''Attorney-General (Vic); Ex rel Dale v Commonwealth'',. commonly known as the "First Pharmaceutical Benefits case", was a

High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...

decision. The case dealt with limits of the powers of the

Australian Federal Government The Australian Government, also known as the Commonwealth Government, is the national government of Australia, a federal parliamentary constitutional monarchy. Like other Westminster-style systems of government, the Australian Government i ...

under

section 81 of the Constitution of Australia Section 81 of the Constitution of Australia creates a " consolidated revenue fund", money collected by the Commonwealth through taxation and other levies. The way this money may be collected is regulated by Section 51 of the Constitution. Nota ...

, Consolidated Revenue Fund. to take and spend money by legislation, in this case to fund reduced prices for

prescription medicine A prescription drug (also prescription medication or prescription medicine) is a pharmaceutical drug that legally requires a medical prescription to be dispensed. In contrast, over-the-counter drugs can be obtained without a prescription. The rea ...

Background

In 1944, the

Labor Labour or labor may refer to: * Childbirth, the delivery of a baby * Labour (human activity), or work ** Manual labour, physical work ** Wage labour, a socioeconomic relationship between a worker and an employer ** Organized labour and the labour ...

Federal Government of Prime Minister

Ben Chifley Joseph Benedict Chifley (; 22 September 1885 – 13 June 1951) was an Australian politician who served as the 16th prime minister of Australia from 1945 to 1949. He held office as the leader of the Australian Labor Party (ALP) from 1945, follow ...

bill Bill(s) may refer to: Common meanings * Banknote, paper cash (especially in the United States) * Bill (law), a proposed law put before a legislature * Invoice, commercial document issued by a seller to a buyer * Bill, a bird or animal's beak Plac ...

for the "Pharmaceutical Benefits Act 1944" received

Royal Assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in other ...

. The law was immediately challenged by the Attorney-General for Victoria on behalf of three Victorian

medical doctors Doctor of Medicine (abbreviated M.D., from the Latin ''Medicinae Doctor'') is a medical degree, the meaning of which varies between different jurisdictions. In the United States, and some other countries, the M.D. denotes a professional degree. T ...

, Dale, McCallum and Watson, who were the president, vice-president and secretary of the Victorian Medical Association.The latin abbreviation "ex rel" in the title means "at the relation of" and indicates the Attorney General was bringing the proceedings on behalf of the doctors. Doctors opposed the scheme because they saw it as the start of a plan to nationalise healthcare.

Decision

Standing

The first matter to be decided was whether a State Attorney General had "

standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...

" to intercede in a

Commonwealth Government The Australian Government, also known as the Commonwealth Government, is the national government of Australia, a federal parliamentary constitutional monarchy. Like other Westminster-style systems of government, the Australian Government i ...

matter. All of the judges held that the Attorney-General has standing to argue that an Act of the Commonwealth Parliament was invalid under the constitution, following a line of authority commencing with the Union Label case.. Justice Dixon reformulated the test, holding that:

It is the traditional duty of the Attorney-General to protect public rights and to complain of excesses of a power bestowed by law and in our Federal system the result has been to give the Attorney-General of a State a locus standi to sue for a declaration wherever his public is or may be affected by what he says is an ultra vires act on the part of the Commonwealth or of another State. at p. 272 per Dixon J.

Appropriations power

On the substantial matter of the constitutionality of "Pharmaceutical Benefits Act 1944",''Pharmaceutical Benefits Act'' 1944 (Cth)
the issue was whether the appropriations power, was a free standing power to spend any money raised by the Australian government, or whether the power was limited to matters on which the Australian parliament could pass legislation, particularly section 51 of the constitution. Legislative powers of the Parliament. The majority of the court took a restrictive view of the appropriations power, holding that the Act was beyond the scope of the powers granted to the Federal Government in section 81 of the Constitution. The court was however divided as to the nature of that restriction, with each judge giving the own judgment and there was no clear reason for the decision. Latham CJ took a broad view of the appropriations power, however he characterised the law as one controlling doctors, chemists and the sale of drugs and only incidentally for the appropriation of money. Justices Starke and Williams held that expenditure had to be supported by another head of legislative power. Justice Dixon rejected both the narrow and wide view of the appropriations power, holding that each question had to be determined according to "the distribution of powers and functions between the Commonwealth and the States", but deciding, similarly to Latham CJ, that the "Pharmaceutical Benefits Act 1944" was primarily for dispensing free medicine and appropriation of money was only incidental. Rich J agreed with Dixon J. Justice McTiernan dissented, taking a wide view of the appropriations power, holding that "The Constitution puts the power of the purse in the hands of Parliament, not in the hands of the Courts."

Aftermath

1946 Referendum

The decision prompted the 1946 referendum to amend the Constitution to give the Australian Parliament the power to make laws with respect to:

s51(xxiiiA.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, 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:

The referendum was passed, being approved by 54.39% of voters and obtained a majority in all six States.Handbook of the 44th Parliament (2014) .

Second Pharmaceutical Benefits case

After the success of the referendum, the Australian Parliament passed the ''Pharmaceutical Benefits Act'' 1947,''Pharmaceutical Benefits Act'' 1947 (Cth)
relying on the new head of power. The majority of the high Court held that the Act was invalid as authorising a form of civil conscription.. The construction of section 81 of the constitution was settled on the narrow view, that expenditure had to be supported by another head of legislative power.

References

{{DEFAULTSORT:Attorney-General (Victoria) Ex rel Dale v Commonwealth 1945 in Australian law Australian constitutional law High Court of Australia cases 1945 in case law