Section 51 xxiii A and the Vaccination Issue: A Cautionary Tale By Ian Wilson LL. B

There are YouTube videos and articles on blogs, where proponents confidently proclaim that section 51 xxiii A of the Australian Constitution precludes the federal and state governments from “forced vaccinations.” While I would like this to be true, a sober and more judicial analysis raises doubts about this.

The section is in the section 51 powers of the Commonwealth and relates to, among other things not directly relevant to this discussion, the power to make laws for the peace, order and good government with respect to the provision of medical and dental services “but not so as to authorise any form of civil conscription.”  So what is meant by the expression, “civil conscription”? The matter is complicated, but an excellent article dealing with the constitutional case law is by Danuta Mendelson, Melbourne University Law Review (1999).

In the case of British Medical Association v Commonwealth (1949) 79 CLR 201, the term “civil conscription” was defined to be applicable to any civilian service for “any compulsion of law requiring that men should engage in a particular occupation, perform particular work, or perform work in a particular way.” (p. 249) Latham CJ held that the section therefore applied to medical and dental services to be completely voluntary and not procured by legal compulsion. Doctors and dentists thus were granted the constitutional guarantee to be able to make professional judgments without governmental compulsion. Applied to patients, they would therefore be free to make choices about medical and dental care without govern interference. This early case offered a strict interpretation of the civil conscription probation, and is usually the only case considered by the internet bush lawyers.

However, the later High court case of General Practitioners Society v Commonwealth (1980) 145 CLR 532, moved away from this interpretation and gave the Commonwealth wider regulatory powers. The case in general dealt with the question of the extent to which the Commonwealth had constitutional power to control financial aspects of private medical practice. Without going into the specific facts of the case, in the lead judgment by Gibbs J, it was held that while civil conscription did describe legal compulsion requiring that physicians and dentists pursue a particular occupation or engage in specified work, this did not, as Mendelson puts it “extend to the requirement  …if that requirement is merely incidental to, and intends to regulate the manner in which administrative and financial incidents of their medical practice  are carried out, and did not oblige the physicians to perform medical service.”

Hence the issue then becomes whether compulsory Covid vaccinations necessarily involves civil conscription of medical practitioners. It could if the law was carelessly drafted, but it will not be. There will likely be no compulsion upon physicians to vaccinate. The compulsion will be upon the ordinary people to get vaccinated. And such vaccinations need not even be delivered by medical practitioners, it could be done by pharmacists, or specially trained people as flu shots are done now, completely escaping these aspects of the constitution.

But, wouldn’t there be a practical and economic compulsion placed upon physicians to deliver the compulsory vaccination? This is possible, but I seriously doubt that the Commonwealth would go down that easily. The system is likely to be set up so that physicians do not face any sort of economic compulsion to vaccinate, say by incentives. There will be plenty of true-believers freely willing to vaccinate, as is occurring now; remember that this is orthodox medicine, which is merely a department of Big Pharma.

Thus, I do not see much hope for some sort of ultimate Constitutional weapon against compulsory vaccinations from section 51 xxiii A. Still, it is worth a test case, there is nothing much to lose at this late stage of the game. The Australian constitution is thin on rights, based on the fact that this document is an enabling Act to get a Commonwealth together and commerce flowing, rather than make a document for eternal freedoms. The Founders had a job even getting that done, as the Constitutional papers at the time reveal.