Devaluation of a Constitutional Guarantee: The History of Section 51 (xxiiiA) of the Commonwealth Constitution

Abstract

This article describes constitutional and socio-historical background to the referendum that led to the insertion of s 51(xxiiiA) into the Commonwealth Constitution. It traces judicial interpretations of the clause 'but not so as to authorise any form of civil conscription' through the major cases, including British Medical Association v. Commonwealth, General Practitioners Society v. Commonwealth, and Alexandra Private Geriatric Hospital Pty. Ltd. v. Commonwealth. The issue of the powers of the Commonwealth to regulate private medical practice without infringing the constitutional guarantee against civil conscription is analysed in the context of the development of National Health Care Schemes for financing medical benefits (Health Insurance Commission v. Peverill). Constitutional aspects of the 1995 legislation enabling the introduction into Australia of purchaser-provider agreements ('managed care') are also examined. Finally, the article questions the constitutionality of the Australian Competition and Consumer Commission's powers to regulate the essential elements of the patient-doctor relationship.