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Selim V Lele and the Civil (Industrial) Conscription Prohibition: Constitutional Protection Against Federal Legislation Controlling or Privatising Australian Public Hospitals

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Selim v Lele (2008) 167 FCR 61; [2008] FCAFC 13 was a decision of the Federal Court (later upheld on appeal to the Australian High Court) which interpreted s 51(xxiiiA) of the Australian Constitution. This section accords the federal government, among other things, power to make laws with respect to the provision of “medical and dental services (but not so as to authorise any form of civil conscription)”. The Federal Court decided that the phrase “civil conscription” was analogous to “industrial conscription”. In that sense the Federal Court held that the prohibition was designed to preserve the employment autonomy of Australian medical practitioners or dentists, preventing federal laws that required them, either expressly or by practical compulsion, to work for the federal government or any industrial employer nominated or permitted by the federal government.

The specific question in Selim v Lele was whether the imposition of standards and prohibition of “inappropriate practice” under the Health Insurance Act 1973 (Cth), ss 10, 20, 20A and Pt VAA, amounted to civil conscription. The court held they did not. The Federal Court also discussed in that context the sufficiency of “practical compulsion” in relation to the s 51(xxxiiiA) prohibition.

The constitutional prohibition on “any form” of civil conscription provides one of the few rights protections in the Australian Constitution and may have an important role to play in shaping the limits of health care system privatisation in Australia.

The civil conscription prohibition in s 51(xxiiiA) of the federal Constitution provides a guarantee that Australian medical and dental practitioners will retain the practical choice of being either independent business people or salaried servants of the community. In this sense the guarantee in s 51(xxiiiA) operates like the “just terms” guarantee in s 51(xxxi). Neither can be circumvented by attempts to base federal legislation nominally on other heads of power unless the constitutional expression of that latter power expressly exempts it from the operation of the guarantee.

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