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The Australian Constitution, Medicine and the Law ADF Conference 1996

ADF Conference 1996 
Dr Shirley Prager - Chair Morning Session 
Dr Keith Wollard - Chair Afternoon Session

Speakers Notes:


Mr Milgate: I would like to call on our Chairman for this morning's session, Dr. Shirley Prager, and I will read to you a little bit about Dr. Shirley Prager as I introduce her.

Dr Shirley Prager is a family and child psychiatrist in private practice in Beaumaris, Victoria, and Dr. Prager is currently the Chair of the Victorian Branch of the Royal Australian and New Zealand College of Psychiatrists. She is a counsellor on the Victorian AMA. She is also an honorary lecturer at Monash University in Psychological Medicine and prior to taking up full time psychiatry, Dr. Prager and her husband, who is also a doctor but a scientific doctor, were both in Armidale where Shirley was involved in rural general practice, one of the toughest jobs that any doctor can do, so Dr. Shirley Prager knows a lot about medicine and a lot about psychiatry and we are very privileged to have her as our Chairperson this morning. Thank you Dr. Prager.

Dr Shirley Prager

Dr Prager: Ladies and gentlemen, on behalf of the Australian Doctors' Fund and the Australian Medical Association I'd like to welcome you today on this really historic occasion of the 50th anniversary of the 1946 referendum which led to an amendment to the Australian Constitution that is intended to guarantee the professional independence of the medical and dental profession in Australia. I think it is very significant that the Australian public voted for this amendment against civil conscription in 1946.

To formally welcome you I would like to introduce the Chair of the Australian Doctors' Fund, Dr. Bruce Shepherd, who may be well known to most of you.

Dr. Bruce Shepherd was educated in Tamworth, New South Wales, which is not so far from Armidale where Stephen was telling you I was working for five years, and later at Sydney University where he qualified in dentistry at the age of 20. He later qualified in medicine at Sydney University and has had a distinguished university sporting career in rowing, surfing and rugby. I think that shows now. He obtained a university blue for rowing.

Dr. Shepherd has been an orthopaedic surgeon for many years in Sydney and has had an active medico-political career, commencing with the Australia Society of Orthopaedic Surgeons, the New South Wales branch of the AMA and then as Federal President of the AMA from 1990 to 1993. During this time he has led the profession through a series of confrontations with government. He has often been outspoken on issues affecting medical practice and the independence of the profession. Dr. Shepherd's other appointments include Chief of the Department of Surgery, Baulkham Hills Hospital, Visiting Medical Officer at St. Luke's and Mater Hospital Sydney, and consultant orthopaedic surgeon to the Spastic Centre of New South Wales.

In 1970 he and his late wife, Annette, founded the Shepherd Centre for Deaf Children, which educates over 75 deaf children at any one time in modern communication techniques.

Welcome, Dr. Shepherd.

Dr Bruce Shepherd

Dr Shepherd: Good morning and welcome. May I congratulate on your perspicacity in coming to this conference. I know it is fairly hard to get terribly excited about a conference with this title - and some of my colleagues expressed that - but I think as the day goes on you will realise that perhaps it is at the very seat of those things that we believe.

The Australian Doctors' Fund was started by some of us who felt, as Sir Robert Menzies said many years before, that the relationship between a doctor and a patient was private and sacred. He certainly did his part in ensuring that that occurred and it is up to us to ensure that that continues, because the independence of a profession such as ours reflects the independence and the freedom of our society.

The Doctors' Fund has called a number of seminars, often in association with the AMA, and each one of those I might say has been a milestone in the problem that it was addressing. For example, there was a time when the AIDS debate was captured by some of our misguided colleagues who were somewhat under the control of a small group in the gay community and we were doing the wrong thing. It was only when we stood up and said we as doctors have a great responsibility in this, and science has a responsibility in this, that we started to change things. We got involved in road safety, and I well remember having the big car manufacturers saying safety doesn't sell cars. We said we're going to change that. I am sure if you look around now you'll find almost every car that's advertised indicates how important safety is. We've done the same sort of things with bureaucracy and the cost of bureaucracy; with the plight of wives of rural medicos; Steve will have to remind me, there's one other one. In all these instances we've had a say and we've felt strongly about it.

It was Shirley who pointed out that this is the 50th anniversary of the time when civil conscription was made part of the Constitution, that it could not apply to doctors and dentists. So it was time for us to have another look at the Constitution. You will see many of the topics in the excellent foreword that we have to the programme - I recommend that you take the time to have a good look at that - and it should be spread far and wide.

It would appear reasonable that the purpose of the Constitution is to enable a nation of people to live together in harmony and to prosper. It would further seem reasonable that the legal process that develops from that is directed towards the same ends. I believe in this day in this country - and perhaps even worse in the United States - that the Constitution acting through the legal process is not doing the job.

