to be suitable for a particular condition in a particular patient, and which, though unorthodox, may one day come to be regarded as wholly legitimate. For almost every one of the striking advances in medical treatment over the last 250 years was at the time when it was developed and introduced not favoured by the majority of the profession. The Report thus indicates a very wide view of what the expression "inappropriate practice" can include. So do the final reports of the Committees which investigated Dr Selim and Dr Wong.
More detailed regulation? The Committees' findings against Dr Selim and Dr Wong. A Committee found in a final report made under s 106L that Dr Selim's conduct constituted "inappropriate practice" in relation to the quality of clinical input into his servicing, the failure to provide "professional services", the failure to maintain adequate records, and the failure to meet the requirements for providing item 23 and item 36 services[265].
Another Committee found in a final report made under s 106L that Dr Wong's conduct constituted "inappropriate practice" in connection with item 23 services[266]: he had not provided an appropriate level of clinical input; he had managed patients episodically rather than pursuant to a clinical management plan; his use of therapeutic drugs demonstrated poor clinical acumen; and he had provided services that were not clinically necessary.
Taking the findings against the two doctors together, many adverse findings did not concern unsatisfactory treatment as such. They concerned the failure to record, or record in detail or legibly, events which may have happened - histories given on particular visits, observations made during particular visits, explanations of the dosages in which and the frequencies with which medications were to be given, and the setting of time frames for follow-up treatment. Some adverse findings concerned the prescription of medications or tests which were not clinically indicated; episodic treatment rather than treatment regulated by a clinical management plan or strategy; incorrect usages of technical terms; incorrect prescriptions of drugs for viral as opposed to bacterial illnesses and vice versa; and incorrect prescriptions of drugs which might interact adversely with other medications being taken.
The point is not that these conclusions of the Committees are necessarily unsound. Rather it is that the legislative expression "inappropriate practice" is seen as warranting extremely detailed examination of the contacts between the doctors and the patients in their most minute aspects. The extreme breadth of the expression suggests that that construction of it, which the Report assumed and on which the Committees appear to have been acting, is correct. Even though s 82(1) contains the words "reasonably conclude that … the conduct would be unacceptable to the general body of general practitioners", a very great deal is left to the opinion, judgment and discretion of three people. Is a disciplinary scheme, backed by many sanctions, some severe, involving so detailed a level of management and regulation, a form of "civil conscription"?

[202]

The following is a conventional path for a person educated in New South Wales who wishes to become a general practitioner. Normally a very high result must be achieved in the last year of secondary school. A university degree must then be obtained, and usually is obtained in a medicine-related field, for example the degree of Bachelor of Medical Science. It is then necessary to gain admission to a university medical school. This entails the passing of quite difficult examinations: many are called to sit, not all that many are chosen. Four years of study for a medical degree then follow. Not all survive them. A year's training in a teaching hospital as an "intern" then takes place. Since 1996 it has been necessary to undertake a minimum of three years supervised clinical practice and to pass the examinations prescribed by the Royal Australian College of General Practitioners. By the time general practitioners have reached that stage they are aged about 30. There may be heavy financial pressures on them. They may well have funded their studies and their accommodation by borrowing. Most persons in that position have to take any medical work they can. They will not obtain any significant amount of medical work unless they are participants in the Medicare Scheme, for if they are not their patients will not be eligible for Medicare benefits. This creates a practical necessity to treat patients who come forward on the conditions of detailed regulation inherent in the Richardson-Theophanous scheme.
The Commonwealth attempted to negate this conclusion by pointing to the capacity of general practitioners to pursue various forms of occupational activity open outside the Medicare Scheme and hence outside the controls of the Richardson-Theophanous scheme. These range from various forms of employment by the Commonwealth or the States or by trading corporations, to work on cruise ships, in gaols or for professional sports teams; conducting medical examinations for the purpose of insurance, drivers' licences and other licences; working in specialty clinics dealing with obesity or cosmetic problems or weight reduction; attending to overseas visitors not eligible for Medicare benefits; dealing with patients who qualify for benefits under the Veterans' Entitlements Act 1986 (Cth); treating patients whose treatment is covered by a workers' compensation scheme or other compensation scheme or by insurance; and working in pharmaceutical companies, tertiary institutions, journalism or medical administration. With the greatest respect to all medical practitioners who provide medical services, or engage in paramedical activities, of these doubtless worthwhile kinds, many general practitioners may not view them as forming a desirable or satisfactory career path.
The Full Court's first conclusion was correct. Medical practitioners have the strongest pressures of self-interest to earn their living and they have a moral obligation to support those dependent on them by earning their living. The effect of ss 10, 20 and 20A and Pt VAA is that unless medical practitioners are prepared to act in the way Pt VAA requires, they will not readily be able to earn their living in the way, and possibly the only way, in which they are qualified to earn it. As Latham CJ said in the British Medical Association case[277], there could be no more effective means of compulsion.

