Chapter 3
Constitutionality of the Bill
The constitutionality of the Bill
3.1
Many submitters to the inquiry raised questions in relation to the
constitutionality of the Bill, specifically the power of the Commonwealth
Parliament to legislate for euthanasia.
3.2
Eight submissions considered this question in some detail[1]
expressing the full range of views on the Bill's constitutionality. Some
thought it was wholly valid or wholly invalid, whilst others thought it was
valid in some respects, but not others.
3.3
Clauses 6 and 7 of the Bill address constitutional issues as
follows:
6 Constitutional basis for this Act
This Act relies on:
(a) the Commonwealth’s
legislative powers under paragraph 51(xxiiiA) of the Constitution; and
(b) any implied legislative
powers of the Commonwealth.
7 Additional operation of this Act
(1) Without prejudice to its
effect apart from this section, this Act also has effect as provided by this
section.
(2) This Act has, by force of
this subsection, the effect it would have if its operation were, by express
provision, confined to a medical practitioner employed by a constitutional
corporation.
(3) This Act has, by force of
this subsection, the effect it would have if its operation were, by express
provision, confined to a person engaging in conduct to the extent to which the
conduct takes place wholly or partly in a Territory.
(4) In this section:
constitutional corporation means a corporation to which paragraph 51(xx) of
the Constitution applies.
3.4
Clause 6 affirmatively states two heads of power upon which the
Bill rests: subsection 51(xxiiiA) of the Constitution, which allows
for laws to be made with respect to—inter alia—the provision of medical
services and 'pharmaceutical, sickness and hospital benefits'; and unnamed
legislative powers that are to be implied as being held by the Commonwealth
Parliament.
3.5
Clause 7 provides that, in addition to being of general
application, the Bill operates as if it were specifically limited to medical
practitioners who are employed by a 'constitutional corporation' and to conduct
that takes place wholly or partly in a Territory. It would appear to the
committee that clause 7 seeks to operate as a 'backup' provision in case
the Bill cannot rest on the heads of power relied upon in clause 6. If that
were the case, the Bill would continue to operate in the circumstances described
in clause 7 (as long as the Bill can rest on those heads of power in those
circumstances).
The medical services power
3.6
Subsection 51(xxiiiA) of the Constitution provides as
follows:
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
3.7
The medical services power was inserted (following a referendum) by the Constitution
Alteration (Social Services) Act 1946.
3.8
Four key questions were raised in evidence to the committee on the issue
of whether the Bill could be supported by the medical services power, namely:
(i) whether 'dying with dignity medical services' are 'medical services'
within the meaning of subsection 51(xxiiiA);
(ii) whether 'dying with dignity medical services' are 'pharmaceutical,
sickness [or] hospital benefits' within the meaning of
subsection 51(xxiiiA);
(iii)
if (i) or (ii) are answered in the affirmative, whether the Bill is a
law 'with respect to...the provision of' medical services or pharmaceutical,
sickness or hospital benefits; and
(iv) whether the Bill violates the prohibition against 'civil conscription'
in subsection 51(xxiiiA).
Meaning of 'medical service'
3.9
The first question is whether the provision of what the Bill calls a 'dying
with dignity medical service' is a medical service within the meaning of
subsection 51(xxiiiA) of the Constitution.