I do not wish to attack my colleagues in law but I must say that many of the laws that have grown up have perhaps catered towards some of the more unethical to take advantage of, and take advantage of society. As a result of this we have a society which is somewhat stultified and controlled. We only have to look at the ACCC's remarks which were in the foreword about taking the least risk options. What a dreadful thing that is, that people who are trying to do things in our society have to take least risk options in order to avoid the ire of the ACCC. How are we going to have people conceive new ideas and take risks when we have such powerful people and powerful organisations which our legislative process has built up stopping them from doing so. Perhaps that's the reason why the United States has the same sort of problem as we have, a tremendous balance of payments problem and a lack of prosperity - a lack of prosperity which is caused by over-regulation.

I was talking to two of my eminent colleagues - two eminent members of my profession - in the last week. One who is a very good surgeon and a professor said he is giving up clinical practice at a time when he is still doing it very well. Why? Because he said "I can't stand the pressures". So he's going to go and do medico-legal practice. This, I put to you, is what's wrong with society now - that those who do and create and achieve are so trammelled, whilst those who control are so untrammelled. He will find it so much easier to look at a few patients for a couple of days a week and give opinions about them and nobody will ever question whether those opinions are of high quality or of low quality, whether they are honest or dishonest, they will be accepted, and he won't be sued for enormous sums of money if he doesn't get it right. Now as a surgeon he may do the very best possible and he may be sued out of his mind. Now that's what's wrong with society - it doesn't happen just to medicine, it happens to almost everything - that we are so now controlling the good people in society and allowing the ones who may or may not be good who control us - to control and to overcontrol.

I am looking forward to the debate today and to hearing some specific instances of how we can deal with this very serious problem, where the people who are trying to make society prosper and trying to create harmony in society are being over controlled, and where their thoughts and their plans and the risks that they may be prepared to take, are being taken from them.

Just think - I want you to think again - of a very good doctor who is giving it away because he can't handle the pressures, who is starting to look at his patients not as his beloved patients who he wants to do something for, but perhaps as the enemy, a potential person who may sue him. It's not good enough - we mustn't be too self preoccupied in this - its not just in medicine, but its in every other aspect of society that we're stopping things from happening. Until we do that, until we fix it, we're not going to see those balance of payments change.

I welcome you again. I must just say a word about Stephen Milgate because I guess if I want to be remembered for anything its that I --- perhaps the Doctors' Fund may not have started without me, but I think I'd like to be also remembered for the person who perhaps made the Doctors' Fund work, and that was finding Stephen Milgate and persuading him to come along with us. I thank you Stephen for all that you have done. We as a profession tend to be shrinking violets and if we see that the needs of our patients perhaps may coincide with our own selfish interests we perhaps back away from something. Stephen can see the needs of patients perhaps better than we can, at least as well, and he makes us do things that we perhaps may not do otherwise.

I thank you for coming and I hope at the end of the day you feel it has been a well worth-while occasion.


Dr Prager: Thank you Bruce. Its now my pleasure to welcome the Hon. Daryl Williams, the Federal Attorney General and Minister for Justice. Daryl Williams AM QC holds a law degree from the University of Western Australia and was selected as Western Australian Rhodes Scholar in 1965. He subsequently obtained a Bachelor of Civil Law degree at Oxford University in 1967. Mr. Williams was a Commissioner of the Law Reform Commission of Western Australia from 1982 to 1986 and chaired the Commission for a year. He was also President of the Law Society of Western Australia in 1984 and President of the Law Council of Australia in 1986 and 1987. He was appointed a member of the Order of Australia for services to the legal profession in 1989. He has been a member of the Joint Select Committee on Certain Family Law Issues and a member of the House of Representatives Standing Committee on Legal and Constitutional Affairs from 1993 to 1996. His appointment as Commonwealth Attorney General and Minister for Justice was announced by Prime Minister John Howard on 8th of this year. The Hon. Mr. Williams has also been appointed to the National Security, Parliamentary Business and Legal Affairs committees of Cabinet. His most recent activity has been to assist the Prime Minister push through uniform State gun law legislation following the Port Arthur tragedy. The Hon. Daryl Williams.

Hon. Daryl Williams

Hon. Daryl Williams: Thank you Dr. Prager and thank you very much to the AMA and the Australian Doctors' Fund for the invitation to speak to you. Its actually a very pleasant experience to speak on a subject that doesn't have a raging debate about it going on at the time. While there is a debate its much more civilised than some others that I've participated in in recent times.

I want to talk this morning about the Federal Government's approach to Constitutional change and in that connection with professional independence. After offering some comments on the first subject I want to focus then on the role that a representative body - such as one representing medical professionals - can play. My message is that the Government recognises the valuable contribution professional bodies can make to the public debate about the Constitution.

It is generally accepted that the Constitution has served us well. It has established a stable federal frame work of Government and has continued to provide a workable foundation for our parliamentary and democratic institutions. Certainly the Constitutional Commission established in 1986 to review the Australian Constitution recognised, even in the context of its far reaching review, the need to retain in form and spirit the basic frame work of institutions established by the Constitution. It is precisely because the Constitution has served us well and proven so durable that Constitutional change must not be undertaken lightly. That said, the Constitution is not immutable nor does it preclude social or political evolution. Sir Robert Menzies said, and many have agreed, and I quote, "a written Constitution is an expressed scheme of government designed to give a basic structure in a changing world, not designed to inhibit growth in a growing world, nor to make the contemporary world subject to the political, social or economic ideas of a bygone age. A Constitution is not a straight jacket, it is a frame of government".

