The Law

Constitutionally Inoculated to Resist Coercion

One of the most remarkable characteristics of the Australian Constitution is its express limitation on governmental powers. In drafting the Constitution, the framers sought to design an instrument of government intended to distribute and limit the powers of the State. This distribution and limitation upon governmental powers was deliberately chosen because of the proper understanding that unrestrained power is always inimical to the achievement of human freedom and happiness. As such, the Constitution allocates the areas of legislative power to the Commonwealth primarily in sections 51 and 52, with these powers being variously exclusive or concurrent with the Australian States.

The Constitution was slightly amended in 1946 by a referendum in order to include section 51 (xxiiiA). This provision determines that the Parliament, inter alia, can make laws with respect to:

The provision of … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription) benefits to students and family allowances…

As can be seen, this provision allows for the granting of various services by the federal government but not to the extent of authorising any form of civil conscription. The prohibition of such conscription is directed particularly to the provision of medical services.[1]

The idea that constitutional provisions protect individual rights plays a fundamental role in our understanding of these express limitations and, indeed, our understanding of the implied constitutional limitations derived from them. In this context, the “no conscription” requirement to be found in that provision amounts to an explicit constitutional limitation. It is an implied constitutional right of the individual so that such prohibition is not directed only to the federal government but it must also be extended to the exercise of legislative power by the Australian states.   

In other words, no Australian government, either federal or state, or those acting on its behalf, is constitutionally authorised to force any individual to take medicament against his or her own will, or force them or their children to be, among other things, compulsorily vaccinated.  

The concept of ‘civil conscription’ was first considered by the High Court in British Medical Association v Commonwealth (1949) 79 CLR 201; [1949] HCA 44 (7 October 1949). That case involved federal legislation which required medical practitioners to comply with a particular federal medical determination as part of a scheme to provide pharmaceutical benefits.

In other words, that case was about the validity of legislation which compelled medical practitioners to render a particularly medical-pharmaceutical service.  In his written judgement Justice Williams stated (emphasis added):

Accordingly, in my opinion, the expression invalidates all legislation which compels medical practitioners or dentists to provide any form of medical service” (emphasis ours). [2]

Similarly, in his written decision Justice Webb commented:

If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance” (emphasis ours).[3]

Of course, a doctor who freely performs his or her medical service does not create conscription. However, as Justice Webb explicitly mentioned:

When Parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, that the doctor shall render the patient a special service, unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription.[4]

That important decision confirmed the fundamental right of Australian citizens to determine by their own will whether they should take any medical or pharmaceutical benefit provided. Accordingly, any legislation that requires medical practitioners to prescribe government-mandated medical services constitutes a form of civil conscription that is constitutionally invalid.

In this sense, Chief Justice Latham argued in the British Medical Association case that civil conscription would include not only legal compulsion to engage in particular conduct but also the imposition by government of a medical duty to perform a service in any particular way.[5] Constitutional limits on legislation which does not acknowledge this important guarantee were more recently acknowledged in Wong v Commonwealth; Selim v Professional Services Review Committee . In this particular ruling the High Court restricted the capacity of both federal and state governments to implement mandatory vaccination, even recommendations from the National Health directives for either federal or state governments.

Of course, in the PSR case the Court was simply following precedent as per the previous 1949 decision which had already clarified the issue. Accordingly, Chief Justice French and Justice Gummow held that civil conscription is a ‘compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services’.[6]

Importantly, the High Court also indicated that the prohibition of civil conscription must be construed widely, to invalidate any law requiring medical practitioners (expressly or by practical compulsion) to work for the Commonwealth government or any Australian State. Simply put, no law in this country can compel any medical service on behalf of the Australian government.

As can be seen, section 51 (xxiiiA) maintains the prohibition of vaccination through any form of government-run health service, indicating that vaccination should only be through voluntary means in accordance with the free communications between medical doctor and patient, which is essential to achieve a high-quality healthcare. 

