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Social Welfare in Australia: The Constitutional Framework

Published online by Cambridge University Press:  24 January 2025

Ronald Sackville
Ronald Sackville*
Affiliation:
University of N.S.W
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Abstract

In an examination of the Commonwealth Government's power to enact social welfare legislation, Professor Sackville explores the tendency toward federal control of this field since 1901 and the judicial reaction to it. His conclusion is that although certain of the restrictions imposed upon Commonwealth freedom of action by the High Court have been removed by constitutional amendment, the trend towards a wider concept of Commonwealth involvement in community welfare schemes may well exceed the present limits upon Commonwealth legislative competence; and he looks to the Constitutional Convention now in progress as the possible prelude to an era in which extension of these limits might more readily take place.

Type
Research Article
Information
Federal Law Review , Volume 5 , Issue 2 , June 1973 , pp. 248 - 264
Copyright
Copyright © 1973 The Australian National University

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Footnotes

Research for this article was supported by a grant from the Australian Research Grants Committee to examine the legal disabilities of illegitimate children in Australia.

References

1 The National Commission on Social Welfare,for example,has been entrusted with the task of recommending methods by which the Australian Government can develop integrated systems of welfare services at regional level.See press statement by the Chairman, National Commission on Social Welfare, 24 May 1973. See also the First Annual Report of the Commission for 1972-73.

2 In October 1973 at least nine separate Common-wealth Committees or Commissions were investigating problems connected with social welfare. These were the National Rehabilitation and Compensation Scheme, Committee of Enquiry; Taxation Review Committee;Independent Enquiry into the Repatriation System; Common-wealth Commission of Enquiry into Poverty; National Superannuation Committee of Enquiry; National Commission on Social Welfare; Health Insurance Planning Committee;National Hospitals Commission.

3 For a brief examination of the concept of the welfare state and the role of lawyers within it see R. Sackville, “Lawyers and the Welfare State”(paper presented to the Second National Convention of Councils for Civil Liberties in Australia, Sydney, 1973).

4 T.H.Kewley, Social Security in Australia (1965) 64.In both Canada and the United States means have been foundto enable the federal governments to enter the social welfare field despite the lack of specific constitutional authority.Thus, in the United States the power conferred on Congress “to lay and collect Taxes … and provide for the common Defence and general welfare of the United States”(Art. 1, s. 8) has been interpreted as authorizing expenditure for any purpose considered by Congress to be for the “general welfare” United States v. Butler (1936) 297 U.S. 1,64-66;Helvering v. Davis (1937) 301 U.S.619, 640-641 (old-age benefits).

5 Convention Debates,Sydney (1897),1086.

6 J. Quick and R. R. Garran, Annotated Constitution of the Commonwealth of Australia (1901) 612-613.

7 E. M. Burns, Social Security and Public Policy (1936) Ch. 11.The latest move in Australia is the introduction of the supporting mothers' benefit; infra n.63.

8 See generally T. H.Kewley, supra n. 4, chs. 4-5.

9 The Women's Christian Temperance Union of Adelaide considered that the application of maternity allowances to mothers of illegitimate children might encourage “an evil which is already too prevalent. It is almost a premium on vice”. A deputation of the Council of Churches felt that “the proposal would lead to an undesirable increase in illegitimacy”. Commonwealth Parliamentary Debates, 25 September 1912, vol. 46, 3441.

10 Commonwealth Parliamentary Debates, 25 September 1912,vol.46,3422-3423,3587-3589,3637 (Sir John Forrest),3429 (Mr B. Smith).

11 Cf.the judgment of Dixon J. in Attorney-General for Victoria (ex rel. Dale) v. The Commonwealth (The Pharmaceutical Benefits Case) (1945) 71 C.L.R. 237, 269.

12 Supra n. 4.

13 Report on Manufactures (1791) cited by E.Campbell, “The Federal Spending Power”(1967-1968) 8 West. Aust. L. Rev. 443, 445.