More fundamentally, the Constitution provides for its own alteration. Section 128 of the Constitution provides for the passage of a bill by both Houses of Parliament, or under certain circumstances by one House, followed by a vote by the people - that is a referendum - on whether to approve the bill. People have voted on proposals for change over the years. In some cases these proposals have been accepted. No doubt proposals will be put to the people again. Indeed the government has undertaken to establish a People's Convention to examine proposals for an Australian Republic, as well as other proposals for Constitutional change. We recognise that citizens, as well as Governments, have given and should give consideration to when and how to start the process of Constitutional change. Clearly it is open to the government of the day to initiate proposals for change when it considers it appropriate.

In some cases the Commonwealth has unilaterally developed proposals which have then been passed by Parliament and put to a referendum under Section 128. However, different approaches to initiating proposals to Constitutional change are possible. Among these the Constitutional Convention certainly can play an important part both in initiating and evaluating proposals for change. The best known Constitutional Conventions are probably those associated with adopting the Australian Constitution. The 1891 Sydney Convention framed the Federal Constitution, while the Convention held in Adelaide, Sydney and Melbourne in 1897 and 1898 led to it being adopted.

The Government's motivation in proposing a People's Convention is to give the community, through both its delegates and appointed Parliamentary representatives, an opportunity to identify areas perceived to be in need of change. The Convention would also provide an opportunity thoroughly to ventilate and debate the issues. The very choice of a Convention raises some interesting issues. For example, we can draw a significant distinction between the two founding Conventions I have just mentioned. The 1891 National Constitutional Convention held in Sydney was attended by delegations appointed by the legislatures of the six Australian colonies and New Zealand. In that sense it was a Parliamentarians' Convention. The Constitutional Convention of 1897/98, however, comprised ten representatives elected at large from each of the colonies. Exceptions were Western Australian, whose Parliament chose the delegates, and Queensland - perverse even then - who sent nobody.

Other examples of Parliamentarians' Conventions are the 1942 Convention involving members of the Commonwealth and State Parliaments and considered referring certain powers to the Commonwealth; and the Australian Constitutional Convention which met from 1973 to 1986 drawing delegates from Commonwealth, State, Territory and Local Governments. Less official popular conventions or conferences - that is meetings of people not appointed by Governments - were held in Corowa in 1893 and Bathurst in 1896. The City of Bathurst and organisations within it and the Constitutional Centenary Foundation are planning a centenary of that event in the course of this year. I note that in the case of Corowa and Bathurst the Federation Leagues convening the conferences invited representatives of various commercial and political groups and organisations.

Wide debate has centred on the relevant merits of Parliamentarians' Conventions as against Popular Conventions. Critics of the Parliamentarians' Convention as a platform for Constitutional change suggest that delegates are invariably inhibited by party loyalties and may well be uninterested in change. Others suggested the Parliamentarians' Convention does not capture the popular imagination enough to ensure due consideration of the proposals. It is true that the 1891 Convention apart, Parliamentarians' Conventions have not achieved a great deal in terms of Constitutional change. Even in the case of the 1891 Convention it would seem that the work begun there was greatly assisted by the revitalisation of the Federal issue at the Corowa and Bathurst Conventions. On the other hand, while delegates to the 1897/98 Convention were drawn from large fields of candidates in each State - fields which included many non-parliamentarians - only one non-parliamentarian was elected. It is therefore not clear to what extent we can attribute the Convention's success to the fact that it was a popularly elected body.

Experience has shown that the Constitution is difficult to amend irrespective of how proposals for change are generated. It is noted in this Conference's Issues Paper by Miss Christine Rau, electors have voted on 42 proposals to alter the Constitution on 18 occasions since Federation. Only eight amendments have resulted, and next year will be the 20th anniversary of the last time there was a successful amendment. Nevertheless a Popular Convention has perceived advantages. This is made clear in the oft quoted remarks of Dr. Quick concerning the progress during the 1890's of the movement for Federation. Dr. Quick and Mr. Garren wrote the annotated Australian Constitution very soon after its enactment. Dr. Quick stated very clearly that the best guarantee of popular interest and confidence was to be found in asking the people to choose for themselves the people to whom the task of framing the Constitution should be entrusted. The point is that while the chosen representatives of the people were for the most part those who would have been the chosen representatives of the Parliament, the fact of their election by the people allowed them to enjoy a confidence that appointment by the Parliament could never have given them.

As a convention comprised of both Parliamentarians and popularly elected delegates, it is likely that the People's Convention would have a claim to a representative base extending beyond the major political parties. It is also possible that this base would extend beyond existing well organised community groups, although some commentators have suggested that an election process is most likely simply to reproduce the prevailing political status quo. Given that the directly representative nature of the People's Convention may be an advantage in arousing public interest and in establishing a better claim to a broad representative base, the election and appointment processes clearly warrant close attention.

