Commonwealth Power to Improve Access, Quality, and Efficiency of Medical Care: Does section 51 (xxiiiA) of the Constitution Limit Politically Feasible Health Policy Options Today?

Abstract

Legal and political battles about health policy in the immediate post-war years have cast a long shadow in Australia. The ‘civil conscription’ sub-provision in s 51(xxiiiA) (health and welfare power) of the Australian Constitution is still cited as a major barrier to developing health policy. But long after the High Court moved on from a very restrictive interpretation of Commonwealth powers, policymakers appear to be cautious about testing whether the Commonwealth has power to make laws about medical services to pursue a bold agenda about access, quality, and efficiency of medical care. In this article we will first describe the origin and phrasing of s 51(xxiiiA), the main head of power, then trace the development of the interpretation of the civil conscription sub-provision, and finally discuss whether politically realistic policy options are likely to founder on the shoals of High Court interpretation. We argue that the civil conscription limitation in s 51 (xxiiiA) in the Constitution looms larger as a policy constraint on regulation of health care by the Commonwealth government in the minds of decision-makers, and as a weapon in the hands of stakeholders, than contemporary analysis of it warrants.