Commonwealth Power to Improve Access, Quality, and Efficiency of Medical Care: Does section 51 (xxiiiA) of the Constitution Limit Politically Feasible Health Policy Options Today?
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/0067205X231165872 |
| Author | Fiona McDonald,Stephen Duckett,Emma Campbell |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Article
Federal Law Review
2023, Vol. 51(2) 232–256
© The Author(s) 2023
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DOI: 10.1177/0067205X231165872
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Commonwealth Power to Improve
Access, Quality, and Efficiency of
Medical Care: Does section 51
(xxiiiA) of the Constitution Limit
Politically Feasible Health Policy
Options Today?
Fiona McDonald*, Stephen Duckett** and Emma Campbell***
Abstract
Legal and political battles about health policy in the immediate post-war years have cast a long
shadow in Australia. The ‘civil conscription’sub-provision in s 51(xxiiiA) (health and welfare
power) of the Australian Constitution is still cited as a major barrier to developing health
policy. But long after the High Court moved on from a very restrictive interpretation of
Commonwealth powers, policymakers appear to be cautious about testing whether the
Commonwealth has power to make laws about medical services to pursue a bold agenda about
access, quality, and efficiency of medical care. In this article we will first describe the origin and
phrasing of s 51(xxiiiA), the main head of power, then trace the development of the inter-
pretation of the civil conscription sub-provision, and finally discuss whether politically realistic
policy options are likely to founder on the shoals of High Court interpretation. We argue that
the civil conscription limitation in s 51 (xxiiiA) in the Constitution looms larger as a policy
constraint on regulation of health care by the Commonwealth government in the minds of
decision-makers, and as a weapon in the hands of stakeholders, than contemporary analysis of
it warrants.
Accepted 27 July 2022
* Co-Director Australian Centre for Health Law Research, Queensland University of Technology, Australia; Adjunct
Associate Professor, Department of Bioethics, Dalhousie University, Canada; Senior Research Fellow, New Zealand
Centre for Public Law, Victoria University of Wellington, New Zealand. We thank Audette Smith for research assistance.
** Former Director, Health and Aged Care Program, Grattan Institute, Australia; Honorary Enterprise Professor,
Department of General Practice and Melbourne School of Global and Population Health, University of Melbourne,
Australia.
*** Former Intern, Grattan Institute, Australia.
I Introduction
Legal and political battles about health policy in the immediate post-war years have cast a long
shadow over health policy in Australia.
1
The phrasing of the provision about ‘medical services’,
inserted in the Constitution in the immediate post-World War II years, was initially given a
constraining interpretation by the High Court. But, long after the Court had moved on from a very
restrictive interpretation of Commonwealth powers, policymakers still appear to be cautious about
testing whether the Commonwealth has power to make laws about medical services. This is
necessary to pursue a bold agenda about access, quality, and efficiency of medical care. The ‘civil
conscription’provision in s 51(xxiiiA) (health and welfare power) of the Constitution is still cited as
a major barrier to health policy.
2
For example, the Commonwealth government has recently argued
that the clause stops it from limiting co-payments that doctors and/or private health insurers may
charge over and above the Medicare payment.
3
There has been limited, and no recent, scholarly analysis of the impact of the civil conscription
provision in s 51(xxiiiA) in general
4
and on the Commonwealth’s powers in respect of health policy
in particular,
5
although there has been some examination of its impact on specific issues (priva-
tisation, corporatisation, takeover of hospitals).
6
In this article, we first describe the policy choices made as part of the ‘making of Medibank’,
7
then discuss the origin and phrasing of s 51(xxiiiA), the main head of power; we then trace the
development of the interpretation of the civil conscription provision; and, finally, discuss whether
politically realistic policy options are likely to founder on the shoals of High Court interpretation.
1. Sidney Sax, A Strife of Interests: Politics and Policies in Australian Health Services (Allen and Unwin, 1984); James A
Gillespie, The Price of Health: Australian Governments and Medical Politics(Cambridge University Press, 1991);Anne-
Marie Boxall and James A Gillespie, Making Medicare: The Politics of Universal Health Care in Australia (UNSW Press,
2013).
2. This paper does not examine broader claims about whether there should be a Commonwealth takeover of some or all areas
of health services in Australia, which has been mooted at times (including as threatened by the Australian Labor Party
under Kevin Rudd’s leadership). See Scott Brenton, ‘Policy Capacity Withina Federation:The Case of Australia’inXun
Wu et al. (eds), Policy Capacity and Governance: Assessing GovernmentalCompetences and Capabilities in Theory and
Practice (Springer International Publishing, 2018) 337.
3. The Australian Department of Health and Ageing, Submission No 4 to Senate Standing Committees on Community
Affairs, Parliament of Australia, Inquiry into the Health Insurance Amendment (Extended Medicare Safety Net) Bill 2009
(2009).
4. James Kennan, ‘The Possible Constitutional Powers of the Commonwealth as to National Health Insurance’(1975)
49 Australian Law Journal 261; Thomas Faunce, ‘Constitutional Limits on Federal Legislation Practically Compelling
Medical Employment: Wong v Commonwealth;Selim v ProfessionalServices Review Committee’(2009) 17 Journal of
Law and Medicine 196; Fiona McDonald, ‘Regulation of Health Professionals and Health Workers’in Ben White, Fiona
McDonald, and Lindy Willmott (eds), Health Law in Australia (Thomson Reuters, 3
rd
ed, 2018) 647.
5. Karen Wheelwright, ‘Commonwealth and State Powers in Health: A Constitutional Diagnosis’(1995) 21(1) Monash
University Law Review 53; Danuta Mendelson, ‘Devaluation of a Constitutional Guarantee: The History of Section
51(xxiiiA) of the Commonwealth Constitution’(1999) 23 Melbourne University Law Review 308; J McMillan, Com-
monwealth Constitutional Power Over Health (Consumers’Health Forum of Australia, 1992).
6. Thomas Faunce, ‘Selim v Lele and the Civil (Industrial) Conscription Protection Against Federal Legislation Controlling
or Privatising Australian Public Hospitals’(2008) 16 Journal of Law and Medicine 36; Caroline Colton and Thomas
Faunce, ‘Commissions of Audit in Australia: Health System Privatisation Directives and Civil Conscription Protections’
(2014) 21 Journal of Law and Medicine 561; C Yazidjoglou and Thomas Faunce, ‘Corporatisation of Community
Pharmacy and the Constitutional Provision of Civil Conscription for Medical Service Providers’(2016) 24 Journal of Law
and Medicine 41; Sharon Scully, ‘Does the Commonwealth Have the Constitutional Power to Take Over Public
Hospitals?’(Research Paper No 36 2008–2009, Parliamentary Library, Parliament of Australia, 30 June 2009).
7. From a book co-authored by Dr R B Scotton, one of the developers of Medibank: Richard B. Scotton and Christine
R. Macdonald, The Making of Medibank (School of Health Services Management, University of New South Wales, 1993).
McDonald et al. 233
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