Subsection 51(xxiiiA) contains an express prohibition on the use of the medical services power ‘to authorize any form of civil conscription’.
The submission of Catholic Health Australia provided a helpful description of the events that led to the inclusion of subsection 51(xxiiiA) in 1946, which included the explanation that the prohibition on civil conscription was inserted to allay fears that ‘the proposed amendment would grant the Commonwealth the power to nationalise medical and dental services’.
The prohibition on civil conscription has been described as referring to:
…any sort of compulsion to engage in practice as a doctor or a dentist or to perform particular medical or dental services. However, in its natural meaning it does not refer to compulsion to do, in a particular way, some act in the course of carrying on practice or performing a service, when there is no compulsion to carry on the practice or perform the service.
Importantly, the prohibition on civil conscription only applies to the provision of ‘medical and dental services’ and not to the other elements of subsection 51(xxiiiA).
Additional information on the AustLII website: Devaluation of a Constitutional Guarantee: The History of Section 51(XXIIIA) of the Commonwealth Constitution
- Submission 36, attachment, pp. 13–15.
- Submission 36, attachment, p. 13.
- General Practitioners Society in Australia v Commonwealth (1980) 145 CLR 532, 557.
- Federal Council of the British Medical Association in Australia v Commonwealth (1949) 79 CLR 201, 254-255, 261, 281-282, 286-287.