To conclude: the Australian Constitution explicitly prohibits any form of legal compulsion upon the medical profession to carry out any form of medication, including vaccination. In fact, no government, either federal or state, can impose compulsory vaccination in this country, or prevent medical practitioners from remaining entirely free to choose whether or not to provide certain medical services, including vaccination.

Dr Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus.  Dr Zimmermann was chair and professor of constitutional law at Murdoch University from 2007 to 2017. He is also a former Law Reform Commissioner in WA (2012-2017) and President of the Western Australian Legal Theory Association (WALTA).

[1] See: Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271 at 279; 69 ALR 631; Halliday v Commonwealth (2000) 45 ATR 458; [2000] FCA 950 AT [11].

[2] (1949) 79 CLR 201, at 287 (Williams J).

[3] (1949) 79 CLR 201, at 293 (Webb J).

[4] (1949) 79 CLR 201, at 295 (Webb J).

[5] (1949) 79 CLR 201, at 295 (Latham CJ).

[6] Wong v Commonwealth; Selim v Professional Services Review Committee (2009) 236 CLR 573, at [62].

7 comments
  • gary@erko

    But can a company or shopkeeper restrict entry on medical grounds?

  • Stephen Due

    On the other hand the government evidently does have the power to prevent doctors from prescribing any medicament the government does not like. Surely this is a form of compulsion?
    What is the effect of denying to the public the use of proven multi-drug protocols for the early treatment of Covid-19? It is simply to compel them to accept the government’s preferred therapeutic path for this illness (which in this case happens to be waiting at home or in quarantine until it is too late and then going to hospital with vastly reduced chances of recovery).
    The truth is – for those still interested in truth – that we have rule by media in Australia, and in the specific case of the federal health bureaucracy and the TGA, we have rule by unelected officials who are effectively prisoners of Big Pharma. The agenda is mass vaccination. In what is unquestionably the most shocking abuse of power in Australian medical history, vaccination has been turned into a kind of Russian roulette. Those who have studied the subject – after fighting their way through a wall of censorship implicitly sanction by the Australian governments – will know what I mean.
    It is some consolation, under these circumstances, that even if mass censorship is applied, and a vast government-sponsored propaganda campaign conducted to coerce the public to be vaccinated with a poisonous substance, one cannot actually be forcibly injected with it.
    But there is no consolation for those who contract the disease. If there is no constitutional protection for Australians who wish to avail themselves of proven life-saving treatments, but are prevented from doing so by the government, then we are in a parlous state indeed.

  • Losthope

    With the fear of invoking Godwin’s law , Do you the good government will supply the yellow star of david, or will we charged for them? Or , as a friend suggested, it will be a yellow injection needle emoji

  • gary@erko

    @losthope – It’s a big green tick on your smartphone on the myGov Medicare page.

  • pgang

    gary@erko, good question. Presumably similar cases have arisen before now that have been tested in court. Personally I think it should be legal for a private business to refuse service to anybody they want (it would get a bit tricky with a corporation refusing service to its owners however).
    But I imagine it would be illegal for a government to coerce a business to discriminate in their service. Mind you it’s all academic given that government seems able to force the closure of businesses whenever they like. A ‘State of Emergency’ can be called for anything now.
    .
    As a flip side to coercion, is it legal for the government to prevent the provision of a service by doctors, as in the case of Ivermectin?

  • rosross

    This is very worthwhile. My understanding, having read the AMA Code of Ethics, is that no doctor can impose any medical treatment on a patient without free consent. In the case of someone not capable of free consent, the family is asked for consent.

    What is truly astonishing is that the Government can seek to force people to accept a genetic treatment called a vaccine which is rushed, highly experimental in ways never done before, unapproved and where the recipients are the labrats.

    Even more astonishing is how many Australians do not recognise these actions as a total betrayal of their human rights and democratic freedoms.

  • talldad

    But what do our various State Constitutions permit, or prohibit, with regard to civil conscription?

Post a comment

You must be logged in to post a comment.