We must also acknowledge that the success of proposals produced by the Convention, or even simply considered during its deliberations, may depend on other factors. One factor which appears to be critically important in determining the outcome of Constitutional referenda is bi-partisan support for proposals in the Federal Parliament. While bi-partisan support does not guarantee success, all successful proposals have enjoyed such support. Some suggest that the number of proposals at a referendum may be a relevant consideration. The history of referendum results does suggest that the greater the number of proposals presented to the electorate at any one time, the greater the risk of a No vote. While the High Court has indicated there is no Constitutional impediment to presenting multiple proposals - it decided that in 1988 - factors increasing the risk of a No vote must be taken into account in deciding whether the Convention should be free to formulate any number of proposals. The very conduct of referendum campaigns may affect the outcome. Campaigns are regulated by the Referendum Machinery Provisions Act of 1984. In particular, this allows for distributing the official Yes/No cases to electors.

If the People's Convention formulated or supported a particular proposal, a question would arise on the Convention's and the Government's respective roles in putting the case for the proposal. The Constitution does not require the Government to support the proposals or recommendations of the People's Convention. Nonetheless it is axiomatic that any People's Convention should have every opportunity to generate proposals with a real prospect of acceptance by the people and success at a referendum. We can draw some conclusions about the pre-conditions for change from Australia's history of Constitutional referenda. That history tends to suggest that referenda have a real chance of success only where the process for developing referendum proposals enables both politicians and the public to reach a consensus about the areas needing change, and what kind of change is necessary. Broadly speaking, only a very small proportion of proposals seeking enlargement of the Commonwealth Parliament's legislative powers have been successful. In fact, most of the early proposals were for an enlargement of Commonwealth legislative power at the expense of the States. Very few got through.

Proposals about the election and referendum provisions of the Constitution have been slightly more successful, although where they would have affected existing patterns of State influence, vis-a-vis the Connell(?), they have always failed. Remaining proposals enjoying broad political support have a much higher success rate. That is, those not seeking to expand Commonwealth power or dealing with the election or referendum provisions of the Constitution.

An important contributing factor to the very low success rate in the first two categories appears to be a consistent failure to adopt methods capable of reaching consensus in controversial areas. While clear principles do not emerge there is evidence to suggest that - as some commentators have put it - the success of referenda presupposes a recognition of the issues involved and a lowering of the barriers of suspicion about the processes of change. One commentator has suggested that as any proposal for real Constitutional change is likely to limit the power of one part of the institutional network as against others, that most tenacious of all political reactions, the desire to preserve what one already has, will quickly come into play.

What does emerge is a sense that the composition of the People's Convention and its role in defining issues for consideration will be crucial factors in establishing the pre-conditions for Constitutional change. As I've mentioned, delegates to the 1897 Convention were elected at large from each of the colonies, the only exceptions being Western Australia and Queensland. I've also noted that the popular election of delegates may be an important factor in generating public support and in encouraging the perception of the Convention as a broadly representative body. However, the election process itself could take a number of forms. For example, a variation on the 1897 model may be adopted with a specified number of delegates being elected from each State and Territory in State-wide or Territory-wide ballots. If elected delegates comprise only half of the Convention's total membership the number of delegates from each State and Territory would be calculated accordingly. In principle, however, there is nothing to prevent elected delegates making up a smaller or larger proportion of the Convention.

Some commentators suggest that retaining State and Territory elections as opposed to National elections would involve lower election costs. This might provide scope for State and Territory Governments to run elections along lines agreed with the Commonwealth. The cost of elections would be reduced if they were run with other State or Commonwealth elections. However, this raises the potential for the process of Constitutional change to be obscured by other more immediate political concerns.

As to appointment, there is no legal impediment to the Government appointing Parliamentarians, whether Commonwealth, State, Territory or Local, to the Convention. On the question of numbers, the Government may appoint delegates using any system or formula that it chooses. The 1891 Convention, although not appointed by a Federal Government, comprised seven delegates from each of New South Wales, Victoria, Queensland, South Australia, and Western Australia and three from New Zealand, a total of 38. The 1897 Convention, on the other hand, comprised 50 delegates, even though Queensland sent no delegates and New Zealand were no longer involved.

There is no legal impediment to appointing non-parliamentarians to the Convention. While such an approach may be precluded by other considerations, the Commonwealth certainly has the power to establish a Constitutional Convention comprising appointed delegates only. Of course, non-parliamentary appointees could be selected in a way that retained an element of community participation and representation. For example, they could be selected from candidates nominated according to guidelines ensuring the recognition of particular groups, interests or regions. There would be no necessary legal impediment to delegating the selection role to a specialised body established for that purpose or to the specification of guidelines for the operations of that body.

