Wong v Commonwealth of Australia [2009] HCA 3

Wong v Commonwealth of Australia [2009] HCA 3

Sections 10, 20, 20A and Pt VAA of the Health Insurance Act 1973 (Cth), read as a whole, do not amount to 'civil conscription' within s 51(xxiiiA) of the Constitution because they do not legally or practically compel medical practitioners to perform services or to become instruments of the Commonwealth; rather, they permissibly regulate professional conduct and incidents of practice without abrogating professional autonomy or compelling service.

Parties
Appellant: Chee Kan Kenneth Wong; First Respondent (s362/2008): Commonwealth of Australia; Second Respondent (s362/2008): (Anor); Appellant: Ashraf Thabit Selim; First, Third and Fourth Respondents (s363/2008): Vinayak (Vinoo) Lele, Patrick Tan and David Rivett constituting the Professional Services Review Committee No 309; Other Respondents: (Ors); Intervenor: Attorney-General of the Commonwealth (intervening); Intervenor: Attorney-General of the State of Queensland (intervening)
Jurisdiction
Australia
Judgment Date
02 February 2009
Procedural Posture
Constitutional Appeal / High Court of Australia Appellate Jurisdiction, on Appeal From Full Federal Court
Outcome
Appeals dismissed.
Legal Topics
Legislative Power, Section 51(xxiii A) of Constitution, Civil Conscription, Health Insurance Act 1973 (cth), Professional Services Review, Invalidity of Statutes, Medical and Dental Services Regulation
Constitutional Law Legislative Power Section 51(xxiii A) of Constitution Civil Conscription Health Insurance Act 1973 (cth) Professional Services Review Invalidity of Statutes Medical and Dental Services Regulation

Case Brief

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Parties

Chee Kan Kenneth Wong

Appellant

Commonwealth of Australia

First Respondent (s362/2008)

(Anor)

Second Respondent (s362/2008)

Ashraf Thabit Selim

Appellant

Vinayak (Vinoo) Lele, Patrick Tan and David Rivett constituting the Professional Services Review Committee No 309

First, Third and Fourth Respondents (s363/2008)

(Ors)

Other Respondents

Attorney-General of the Commonwealth (intervening)

Intervenor

Attorney-General of the State of Queensland (intervening)

Intervenor

Procedural Posture

Constitutional Appeal / High Court of Australia Appellate Jurisdiction, on Appeal From Full Federal Court

Legal Issues

  1. 1 Whether ss 10, 20, 20A or Pt VAA of the Health Insurance Act 1973 (Cth) amount to 'civil conscription' and are, thus, invalid under s 51(xxiiiA) of the Constitution
  2. 2 Meaning of 'civil conscription' in s 51(xxiiiA) of the Constitution
  3. 3 Whether the provisions impose compulsory service or impermissible practical compulsion on medical practitioners

Ratio Decidendi

Sections 10, 20, 20A and Pt VAA of the Health Insurance Act 1973 (Cth), read as a whole, do not amount to 'civil conscription' within s 51(xxiiiA) of the Constitution because they do not legally or practically compel medical practitioners to perform services or to become instruments of the Commonwealth; rather, they permissibly regulate professional conduct and incidents of practice without abrogating professional autonomy or compelling service.

Court Disposition

Appeals dismissed.

Orders

  • In Wong (S362/2008): Appeal dismissed. Appellant to pay the costs of the first respondent.
  • In Selim (S363/2008): Appeal dismissed. Appellant to pay the costs of the first, third and fourth respondents.