3.10
The range of views expressed in evidence to the committee regarding the
characterisation of a 'dying with dignity medical service' as a 'medical
service' included the following:
-
'a law will not be one with respect to the provision of medical
services merely because it affects that which a medical practitioner may do';[2]
-
the phrase 'medical service' does not have any special or
technical meaning;[3]
-
dictionaries do not define 'medical' and/or 'medicine' by
reference to practices such as euthanasia, nor does contemporary Australian
usage;[4]
-
professional bodies such as the Australian Medical Association
and the World Medical Association have expressed the view that medical
practitioners should not assist in the practice of euthanasia;[5]
-
the provision of certain services related to euthanasia were
criminal acts at common law and under the laws of the States at the time that
subsection 51(xxiiiA) was inserted into the Constitution in 1946
and remain so today;[6]
-
whilst the range of services that fall within the phrase 'medical
services' may change as a result of technological change, they must have at
their core the 'diagnosis, treatment, and prevention of disease';[7]
-
the provision of services related to euthanasia do not fall
within those categories and 'it is difficult to conclude that a skilled lawyer
in 1946 would reasonably have considered that the phrase might encompass such
conduct in the future';[8]
-
the provision of services related to euthanasia are not medical
services because '[i]f you have reached, by definition, an end of what medical
treatment can do, then that which you are doing is not medical treatment';[9]
and
-
as such, including the provision of services related to
euthanasia within the scope of 'medical services' 'would represent a
fundamental shift in the core meaning of that phrase rather than the
enlargement of its radius to accommodate new factual developments'.[10]
3.11
It was recognised, however, that there was room for doubt in this
conclusion, brought about by matters including that:
-
there may be a range of views about what the phrase 'medical
services' means[11]
and, in any possible challenge in the High Court, it would not be for the Court
to 'pass upon the wisdom or suitability of the particular scheme';[12]
-
'some words or concepts expressed in the Constitution, by their
nature or expression, are given an ambulatory meaning so as necessarily to
encompass later developments in a particular field' and the concept of 'medical
services' could be considered to be of that type;[13]
-
where there could be wide or narrow interpretations of a
particular provision of the Constitution, the broader interpretation
should be preferred 'unless there is something in the context or in the rest of
the Constitution to indicate that the narrower interpretation will best carry
out its object and purpose'.[14]
The text of the Constitution, in other words, should be interpreted
'with all the generality which the words used admit';[15]
-
the High Court has not 'grappled directly with the meaning of
"medical services" or "pharmaceutical, sickness and hospital
benefits" in circumstances which shed light on the present issue';[16]
-
the High Court has, however, accepted that the meaning of 'medical
service' is to be 'informed by [the] nature of that which is done by doctors in
providing their professional services';[17]
and
-
it has been held that the scope of the power under
subsection 51(xxiiiA) is not confined to that which is legal under State
law.[18]
3.12
Drawing on a number of these matters, the Public Law and Policy Research
Unit at the University of Adelaide concluded that a 'dying with dignity medical
service' is a 'medical service' within the meaning of
subsection 51(xxiiiA), arguing that the meaning of the phrase 'must be
informed by the dynamic nature of the medical practice' and that, 'from a
purely constitutional standpoint, there is no obvious inference to be drawn
that the meaning of 'medical service' is solely limited to the preservation of
life'.[19]
Meaning of 'pharmaceutical,
sickness and hospital benefits'
3.13
The second question concerning the constitutionality of the Bill under
the medical services power was whether or not 'dying with dignity medical
services' are 'pharmaceutical, sickness and hospital benefits' within the
meaning of subsection 51(xxiiiA) of the Constitution.[20]
3.14
Those who concluded that they are not argued, first, that 'dying with
dignity medical services' are not 'hospital benefits' because they are not
expressed to have any connexion with any hospital and could very well be
performed outside hospitals, including within the patient's home.[21]
3.15
It was recognised, however, that the position was less clear in relation
to sickness and pharmaceutical benefits.[22]
Catholic Health Australia, for example, recognised that:
(i) the phrase 'benefits' is not limited to the grant of money and may
include the provision of a service;[23]
(ii) sickness (specifically, terminal illness) is a condition precedent to
the provision of a 'dying with dignity medical service';[24]
and
(iii) the provision of a 'dying with dignity medical service' is likely to
involve pharmaceutical compounds.[25]
3.16
Catholic Health Australia nonetheless argued that a 'dying with dignity
medical service' was not a sickness or pharmaceutical benefit for four reasons:
(i)
it is unlikely that the phrases 'sickness benefit' or 'pharmaceutical
benefit' include services that were criminal in 1946 and which remain so today;[26]
(ii) the concept of benefit includes 'the notion that it will "relieve the
person to whom it is provided from a cost which that person would otherwise
incur"', but the Bill concerns a service that could otherwise not be