Questions also arise as to the appropriate procedural arrangements for the People's Convention. These are closely connected to other important organisational questions, such as whether the Convention should have a role in setting the agenda for Constitutional change; and whether the Convention should have a role in formulating particular proposals - either those that it has generated or those presented to it for deliberation. If the Convention is to be responsible for the precise formulation of particular proposals it might need expert support capable of translating the Convention's deliberations into proposals suitable for consideration by Government or Parliament. Such support enhanced the work of the 1986 Constitutional Convention. The final report of that Commission is a formidable document with a value that goes beyond any particular proposal. Generally there would be no legal impediment to providing support in the form of advice from expert groups, either to formulate Convention proposals or in relation to submitted proposals. An expert group set up by the Government might put particular proposals to the Convention in the areas identified in the Government's policy statements. Depending on the approach taken, it may also be possible to accord this group an important preliminary role as the body responsible for accepting agenda proposals and putting them to the Convention for its consideration. We need to acknowledge that such a body could potentially exert a powerful influence over the Convention's deliberations and outcomes. For that reason its composition should effectively rule out any suggestion of direction by a particular political or ideological commitment or affiliation.

Implicit in what has been said is that decisions about the nature and extent of the Convention's role in setting the agenda for Constitutional change, and about more mundane questions of procedure, are likely to have important consequences for the Convention's capacity to achieve consensus and establish the pre-conditions for Constitutional change. As with the authors John McMillan, Gareth Evans and Hadden Storey, I tend to think that the machinery for initiating referendum proposals should serve two objectives; it should provide a forum to debate the issues thoroughly and the options for reform, so that they are publicly aired, recognised in advance, and not sprung unexpectedly upon the electorate. It should also provide a forum in which the major political parties and possibly the other groups and interests can forge some consensus.

To summarise, any People's Convention should be established in such a way as to allow it, if the will exists, to generate proposals with a real prospect of acceptance by the people at a referendum. Evidence suggests that consensus amongst politicians and the public is a pre-condition for the success of Constitutional referenda. Such consensus is unlikely if there are no arrangements for public involvement in identifying and considering proposals for Constitutional change. Obviously the public includes professional people and their representative bodies.

This brings me now to the relationship between the process of Constitutional change and the question of professional independence. As the Issues Paper for this conference makes clear, Section 51 (23A) of the Constitution, in prohibiting the authorisation of any form of civil conscription, currently entrenches a degree of professional independence so far as the enactment of Commonwealth laws regulating the provision of medical and dental services is concerned. However, I do not intend discussing how Section 51(23A) operates or the extent to which it may be said to support professional independence per se. Rather, I wish to focus more generally on the process of Constitutional change and the role that a representative body - in this case a body representing medical professionals - can play in that process.

I think it is interesting in this context to consider briefly the history of Commonwealth involvement and Constitutional change in health related areas. The Issues Paper makes the point that the Commonwealth has been constrained in developing formal structures for providing health care by its limited Constitutional power in these areas. It notes that the Constitution originally contained no express granted power to make laws on any health related matter. In fact, its only express powers remotely connected with health concerned invalid and old age pension. Nevertheless, it is common knowledge that by 1945 the Commonwealth had exacted legislation providing for maternity allowances, child endowment, widows' pensions, and unemployment and sickness benefits, not to mention pharmaceutical benefits. The precariousness of the Commonwealth's constitutional position in these areas has been noted. It was confirmed in the first pharmaceutical benefits case in the High Court in 1946. The proposal to amend the Constitution in 1946 was effectively a response to the precarious nature of the Commonwealth's position. The then proposed Section 51(23A) included the prohibition against civil conscription, thereby accommodating the then Opposition's demands. As an aside, I think it is interesting to note, particularly in the context of this conference and my earlier remarks, a later rather forceful observation made by Sir Robert Menzies about his part in the adoption of Section 51(23A). He said if a Government wants to amend the Constitution is practically essential to have the support of the Opposition.

Of more immediate interest, however, is the role played by the Australian Division of the British Medical Association. It had already made its views on the subject of professional independence very clear, and is generally seen to have contributed to the ultimate course of Constitutional change in this instance. Further, the BMA went on to play a central role in arguing the case against the Labor Government's subsequent Pharmaceutical Benefits Scheme embodied in the Pharmaceutical Benefits Act 1947. Although accused by Prime Minister Chifley of conservatism and downright pig-headedness, there is no doubt that the BMA's actions were instrumental in bringing about the amendment to the scheme, leading to the decision of the High Court in the second Pharmaceutical Benefits case in 1949. These proved disastrous for the Labor Government's larger plans for a national health scheme.

Following the demise of the Chifley Government in 1949 the Menzies Government proceeded to negotiate a voluntary medical benefits scheme with the Medical Association. Introduced in 1953, it reinforced the role of private insurance funds and a private medical profession. The development of the Commonwealth's legislative involvement in the provision of health care has continued in a piecemeal fashion through to the present day. For example, the notion of the scheduled fee was not introduced into the National Health Act 1953 until 1970. The Gorton Government introduced common fee schedules, once again taking account of the professional associations' recommendations. The professional associations continued to pay an active role in relation to the development of the Medibank and Medicare legislative scheme under the Whitlam, Fraser, Hawke and Keating Governments. As noted in the Issues Paper, a separate stream of Commonwealth involvement in health care can be traced in the area of financial grants to the States under Section 96 of the Constitution. The Section 96 mechanism has provided a way to provide Commonwealth money to the States if used for a specific purpose. While this mechanism often effectively requires the Commonwealth to act in concert with State bodies, it has enabled the Commonwealth to implement health related policies. This form of Commonwealth funding started in the 1920's although it was not until the 1950's that grants for health and hospitals began. Greater use was made of this form of funding during the 60's, 70's and 80's, particularly in the area of community health centres and public hospitals.

