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.

How Can the Australian Government Make Primary Care and Private Health Insurance More Affordable?

“…Last, if Medicare covers all primary care services, the Government should have a role in negotiating prices with health care providers (e.g., general practitioners and specialists), as has been done in all other countries with similar universal coverage, or as the Australian Government negitiates with pharmaceutical companies to make medications more affordable to Australians. An independent agency could be introduced to ensure prices are set fairly and independently and allow adjustment for inflation and Producer Price Indexes (McDonald, Duckett and Campbell 2023).…”

A Proposal to Extend Universal Insurance to Dental Care in Australia

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