Covington & Covington [2021] FamCAFC 52

The mother in a Family Court dispute regarding orders that the child be vaccinated, filed an application in the High Court seeking an order removing an appeal against the orders made to the High Court, asserting that there was a question involving section 51(xxiiiA) of the Constitution. It was contended that:

“…the Family Law Court only has the power to make a binding order upon the mutual consent of the parties. If there is no mutual consent by the parties any order made by the Family Law Court has no legal effect because it would contravene the prohibition on civil conscription provided in s 51(xxiiiA) which is binding on all the Courts and Judges”.

The High Court application was dismissed by Steward J, finding it lacked merit and was misconceived:

“The constitutional point would appear to rely upon the carve out for “civil conscription” in section 51(xxiiiA) of the Constitution, which is in the following terms: “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: … 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:”

The mother alleges that this paragraph confers a constitutional freedom of some kind from compulsory vaccination. Her application for removal, which characterises the freedom as a constitutional “right”, is very difficult to follow and is, with great respect, assertive in nature. Her contention is not supported by any authority and would appear to have very slim prospects of success.

In General Practitioners Society v The Commonwealth (1980) 145 CLR 532, Gibbs J (as his Honour then was) observed that the phrase “civil conscription” applied to medical and dental services and “refers to any sort of compulsion to engage in practice as a doctor or a dentist or to perform particular medical or dental services” (at 557). Earlier in his Honour’s reasons, Gibbs J explained the term “civil conscription” in the following way: “The word ‘conscription’, in the sense that seems to be most apposite for present purposes, means the compulsory enlistment of men (or women) for military (including naval or air force) service. The expression ‘civil conscription’ appears to mean the calling up of persons for compulsory service other than military service.”

As it is directed at preventing the conscription of a doctor or dentist to perform compulsory medical or dental services, the carve out for civil conscription in para (xxiiiA) would appear to have nothing at all to do with the power of the Family Court to make orders by consent for the vaccination of the daughter. Further, it is not suggested in any way that the doctor who might perform that vaccination will do so compulsorily pursuant to some Act of Parliament.”

In Covington & Covington [2021] FamCAFC 52, Strickland, Ryan & Aldridge JJ dismissed an Appeal application and gave reasons for judgment, adding:

“Furthermore, the mother would appear to recognise in her affidavit relied upon that what section 51(xxiiiA) prohibits, is legislation that authorises any form of civil conscription. However, here there is an order that the child be vaccinated; and therefore the only legislation that could be in play is the Family Law Act 1975 (Cth). Thus, the mother would have to persuade the High Court of Australia that that Act, and presumably section 65, and maybe section 67ZC, is the relevant legislation that is caught by the prohibition in section 51(xxiiiA). However, nowhere does the mother make that submission, and indeed, in our view, it is a submission that could not be made.

What the mother does do in her affidavit is suggest that the relevant legislation which is caught by section 51(xxiiiA) here is the Victorian Public Health (No Jab, No Play) Act 2008, and as a result that Act is invalid. However, the first point to make is that that is a Victorian Act, and not Commonwealth legislation, when only the latter would be caught by section 51(xxiiiA). Secondly, and obviously, the order was not made under the Victorian Act; it was made under the Family Law Act 1975 (Cth), and thirdly, the vaccinations once given, will be given pursuant to the orders made by his Honour.

The mother suggested in oral submissions that this Court had more material before it than was before Steward J. We assume that that is referring to the reliance before this Court on the High Court decision of Wong v The Commonwealth (2009) 236 CLR 573. However, that decision can give no comfort to the mother. It does not provide a basis for the application of s 51(xxiiiA) to the proceedings here. In summary then, we are not persuaded that there is any merit in the constitutional issue relied on to have the appeal removed to the High Court of Australia. Thus, we dismissed the Application in an Appeal filed on 13 April 2021.”