I think the relevant point for present purposes is that professional associations and other representative bodies, as constituent parts of the broader Australian public, have played and should continue to play an important part in shaping the course of Constitutional change concerning health care. I recognise that such bodies are often in a position to generate and present detailed arguments in the areas of complex law and policy. Professional associations representing medical practitioners have in the past articulated the concerns of their constituents, and made sure that those concerns are well understood by Parliamentarians and the public. As I indicated a little earlier, the importance of professional independence to medical practitioners was certainly made clear in 1946. I commend the active involvement of all professional associations who can contribute independent specialised advice and enhance consultative processes.

To summarise then, in establishing Australia's democratic institutions, the Australian Constitution has generally served us well. The possibility of Constitutional change then must not be taken lightly. Nevertheless, where the broader community perceives that there is a need for change we need comprehensive and open debate. The People's Convention could provide a useful forum for citizens and representative bodies to make sure that their ideas and concerns are taken into account in any process of change. Obviously this would require the active participation of citizens and the various representative bodies to identify and articulate their ideas and concerns.

In the particular case of medical associations, history has shown us that they can be a powerful force in shaping Commonwealth policy in the course of Constitutional change. I am confident that professional associations can go on to play a significant role in future debates concerning Constitutional change, particularly where this touches on the question of the importance of professional independence. Indeed I believe that the participation of such bodies in any People's Convention would be a very positive development. I therefore congratulate the organisers of this conference for providing an opportunity for participants to focus on the important role that professional associations may play in debate about Constitutional change.

Dr Prager: Thank you very much Daryl Williams for that very erudite and insightful analysis of the Federal Government's approach to Constitutional change, and particularly the process of it and the historical basis of it. It is very reassuring to hear the commitment of the Federal Government's thinking to the professional independence of the medical and dental professions and the role that that will play and has played in democracy in Australia, and particularly in any future Constitutional change.

We now have a few minutes for questions prior to morning tea. Could we have questions please? Would people please come to the microphone. We have a question over here. Could you please announce your name.

Michael Ridley: Michael Ridley, I am a general practitioner from Coffs Harbour and a member of the Australian Doctors' Fund. It has been reported that one of the things that the Government is considering is the withdrawal of medical benefits from non vocationally registered general practitioners practising in certain locations and only granting Medicare benefits to their patients if they move to designated country areas as there is a shortage of doctors as you are aware in rural areas nation wide. Would this in fact be civil conscription by default and would you be consultative as to whether this proposal should go ahead?

Hon. Daryl Williams: I think I'm going to be very wary in venturing into answering that question. I have been a Minister for three months and I'm doing the job that two Ministers and a Parliamentary Secretary in the previous Government did, and I'm finding that coping with my own Portfolio is quite a job, rather than trying to venture into Dr. Wooldridge's Portfolio. I think I'll take that question on notice, if you'd care to set it out I'd be very happy to give you a written response but I'd just be guessing if I commented further now.

Dr Prager: Do we have any other questions?

Bill McCubbery: Bill McCabry, a GP, also a member of the Australian Doctors' Fund. In terms of effective change as distinct from formal Constitutional change, what safeguards are there in place to stop COAG and other meetings of State and Federal Governments becoming conventions of Sir Humphries, mushrooming the elected representatives.

Hon. Daryl Williams: Your question is directed at a very precise issue, the safeguards to prevent the bureaucratic takeover of COAG. My experience of the COAG processes is limited because it's a meeting of heads of Government, Premiers and Chief Ministers, and the Prime Minister. But the impression I've had in my time in Parliament and as a Minister is that COAG is anything but a function of the bureaucrats. It's very much a function of the heads of Government themselves. Admittedly there's a substantial committee structure underneath but the formal decisions are, in my experience, without doubt taken by the heads of Government. I would accept that there is a risk, as there is with any Ministerial meeting involving Ministers from the different jurisdictions, and there has been experience in the past where the agendas of Ministerial committees and councils have become very much burdened by detailed subjects that really ought to be dealt with by the officials rather than the Ministers. I think you can rest assured that the current Government has no intention of allowing that to occur in its role in relation to Ministerial councils of one sort of another.

Dr Prager: Thank you. We have another question over here from Dr. Danuta Mendelson and then one in the front row.

Dr Mendelson: The original Conventions were all male, even though women actually did contribute to the discussion, the fact is that all Conventions were all male. Will there be any discussion of having the conventions representative of the whole of the population, including the women, and perhaps actual representation allowing for the representation of women on an equal basis.