provided and in respect of which no liability could otherwise be incurred. It
therefore 'does not provide for the provision of material aid in the sense of
provision of a service (or the payment for it) to relieve against its financial
consequence';[27]
(iii) a sickness benefit within the meaning of subsection 51(xxiiiA) must
be directed towards the consequence of being sick, but 'dying with dignity
medical services' are not directed towards that consequence;[28]
and
(iv) the definitions of 'benefit' used in the case law support 'the view that
there must be a social services character to the legislation'. 'In
circumstances where the common law, State law and the medical profession in
Australia each rail against the service contemplated, it is difficult to see
that it would be proper to view the provision (or payment) of that service of
having a social services character'.[29]
3.17
On the other hand, the Public Law and Policy Research Unit at the
University of Adelaide concluded that 'dying with dignity medical services' are
'arguably' sickness and hospital benefits. Having highlighted case law that
defines 'benefit' in this context as 'the provision of aid to or for
individuals for human wants arising as a consequence of...being sick',[30]
they reasoned that:
The individual is certainly ‘sick’ and seeking the services
of a medical practitioner. There is scope for an argument that the provision of
a service that results in death is not the provision of a benefit. However, we
believe there is a strong argument that this would be found to be the provision
of a material aid in the form of a service, designed, in the view of
Parliament, to promote social welfare and security.[31]
3.18
They further noted that '[t]he interpretation of the head of power in
this way highlights that the wisdom or otherwise of measures within this Bill
are to be determined by Parliament'.[32]
Meaning of 'provision'
3.19
The High Court has often emphasised the importance of the word
'provision' in subsection 51(xxiiiA).[33]
In particular, it should be noted that:
(a) the power is not a general power to make laws with respect to the
matters listed in subsection 51(xxiiiA). It is a power to make laws with
respect to the provision of such benefits and services;[34]
and
(b) 'the provision of' benefits or services is to be understood as the
provision of benefits or services by the Commonwealth;[35]
but
(c) benefits and services do not need to be provided directly by the
Commonwealth;[36]
they may be provided, for example, by those in the private sector in return for
a government subsidy;[37]
and
(d) the Commonwealth may regulate the provision of benefits and services
where this is incidental to their provision by the Commonwealth in order to
ensure that the provision is 'effectively administered with due regard to the
interests both of the intended recipient and the revenue'.[38]
3.20
The Public Law and Policy Research Unit at the University of Adelaide
submitted that these requirements were satisfied by Part 3 of the Bill,
which provides for the payment by the Commonwealth of the costs of 'dying with
dignity medical services'.[39]
Meaning of 'civil conscription'
3.21
Subsection 51(xxiiiA) contains an express prohibition on the use of
the medical services power 'to authorize any form of civil conscription'.
3.22
The submission of Catholic Health Australia provided a helpful description
of the events that led to the inclusion of subsection 51(xxiiiA) in 1946,[40]
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'.[41]
3.23
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.[42]
3.24
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).[43]
The corporations power
3.25
Subsection 51(xx) of the Constitution provides as follows:
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:
...
(xx) foreign corporations, and
trading or financial corporations formed within the limits of the Commonwealth
3.26
As noted above, clause 7(2) of the Bill provides as follows:
(2) This Act has, by force of this subsection, the effect it
would have if its operation were, by express provision, confined to a medical
practitioner employed by a constitutional corporation.
3.27
Clause 7(4) defines 'constitutional corporation' to mean 'a
corporation to which paragraph 51(xx) of the Constitution applies'. Any foreign
corporation or any Australian corporation that engages in substantial trading
and financial activities will be considered a 'constitutional corporation'.[44]
3.28
The corporations power has been interpreted broadly in recent times by
the High Court. In the so-called 'Work Choices Case', the majority held that
the corporations power extended to any law which 'imposes a duty or liability,
or confers a right or privilege, only on a constitutional corporation'.[45]
The majority held that this included regulating the conduct of 'those through
whom it acts', including employees.[46]
More recently, the Court has emphasised that, to fall within the corporations
power, the law needs to regulate or permit acts done by or on behalf of
corporations.[47]
3.29
Catholic Health Australia argued that the Bill would not be supported by
the corporations power if it applied only to medical practitioners employed by
a constitutional corporation for four reasons, namely that:
(i) the Bill 'would still be directed to the conduct and activities of
persons who are "medical practitioners" rather than the
constitutional corporation who employed them'. Only medical practitioners (and
not the constitutional corporations that employed them) would receive the
benefit of the immunity; only medical practitioners would be taken to have
entered into an agreement with the Commonwealth for the performance of the
service; and only medical practitioners would have the right to claim payment.
