H0SPITALSPOWER OF COMMONWEALTH PARLIAMENT TO LEGISLATE TO ESTABLISH HOSPITALS FOR EX-SERVICEMEN: SCOPE OF DEFENCE POWER
CONSTITUTION ss 51(vi), 109
I refer to your request for information as to the constitutional position of the Commonwealth in connexion with the establishment of hospitals for the reception and treatment of mentally afflicted ex-servicemen.
Your question is, in effect, whether the Commonwealth Parliament has constitutional power to provide for the establishment of such hospitals notwithstanding that the provisions of any Commonwealth law on the matter may conflict with State laws dealing with mentally afflicted persons.
In my opinion, the answer to this question is in the affirmative. The defence power of the Commonwealth would clearly be wide enough to cover such legislation, even in time of peace, and it is therefore not necessary to consider other possible powers. By virtue of section 109 of the Constitution, Commonwealth legislation providing for such hospitals would override any inconsistent State legislation.
I have not considered it necessary to deal at any length with the question whether the Commonwealth would have an unfettered discretion as to the choice of sites. It is sufficient for me to say that this is a matter which could, I think, be provided for by suitable words in the Commonwealth Act authorising the establishment of the hospitals.
[Vol. 38, p. 213]