Hon. Daryl Williams: The coalition policy made plain that it didn't want to have an unrepresentative set of appointed delegates, and also made plain that it didn't want them all to be elderly. There is in fact express provision made for people under the age of 25 to participate. So I think you can rest assured that that is an issue on which there will be a great deal of focus. It may not be in the hands of the Government, as distinct from the electors, as to who gets elected, but we will certainly promote the idea that there should be a substantial representation of women in the convention.

John McMillan: John McMillan from the Australian National University. In your coverage of the pre-conditions for Constitutional change, one of the pre-conditions that is often left out, I think, is that Constitutional change by and large. has to be proposed by a non-Labor Government. The statistics nationally and in State Constitutions show that proposals put forward by a Labor Government stand an almost certain chance of failure. Those put forward by a non-Labor Government, particularly by a Liberal Government, stand a much higher prospect of success. We're in the paradox at the moment that the Liberal Government has proposed the machinery for Constitutional change but has not yet defined what substantive proposals it is likely to support or would like to go forward.

Firstly, does the Government have in mind any areas for substantive change that it is likely to support, or if it's relying merely on the People's Convention to put forward those proposals, is it the Government's intention to put forward to a referendum every proposal which comes forward with majority support from that Convention or will the Government still retain a discretion to decide which proposals are going to be put forward to a referendum.

Hon. Daryl Williams: In the election policy - to deal with the last point first - the commitment was to put to referendum any proposal that received consensus support at the Convention. That doesn't mean to say that the Government would itself necessarily support it, but it would ensure it was put to the people.

On your broader comment, the question of proposals from non-Labor Governments succeeding at a better rate than Labor Government proposals, I'm not sure that that is likely now to be true. It's very difficult since we've only had proposals put in recent times in 1977 and 1988, and the 1988 ones all failed - there was mixed success in 1977. We really don't have much evidence as to the why people think about the proposals in these times. We know from past experience that without bipartisan support there's no chance, but if you look at it statistically, of the 42 proposals put to the people since Federation, many of them were highly politically contentious proposals to expand Commonwealth legislative power, put by Labor Governments to obtain control over prices and rents. They were put in a number of different ways over time, and I think Labor Governments have learnt that there's just no prospect of that sort of a proposal getting up, and I think statistically we're likely to see a change if there are changes in Government in the future.

Dr Prager: We've got time for one last question and then we'll break for morning tea.

Prof O'Brien: Paddy O'Brien. Mr. Williams and I know each other from Western Australia. As you would expect, I am delighted that the Federal Government is to honour its commitment to hold a People's Convention. I would disagree with you and Mr. McMillan that it is merely a useful forum. Mr. McMillan said merely - relying merely on a People's Convention. I put it in inverse terms by saying that we would be disappointed if we were relying merely on the Government or the Parliament because I think that the Constitutional Convention in terms of determining the means by which a people are governed is the heart of the matter, not just an adjunct, not just a useful means of trying to get a consensus.

Secondly, just as a comment, quickly, I think all this talk about the history of success and failure is totally irrelevant for a variety of reasons, and people should be offered the choices, regardless of whether experts assess the success or failure of those choices. If the name of the game is to try and come up with something -- proposals that are only going to succeed, this is a limitation of choice and, in effect, is a sort of manipulative process by experts against the people. Having made those comments -- because I would make them in my speech and you may not be here and I make those criticisms while you are here.

The question I want to ask you again does follow on from what Mr. McMillan said. You have not indicated what the Government's preferences are - and I agree that I don't care what the Government's preferences are in terms of substantive matters because I think that should belong to we, the people, through the Convention - but more importantly therefore, because I consider the Convention to be the heart of the matter, what is yours and the Government's preference for the constitution of the Convention itself? You outlined a number of possible models but which one is the Government going to introduce? It must know now because the Convention is due very soon.

Hon. Daryl Williams: Thank you Prof. O'Brien. I may have misunderstood your initial comment but it seemed to me you were going back on things that I've heard you say in the past which is very much a pro-democracy pro-people approach. I wouldn't personally object if the Convention were to say, well let's not worry about whether we can get an issue through a referendum, let's ask ourselves what sort of government we really want and then tackle the issue head on. But I think realistically you have to take account of the desire to achieve something out of the convention.

Prof O'Brien: ... (inaudible) ... how can the convention foreshadow what the people might vote? If the convention is to be representative, as you say, then that is the representative body, and Parliament is not ... So of course you have to allow the Convention to have its say. There was no guarantee that the proposals that came out of the 1890's convention would be accepted but finally after a campaign and public debate they were.

Hon. Daryl Williams: I don't think anything that we're proposing in relation to the Constitutional Convention would not be consistent with that approach. As to the particular proposal, that will be announced in good time.

Dr Prager: Thank you very much again for coming today. We've really been very fortunate in your attendance and your erudite exposition to us and answering the questions. We're now going to break for only ten minutes for morning tea. We'll see you back in ten minutes. Thanks very much to the Attorney General.


