Selim v Lele [2008] FCAFC 13

FEDERAL COURT OF AUSTRALIA

Selim v Lele [2008] FCAFC 13

CONSTITUTIONAL LAW – Constitution s 51(xxiiiA) – power to make laws with respect to the provision of medical and dental services (but not so as to authorise any form of civil conscription) – meaning of "civil conscription" – sufficiency of "practical compulsion" – Health Insurance Act 1973 (Cth) ss 10, 20, 20A and Part VAA – whether imposition of standards and prohibition of "inappropriate practice" amounts to civil conscription – laws imposing standards upon provision of medical services incidental to Commonwealth power to provide medical services and do not amount to "civil conscription" CONSTITUTIONAL LAW – Judicial Power – whether functions conferred on the Professional Services Review Tribunal under s 106U of the Health Insurance Act 1973 (Cth) involve an exercise of judicial power – prior authority not plainly wrong CONSTITUTIONAL INTERPRETATION – legitimate use of referendum materials and related parliamentary debates to interpret amendments to the Constitution WORDS AND PHRASES – "civil conscription", "industrial conscription" and "inappropriate practice"

Constitution ss 51(xxvi), 51(xxiiiA), 71, 72, 128 Health Insurance Act 1973 (Cth) ss 10, 20, 20A, 106U and Pt VAA,

Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271, cited Attorney-General (Cth) v Alinta Ltd [2008] HCA 2, cited and considered Attorney-General (Vic) (Ex rel Dale) v Commonwealth (1945) 71 CLR 237, considered Chamberlain v The Queen (No 2) (1983) 72 FLR 1, cited Cole v Whitfield (1988) 165 CLR 360, cited Federal Council of the British Medical Association in Australia v Commonwealth (1949) 79 CLR 201, cited and considered General Practitioners Society v Commonwealth (1980) 145 CLR 532, cited and considered Health Insurance Commission v Grey (2002) 120 FCR 470, considered and applied Kartinyeri v Commonwealth (1998) 195 CLR 337, cited and considered New Zealand v Moloney (2006) 154 FCR 250, cited Nguyen v Nguyen (1990) 169 CLR 245, cited Reid v Sinderberry (1994) 68 CLR 504, cited and considered Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, considered and distinguished Selim v Lele and Ors (2006) 150 FCR 83, affirmed Tankey v Adams(2000) 104 FCR 152, considered and followed Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, cited Transurban City Link Ltd v Allan (1999) 95 FCR 553, cited Yung v Adams(1997) 80 FCR 453, cited