Margaret Faux and Bruce Topperwien

The preceding posts in this series establish two propositions. First, that the Australian Constitution, and in particular s 51(xxiiiA), constrains the Commonwealth’s capacity to impose blunt price controls on medical practitioners by prohibiting ‘civil conscription’. Secondly, that the existing statutory framework governing Medicare already contains the legal architecture necessary to regulate billing conduct, control excessive charging and prevent fraudulent claims.

This third post addresses the question that necessarily follows: if the legal framework already exists, why has unlawful billing conduct, particularly hidden fees and other forms of fraud, persisted?

The answer is not doctrinal but institutional. It lies in a structural enforcement vacuum which, unless addressed, renders both existing law and any proposed reform ineffective.

Margaret Faux and Bruce Topperwien

In our first post in this series, we examined a structural feature of Australia’s health financing system that is frequently overlooked in public debate: the Constitution protects the autonomy of medical practitioners.

Section 51(xxiiiA) empowers the Commonwealth to fund medical services through Medicare, but it does so subject to an important limitation. Laws providing such benefits must not amount to ‘civil conscription’. The High Court has consistently interpreted this constraint as preserving the voluntariness of medical practice, including the freedom of practitioners to determine the terms on which they provide services and to contract privately with patients.

This constitutional setting has practical consequences. It explains why governments cannot simply impose direct price controls on medical fees, even in the face of sustained concern about rising out-of-pocket costs. As we outlined in our previous post, attempts to do so risk constitutional invalidity, as well as broader destabilising effects within the health system.

Margaret Faux and Bruce Topperwien

As Australians grapple with escalating out-of-pocket medical expenses, constitutional law has re-entered the policy conversation. The Federal Health Minister has publicly signalled an intention to address egregious specialist charging practices, including foreshadowing potential constitutional reform if necessary.

The political instinct is understandable. But before constitutional levers are pulled, we suggest it is necessary to consider what the Constitution provides, the limits it imposes and the structural consequences of pressing against them.

Benjamin B Saunders

I am grateful to Professor James Stellios and Leslie Gonye for their interaction with my book – from two very different perspectives.

The book is an expansion and development of my PhD research, which was a historical examination of the views of the framers of the Constitution regarding responsible government, completed in 2017. At the time, Professor Stellios encouraged me to develop further some aspects of my work, including giving further examination to the concepts of ‘popular sovereignty’ and the ‘sovereignty’ of the people, and also reflecting further on the doctrinal implications of my thesis.

Leslie Gonye

I commend Ben Saunders on his book Responsible Government and the Australian Constitution. He has produced an accessible work that diligently examines and threads together a vast volume of material to argue the importance of historic context in understanding the Constitution regarding responsible government. This is key, as the provisions in the Constitution that concern the executive are relatively few and as responsible government is fundamentally political, there is plenty of scope for principles to evolve for governments to operate for the sovereign people of Australia to govern themselves in the manner they deem best (Saunders, p 207).

James Stellios

In this comment I offer observations on Associate Professor Saunders’ book, Responsible Government and the Australian Constitution (Hart, 2023) (Saunders), focusing primarily on the doctrinal implications of the book’s thesis. I will start by reflecting on the institutions of ‘representative and responsible’ government. While often presented as a composite expression, the institutions are distinct in principle, and that distinctiveness might have important implications for the role of judicial review. Further complicating the place of judicial review within the constitutional system is the tension created by the combination of political and legal constitutionalism, as each conception of constitutionalism contemplates a different means for controlling government power. Finally, I briefly reflect on the doctrinal implications of these constitutional features.