[219]

But the contemporary materials relating to "industrial conscription" leave open the question whether, in the medical field, "civil conscription" had a wider meaning. That inquiry can be pursued by examining the contemporary materials with a view to identifying the second of the three matters listed in Cole v Whitfield - the subject to which the constitutional language was directed. While in 1946 almost all industrial workers were employees, hardly any of those who supplied medical and dental services, namely medical and dental practitioners, were employees. And, in 1946, the relationships of medical and dental practitioners with their patients were quite different from the relationships between industrial workers and those for whom they worked. In short, it is necessary to bear in mind the character of the persons whose services are said to be conscripted in relation to the character of the persons who are to receive them.
The Commonwealth submitted that "the s 51(xxiiiA) prohibition was intended to prevent the nationalisation of medical and dental services". Although no attempt was made to define "nationalisation", counsel for the Commonwealth, in oral argument, with reference to the referendum case sent to electors in 1946, submitted that the "essential concern" was ensuring that doctors and dentists were not "forced to become professional officers of the Commonwealth under a scheme of medical and dental services."
That concern did not centre on the existence of a formal relationship of employer and employee between the Commonwealth and the medical practitioner, but on a matter of substance - the nature and degree of control exercisable by the Commonwealth. Medical practitioners employed by the Commonwealth would be subject to control over the occasion, time and place of work. And they could be subject also to control over their medical and professional activities - the time to be spent with the patient, the kind of tests to be performed, the drugs to be prescribed and the medical records to be kept.
Bearing in mind the professional character of the work performed by medical practitioners, it is not apparent why, in 1946, a scheme containing the latter controls, even though they were not imposed as part of an employer-employee relationship, would be unobjectionable. For the reasons given below[300], a Commonwealth legislative scheme that controlled a practitioner's medical and professional activities would have been inconsistent with the nature of the doctor-patient relationship as understood in 1946. And it would have been inconsistent with contemporary understandings of medical practice. These inconsistencies point to the conclusion that the language employed in s 51(xxiiiA) was not directed solely to the prevention of Commonwealth control over the occasion, time and place of work of medical practitioners.
Rich J's view of the doctor-patient relationship. In the British Medical Association case, three years after s 51(xxiiiA) entered the Constitution, Rich J said[301]:

[227]

Dr Evatt on controlling doctors. Secondly, thinking similar to that of Sir Earle Page was evidently shared by Dr Evatt. On 27 March 1946 Dr Evatt informed the House of Representatives that the proposed s 51(xxiiiA) would not affect the State laws regulating the right to practise medicine or dentistry and would not affect "the right of a doctor or a dentist as an individual to practise his profession." Dr Evatt also said that under s 51(xxiiiA) "no authority will be vested in the Commonwealth to control health generally or the general practice of medicine or dentistry"[304]. Underlying these statements is an assumption that in the context of doctors and dentists the words of s 51(xxiiiA) did not mean regulation or control of their rights to practise as they saw fit: any regulation or control would be the province of State law only[305].
Dixon J's view on employment. Three years after s 51(xxiiiA) entered the Constitution, Dixon J said: "No one would doubt that an attempt to impose upon a medical practitioner or a dentist an obligation to serve in the employment of the Government would fall within the words."[306] The reason why no contemporary would doubt that a compulsorily established relationship of employment fell within civil conscription was because of the types of control characteristic of an employment relationship, and the antithesis between them and contemporary perceptions of the doctor-patient relationship. It is also likely that contemporaries saw those types of control, compulsorily imposed, as equally falling within civil conscription even if the doctor was not placed in an employment relationship.
Nationalisation of medicine in the United Kingdom. A fourth item arises from contemporaneous events in relation to the development of the United Kingdom National Health Service by the National Health Service Act 1946 (UK). Those events were followed closely in Australia. In 1942 the Beveridge Report had recommended "the setting up of a comprehensive medical service for every citizen, covering all treatment and every form of disability under the supervision of the Health Departments"[307]. But in this respect the Beveridge Report did not descend to much detail, and said that it "is not necessary to express an opinion on the terms of service and remuneration of doctors of various kinds, of dentists and of nurses"[308]. In April 1943 the Labour Party published one of its "Reconstruction Pamphlets" entitled National Service for Health: The Labour Party's Post-war Policy. It stated: "In the Labour Party's opinion … it is necessary that the medical profession should be organised as a national, full-time, salaried, pensionable service."[309] After its decisive victory in the 1945 General Election, the Labour government presided over by C R Attlee nationalised various industries[310]. From October 1945 the Minister of Health, Aneurin Bevan, began dealing with the British Medical Association, and in particular with a committee negotiating on behalf of the medical profession, about the form which a National Health Service might take. In December 1945 the committee published seven "professional fundamentals". The first four have been summarised as follows[311]:

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