Gavin R. Putland,  BE PhD

Thursday, February 07, 2013 (Comment)

Abbott's constitutional own-goal

Tony Abbott says “it would be unconstitutional to civilly conscript public servants”. The only reference to civil conscription in the Constitution is in s.51(xxiiiA), by which the Federal Parliament can legislate with respect to “...medical and dental services (but not so as to authorize any form of civil conscription)”.

So Mr Abbott evidently believes that the protection against civil conscription is not limited to doctors and dentists. I agree. The more likely interpretation of the parenthesized words is that they uphold a more general implied prohibition of civil conscription, but are included in connection with medical and dental services because these are the only items in s.51(xxiiiA) for which the possibility of civil conscription might otherwise arise. That interpretation would agree with the opinion of Justice Murphy in General Practitioners Society v. Commonwealth (145 CLR 532, 1980).

But if Mr Abbott is right, how can it be constitutional to civilly conscript business operators to collect GST from their customers, or personal income tax from their employees? Clearly it can't — at least if the conscripts are not compensated for the breach.

[Letter rejected by the Age; submitted Feb.7, 2013; posted here Feb.10, 2013. See also “Whether Section 82 of the Australian Constitution means what it says” and “Is the GST unconstitutional?”]

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