Dr Prager: I now have the pleasure of introducing Dr. Danuta Mendelson from Victoria. Dr. Mendelson is currently Senior Lecturer in Torts, Public Law and Civil Rights at the School of Law, Deakin University. Dr. Mendelson was born in Warsaw, Poland and arrived in Australia as a teenager in 1964. After completing a Bachelor of Arts degree with First Class Honours she then went on to complete her Masters, Doctorate of Philosophy in Linguistics, Bachelor of Law with Honours and Master of Law, at Monash University. Her Masters degree examined the interface between medicine and law. Her Masters thesis was relied upon by Mr. McMay QC in a House of Lords case, Page v Smith (1995), and Dr. Mendelson's research has included investigation into the difficult areas of consent and refusal of medical treatment and psychiatric illness liability questions. Her papers include works on the legal concept of malingering, compensation for stress and medico legal aspects of pain and suffering.

We are very honoured to have Dr. Mendelson here today to talk to us on the legal context and consequences of the 1946 referendum. Dr. Mendelson -

Dr. Danuta Mendelson

Dr Mendelson: Ladies and gentlemen, I first have to qualify one point and that is what I am going to present is really work in progress and you have to allow for that.

As was said before, since 1906, 42 Constitutional alteration bills have been submitted to a referendum. However only eight were supported by the Australian people. Paragraph 23A of Section 51 which is represented there, was inserted into the Commonwealth Constitution following the successful referendum of 1946. This year therefore marks the 50th anniversary of the amendment. I shall discuss the Constitutional and legal background to the holding of the referendum, the two major cases in which the High Court of Australia determined the meaning of this provision, and also its significance today.

Let's start with Constitutional background. It was on 17th September 1900 that Queen Victoria proclaimed that on 1st January 1901 the Commonwealth of Australia would come into existence. On that day all Australian colonies would become the original states of the Federation, united under the Commonwealth of Australia Constitution Act 1900. The Commonwealth of Australia Constitution Act ratified an agreement amongst self governing political entities - the old colonies - to give up some of the powers to the central new body - the Commonwealth - while preserving sovereignty over the powers they had retained. The Commonwealth could only exercise those powers conferred upon it under the Constitution. All powers not specified in that document, and known as residual powers, remained with the States.

Amongst the powers specifically enumerated in the Constitution, mainly under the paragraphs of Section 51, the so-called concurrent powers were included, and these powers enabled the Commonwealth to legislate with respect to certain subject matters over which the States also had legislative authority under that residual general power. Thus under paragraph 23 of Section 51 of the Commonwealth Constitution, the Federal Parliament was given powers to legislate for old age and invalid pensions. However, the responsibility for health care - general health care including the control of the general practice of medicine, was retained by the States under their residual general powers.

Likewise the Commonwealth under paragraph 14 of Section 51 was given power to legislate in the area of insurance, other than State insurance. However, wide incidental powers were granted to the Commonwealth under paragraph 39 of Section 51 and we shall see that that was quite important for the relationship between medicine and the Commonwealth later on. There did not seem to be any Constitutional difficulty with the division of power between the States and the Commonwealth with respect to health until World War II. For in 1943 the Chifley Government began to introduce a number of social services measures such as child endowment, widows' pensions, maternity benefits and pharmaceutical benefits. The Constitutional foundation of these measures came into question when the validity of the Pharmaceutical Benefits Act of 1944 was successfully challenged in the case known, naturally, as the Pharmaceutical Benefits case. This case placed in doubt the validity of other Commonwealth social services Acts, in particular those providing for maternity allowances, child endowment, widows' pensions, unemployment and sickness benefits as well as hospital benefits.

The only way of ensuring the continuance of these benefits was to amend the Constitution through a referendum as provided for under Section 128 to authorise the Federal Government to provide such benefits and similar social services.

I shall now discuss the origins of the clause, but not so as to authorise any form of civil conscription, which you can see in the bracketed phrase there.

In the 1946 referendum the Chifley Labor Government placed before the people three separate Constitutional bills. The object of the first one was to insert into the Constitution paragraph 23A, extending the Commonwealth power in relation to the provision of social services. The second bill involved granting the Commonwealth powers to legislate for organised marketing of primary products, and the third bill proposed to give the Commonwealth a new power to make laws on, and I quote, "terms and conditions of employment in industry but not so as to authorise any form of industrial conscription".

In its proposal for the Constitution Alterations Social Service Bill of 1946 the Labor Government insisted that apart from the power to confer social benefits, the Federal Parliament should also be given power to provide national medical and dental services. The Leader of the Opposition, Mr. Menzies, supported the extension of the Commonwealth Government's powers to legislate for the provision of maternity allowances, widows' pensions, etc., but was opposed to the extension of the power to medical and dental services. The Opposition argued, with some justification, that the proposed amendment would give the Commonwealth Constitutional power to nationalise the medical and dental professions by making all the medical practitioners and dentists members of one Government service.

In fact, at the time the referendum proposals were being debated before the Australian Parliament, medical services had been nationalised in New Zealand. In the United Kingdom the Labor Government introduced into the House of Commons the National Health and Medical Services Bill which led to the creation of the National Health plan. In the House of R

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