Constitutional limits on federal legislation practically compelling medical employment: Wong v Commonwealth; Selim v Professional Services Review Committee
Date
2009
Authors
Faunce, Thomas
Journal Title
Journal ISSN
Volume Title
Publisher
The Law Book Company
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 great constitutional guarantee ensuring the mixed State-federal and public-private nature of medical service delivery in Australia. Previous decisions of the High Court have 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 that it 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.
Description
Keywords
Keywords: article; Australia; economics; fee; general practice; human; legal aspect; physician; public health; Australia; Family Practice; Fees and Charges; Humans; National Health Programs; Physicians
Citation
Collections
Source
Journal of Law and Medicine
Type
Journal article
Book Title
Entity type
Access Statement
Open Access
License Rights
DOI
Restricted until
Downloads
File
Description