The Civil Conscription Argument – Section 51(xxiiiA)

This pseudo legal myth has been circulating the internet for several years now, beginning I think with the No jab/No play policies in relation to children not up-to-date with the Childhood Vaccine Schedule attending Childcare Centres, and the No jab/No pay policies in which the Childcare Subsidy and a portion of Family Tax Benefit B were withheld from Centrelink payments for families with children not up-to-date with the Childhood Vaccine Schedule. Since the pandemic in 2020, the same argument has now been applied to possible restrictions for people without proof of Covid-19 vaccination. In reality, the provision has nothing to do with mandatory vaccination nor reductions in Centrelink payments, as the various High Court authorities show.

Section 51(xxiiiA) states:

“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:… (xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;” 1


Who’s conscripted? 

The prohibition on conscription does not apply to the patient, but to the health provider. It does not create justiciable rights for individuals, but for dentists, doctors, and other health providers, to avoid conscription, and the associated socialization of medical and dental services.

Wong v Commonwealth of Australia [2009] HCA 3:

French CJ and Gummow J (at 44-46): 2

“Thereafter at a referendum conducted on 28 September 1946 the majorities of electors required by s 128 of the Constitution approved a proposed law to alter s 51 of the Constitution by inserting par (xxiiiA). The “YES” case for the proposed law under the heading “No question of socializing medical and dental services” stated: 3

“You will not be voting for any particular method of providing medical and dental services.  Whether or not they are to be provided, and if so how, will both be matters for your representatives in Parliament from time to time to decide, in accordance with your wishes.  At least once in every three years, you can change your representatives if you do not approve their actions.

But there is one thing the Parliament will not be able to do.  It will not be able to bring in any form of civil conscription.  That, you will see if you refer to the heading in black type, is expressly safeguarded in the new power itself. This means that doctors and dentists cannot be forced to become professional officers of the Commonwealth under a scheme of medical and dental services.”

Under the heading “This referendum not a political matter”, the “YES” case said:

“There is no Party question at all.  The idea that doctors and dentists might be conscripted was the only real objection of the Opposition parties in Parliament.  The Government has set that doubt at rest by agreeing to the insertion of a clause in the power itself that there shall be no conscription.”

French CJ and Gummow J (at 60):

“The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase “(but not so as to authorize any form of civil conscription)” which treats “civil conscription” as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth; it also may be for the benefit of third parties, if at the direction of the Commonwealth.”

Hayne, Crennan and Kiefel JJ (at 226):

“To adopt and adapt what Dixon J said in British Medical Association v The Commonwealth (1949) 79 CLR 201: “[t]here is no compulsion to serve as a medical [practitioner], to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time, however short, or intermittently”.

Heydon J said (at 263):

“…among the things which in 1946 were seen as examples of “industrial conscription” were the following:
(a) a law compelling an individual to work;
(b) a law compelling a worker to work in a particular industry;
(c) a law compelling a worker to work for a particular employer, or compelling a particular employer to accept a particular worker;
(d) a law compelling a worker to work in a particular place; and
(e) a law preventing a worker from leaving his employment (ie a law compelling a worker not to leave his current employment).
This is unlikely to be an exhaustive list…”

Click to access wong-v-commonwealth-of-australia-2009-hca-3.pdf


Nothing to do with Centrelink benefits

Halliday v The Commonwealth of Australia [2000] FCA 950; 45 ATR 458: 4

“The only restriction on the Commonwealth’s power to make laws imposing civil conscription is found in s 51(xxiiiA) of the Constitution. The power to legislate to provide medical and dental services is limited by the phrase “but not so as to authorize any form of civil conscription”. This prohibition applies only to the provision of medical and dental services, and not to the other benefits etc mentioned in par (xxiiiA).”

British Medical Association v The Commonwealth (1949) HCA 44; at 286-287: 5

“This condition cannot by reason of its place in par. (xxiiiA.) apply to a law providing “benefits to students” and “family allowances”. Its place in the paragraph raises the question whether it applies only to the provision of medical and dental services and nothing else or to the provision of any matter in the paragraph which precedes the condition. They are maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services. It would seem odd to say that there is power to make a law with respect to the provision of maternity allowances “but not so as to authorize any form of civil conscription.” And if the condition applies to that subject matter it would appear to be odd that it is not made to apply to “family allowances.” Clearly it does not apply to that subject matter. If the construction that the condition applies only to the provision of medical and dental services is not adopted, the only alternative construction is that it applies to every subject matter beginning with maternity allowances down to medical services. This alternative construction would bring the idea of conscription into association with matters with which it is not naturally or logically connected. I think that the key to the interpretation of the paragraph is that the idea of conscription cannot naturally be associated with the provision of anything in the paragraph except the services which are mentioned; they are medical and dental services. The condition immediately follows the words “medical and dental services.” In my opinion it should not be annexed to anything before the word “medical.” There is no comma between dental services and the first of the brackets enclosing the condition: there is a comma at the end of the second bracket. The words “medical and dental services (but not so as to authorize any form of civil conscription)” are a separate branch of the legislative power conferred by the paragraph. No other branch of the power is qualified by the condition.”

Click to access british-medical-association-v-commonwealth.pdf

Alexandra Private Geriatric Hospital Pty Ltd v The Commonwealth (1987) HCA 6 at 12: 6

“Secondly, the prohibition contained in the words “but not so as to authorize any form of civil conscription” in s.51(xxiiiA) applies only to the reference in the paragraph to the provision of “medical and dental services”. The words of that prohibition, however, are not irrelevant to the scope of the other matters described in the paragraph at least to the extent that whenever medical or dental services are provided pursuant to a law with respect to the provision of some other benefit, for example, sickness or hospital benefits, “the law must not authorize any form of civil conscription of such services”: the B.M.A. Case per Williams J. at pp.286-287; see also…”

Click to access alexandra-private-geriatric-hospital-pty-ltd-v-the-commonwealth.pdf

General Practitioners Society v. The Commonwealth (1980) HCA 30, per Gibbs J. at p 549: 7

“It was held by the majority of the Court in British Medical Association v. The Commonwealth that the bracketed words in par. (xxiiiA) qualify only “medical and dental services”, and that the other heads of power in the paragraph are not subject to those words: see per Rich J., per Dixon J., per McTiernan J., and per Williams J. ; contra, per Latham C.J.”

Click to access general-practitioners-society-in-australia-v-the-commonwealth.pdf

.

Therefore, the “the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits” part are not matters which fall within the matters to which “but not so as to authorize any form of civil conscription” applies. It applies only to the “medical and dental services” part of the subsection. Family Tax Benefit and Childcare Subsidy are not payments for medical and dental services anyway (even if they are linked to having a medical procedure) nor are services provided by conscripted health workers.

.