British Medical Association v Commonwealth [1949] HCA 44

High Court of Australia Latham C.J. Rich, Dixon, McTiernan, Williams and Webb JJ. British Medical Association v Commonwealth [1949] HCA 44

ORDER Demurrer overruled.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 7 Latham C.J.

Demurrer to a statement of claim in an action in which the plaintiffs are the Federal Council of the British Medical Association in Australia (which is incorporated under the laws of New South Wales) and six medical practitioners resident and practising in Victoria or New South Wales. Two of these practitioners hold official positions upon the Federal Council and two others of them are members of the Council. The defendants are the Commonwealth of Australia, the Commonwealth Director-General of Health, Dr. A. J. Metcalfe, and Nicholas Edward McKenna, Commonwealth Minister of Health.

The plaintiffs claim a declaration that the Pharmaceutical Benefits Act 1947-1949 is invalid as being beyond the powers of the Parliament of the Commonwealth and contrary to the Constitution of the Commonwealth. They also claim, alternatively, declarations that particular provisions contained in the Act and certain regulations made under the Act are invalid, and they seek appropriate injunctions. The defendants have demurred to the statement of claim, contending that the Act and the regulations are within the powers respectively of the Commonwealth Parliament and the Governor-General.

In 1944 the Commonwealth Parliament passed the Pharmaceutical Benefits Act 1944. In 1945 the validity of the Act was challenged in the case of Attorney-General (Vict.) v. The Commonwealth [1] . The defendants in that action sought to support the validity of that Act solely by reason of the power of the Commonwealth Parliament to appropriate and provide for the expenditure of public money. It was held by the Court that the appropriation power did not extend so far as to provide constitutional foundation for the Act, and the Act was declared to be invalid.