14 Common-wealth Parliamentary Debates, 26 September 1912, vol. 46, 3516.

15 See generally T. H. Kewley, supra n. 4, 165-169.

16 T. H. Kewley, supra n. 4, 165-169.

17 Section 96 provides that “the Parliament may grant.financial assistance to any State on such terms and conditions as the Parliament thinks fit”.

18 Victoria v. The Common-wealth (1926) 38 C.L.R. 399, upholding grants to the States under the Federal Aid Roads Act 1926 to be applied by them for the purpose of constructing roads. This doctrine has been re-affirmed consistently by the High Court: Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd. (1939) 61 C.L.R. 735 aff'd (1940) 63 C.L.R. 338, [1940]A.C. 838; South Australia v. The Common-wealth (1942) 65 C.L.R. 373 (First Uniform Tax Case); Victoria v. The Common-wealth (1957) 99 C.L.R. 575 (Second Uniform Tax Case). See generally A. J. Myers, “The Grants Power Key to Common-wealth-State Financial Relations” (1970) 7 M.U.L.R. 549.

19 The constitutional issue was canvassed by the Royal Commission on Child Endowment or Family Allowances in 1928. The Federal Solicitor-General, Sir Robert Garran,advised in evidence that the Common-wealth could establish an endowment scheme pursuant to the appropriation power.He supported his conclusion by advancing a broad Hamiltonian interpretation of s. 81 as conferring an absolute power of appropriation for general purposes. However he apparently conceded that an exclusive, detailed Common-wealth-wide scheme could be implemented only through grantsto the States under s. 96 of the Constitution, with appropriate conditions attached to the grants. Report of the Royal Commission on Child Endowment or Family Allowances (1928) 10-11. Other witnesses, including Mr Owen Dixon K.C.,contended that a valid appropriation of money by the Common-wealth had to deal with one or more of the enumerated subjects of Common-wealth power of which child endowment was not one. Dixon's opinion was that the appropriations effected by the Maternity Allowances Act 1912 were invalid, although doubts were expressed by some witnesses as to whether any person or State would have standing to attack the constitutionality of a statute appropriating money for a purpose outside the legislative competence of Parliament. Report 11 ff. The members of the Commission stated that in their opinion it would be calamitous for the Common-wealth Government to introduce a scheme of child endowment unless the validity of the necessary legislation was beyond dispute, which it clearly was not. Report 14.

20 During the debate on the Child Endowment Bill 1941 Mr H. E. Holt,then Minister for Labour and National Service,sought to avoid the constitutional problem,at least temporarily,by offering the opinion that the Bill could be supported during wartime by the defence power (s.51(vi)). Common-wealth Parliamentary Debates, 2 April 1941, vol.166, 526-527.

21 Common-wealth Parliamentary Debates, 1 October 1942, vol. 172, 1338-1341.

22 Id., 1338. The Bill introduced a novel conception into Australian constitutional theory,in that it empowered the Common-wealth Parliament to enact any law which in its own declared opinion would tend to achieve economic security and social justice. The avowed purpose of this proposal was to make Parliament and not the High Court responsible for determining the extent of its powers: Id., 1341.

23 Common-wealth Parliamentary Debates, 8 October 1942, vol. 172, 1514-1515.The Convention met from 24 November 1942 to 2 December 1942.

24 Record of Convention Proceedings (1942) 144-145.

25 See Kewley, supra n. 4, 180-183, G. Sawer, Australian Federal Politics and Law 1928-1949 (1962) 140, 171-172. For the terms of the proposed legislation (the Common-wealth Powers Bill 1942) see Record of Convention Proceedings (1942) 152-154.

26 Common-wealth Parliamentary Debates, 11 February 1944, vol. 177, 136 ff.

27 (1945) 71 C.L.R. 237.Latham C.J., Rich, Starke, Dixon and Williams JJ., McTiernan J.dissenting.

28 For a discussion of the case see E. Campbell, supra n. 13, 446-451.

29 Mr P. D. Phillips K.C. (as he then was) was leading counsel for the Attorney-General of Victoria in the Pharmaceutical Benefits Case. For his account of the case see Phillips, “Federalism and the Provision of Social Services” in Hancock (ed.), The National Income and Social Welfare (1965).

