Reply To: Does Section 51 xxiii A of the Constitution override the State of Emergency

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Kam H

Just have a proper read of some case law that discusses section 51xxiiiA.

Wong v Commonwealth [2009] HCA 3:
“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.”

General Practitioners Society v Commonwealth [1980] HCA 30:
“Other forms of “practical compulsion” are easy enough to imagine, particularly those which impose economic pressure such that it would be unreasonable to suppose that it could be resisted. The imposition of such pressure by legislation would be just as effective as legal compulsion, and would, like legal compulsion, be a form of civil conscription. To regard such practical compulsion as outside the restriction placed on this legislative power would be to turn what was obviously intended as a constitutional prohibition into an empty formula, a hollow mockery of its constitutional purpose.”

British Medical Association v Commonwealth [1949] HCA 44:
The object of conferring power upon the Commonwealth Parliament to make laws for the provision of pharmaceutical benefits was to enable the Parliament to make laws with respect to (inter alia) the provision of pharmaceutical benefits by the Commonwealth under a scheme which should involve no compulsion of service by any person, which would leave every person, according to his own will, and not by reason of the exercise of the will of Parliament or of any other person, at liberty to take part in the execution of the scheme or to stand outside the scheme altogether, whether as doctor, as chemist or as patient.”

It’s pretty clear that the Constitutional prohibition applies to people as well as to doctors.