Furthermore, there would be no requirement even that the medical practitioner
provide the service in the course of their employment by the constitutional
corporation.[48]
(ii) there is no requirement in the Bill that the medical practitioner
provide the service on behalf of the constitutional corporation;[49]
(iii) 'the mere fact that the subject of regulation by the Bill was an
employee of a constitutional corporation [is not a] sufficient connection with
the s. 51(xx) head of power to warrant a conclusion that the Bill was an
exercise of power with respect to constitutional corporations. Some more substantial
connection with the activities of the constitutional corporation which
themselves were being regulated would be required';[50]
and
(iv) the method of reimbursement envisaged in the Bill 'seems to us to [be] more
consistent' with the reliance on the 'medical services' power.[51]
3.30
The Public Law and Policy Research Unit at the University of Adelaide
appeared to agree with the thrust of these arguments, suggesting that the
argument for validity under the corporations power would be strengthened if
clause 7(2) were amended to read as follows:
This Act has, by force of this subsection, the effect it
would have if all references to a ‘medical practitioner’ were, by express
provision, confined to a medical practitioner employed by a constitutional
corporation acting in the course of their employment by that corporation.[52]
3.31
At the public hearing conducted in Melbourne, Mr John Bond QC
(who prepared the legal opinion that was attached to the submission of Catholic
Health Australia), accepted that the amendment suggested by the Public Law and
Policy Research Unit probably would improve the chances of the Bill surviving
challenge on constitutional grounds.[53]
He maintained, however, that—in his view—the Bill would still be
unconstitutional, because:
The bill is about saying: 'Medical practitioners can do this.
Medical practitioners will be immune. Medical practitioners will be deemed to
have entered into a contract with the Commonwealth for remuneration. Anyone
else who seeks to induce them by the payment of money will be guilty of an
offence.' That is all about medical practitioners; it is not about
constitutional corporations.[54]
3.32
He further submitted that:
...if the act was about medical practitioners acting in the
course of their employment by that corporation then probably the constitutional
corporation that employed them and paid them money to do it would be in breach
of the prohibition against making inducements for the giving of this service.[55]
The territories power
3.33
Section 122 of the Constitution provides as follows:
Government of territories
The Parliament may make laws for
the government of any territory surrendered by any State to and accepted by the
Commonwealth, or of any territory placed by the Queen under the authority of
and accepted by the Commonwealth, or otherwise acquired by the Commonwealth,
and may allow the representation of such territory in either House of the
Parliament to the extent and on the terms which it thinks fit.
3.34
Clause 7(3) of the Bill provides as follows:
This Act has, by force of this subsection, the effect it
would have if its operation were, by express provision, confined to a person
engaging in conduct to the extent to which the conduct takes place wholly or
partly in a Territory.
3.35
Catholic Health Australia accepted that, insofar as conduct occurring in
a Territory is concerned, the Bill would be a valid exercise of the power
conferred by section 122 of the Constitution. It noted, in
particular, that the territories power is 'unlimited and unqualified in point
of subject matter'.[56]
The Public Law and Policy Research Unit at the University of Adelaide concluded
that the Bill could 'easily rely' on the territories power.[57]
Implied powers
3.36
Because neither the committee nor the submitters have had the benefit of
an Explanatory Memorandum or similar document, they have had to deduce for
themselves what the phrase 'implied legislative powers of the Commonwealth' in
clause 6 means.
3.37
No submission considered that there was an applicable implied power upon
which the Bill could rest.[58]
Consequences of invalidity
3.38
A key element of the Bill is to provide immunities to medical
practitioners who provide 'dying with dignity medical services'. Specifically,
where a person acts in good faith, for the purposes of the Bill and in
accordance with the Bill, clause 24 provides an immunity from 'civil,
criminal or disciplinary action' and clause 25 provides that such acts do
not 'constitute an offence against a law of the Commonwealth, a State or a
Territory'.
3.39
As noted by the submission of the Public Law and Policy Research Unit of
the University of Adelaide, '[t]his requires the Bill to create an
inconsistency with the relevant State legislation under s 109 of the
Constitution, thus rendering the State laws inoperative'.[59]
As the submission points out, there are very serious possible consequences for
doctors who provide 'dying with dignity medical services' if the Bill is
enacted but later found to be unconstitutional.[60]
Such medical practitioners may find themselves facing homicide charges, despite
the fact that they fully complied with the provisions of the Bill.
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