30 Latham C.J.,Dixon and Rich JJ.(who agreed with Dixon J.).

31 (1945) 71 C.L.R. 237, 258.The High Court also held that the Attorney-General of a State had sufficient standing to challenge the validity of Commonwealth legislation operating within the State whose interests he represented: id., 246-248 (Latham C.J.), 266 (Starke J.), 272-273 (Dixon J.),277-279 (Williams J.).

32 (1945)71 C.L.R. 237,253-254.

33 Id., 251.

34 Id., 254.

35 Id., 256-258.

36 Id., 273-274.

37 Id., 266 per Starke J., quoting from Harrison Moore, Constitution of the Common-wealth of Australia (2nd ed.1910) 523; id., 281-282 per Williams J.

38 Id., 281-282.

39 With whom Rich J. expressed “substantial agreement”. It is not clear whether Rich J. intended to agree with all

40 (1945) 71 C.L.R. 237, 270.

41 Id., 271-272.

42 The orthodox view in Australia is that “a citizen has no standing to challenge legislation or executive action for unconstitutionality unless his rights or liabilities are affected by the action impugned” E. Campbell, supra n. 13, 452. On the other hand, “a State Attorney-General may sue to challenge the constitutionality of any federal action which affects his public and … his standing does not depend upon proof that the federal action will in any way affect the legal powers of the State” id., 451.

43 See L. Zines, “Sir Owen Dixon's Theory of Federalism” (1965) F.L.Rev. 221;R. Sackville, “The Doctrine of Immunity of Instrumentalities in the United States and Australia: A Comparative Analysis” (1969) 7 M.U.L.R. 15, 16-18, 46 ff.

44 The term is used by L. Bickel, The Least Dangerous Branch (1962) 16.

45 Infra nn. 48-51.

46 South Australia v. Common-wealth (1942) 65 C.L.R. 373.

47 Of course certain social welfare measures in force in 1945 rested upon specific heads of Commonwealth power.For example the Invalid and Old-age Pensions Act 1908-1943 was supported by the power in s.51(xxiii) to make laws with respect to invalid and old-age pensions.Portions of the Re-establishment and Employment Act 1945 were referable to the defence power in s. 51(vi).

48 The counsel were Sir Robert Garran, Dr E. G. Coppel and Messrs Maughan, Barwick and Ham.

49 The opinions as to each Act are set out in tabular form in Dr Evatt's speech moving the second reading of the Constitution Alteration (Social Services) Bill 1946: Commonwealth Parliamentary Debates, 27 March 1946, vol. 186, 648.

50 Maternity Allowance Act 1912-1944; Child Endowment Act 1941-1945; Widows' Pensions Act 1924-1943; Unemployment and Sickness Benefit Act 1944.

51 Science and Industry Research Act 1920-1939; Education Act 1945; Hospital Benefits Act 1945; Reestablishment and Employment Act 1945; Medical Research Endowment Act 1937; National Fitness Act 1941.

52 The words in parentheses were introduced to the Bill as an amendment moved by the Leader of the Opposition, Mr R. G. Menzies.Common-wealth Parliamentary Debates, 10 April 1946, vol. 186, 1214-1215. The amendment was designed to remove the risk of the Common-wealth nationalizing medical and dental services. See Common-wealth Parliamentary Debates, 27 March 1946, vol.186, 648-649; 3 April 1946, vol. 186, 899-900. Although the Opposition did not vote against the measure, Menzies expressed doubts as to whether unemployment and sickness benefits, hospital services and medical and dental services should have been included in the Bill, instead of being dealt with through an expansion or clarification of the Common-wealth's insurance power unders. 51(xiv) of the Constitution: vol. 186, 899.

53 Sawer, Australian Federal Politics and Law 1929-1949 (1963) 191.

54 British Medical Association v. Common-wealth (1949) 79 C.L.R. 201, 280 per McTiernan J.

55 The Social Services Consolidation Act 1947 consolidated all the Common-wealth legislation relating to age,invalid and widows' pensions, maternity allowance,child endowment and unemployment and sickness benefits. The Act implemented a recommendation of the Common-wealth Joint Parliamentary Committee on Social Security.See T. H.Kewley, supra n. 4, 185-186 and 176 ff. The Social Services Act1947-1973 now serves as the basis for the distribution and administration of Common-wealth Social Services benefits.

