Constitutional Limits on Federal Legislation Practically Compelling Medical Employment

Journal of Law and Medicine, Vol. 17, pp. 196-205, 2009

ANU College of Law Research Paper No. 10-11

11 Pages Posted: 11 Feb 2010 Last revised: 30 Apr 2010

Date Written: December 10, 2009

Abstract

A recent decision by the High Court of Australia (Wong v Commonwealth; Selim v Professional Services Review Committee (2009) 236 CLR 573) (the PSR case) has not only clarified the scope of the Australian constitutional prohibition on “any form of civil conscription” in relation to federal legislation concerning medical or dental services (s 51xxiiiA), but has highlighted its importance as a constitutional guarantee ensuring the mixed State- federal and public-private nature of medical service delivery in Australia. Previous decisions of the High Court clarified that the prohibition does not prevent federal laws regulating the manner in which medical services are provided. The PSR case determined that the anti-overservicing provisions directed at bulk-billing general practitioners under Pt VAA of the Health Insurance Act 1973 (Cth) did not offend the prohibition. Importantly, the High Court also indicated that the s 51(xxiiiA) civil conscription guarantee should be construed widely and would invalidate federal laws requiring providers of medical and dental services (either expressly or by practical compulsion) to work for the federal government or any specified State, agency or private industrial employer. This decision is likely to restrict the capacity of any future federal government to restructure the Australian health care system, eg by implementing recommendations from the National Health and Hospitals Reform Commission for either federal government or private corporate control of presently State-run public hospitals. This decision confirms that s 51xxiiiA operates as a constitutional prohibition against the establishment in Australia of United States-style managed care corporate-controlled delivery of medical services and supports the public option in hospital care.

Keywords: Managed care, medical services, civil conscription, constitutional guarantee, public option, right to health

JEL Classification: D43, D63, E62

Suggested Citation

Faunce, Thomas Alured, Constitutional Limits on Federal Legislation Practically Compelling Medical Employment (December 10, 2009). Journal of Law and Medicine, Vol. 17, pp. 196-205, 2009; ANU College of Law Research Paper No. 10-11. Available at SSRN: https://ssrn.com/abstract=1550663

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
Australia
61 2 61253563 (Phone)

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