56 Of course the Common-wealth does provide in fact many of the benefits referred to in the text.The object is to consider the kind of benefits that could be provided if the power in s.51(xxiiiA) were fully utilized.

57 British Medical Association v. Common-wealth (1949) 79 C.L.R. 201, 261 per Dixon J.

58 Provided that the scheme does not authorize “any form of civil conscription”in contravention of s. 51(xxiiiA). It should be noted that the text is concerned with Common-wealth power to implement social welfare measures within the States.The Common-wealth has plenary power under s.122 of the Constitution to legislate for the Territories in the field of social services.

59 British Medical Association v. Common-wealth (1949) 79 C.L.R. 201,261 per Dixon J. Under the current subsidized medical benefits scheme contributions to hospitals and medical funds by low income families are subsidized by the Common-wealth:National Health Act 1953-1971,Pt. VI, Div.3.Of course,the report of the Health Insurance Planning Committee (1973) recommends a National Health Scheme that would replace the existing Scheme.

60 In British Medical Association v. Common-wealth (1949) 79 C.L.R. 201, 229-230, Latham C.J. considered that items such as eye droppers, insulin syringes and bandages could not be described as drugs or medicines and thus were not pharmaceutical in character, but could be regarded as sickness benefits.

61 Supra n. 24.

62 Common-wealth Parliamentary Debates, 11 February 1944, vol. 177, 151-152;Kewley, supra n. 4,181-182.

63 By the Social Services Act (No. 8) 1973 the Common-wealth introduced a Supporting Mothers' Benefit which applies (subject to a means test and certain other restrictions) in favour of a woman,whether married or unmarried, who has the custody of a child who has attained the age of six months.Thus single mothers are now eligible for a Common-wealth pension. As to the previous position see R.Sackville, “Social Welfare for Fatherless Families in Australia” (1972) 46 A.L.J. 607;(1973) 47 A.L.J. 5-10.

64 (1949) 79 C.L.R. 201.

65 Id., 229-230.

66 Id., 240 per Latham C.J.

67 Except Williams J.who offered no opinion on this point.

68 (1949) 79 C.L.R. 201, 242-243 (Latham C.J.), 254 (Rich J.), 260(Dixon J.),279 (McTiernan J.),292 (Webb J.).

69 Id., 260.

70 Ibid.

71 Supra n. 52.

72 The Chief Justice interpreted the qualification as limiting all powers conferred on the Common-wealth bys.51(xxiliA).Thus, although he regarded s.7A as a law with respect to the provision of pharmaceutical benefits (and not the provision of medical services),he considered the civil conscription prohibition applicable to the section.Dixon J.also regarded s.7A as a law with respect to the provision of pharmaceutical benefits.He differed from the Chief Justice in holding that the prohibition qualified only the power to provide medical and dental services.Nevertheless, for reasons that are far from clear, he concluded that s.7A would be unconstitutional if it imposed any form of civil conscriptionon the medical profession. McTiernan J. decided that s.7A was a law with respect to the provision of pharmaceutical benefits and therefore wasnot subject to the civil conscription prohibition. Neither Webb J. nor Williams J.expressed a concluded view on this question.They apparently considered that whenever medical or dental services are rendered, whether or not in the course of providing pharmaceutical or other benefits, thelawmust not authorize any form of civil conscription of such services.

73 (1949) 79 C.L.R. 201, 249 per Latham C.J.

74 Id., 290.

75 McTiernan J. expressed a similar opinion on this point: id., 283-284.

76 Id., 278.

77 Id., 259.

78 The service could be justified for certain beneficiaries by other Common-wealth powers.For example the defence power would authorize rehabilitation services for ex-servicemen and undoubtedly the Common-wealth could provide rehabilitation facilities for injured Common-wealth employees.